Since 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.

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.

Under the previous process, immigrants had to apply for the waiver while in their home country for the immigrant visa interview.  While under the current law immigrants still need to attend an interview in their home countries, the time spent abroad is generally much shorter now than it was previously.

What You Need to Know

  • 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 leave the US until the preliminary waiver is approved AND an depart until you have been scheduled for immigrant visa interview date and time.

Eligibility Requirements

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 or parent of a U.S. citizen.
  • Have an approved Family Petition.
  • 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, as detailed in 8 CFR 212.7(e) and the Form I-601A and its instructions.

    Information provided by USCIS (www.uscis.gov)

See our article: Is there a Waiver for Me?