Provisional Unlawful Presence Waivers
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.
The 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.
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 under section 212(a)(9)(B) of the Immigration and Nationality Act before they can return to the United States. Under the existing waiver process, which remains in effect, 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 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.
To be eligible for a provisional unlawful presence waiver you must fulfill ALL of the following conditions:
You are not eligible for a provisional unlawful presence waiver if any of the following conditions apply to you:
How to Apply
Do not concurrently file Form I-601A with any other application or petition.
Please make sure that you follow these steps to prevent your application from being rejected and returned to you:
If you have questions call the Customer Service Center at 1-800-375-5283. Do NOT visit a USCIS field office in person.
2. Mail your application to the USCIS Chicago Lockbox.
If U.S. Postal Service
The USCIS National Benefits Center will adjudicate all Form I-601A applications.
Having a pending application for a provisional unlawful presence waiver or an approval of such a waiver will NOT:
Your approved provisional unlawful presence waiver is automatically revoked if:
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. A list of the ICE Chief Counsel phone numbers is available on the internet at: http://www.ice.gov/contact/opla/. When you contact ICE, you should have a copy of the approval notice available for ICE’s review.
If USCIS denies your provisional unlawful presence 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 unlawful presence 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. Your immigrant visa case must also be pending with DOS. In the case of a withdrawn Form I-601A, USCIS will not refund the filing fees because USCIS has already taken steps to adjudicate the case.
Alternatively, if USCIS denies your Form I-601A or you withdraw your Form I-601A before USCIS makes a final decision, you can apply for a traditional waiver using the existing process and Form I-601, Application for Waiver of Grounds of Inadmissibility. You cannot apply for a Form I-601 until after you attend your immigrant visa interview and after DOS determines that you are subject to other grounds of inadmissibility. If you decide to file Form I-601 after the interview abroad, you must file the Form I-601 in accordance with its instructions and with the required fees.
Avoid Immigration Scams
Please be aware that some unauthorized practitioners may try to take advantage of you by claiming they can file a provisional unlawful presence waiver. These same individuals may ask that you pay them to file such forms. To learn the facts about how to protect yourself and your family from scams, please visit www.uscis.gov/avoidscams.
This page can be found at: http://www.uscis.gov/provisionalwaiver
Last Reviewed/Updated: 05/06/2013