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Provisional Waivers for Unlawful Presence

In this posting, lets briefly take a look at Provisional Waivers.  Waivers for Unlawful Presence in the U.S. have been historically used by persons filing outside of the United States and undergoing Consular Processing to receive an immigrant visa to enter the United States.  Under this scenario, the applicant must remain outside of the United States while his/her I-601 waiver is being adjudicated.  In the past, families often had no choice but to be separated for periods of time of one year or more.  The Provisional Waiver was initiated in 2013 by the administrative rules process and is now a codified Federal Rule.  With an approved Provisional Waiver for Unlawful Presence, the applicant will eventually leave the United States to consular process,  but will be permitted to file the I-601 Application for waiver from the United States and can remain in the U.S. while the application is pending.  If everything else is satisfactory and there are other inadmissibility issues, the applicant will likely be out of the country for a just few days to complete visa processing at the consulate, and  re-enter the United States with permanent residence status.

Provisional Waivers can waive unlawful presence 3 and 10 year bars if a person meets the following criteria:

  • You are physically present in the United States
  • You are at least 17 years old at the time of filing
  • You have an immigrant visa case pending with the Department of State, based on being  the principal beneficiary of an approved I-130  from an Immediate Relative Petition, Diversity Visa Program, Employment or Family Preference category petition.
  •  Your only ground of inadmissibility is having unlawful presence in the United States for more that 180 days but less than 1 year (3-year) bar or having unlawful presence in the United States for more that 1 year (10-year bar)
  • You can demonstrate extreme hardship to a U.S. Citizen or L.P.R. spouse or parent if your waiver is not granted.
  • You can establish that your case merits a favorable exercise of discretion.

A Provisional waiver will not work for someone applying for Adjustment of Status in the United States, or someone in removal proceedings if his/her case has not been terminated or administratively closed, of if you have already been the subject of a final order of removal or deportation; or the Department of Homeland Security has reinstated a prior order of removal or deportation.

The Provisional Waiver process begins with an approved I-130, either from the immediate relative or preference category.  If you qualify for an I-130 Immigrant visa and meet the requirements above,  then you should consider the Provisional Waiver application process.  Provisional Waiver applications require alot of detail and evidence to prove extreme hardship to a U.S.C. or LPR spouse or parent.  Seek the council of an experienced immigration attorney to help you navigate the waiver process.  In future blogs I will talk more about the extreme hardship requirements.


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