Provisional Unlawful Presence Waivers
As of March 4, 2013, certain immigrant visa applicants who are spouses and children of U.S. citizens (immediate relatives) have been able to apply for provisional unlawful presence waivers before they leave the United States. The provisional unlawful presence waiver process allows individuals, who only need a waiver of inadmissibility for unlawful presence, to apply for a waiver in the United States before they depart for their immigrant visa interviews at a U.S. embassy or consulate abroad.
The new process is expected to shorten the time U.S. citizens are separated from their immediate relatives while those family members are obtaining immigrant visas to become lawful permanent residents of the United States.
What You Need to Know
The new provisional unlawful presence waiver process does not change the immigrant visa process. Even if your provisional unlawful presence waiver is approved, you are still required to depart the United States for your immigrant visa interview with a U.S. consular officer abroad.
If a provisional unlawful presence waiver is approved, it will only take effect after:
DOS may cancel your immigrant visa application process if you fail to appear at your interview.
To be eligible for a provisional unlawful presence waiver you must fulfill ALL of the following conditions:
You are not eligible for a provisional unlawful presence waiver if any of the following conditions apply to you:
Note: The date and time that you are scheduled to appear for your immigrant visa interview at the designated U.S. Embassy or Consulate is not the date USCIS will use to determine if you are eligible to file a Form I-601A. If DOS initially acted before January 3, 2013, to schedule your immigrant visa interview, you are not eligible to file a Form I-601A, even if you failed to appear for your interview or if you or DOS cancelled or rescheduled your interview for a date on or after January 3, 2013.
As of March 4, 2013, certain immigrant visa applicants who are spouses and children of U.S. citizens (immediate relatives) have been able to apply for provisional unlawful presence waivers before they leave the United States. The provisional unlawful presence waiver process allows individuals, who only need a waiver of inadmissibility for unlawful presence, to apply for a waiver in the United States before they depart for their immigrant visa interviews at a U.S. embassy or consulate abroad.
The new process is expected to shorten the time U.S. citizens are separated from their immediate relatives while those family members are obtaining immigrant visas to become lawful permanent residents of the United States.
What You Need to Know
The new provisional unlawful presence waiver process does not change the immigrant visa process. Even if your provisional unlawful presence waiver is approved, you are still required to depart the United States for your immigrant visa interview with a U.S. consular officer abroad.
If a provisional unlawful presence waiver is approved, it will only take effect after:
- You depart the United States and appear for your immigrant visa interview, and
- A DOS consular officer determines that you are otherwise admissible to the United States and eligible to receive an immigrant visa.
DOS may cancel your immigrant visa application process if you fail to appear at your interview.
To be eligible for a provisional unlawful presence waiver you must fulfill ALL of the following conditions:
- Be 17 years of age or older.
- Be an immediate relative of a U.S. citizen (not a preference category immigrant who has a visa available). An immediate relative is an individual who is the spouse or child of a U.S. citizen.
- Have an approved Form I-130, Petition for Alien Relative, or Form I-360, Petition for Amerasian, Widow(er), or Special Immigrant.
- Have a pending immigrant visa case with DOS for the approved immediate relative petition and have paid the DOS immigrant visa processing fee.
- Be able to demonstrate that refusal of your admission to the United States will cause extreme hardship to your U.S. citizen spouse or parent.
- Be physically present in the United States to file your application for a provisional unlawful presence waiver and provide biometrics.
- Not have been scheduled for an immigrant visa interview by DOS before January 3, 2013.
- 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 are subject to one or more grounds of inadmissibility other than unlawful presence.
- DOS initially acted before January 3, 2013, to schedule your Immigrant Visa (IV) interview for the approved immediate relative petition upon which your provisional unlawful presence waiver application is based, even if your immigrant visa interview has been canceled, you failed to appear for the interview, or your interview was rescheduled on or after Jan. 3, 2013.
Note: The date and time that you are scheduled to appear for your immigrant visa interview at the designated U.S. Embassy or Consulate is not the date USCIS will use to determine if you are eligible to file a Form I-601A. If DOS initially acted before January 3, 2013, to schedule your immigrant visa interview, you are not eligible to file a Form I-601A, even if you failed to appear for your interview or if you or DOS cancelled or rescheduled your interview for a date on or after January 3, 2013.