An Overview of Provisional Waivers

Foreign nationals ineligible to adjust their status in the U.S., must travel abroad and obtain an immigrant visa. Individuals who have accrued more than 180 days of unlawful presence in the U.S. must obtain a waiver of inadmissibility to overcome the unlawful presence bars before they can return. Before 2013, these foreign nationals could not apply for a waiver until after they have appeared for their immigrant visa interview abroad, and the consular officer had determined that they were inadmissible to the U.S. It is important to understand that the provisional unlawful presence waiver does not change the immigrant visa process.

In March 2013, the availability of a provisional unlawful presence waiver changed that. Those foreign nationals, statutorily eligible for an immigrant visa, and who are immediate relatives of a qualifying U.S. citizen (spouse, children, parent), and who only need a waiver of inadmissibility for unlawful presence, can apply for that waiver in the U.S. before they depart for their immigrant visa interview. If the waiver is denied, the foreign national has a chance to remain in the U.S. If it’s approved, the waiver takes effect after the foreign national departs the U.S., appear for the immigrant visa interview, and a consular officer determines the s/he is otherwise admissible to the U.S. and eligible to receive the immigrant visa.

Who Is Eligible for a Provisional Waiver?

First, you must be at least 17 years old to apply for the waiver, and physically present in the U.S. to file the waiver and provide biometrics. You must also be in the process of obtaining your immigrant visa, and have an immigrant visa case pending with the U.S. Department of State (“DOS”). For example, you have an approved immigrant petition and have paid the DOS your immigrant visa processing fee. Note that the consulate cannot have scheduled your for an immigrant visa interview before January 3, 2013.

Further, you must be the unmarried child or spouse of a lawful permanent resident, parent of a U.S. citizen older than 21 years old, unmarried child under 21 years old of a U.S. citizen, or married to a U.S. citizen; and be able to demonstrate that your qualifying relative will suffer extreme hardship if you are refused admission. You are ineligible for this waiver if you are in removal proceedings, have a final order of removal, exclusion, or deportation, unless you have an approved application for permission to reapply for admission into the U.S. after deportation or removal at the time the waiver is filed; and meet all eligibility conditions.

How Do You File for a Provisional Waiver?

To file for a provisional waiver, you must use Form I-601A and pay a filing fee of $630, plus a fee of $85 for biometrics. Even if the waiver is approved, you are not guaranteed qualification for your immigrant visa. If it is denied, you can file again and provide additional evidence of extreme hardship. This is especially encouraged if your circumstances have changed and your removal is more likely to cause extreme hardship to your qualifying relative. It is best to speak to an attorney to weigh your options, and the risks of leaving the U.S. if the waiver is denied.

A provisional unlawful presence waiver is a great tool to help people who entered the U.S. improperly but want to become lawful permanent residents of the U.S. An attorney can help make the process easier and give you the best chance of success. Contact Sanchez-Roig Law, P.A., today and let us guide you on your path to citizenship.