Since March 4, 2013, certain immigrant visa applicants requiring a waiver for unlawful presence have been able to apply for a provisional waiver before leaving the United States. Applicants who are spouses, children and parents of U.S. citizens (immediate relatives), and who are inadmissible solely because of unlawful presence, may apply for a waiver in the United States before they depart for their immigrant visa interviews at a U.S. embassy or consulate abroad. Thus, if the applicant is in the U.S., and has been hesitant to apply for an immigrant visa even though he or she is eligible based on a qualifying relationship with a U.S. citizen spouse, child or parent, the applicant now has a safer option.
Immediate relatives of U.S. citizens who are eligible for the new provisional unlawful presence waiver can still choose to apply for a waiver using the regular process after a DOS consular officer has determined that he or she is inadmissible to the United States. If the applicant chooses the provisional waiver path, he or she will need to submit an I601A application. To be eligible for a provision waiver, the applicant must fulfill the following basic requirements:
Be 17 years of age or older.
Be an immediate relative of a U.S. citizen (not a preference category immigrant who has a visa available). An immediate relative is an individual who is the spouse, child or parent of a U.S. citizen.
Must be inadmissible solely due to unlawful presence. If the USCIS has reason to believe that the applicant is inadmissible for other grounds of inadmissibility, the application will be denied.
Have an approved Form I-130, Petition for Alien Relative, or Form I-360, Petition for Amerasian, Widow(er), or Special Immigrant.
Have a pending immigrant visa case with DOS for the approved immediate relative petition and have paid the DOS immigrant visa processing fee.
Be able to demonstrate that refusal of your admission to the United States will cause extreme hardship to your U.S. citizen spouse or parent.
Be physically present in the United States to file your application for a provisional unlawful presence waiver and provide biometrics.
Not have been scheduled for an immigrant visa interview by DOS before January 3, 2013.
There are certain specific instances that will prevent the applicant from being eligible for the provision waiver. These instances include being subject to removal proceedings. If the applicant is in removal proceedings, the proceedings must be administratively closed and not recalendared at the time of filing the I601A application.
The USCIS National Benefits Center will adjudicate all Form I-601A applications. While the application is pending, you will not be protected from being removed from the U.S. In other words, having a pending I601A application does not authorize the applicant to be in the U.S., nor to work in the U.S. Even if the waiver application is granted, that does not guarantee the immigrant visa application will be approved by the consulate post.
If USCIS denies a provisional unlawful presence waiver application, the applicant cannot file an administrative appeal or a motion to reopen or reconsider. However, the applicant may file a new provisional waiver application or apply for a traditional waiver application process. If the latter process is chosen, the applicant will need to leave the U.S. and attend the immigrant visa interview at the consulate post before he or she is able to submit the waiver application.
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