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 waiver substantially reduces the period of time that immigrants, who either entered without inspection or overstayed their visas, will have to spend apart from their families after applying for immigrant visas and a waiver of inadmissibility to the United States for unlawful presence. Until now, the majority of immigrants who had been deemed ineligible for admissibility into the United States were required to return to their country of origin where they could possibly remain for months or even years while waiting for the approval of a waiver of inadmissibility, causing severe distress to family members left in the United States.

Now, immigrants who are inadmissible due to unlawful presence in the United States may remain in the United States while their request for a waiver of inadmissibility is being processed.

Remember: you must be an immediate relative of a U.S. inadmissible only on account of unlawful presence, and demonstrate the denial of the waiver would result in extreme hardship to his or her U.S. citizen spouse or parent.

Immigrants will not be required to return to their country of origin until, either their waiver has been approved, in which case they will need to return in order to attend their consular interview and obtain their visa, or that waiver is denied. Presently, immigrants deemed inadmissible for any reasons other than unlawful presence [fraud, criminal activity, etc…] are ineligible for the Provisional Unlawful Presence Waiver. If the answer from USCIS is “no,” applicants will at least find out while they’re still with their family in the U.S., not trapped outside for three or ten years. You can potentially reapply. (And, the enforcement authorities have said they do not intend to use this process as a way to identify people for removal – unless they’re criminals or public safety risks.)

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