I-601A Waiver Attorney: Provisional Unlawful Presence Waiver Process FAQs

1. What is the traditional waiver process?
2. What is the Provisional Unlawful Presence Waiver and how can it affect me and my family?
3. Do I have to depart the U.S. under the new process?
4. Why does USCIS refer to the waiver as "provisional?"
5. Is the new process effective immediately? Can I file my provisional waiver application right now?
6. Who is eligible to apply for a provisional waiver in the United States?
7. Can parents of U.S. citizens apply for the waiver and prove extreme hardship to their U.S. citizen children?
8. Does the provisional waiver apply to any grounds of inadmissibility other than unlawful presence (e.g. criminal grounds of inadmissibility, medical, fraud or misrepresentation, false claims to U.S. citizenship, permanent bar, etc.)?
9. Under the new provisional waiver rules, do I still need to prove "extreme hardship"?
10. Is it sufficient to prove “extreme hardship” to my lawful permanent resident (LPR) spouse or parent?
11. Who is not eligible to apply for a provisional waiver in the United States?
12. May I apply for a provisional waiver if I am in removal proceedings?
13. Can I apply for a provisional wavier if my removal proceedings have been terminated or dismissed or if my Notice to Appear (NTA) has been canceled?
14. What does it mean that USCIS has “reason to believe” that the applicant may be subject to any other grounds of inadmissibility other than unlawful presence?
15. What is the procedure for applying for a provisional waiver under the new process?
16. Do I need to notify National Visa Center or Consular Post that I would like to apply for Provisional Waiver? What is the process?
17. How do I notify the NVC?
18. What happens if I forget to notify the NVC?
19. If an immigrant visa appointment has been scheduled, may I apply for the provisional waiver?
20. Are there circumstances when you can apply for a provisional waiver if your immigrant visa appointment was scheduled before January 3, 2013?
21. Where should I file my I-601A provisional waiver application?
22. Is it possible to waive the biometrics or filing fees for an I-601A waiver application?
23. How long it takes to process an I-601 waiver?
24. Is premium process available for an I-601A waiver?
25. When will this new rule takes effect?
26. Will the termination of my conditional Lawful Permanent Resident (LPR) status affect my I-601A waiver validity?
27. If the I-601A waiver is approved, does that mean I have a legal status to stay in the United States?
28. If my provisional waiver application is approved, does it mean that I will get my immigrant visa once I depart the U.S.?
29. What should I do if my I-601A waiver application is approved during removal proceeding?
30. What if my I-601A waiver is denied?
31. Can I file another new I-601A waiver application, if my prior I-601A waiver request is denied?
32. What will happen to me if my provisional waiver application is denied or withdrawn? Will I be placed in removal proceedings?
33. Can I leave the United States before biometrics collection?
34. Can I reenter the U.S. before or after the provisional waiver is granted but before the immigrant visa is issued?
35. Do I need an attorney to apply for a provisional unlawful presence waiver?

On January 3, 2013, The Department of Homeland Security (DHS) published a new unlawful presence waiver’s rule, which allows certain immediate relatives of the U.S. citizens who are physically present in the United States to request provisional unlawful presence waivers prior to departing from the United States for consular processing of their immigration visa applications.

For your better understanding, we will present the new rule in a set of straightforward Frequently Asked Questions (FAQs), which explains many of the complications involved in the new provisional waiver process:

Under current law, immediate relatives of U.S. citizens who are not eligible to adjust status in the United States to become lawful permanent residents (e.g. individuals who have entered the U.S. illegally) must leave the U.S. and obtain an immigrant visa abroad. However, departing the U.S. even to complete immigrant visa process will automatically make the intending immigrant subject to the unlawful presence bar for up to ten years if the intending immigrant has been unlawfully present in the U.S. for than 180 days. Unlawful presence bar means that depending on the length of time the alien spent in the U.S. in unlawful status, the alien may be barred from coming back to the U.S. for up to ten years.

Individuals who have accrued more than six months of unlawful presence while in the United States must obtain a waiver before they can obtain an immigrant visa and return to the United States.

Under the existing waiver process, which remains available to those who do not qualify for the new provisional waiver process, immediate relatives cannot file a waiver application until after they have appeared for an immigrant visa interview abroad and the consular office has determined that they are inadmissible. Under the existing process, immediate relatives of U.S. citizens must remain outside of the United States while their waiver application is adjudicated. Individuals have to spend months or even years waiting for adjudication of their waiver cases separated from their families in the U.S. Current process imposes so much hardships on families of U.S. citizens that many are reluctant to undergo the process, thus leaving their alien family members without any lawful status in the U.S.

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The new rule is designed to reduce the length of time U.S. citizens are separated from their immediate relatives who engage in consular processing abroad. The new rule means that many immigrants will leave the United States, knowing in advance that their case will most likely be approved, and they could be reunited with their families in the U.S. in a matter of days as opposed to years.

Under the new provisional waiver process, immediate relatives must still depart the United States for the consular immigrant visa process. However, under the new process, eligible immediate relatives can obtain their waivers while they are still in the United States before they leave to attend their immigrant visa interview abroad reducing the time in separation from their families from several months or even years to only a few days.

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Yes, you would still need to depart the U.S. and appear for your immigrant visa interview after your provisional unlawful presence waiver is approved.

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USCIS refers to the waiver as “provisional” because it will not take effect until the alien departs the U.S., appears for his or her immigrant visa interview, and is determined by the DOS consular officer to be otherwise admissible to the United States.

As a practical matter, this means that the waiver is granted based on the facts available to USCIS at the time of waiver adjudication, but there is no guarantee that a case will be successful if the consular officer determines at the time of immigrant visa interview that the facts have changed or new information have come to light, or if other grounds of inadmissibility apply (e.g. criminal grounds, medical grounds, if an applicant had previous immigration violations, etc). If new issues arise, the alien may need to re-apply for a waiver using the traditional process while outside the U.S.

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No, the new waiver application process is not yet in effect. Eligible individuals will be able to apply for a Provisional Unlawful Presence Waiver starting March 4, 2013. USCIS will provide instructions on the application process in the coming weeks. We will provide further updates on the process once they become available.

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In order to be able to apply for a Provisional Unlawful Presence Waiver, the applicant must be:

1. at least 17 years old;
2. an immediate relative of a U.S. citizen (NOTE: the term “immediate relatives” includes spouse, parents and children);
3. present in the United States at the time of filing the application for a provisional presence waiver and for biometrics collection;
4. upon departure, would be inadmissible only under section 212(a)(9)(B)(i) of the Act (i.e. would subject only to the 3- or 10-year bars of inadmissibility for unlawful presence in excess of 180 days);
5. is the beneficiary of an approved immediate relative petition (Form I-130 or I-360);
6. has a case pending with the Department of State based on the approved immediate
7. relative petition and has paid the immigrant visa processing fee as evidenced by a State Department Visa Processing Fee Receipt;
8. will depart from the United States to obtain the immediate relative immigrant visa; and
9. must be able to demonstrate “extreme hardship” to his or her U.S. citizen spouse or parent.

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No. The regulation states that immediate relatives of U.S. citizens may apply for a provisional waiver. Since immediate relatives include spouses, parents and children, the regulation has created a lot of confusion as many think that parents of U.S. citizens who entered the U.S. illegally and overstayed over 6 months may apply for a provisional waiver proving hardship to their U.S. citizen children. Unfortunately, this is not the case. Under the new rule, you have to show extreme hardship to either your U.S. citizen spouse or parent.

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No, the new process is available if your only ground of inadmissibility is unlawful presence. During the immigrant visa interview, the consular officer will make the finding of inadmissibility based on unlawful presence and apply the provisional waiver.

However, if the consular officer determines at your immigrant visa interview that you have other ineligibilities (grounds of inadmissibility or are otherwise not eligible for the visa) beyond unlawful presence, the USCIS approved provisional waiver is automatically revoked.

If the consular officer determines that other grounds of inadmissibility are found (e.g. criminal grounds of inadmissibility, medical grounds, fraud or misrepresentation bars, permanent bar, etc.), then the individual would need to submit another waiver application, if eligible, while abroad and wait for its adjudication while outside of the U.S.

If you unsure what grounds of inadmissibility may apply to you, consult with an experienced immigration attorney before applying.

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Yes, “extreme hardship” standard has not changed. Thus, you will still need to prove that your inadmissibility would cause your U.S. citizen spouse or parent extreme hardship.

Those individuals who cannot establish extreme hardship to a U.S. citizen spouse or parent but can establish extreme hardship to a lawful permanent resident spouse or parent can still obtain a waiver through the current I-601 process, after their immigrant visa interview with a Department of State consular officer abroad.

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No, the final rule on provisional waivers only allows individuals to prove hardship to their U.S. citizen spouse or parent, but not to LPRs.

USCIS has acknowledged that after implementation of the initial process, USCIS will assess its operational constraints and resources and will consider expanding the program to other categories, including immediate relatives of Lawful Permanent Residents (LPR). We will provide further updates once more information becomes available.

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