Provisional Unlawful Presence Waivers

Since March 4, 2013, certain immigrant visa applicants who are immediate relatives (spouses, children and parents) of U.S. citizens can apply for provisional unlawful presence waivers before they leave the United States for their consular interview. On August 29, 2016, the provisional unlawful presence waiver process was expanded to all individuals statutorily eligible for an immigrant visa and a waiver of inadmissibility for unlawful presence in the United States.

Noncitizens who are not eligible to adjust their status in the United States must travel abroad and obtain an immigrant visa. Individuals who have accrued more than 180 days of unlawful presence while in the United States must obtain a waiver of inadmissibility to overcome the unlawful presence bars under section 212(a)(9)(B) of the Immigration and Nationality Act before they can return. Typically, noncitizens cannot apply for a waiver until after they have appeared for their immigrant visa interview abroad, and a Department of State (DOS) consular officer has determined that they are inadmissible to the United States.

The provisional unlawful presence waiver process allows those individuals who are statutorily eligible for an immigrant visa (immediate relatives, family-sponsored or employment-based immigrants as well as Diversity Visa selectees); who only need a waiver of inadmissibility for unlawful presence to apply for that waiver in the United States before they depart for their immigrant visa interview.

This new process was developed to shorten the time that U.S. citizens and lawful permanent resident family members are separated from their relatives while those relatives are obtaining immigrant visas to become lawful permanent residents of the United States.

The expansion of the provisional unlawful presence waiver process does not affect the continued availability of the Form I-601 process: Individuals who do not wish to seek or do not qualify for a provisional unlawful presence waiver can still file Form I-601, Application for Waiver of Grounds of Inadmissibility, after a DOS consular officer determines that they are inadmissible to the United States.

Eligibility Requirements

To be eligible for a provisional unlawful presence waiver, you must meet ALL of the following conditions:

• Be physically present in the United States to file your application and provide biometrics.
• Be 17 years of age or older.
• Be in the process of obtaining your immigrant visa and have an immigrant visa case pending with Department of State (DOS) because you:
• Are the principal beneficiary of an approved Form I-130, Petition for Alien Relative; an approved Form I-140, Petition for Alien Worker; or an approved Form I-360, Petition for Amerasian, Widow(er), or Special Immigrant who has paid the immigrant visa processing fee;
• Have been selected by DOS to participate in the Diversity Visa (DV) Program (that is, you are a DV Program selectee);
• Are the spouse or child of a principal beneficiary of an approved immigrant visa petition who has paid the immigrant visa processing fee to DOS; or
• Are the spouse or child of a DV Program selectee (that is, you are a DV Program derivative)
• Be able to demonstrate that refusal of your admission to the United States will cause extreme hardship to your U.S. citizen or Legal Permanent Resident spouse or parent.
• Believe you are or will be inadmissible only because of a period of unlawful presence in the United States that was:
• More than 180 days, but less than 1 year, during a single stay (INA section 212(a)(9)(B)(i)(I)); or
• 1 year or more during a single stay (INA section 212(a)(9)(B)(i)(II)).
• Meet all other requirements for the provisional unlawful presence waiver, as detailed in 8 CFR 212.7(e) and the Form I-601A and its instructions.

You are not eligible for a provisional unlawful presence waiver if any of the following conditions apply to you:

• You do not meet all of the conditions listed under eligibility mentioned above.
• You are in removal proceedings that have not been administratively closed.
• At the time of filing, you are in removal proceedings that have been administratively closed but have been placed back on the Executive Office for Immigration Review (EOIR) calendar to continue your removal proceedings.
• You have a final order of removal, exclusion, or deportation (including an in absentia order of removal under INA 240(b)(5)). If you have a final order of removal, exclusion, or deportation, you can only seek a provisional unlawful presence waiver if you have applied for, and we have already approved Form I-212, Application for Permission to Reapply for Admission into the United States After Deportation or Removal at the time you file the Form I-601A. (Expanded Provisional Waiver)
• You do not meet one or more of the requirements outlined in the Form I-601A and its instructions.