Provisional Waiver of Unlawful Presence in the United States

The Provisional Unlawful Presence waiver is an exceptional program of the U.S. Citizenship & Immigration Services (USCIS) for the benefit of foreign nationals who entered the United States illegally or without inspection and stayed in the United States for 180 days or more, and are currently the spouse, child of a U.S. citizen, or a Lawful Permanent Resident ( Green Card Holder). Although these individuals are eligible for a green card, current law does not allow them to apply for adjustment of status in the United States because they have accrued 180 days or more of unlawful presence in the United States. They need a waiver for unlawful presence before being eligible for a green card. Earlier, these individuals were afraid to depart the United States for consular processing because of harsh penalties created by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 for their unlawful presence in the United States.

This new rule is implemented to avoid the uncertainty and lengthy waiting period in consular processing for these individuals who need an unlawful presence waiver of inadmissibility. The critical benefit of Provisional Unlawful Presence waiver is that these individuals will obtain their waivers before departing the United States to appear for their consular visa interview. They will not be separated from their U.S. Citizen or an LPR family member during the waiver application process. Once the USCIS conditionally approves the waiver application, these individuals can depart the United States peacefully keeping in mind that the U.S. Consulate of their country of origin will approve the immigrant visa and allow them to return to the United States within a few weeks

It is pertinent to mention here that although USCIS has expanded the provisions of Provisional Unlawful Presence Waiver to individuals with a final order of removal and deportation; they still remains subject to the reinstatement of prior removal order. Therefore, these individuals must seek legal advice to strategize their case before proceeding with Application for Permission to Reapply for Admission to the United States After Deportation.

Unlawful Presence

The term “unlawful presence” is very complex and subject to various interpretations. Generally speaking, “unlawful presence” can be accumulated during any period of time where the foreign national is present in the United States without the Department of Homeland Security’s permission. However, there are certain situations where a foreign national is actually in unlawful immigration status, but, nonetheless protected from the unlawful presence bar. Please contact us for an honest evaluation and reliable advice on your situation.

Necessary Key Points of Provisional Unlawful Presence Waiver (Form I-601A)
  • Applicant must be a spouse, child of a U.S. citizen or an LPR
  • Applicant must be physically present in the United States at the time of filing the Provisional Unlawful Presence waiver
  • Applicant must be a beneficiary of an approved Immigrant visa petition and must have paid the immigrant visa fee to the National Visa Center
  • Applicant must solely be inadmissible due to unlawful presence upon departure from the United States
  • If Applicant is under removal proceeding, his case must be administratively closed at the time of filing the waiver application
  • Applicant must prove that if not granted the provisional waiver, his U.S. citizen or LPR family members will suffer “extreme hardship”

Please note that not everyone who is a spouse, parent, child of a U.S. citizen or LPR spouse or child is eligible for a provisional waiver. In limiting the availability of the Provisional Unlawful Presence waiver to cases of “extreme hardship”, a waiver is not available where a qualifying relationship does not exist.

Extreme Hardship

Extreme Hardship is not defined in the Immigration and Nationality Act. The elements to prove extreme hardship depend upon the facts and circumstances of each case. Therefore, it is important to provide enough evidence with your waiver application to convince the USCIS that your U.S. citizen family members will indeed experience extreme hardship if your provisional waiver application was not approved.

At The Ahluwalia Firm, our emphasis is on:
  • providing zealous representation before the USCIS and Department of State
  • providing careful review of your personal circumstances
  • providing dependable advice and assistance on how to present yourself at the Consulate interview
  • delivering value for money, ensuring seamless processing of your waiver application
  • ensuring a service-delivery model that meets and exceeds your satisfaction

We have successfully represented many foreign nationals in obtaining complex inadmissibility waivers (I-601) based on “extreme hardship” to their qualifying relative/family members. If you need a provisional waiver to obtain a green card, please contact us for an honest evaluation of the facts and circumstance of your case.