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Proposed Provisional Unlawful Presence Waivers

Posted by attorney Joseph Cella

Currently, immediate relatives of U.S. citizens who have accrued a certain period of unlawful presence in the United States are barred from returning to the United States for as long as 3 or 10 years if they voluntarily depart the United States, even if they have been issued a travel document.

However, such indivduals may obtain a waiver of the unlawful presence bar if they show that a U.S. citizen spouse or parent will experience extreme hardship if they are required to remain outside the United States. The alien would have to show that he or she warrants a favorable exercise of discretion. But presently, in order to obtain an "unlawful presence waiver", such individuals must depart the United States and wait abroad while the waiver is processed, which in some cases can take more than one year. The proposed process change lessens the length of separation by reducing inefficiencies in the current immigrant visa process by streamlining the immigrant visa process for immediate relatives whose only ground of inadmissibility is unlawful presence. Specifically, USCIS plans to adjudicate the provisional waiver application in the United States before the immediate relative departs the United States for his or her immigrant visa interview, which will reduce the length of time immediate relatives must spend abroad for consular processing.

On March 30, 2012, U.S. Citizenship and Immigration Services (USCIS) posted a Notice of Proposed Rulemaking (NPRM) in the Federal Register requesting public comment on its plan to create an alternative process for certain immediate relatives of U.S. citizens to apply for and receive a provisional waiver of the unlawful presence ground of inadmissibility while still in the United States, if they can demonstrate that being separated from their U.S. citizen spouse or parent would cause that U.S. citizen relative extreme hardship. The goal of the proposed process change is to reduce the time that U.S. citizens are separated from their immediate relatives while those family members go through the consular process overseas to obtain an immigrant visa.

Procedurally, under the proposed process immediate relatives of U.S. citizens who would need an unlawful presence waiver in order to obtain an immigrant visa could file a new Form I-601A, Application for Provisional Unlawful Presence Waiver, before leaving the United States to obtain an immigrant visa at a U.S. Embassy or Consulate abroad, and could wait for the decision while in the UNited States. All individuals eligible for this streamlined process are still required to depart the United States and must meet all legal requirements for issuance of an immigrant visa and admission to the United States. Requirements For Provisional Unlawful Presence Waiver are that the alien:

  1. Is physically present in the United States;
  2. Is at least 17 years of age;
  3. Is the beneficiary of an approved immigrant visa petition (I-130) classifying him or her as an immediate relative of a U.S. citizen;
  4. Is actively pursuing the immigrant visa process and has already paid the Department of State immigrant visa processing fee;
  5. Is not subject to any other grounds of inadmissibility other than unlawful presence; and
  6. Can demonstrate that the refusal of admission would result in extreme hardship to a U.S. citizen spouse or parent.

An immediate relative would not be eligible for the proposed process if he or she:

  1. Has an application already pending with USCIS for adjustment of status to lawful permanent resident;
  2. Is subject to a final order of removal or reinstatement of a prior removal order;
  3. May be found inadmissible at the time of the consular interview for reasons other than unlawful presence; or
  4. Has already been scheduled for an immigrant visa interview at a U.S. Embassy or Consulate abroad.

USCIS predicts that allowing immediate relatives of U.S. citizens to receive provisional waivers in the United States before departure for their immigrant visa interview at a U.S. Embassy or Consulate means that:

  1. Immigrant visa processing times will improve because of greater capacity in the United States and fewer case transfers between USCIS and the Department of State;
  2. Immigrant visas will be issued without unnecessary delay (if the individual is otherwise eligible); and
  3. The period of separation and hardship many U.S. citizens would face due to prolonged separation from their family members will be minimized.


  • This new process will be implemented after USCIS publishes a final rule in the Federal Register with an effective date, and until then, The current waiver process remains in place and will continue to remain for those who may not be eligible for a provisional waiver.

  • Any applications a provisional waiver filed with USCIS will be rejected and the application package returned to the applicant, including any fees, until the final rule is issued and the change becomes effective.

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