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Unlawful Presence Waivers

Recently, the United States established a procedure whereby certain immigrants who are (or were) unlawfully present in the United States, may remain in the United States while an application by an immediate relative is being processed on their behalf, in order to obtain the Lawful Permanent Residence (aka “Green Card”).    This page provides some basic FAQ-type information, to provide you an overview of whether or not you, or someone you know, may qualify for a Provisional Unlawful Presence Waiver.

Background Information:

Currently certain immediate relatives must travel abroad to obtain an immigrant visa from the Department of State (DOS) before they can return to the United States and be admitted as lawful permanent residents. In many cases, these immediate relatives also must request a waiver of inadmissibility of their unlawful presence in the United States. As a result, these immediate relatives must remain outside of the United States, separated from their U.S. citizen spouses, parents, or children, while U.S. Citizenship and Immigration Services (USCIS) adjudicates their waiver applications. In some cases, waiver application processing can be lengthy, prolonging the separation of these immediate relatives from their U.S. citizen spouses, parents, and children.
USCIS anticipates that this new provisional unlawful presence waiver process will significantly reduce the time that U.S. citizens are separated from their immediate relatives. USCIS approval of a provisional unlawful presence waiver prior to departure also will allow the DOS consular officer to issue an immigrant visa without delay, as long as there are no other grounds of inadmissibility and the immediate relative is otherwise eligible for an immigrant visa. Individuals who may be inadmissible on any other grounds of inadmissibility are not eligible for the provisional unlawful presence waiver process.

How do I know if I am eligible for a provisional unlawful presence waiver?
You may be eligible for a provisional unlawful presence waiver if:
1. You are physically present in the United States;
2. You are at least 17 years of age at the time of filing;
3. You are the beneficiary of an approved immigrant visa petition classifying you as the immediate relative of a U.S. citizen;
4. You have an immigrant visa case pending with the U.S. Department of State (DOS), for which you have already paid the immigrant visa processing fee; and
5. You believe you are, or will be at the time of the immigrant visa interview, inadmissible based on having accrued a certain period of unlawful presence in the United States.
6. You meet all other requirements of the provisional unlawful presence waiver as listed in the regulations, the Form I-601A and its instructions.

How do I know if I am not eligible for a provisional unlawful presence waiver?
You are not eligible for a provisional unlawful presence waiver, and your application will be rejected or denied, if:
1. You do not meet one or more of the requirements listed above;
2. You have a pending Form I-485, Application to Register Permanent Residence or Adjust Status, with USCIS;
3. You are in removal proceedings unless your removal proceedings are administratively closed and have not been re-calendared as of the date of filing of the I-601A;
4. You have been ordered removed, excluded, or deported from the United States;
5. You are subject to reinstatement of a prior removal order;
6. DOS acted to schedule your immigrant visa interview prior to January 3, 2013, even if you failed to appear or you or DOS cancelled or rescheduled the interview on or after January 3, 2013.
7. You do not establish that the refusal of your admission to the United States would result in extreme hardship to your U.S. citizen spouse or parent, or that your application should be approved as a matter of discretion;
8. USCIS has reason to believe that DOS may find you inadmissible at the time of your immigrant visa interview for grounds other than unlawful presence.

 

To apply for a provisional unlawful presence waiver you must file a Form I-601A, Application for Provisional Unlawful Presence Waiver. Make sure your application is complete, signed, and submitted with the correct application and biometric fees.

After your provisional unlawful presence waiver is approved, you will need to depart the United States and attend your immigrant visa interview at the designated U.S. Embassy or consulate abroad. If you fail to depart and attend your immigrant visa interview, the provisional unlawful presence waiver will not take effect and the approval may no longer be valid.   If USCIS denies your request for a provisional unlawful presence waiver, you cannot file an appeal or a motion to reopen or reconsider the denial.

IMPORTANT:

The filing or approval of a provisional unlawful presence waiver will not affect an individual’s current immigration status in the United States.

A pending or approved provisional waiver also will NOT:
1. Provide interim benefits such as employment authorization or advance parole;
2. Provide lawful status;
3. Stop the accrual of unlawful presence;
4. Provide protection from removal;
5. Remove the requirement to depart the United States to seek an immigrant visa; or
6. Guarantee immigrant visa issuance or admission to the United States.