Provisional Unlawful Presence Waiver of Inadmissibility

On January 2, 2013 Secretary of Homeland Security Janet Napolitano announced the posting of a final rule that reduces the time U.S. citizens are separated from their immediate relatives (spouse, children and parents), who are in the process of obtaining visas to become lawful permanent residents of the United States under certain circumstances. The final rule provides for a process that permits certain individuals to apply for a provisional unlawful presence waiver before they depart the United States to attend immigrant visa interviews in their countries of origin. The process will be effective on March 4, 2013.

Under current law, immediate relatives of U.S. citizens who are not eligible to adjust status in the United States to become lawful permanent residents (frequently because they entered the United States illegally) must leave the U.S. and obtain an immigrant visa abroad. Individuals who have accrued more than six months of unlawful presence while in the United States must obtain a waiver to overcome the unlawful presence inadmissibility bar before they can return to the United States after departing to obtain an immigrant visa. Under the existing waiver process, which remains available to those who do not qualify for the new process, immediate relatives cannot file a waiver application until after they have appeared for an immigrant visa interview abroad and the Department of State has determined that they are inadmissible. Because this process can take a long time to complete, immediate family members of U.S. citizens were often forced to leave the U.S. for a year or more waiting for their waiver applications to be processed.

Under the new process, those who qualify must still depart the U.S. to complete the consular immigrant visa process, however because they can apply for a provisional waiver before they depart the country, they may only need to be outside the U.S. for a few days to a few weeks to have their immigrant interviews and collect their immigrant visa stamped passports.

A few key points regarding the provisional waiver:

  • The new provisional waiver application cannot be filed concurrently with the I-130 family sponsorship application, or the I-360 application.  The I-130 or I-360 must be approved first, at which point USCIS will notify the National Visa Center.  Then the immigrant visa applicant will advise the NVC that a waiver will be filed.  At this point, the applicant files the I-601A Application for a Provisional Unlawful Presence Waiver with the USCIS.
  • Only immediate relatives of U.S. Citizens are eligible to apply for I-601A waiver.  Immediate relatives include spouses, minor children and parents.
  • The immediate relative must be inadmissible only on account of unlawful presence.
  • The applicable statute governing inadmissibility due to unlawful presence, Immigration and Nationality Act (INA) Section 212(a)(9)(B)(v), allows a waiver only if the immediate relative can demonstrate extreme hardship to his or her U.S. citizen spouse or parent.
  • You may notice that there is an inconsistency here.  All immediate relatives are permitted to apply for the waiver, but under the INA only spouses and children of U.S. citizens will have a qualifying relationship permitting them to demonstrate extreme hardship.