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What is the New Unlawful Presence Provisional Waiver? Am I Eligible and does it Help me?

Posted by attorney Elliot Yi

NEW I-601A Unlawful Presence Provisional Waiver Process:

When an immediate relative petitions for a qualifying relative who is in unlawful status in the U.S., that qualifying relative must leave the country and request a visa from the consulate of their country of origin. In order to be granted a green card however, the relative must receive a waiver from USCIS which excuses their unlawful presence that accrued before leaving the country.

Beginning March 4, 2013, immediate relatives (spouses, children, parents of U.S. citizens) could apply for provisional waivers before ever leaving the U.S. This process allows those individuals whose inadmissibility is based on unlawful presence, to apply for a waiver within the U.S. ("stateside") before leaving the country to attend their visa interview abroad. Essentially, the individual is allowed to waive their unlawful presence and start fresh by being allowed to reenter the country without being subject to the 3 or 10 year bar rule depending on the duration of their single stay of unlawful presence in the U.S.

How the law worked previously:

The I-601 waiver process before this new I-601A (stateside) waiver process, required the individual to attend a visa interview at the consulate overseas before they could apply for this waiver process. The I-601 waiver process presented a risky proposition for individuals who traveled overseas and triggered the time bar, without receiving assurances before leaving that they would be allowed to reenter after their visa interview. The new stateside waiver is aimed at shortening a family's wait time while the applicant is overseas to attend their visa interview. Thus, the chance of having a waiver approved before ever leaving the country is a great relief for applicants who apply.

Are you eligible for the New Waiver Process?:

  • You must be physically present in the U.S.

  • You must be at least 17 years of age at the time you file the waiver

  • You must be the beneficiary of an approved petition classifying you as the immediate relative of a U.S. citizen

  • You must have an immigrant visa case pending with the Department of State

  • You must believe you are inadmissible only based on your unlawful presence in the U.S. because you have been in the U.S. for more than 180 days but less than a year during a single stay, or more than a year during a single stay.

Please note that there are a number of other requirements necessary to establish eligibility, including meeting the high standard of proving that your departure will result in extreme hardship to your spouse. Thus, seeking the advice of an immigration attorney may be well worth your time before starting this process.

Disclaimer: The preceding information is for general informational purposes only and does not constitute legal advice. Nothing stated above creates a lawyer-client relationship.

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