What is the process to apply for an unlawful presence waiver to obtain U.S. permanent resident status?
A 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. Beginning March 4, 2013, 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.
Who should apply for a provisional unlawful presence waiver in the United States?
Under current law, immediate relatives of U.S. citizens who are not eligible to adjust status in the United States must travel abroad and obtain an immigrant visa. Individuals who have accrued more than 180 days of unlawful presence while in the United States must obtain a waiver of inadmissibility to overcome the unlawful presence bars in the Immigration and Nationality Act (INA) before they can return to the United States. Under the existing waiver process, immediate relatives cannot apply for a waiver until after they have appeared for an immigrant visa interview abroad, and a Department of State (DOS) consular officer has determined that they are inadmissible to the United States. Immediate relatives of U.S. citizens who are eligible for the new provisional unlawful presence waiver can still choose to apply for a waiver using the existing process by filing an application for a provisional waiver of unlawful presence after a DOS consular officer has determined that he or she is inadmissible to the United States.
What will the provisional waiver from USCIS mean to me?
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. 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.
- The U.S. Department of State may cancel your immigrant visa application process if you fail to appear at your interview.
- If you are in removal proceedings, you are ineligible for a provisional unlawful presence waiver unless, at the time you file your provisional waiver form 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 provisional waiver 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
Am I eligible for a provisional unlawful presence waiver from USCIS?
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, child (unmarried and under 21), or parent of a U.S. citizen.
- Have an approved petition for alien relative, or a 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
You are not eligible for a provisional unlawful presence waiver if any of the following conditions apply to you:
- You do not meet one or more of the requirements above
- 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.
- You are in removal proceedings that have not been administratively closed.
- 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.
How can I apply for a Form I-601A, Provisional Unlawful Presence Waiver with USCIS?
To file for a provisional waiver from USCIS, you:
- must be the beneficiary of an approved immigrant visa petition classifying you as an immediate relative of a U.S. citizen. An immediate relative is an individual who is the spouse, child (unmarried and under 21), or parent of a U.S. citizen.
- must have already paid the Department of State immigrant visa processing fee for the case associated with the approved immigrant visa petition.
USCIS will reject any application that is not accompanied by the proper filing and biometric fees or that does not meet the filing criteria specified. Due to the complexity of immigration law, seeking expert legal counsel may be to your benefit. We can offer you dedicated experienced legal counsel at JCS Immigration and Visa. If you are interested in a free consultation with our Los Angeles immigration attorney, contact us now!
What else should I know about approval of my Form I-601A application?
The USCIS National Benefits Center will adjudicate all provisional waiver 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 your waiver at any time.