Provisional Unlawful Presence Waivers
Green Card

This NEW process, the Provisional Waiver, shortens the the time that U.S. citizens in the United States are away from family members as they complete the process overseas. Provisional waivers have helped many people get back home much faster. Before this process, separation would be quite lenghy.

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 more than 180 days of unlawful presence while in the United States must obtain a waiver of inadmissibility to overcome the unlawful presence bars before they can return to the United States.

Under the existing waiver process, which remains in effect, immediate relatives cannot apply for a provisional 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 waiver can still choose to apply for a waiver using the existing process by filing a Form I-601, Application for Waiver of Grounds of Inadmissibility, after a DOS consular officer has determined that he or she is inadmissible to the United States.

You should know this about the Provisional Waiver

• 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 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.
• DOS 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 Form I-601A, 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.

Who can apply for a Provisional Waiver To be eligible for a provisional waiver you must:

• 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 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 (IV 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.

You can NOT apply if:

• You are subject to one or more grounds of inadmissibility other than unlawful presence.
• You did not appear for your interview earlier.
• 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 to Apply

Carefully follow the Form I-601A instructions and fully complete the application.

Please make sure that you follow these steps to prevent your application from being rejected and returned to you:

• Complete Form I-601A.

I-601A, Application for Provisional Unlawful Presence Waiver The fee is $585. If you are under 79 years of age, you must also pay the $85 biometric services fee. If you are 79 years of age or older, you do not have to pay the $85 biometrics fee. The Form I-601A fees cannot be waived.

Once I file the provisional waiver, do I have immediate benefits?

Having a pending application for a provisional 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.

What happens if I have a court hearing?

If USCIS approves your Form I-601A, you and/or your legal representative should take steps immediately to have your removal proceedings formally terminated or dismissed by EOIR before you depart the United States to attend your immigrant visa interview. If you leave the United States before your removal proceeding is terminated or dismissed, you may experience delays in the processing of your immigrant visa or risk becoming ineligible for an immigrant visa based on another ground of inadmissibility.

After you receive the approval notice for your Form I-601A, you and/or your legal representative should contact the Office of the Principal Legal Advisor at U.S. Immigration and Customs Enforcement (ICE) to make arrangements to have those proceedings dismissed. Do not contact ICE until after USCIS approves your Form I-601A.

If your provisional waiver is denied

If USCIS denies your provisional 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 waiver application before USCIS makes a final decision, you may file a new Form I-601A, in accordance with the form instructions and with the required fees.