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Provisional Unlawful Presence Immigration Waiver

America has some harsh penalties if you are here illegally. Many, because of their unlawful presence cannot apply for a green card, even if they are married to a U.S. citizen, until they stay outside of the U.S. for three-years or ten years. If you are one of those people, Good News! A waiver is available.

As always, remember that immigration law is incredibly complicated. You should seek the advice of an experienced New Jersey immigration lawyer prior to taking any immigration action including seeking a waiver for unlawful presence.

The Unlawful Presence Bar

Unlawful presence only means that you were in the U.S. without permission. That could have happened if you entered illegally by crossing the border. It can also happen when you enter legally but overstay your visa. However, you must be over 18 years old to accrue unlawful presence. You could be in the U.S. for 15 years as a minor, but you don’t accrue a single day of unlawful presence. Anyone with more than 180 days of unlawful presence (time spent in the U.S. with no valid status) is subject to a three-year inadmissibility bar. If the period of unlawful presence is longer than a year, the bar increases to ten years.

The inadmissibility bar is triggered when you leave the U.S. The Catch 22 that you face is that you are required to leave the U.S. to obtain permanent residency (green card) at a U.S. consulate in your home country. When you leave, however, you trigger the three or 10 year bar to re-entering the country. That means you must wait outside the U.S. away from your family until the inadmissibility bar passes, unless you qualify for a waiver.

The Traditional I-601 Waiver

Alternatively, if you are subject to the unlawful presence bar you can file Form I-601, requesting a waiver of your inadmissibility. Traditionally, this meant that you had to leave the U.S., triggering the inadmissibility bar, then file the I-601 waiver, and wait outside the country for the waiver to be approved. Because of consular processing times, you often waited for months for your waiver to be approved. If the waiver was denied, you would be forced to remain outside the U.S. for the entire period of the inadmissibility up to ten years.

Not surprising, the prospect of departing the U.S. for an uncertain period kept many from filing in the first place. Many immigrants chose to not file for their green card despite their eligibility because of the uncertainty.

The Provisional Waiver – I-601A waiver

In 2013, the U.S. Citizenship and Immigration Services (USCIS) modified the procedure for obtaining a waiver for unlawful presence inadmissibility. By creating the provisional unlawful presence waiver, form I-601A, USCIS allowed certain classes of intending immigrants to file waiver applications from inside the U.S.! The benefit, of course, is that you would know your unlawful presence waiver was approved before even triggering the inadmissibility bar! Assuming you are approved, your still need to leave the U.S. and complete the consular process.

The waiver is provisional in nature because the final word is up to the U.S. consulate at your country. Nonetheless, the provisional waiver offers considerable assurance that you will overcome the unlawful presence inadmissibility and return to the U.S. You are in the U.S. while USCIS is evaluating your waiver, whereas traditionally you were in your home country waiting. This significantly reduces the time of separation from your family.

Provisional Waiver Eligibility

Two sets of regulations control the provisional waiver process. The first set, effective since 2013, limits provisional waivers to intending immigrants who are immediate relatives of U.S. citizens or certain special immigrants. Thus, to be eligible for a provisional waiver, you must be a spouse, parent, or minor and unmarried child of a U.S. citizen. You also need to show that your U.S. citizen spouse, parent, or child (immediate relative) would suffer extreme hardship if your were not allowed to quickly return to the U.S.

Effective August 29, 2016, though, the provisional waiver for unlawful presence is expanded. After August 29, 2016, all immigrants will be eligible for a provisional waiver, regardless of the basis for the immigrant visa application. So, family-based, employment-based, and special immigrants all will be eligible to apply for provisional waivers after August 29. Further, the rule expands the list of qualifying relatives to include legal permanent resident spouses and parents. Please remember that the extreme hardship requirement still exists under the expanded rule. This is a significant expansion of the provisional waiver program which will benefit thousands of intending immigrants.

All provisional waiver applicants must have an approved immigrant visa petition (I-130, I-140, or I-360), must have a current priority date, and must have paid the immigrant visa application fee to the National Visa Center prior to filing their waiver application.


1. You can’t apply before August 29, 2016 under the expanded program! There will be a new Form I-601 so wait to file! Those who qualify under the 2013 rules may file at any time.

2. The provisional waiver is only if you have qualifying relatives and you are seeking an immigrant visa (meaning a green card). If you don’t have a qualifying relative or seeking a non-immigrant (think student visa) don’t bother applying for this waiver.

3. Finally, remember that the provisional unlawful presence waiver is available only for the inadmissibility caused by unlawful presence. It is not available for other inadmissibility grounds such as fraud or for criminal convictions. As stated before, immigration law is complicated. This waiver expansion discussed in this blog involves extensive research into eligibility, multiple filings, and careful coordination. Because of this, anyone intending to immigrate to the United States or facing other immigration issues should consult an experienced immigration lawyer for assistance.

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