The Provisional Unlawful Presence Waiver

September 24, 2014 2:27 pm
by David Jakeman

One of the most frustrating aspects of the U.S. immigration system is the strain it can put on immigrant families. For example, immediate family members of United States citizens who wish to become lawful permanent residents must first travel to their country of origin to complete the required series of visa interviews. Often, this scenario creates a problem when the immediate relatives are undocumented immigrants because they will usually be subject to a three or ten year reentry bar once they leave the United States. The reentry bars are imposed on individuals who have accrued more than 180 days of unlawful presence in the United States.

When this situation unfolds, as it often does, these individuals may be able to apply for a provisional unlawful presence waiver, thus exempting them from the reentry bars. However, it has long been the rule that the applicant must apply for the waiver once he has already begun the visa interview process (a.k.a. consular processing) in his home country and been found inadmissible by a Department of State (DOS) consular officer. Seeking a provisional waiver in this manner often adds significant delays in the visa process. In turn, families are separated for a long period of time.

In an effort to reduce this burden on immigrant families, the Obama administration has implemented a rule change that went into effect on March 4, 2013. The new rule allows immediate relative immigrants of United Citizens to “apply for a provisional unlawful presence waiver while in the United States and before departing for their immigrant visa interview at a U.S. Embassy or Consulate abroad.”

It is important to remember that this new process does not amend the requirement mandating that waiver recipients travel to their country of origin for consular processing. Also, if the provisional waiver is approved, it will only take effect once the applicant departs the United States for consular processing in his home country and a DOS consular officer determines that the applicant is otherwise admissible to the United States.

Eligibility Requirements under the New Waiver Process

To be eligible for the provisional unlawful presence waiver under the new rule change, an applicant must meet the following eligibility requirements:

  • Be 17 years of age or older.
  • Be an immediate relative of a United States citizen, which is an individual who is the spouse, child or parent of a United States 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.
  • Be able to demonstrate that refusal of the applicant’s admission to the United States will cause extreme hardship to his United States citizen spouse or parent.
  • Be physically present in the United States to file the 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.