Provisional Unlawful Presence Waivers

Certain immigrant visa applicants who are spouses, children and parents of U.S. citizens (immediate relatives) can 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 and before they    depart for their immigrant visa interviews at a U.S. embassy or consulate abroad.This process shortens 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 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:

1. You depart the United States and appear for your immigrant visa interview, and

2. A DOS consular officer determines that you are otherwise admissible to the United States and eligible to receive an immigrant visa.  NOTE:  Do not depart until the National Visa Center (NVC) notifies you of your scheduled immigrant visa interview date and time at the designated U.S. Embassy or Consulate.

• DOS may cancel your immigrant visa application process if you fail to appear at your

• If you are in removal proceedings, you are ineligible for a provisional unlawful presence waiver unless, at the time of filing, your proceedings are administratively closed and have not been put back on the Department of Justice, Executive Office for Immigration Review (EOIR) calendar to continue your removal proceedings.

• While USCIS does not envision placing I-601A applicants in removal proceedings, USCIS will follow current Department of Homeland Security (DHS) and USCIS Notice to Appear (NTA) guidance governing initiation of removal proceedings.

To be eligible for a provisional unlawful presence waiver you must fulfill ALL of the following conditions:

1. Be 17 years of age or older.

2. 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, child (unmarried and under 21), or parent of a U.S. citizen.

3. Have an approved Petition for Alien Relative or Petition for Amerasian, Widow(er), or Special Immigrant.

4. Have a pending immigrant visa case with DOS for the approved immediate relative petition and have paid the DOS immigrant visa processing fee (IV Fee).

5. 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.

6. Be physically present in the United States to file your application for a provisional unlawful presence waiver and provide biometrics.

7. Not have been scheduled for an immigrant visa interview by DOS before January 3, 2013.

8. Meet all other requirements for the provisional unlawful presence waiver.

You are not eligible for a provisional unlawful presence waiver if any of the following conditions apply to you:

1. You are subject to one or more grounds of inadmissibility other than unlawful presence.

2. 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 January 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.Instead, you may file a Form I-601, Application for Waiver of Grounds of Inadmissibility, from outside the United States after you have been interviewed for your immigrant visa, and the consular officer has found that you are inadmissible for a ground that may be waived.

3. You are in removal proceedings that have not been administratively closed.

4. At the time of filing, you are in removal proceedings that have been administratively closed but have been placed back on the EOIR calendar to continue your removal proceedings.

5. You do not meet one or more of the requirements

Approval of Form I-601AThe USCIS National Benefits Center will adjudicate all Form I-601A applications.Having a pending application for a provisional unlawful presence waiver or an approval of such a waiver will NOT:

• Grant you any benefit or protect you from being removed from the United States.

• Allow you to apply for interim immigration benefits such as work authorization or advance parole.

• Guarantee you will be issued an immigrant visa.

• Guarantee your admission into the United States by U.S. Customs and Border Protection.

• Give you a legal immigration status.

• Change the requirement that you must depart the United States in order to obtain an immigrant visa.  NOTE: Until your approved unlawful presence waiver takes full effect, USCIS may reopen or reconsider its decision on the Form I-601A at any time.

Reasons Your Provisional Waiver May Be RevokedYour approved provisional unlawful presence waiver is automatically revoked if:

• DOS ends the immigrant visa application process.

• USCIS revokes the underlying approved immigrant visa petition (Form I-130 or Form I-360).

• The consular officer at the U.S. embassy or consulate determines that you are inadmissible on grounds of inadmissibility other than unlawful presence.
• You reenter or attempt to reenter the United States without being inspected and admitted or paroled, before or after your provisional unlawful presence waiver is approved or before your immigrant visa is issued.

If Your Approved Provisional Waiver is RevokedYour approved provisional unlawful presence waiver is automatically revoked if:

• DOS terminates your immigrant visa application registration and your registration is not reinstated under the Immigration and Nationality Act (INA).

• Your approved immigrant visa petition that served as the basis for your provisional  unlawful presence waiver is revoked, withdrawn, or rendered invalid and is not reinstated for humanitarian reasons or converted to a widow or widower petition.

• The consular officer at the U.S. embassy or consulate determines that you are not eligible to receive an immigrant visa because you are inadmissible for a ground of inadmissibility other than unlawful presence under the INA.

• You reenter or attempt to reenter the United States without being inspected and admitted or paroled, at any time before or after your provisional unlawful presence waiver is approved or before your immigrant visa is issued.

If your provisional unlawful presence waiver is revoked you may be able to file to waive certain grounds of inadmissibility.Denial of Form I-601A or Withdrawal of Form I-601AIf USCIS denies your provisional unlawful presence waiver, you cannot file an administrative appeal or a motion to reopen or reconsider.However, if your provisional unlawful presence waiver request is denied or if you withdraw your provisional unlawful presence waiver application before USCIS makes a final decision, you may file a new Form I-601A. Your immigrant visa case must also be pending with DOS. In the case of a withdrawn Form I-601A, USCIS will not refund the filing fees because USCIS has already taken steps to adjudicate the case.Alternatively, if USCIS denies your Form I-601A or you withdraw your Form I-601A before USCIS makes a final decision, you can apply for a traditional waiver using the existing process and Form  I-601, Application for Waiver of Grounds of Inadmissibility.  You cannot apply for a Form I-601 until after you attend your immigrant visa interview and after DOS determines that you are subject to other grounds of inadmissibility.