Provisional Unlawful Presence Waivers

This week U.S. Citizenship and Immigration Services (USCIS) began processing provisional unlawful presence waivers for individuals who are spouses, parents and children (under 21) of United States citizens that are required to depart the United States to obtain an immigrant visa at a consulate in his or her country of birth.

Under the new program, an individual who entered unlawfully, and is not grandfathered, can apply for a provisional waiver of his or her unlawful presence in the United States prior to departing the country to complete the immigration visa application process. The waiver will be adjudicated by the Immigration Service before a person leaves the United States for his or her visa interview at the consulate. Prior to implementation of this process, individuals could not apply for an inadmissibility waiver until after they appeared for their interview in their home country and were forced to remain in their home country, separated from family, during the time that his or her waiver was being considered by immigration. This new process will significantly decrease the length of time an applicant will be separated from his or her family.

Am I eligible to apply for a provisional waiver?

In order to qualify for the provisional waiver program, an individual:

  • Must be at least seventeen (17) years of age;
  • Must be an immediate relative of a United States citizen (spouse, parent, child under age 21);
  • Must have an approved I-130 (Petition for Family Relative) or I-360 (Petition for a special immigrant or abused spouse);
  • Must have an immigrant visa case pending with the Department of State (National Visa Center) and paid the immigrant visa processing fee;
  • Must NOT have been notified by the National Visa Center prior to January 3, 2013, that a consular interview has been scheduled.
  • Must be present in the United States to appear for fingerprinting and biometrics processing upon filing of the waiver application;
  • Must be able to demonstrate extreme hardship to a United States citizen spouse or parent;


Can I apply if I am in removal proceedings?

An individual in removal proceeding can only apply for the provisional waiver if the proceedings are terminated or administratively closed.


How much does it cost to file the waiver?

The fee for filing the form I-601A is $585.00.  An additional fee of $85.00 for biometrics processing must also be submitted with the waiver application.


What information should I provide to establish extreme hardship?

There are a number of factors that USCIS considers when deciding whether to grant a waiver application based on extreme hardship. Generally, the applicant should present evidence that establishes that the hardship in their case would be more than what the average family would suffer if separated or forced to relocate to preserve family unity.  A waiver applicant should present evidence to answer as many of these questions as possible and discuss how relocation and separation would impact his or her family:

  • Does the U.S. citizen spouse/parent have a significant health condition, physical or psychological? If so, what is the quality of medical care in the home country of the applicant?
  • Does the U.S. citizen spouse/parent have significant family ties in the U.S.?
  • Does the U.S. citizen spouse/parent have family ties outside the U.S.?
  • Does the U.S. citizen spouse/parent speak the language of the applicant’s home country?
  • What will the financial impact of departure be upon the family if the waiver is not granted?
  • What are the conditions in the country of relocation?

These questions are not exhaustive of the possible issues that could or should be addressed in a waiver application.  Each case is different.

Unfortunately, hardship to U.S. citizen children is not a factor that USCIS will consider, but it is still important to discuss it in the waiver application.  Undoubtedly, hardship to a child impacts the U.S. citizen spouse/parent and can create hardship for him or her.

Do I need an attorney?

Waivers are very fact specific and must meet a high legal standard in order to be granted.  I would personally recommend that every individual considering whether to apply for a waiver via this process at least consult with an immigration attorney before applying.  This process is only available to certain individuals and it is best to determine eligibility before spending money on filing fees with USCIS that will not be refunded if the waiver is denied or the applicant is deemed ineligible. After meeting with an attorney and learning more about the process, you can make your own decision about whether you should hire an attorney to assist you and give you the best chance of success.