Provisional Unlawful Presence Waivers Explained—Sarah S. Rama, ESQ., LL.M.

ACCORDING TO THE U.S. DEPARTMENT OF HOMELAND SECURITY, IMMEDIATE RELATIVES OF SOME IMMIGRANT VISA APPLICANTS ARE ALLOWED TO APPLY FOR A NEW PROVISIONAL UNLAWFUL PRESENCE WAIVER BEFORE LEAVING THE COUNTRY IF THEY CAN SHOW THAT BEING SEPARATED FROM THEIR LOVED ONES IS A CAUSE OF EXTREME HARDSHIP. IMMEDIATE RELATIVES INCLUDE CHILDREN, SPOUSES AND PARENTS OF U.S. CITIZENS.

The provisional unlawful presence waiver process enables people who need a special “waiver of inadmissibility for unlawful presence” to apply for the waiver while still in the United States, prior to leaving for immigrant visa interviews abroad. This time-saving technique speeds the return of family members to the U.S., shortening the time they are separated from their loved ones during the process of securing immigrant visas and ultimately becoming permanent lawful U.S. residents.

The Details

Currently, immediate relatives of U.S. citizens are required to obtain immigrant visas abroad. Those who have lived unlawfully in the U.S. for more than 180 days are required to obtain a special waiver before returning to the country. Relatives of U.S. citizens are unable to apply for that waiver until they have undergone an immigrant visa interview outside of the country and are determined inadmissible to the country. At that time, immediate relatives eligible for the provisional unlawful presence waiver can apply for a waiver with a special form, called a Form I–601A. The application process is explained in detail on the USCIS.gov website.

It is important to note that the waiver process doesn’t change the visa process—if your waiver is approved, you still have to leave the country for your interview abroad. If approved, the provisional unlawful presence waiver will go into effect after you have left the country to appear at your immigrant visa interview and after you are proclaimed admissible to the U.S. and eligible for an immigrant visa.

Are you eligible for a Provisional Unlawful Presence Waiver?

In addition to being an immediate relative of a U.S. citizen, those who are eligible for the provisional unlawful presence waiver must:

• be at least 17 years old;
• have an approved “Petition for Alien Relative” (Form I–130), “Petition for Amerasian Widower” (Form I–360), or “Special immigrant”;
• have a pending visa case; and
• have paid the immigrant visa processing fee.

Again, if you would like to apply for a provisional unlawful presence waiver, you must also be able to show how being denied admission to the U.S. would cause extreme hardship to your family member who is a U.S. citizen, and be physically present in the country to file an application for the waiver.

Sarah S. Rama, ESQ., LL.M. can help!

At Sarah S. Rama, ESQ., LL.M. we have a great deal of experience helping clients navigate through the steps of obtaining a provisional unlawful presence waiver from the U.S. government. We can explain everything you need to know about the process, including eligibility requirements, how to complete the Form I–601A, and how to troubleshoot if the process doesn’t go smoothly. We can also help you apply if you are in removal proceedings.

To learn more about the ways we can help you through the provisional unlawful presence waiver process, contact our Boston or West Palm Beach office. We are here for you and can help simplify complicated legal concepts and terms, putting them into plain English in any language.