I am an Immediate Relative of a U.S. Citizen. How Do I File for a Provisional Unlawful Presence Waiver? How Does a U.S. Citizen File for a Provisional Unlawful Presence Waiver?
The Secretary of the Department of Homeland Security (DHS) has created a new process that will allow certain spouses, children, and parents of a U.S. citizen (immediate relatives) to apply for a provisional unlawful presence waiver while they are still in the United States and before departing for their immigrant visa interviews abroad.
Why did DHS create the Provisional Unlawful Presence Waiver?
Currently certain immediate relatives must travel abroad to obtain an immigrant visa from the Department of State (DOS) before they can return to the United States and be admitted as lawful permanent residents. In many cases, these immediate relatives also must request a waiver of inadmissibility of their unlawful presence in the United States. As a result, these immediate relatives must remain outside of the United States, separated from their U.S. citizen spouses, parents, or children, while U.S. Citizenship and Immigration Services (USCIS) adjudicates their waiver applications. In some cases, waiver application processing can be lengthy, prolonging the separation of these immediate relatives from their U.S. citizen spouses, parents, and children.
USCIS anticipates that this new provisional unlawful presence waiver process will significantly reduce the time that U.S. citizens are separated from their immediate relatives. USCIS approval of a provisional unlawful presence waiver prior to departure also will allow the DOS consular officer to issue an immigrant visa without delay, as long as there are no other grounds of inadmissibility and the immediate relative is otherwise eligible for an immigrant visa. Individuals who may be inadmissible on any other grounds of inadmissibility are not eligible for the provisional unlawful presence waiver process.
How do I know if I am eligible for a provisional unlawful presence waiver?
Eligibility to apply for the provisional unlawful presence waiver
To be eligible for a provisional unlawful presence waiver, the applicant must meet the following criteria:
- Be 17 years of age or older;
- Be an immediate relative of a U.S. citizen (i.e. spouse, parent of a child 21 or older, or child under 21);
- Be physically present in the United States;
- Have an approved I-130 or I-360 petition;
- Have an immigrant visa case pending with the U.S. Department of State, including payment of the immigrant visa and affidavit of support processing fees;
- Have an immigrant visa case where the U.S. Department of State did not act to schedule the immigrant visa interview prior to January 3, 2013 (If the U.S. Department of State acted to schedule an immigrant visa applicant’s interview before January 3, 2013, the applicant may still qualify for a provisional unlawful presence waiver with a new immigrant visa case based on one of the following circumstances: (1) the U.S. Department of State terminated the immigrant visa registration associated with the previously scheduled interview and the individual has a new immediate relative petition; or (2) the individual has a new immediate relative petition filed by a different petitioner.);
- Be able to show extreme hardship to a U.S. citizen spouse or a U.S. citizen parent; and
- Not be inadmissible under any ground other than for unlawful presence in the U.S. You believe you are, or will be at the time of the immigrant visa interview, inadmissible based on having accrued a certain period of unlawful presence in the United States. You meet all other requirements of the provisional unlawful presence waiver as listed in the regulations, the Form I-601A and its instructions.
How do I know if I am not eligible for a provisional unlawful presence waiver?
You are not eligible for a provisional unlawful presence waiver and your application will be rejected or denied if:
- You do not meet one or more of the requirements listed above;
- You have a pending Form I-485, Application to Register Permanent Residence or Adjust Status, with USCIS;
- You are in removal proceedings unless your removal proceedings are administratively closed and have not been re-calendared as of the date of filing of the I-601A;
- You have been ordered removed, excluded, or deported from the United States;
- You are subject to reinstatement of a prior removal order;
- DOS acted to schedule your immigrant visa interview prior to January 3, 2013, even if you failed to appear or you or DOS cancelled or rescheduled the interview on or after January 3, 2013.
- You do not establish that the refusal of your admission to the United States would result in extreme hardship to your U.S. citizen spouse or parent, or that your application should be approved as a matter of discretion;
- USCIS has reason to believe that DOS may find you inadmissible at the time of your immigrant visa interview for grounds other than unlawful presence.
How do I apply for the provisional unlawful presence waiver?
To apply for a provisional unlawful presence waiver you must file a Form I-601A, Application for Provisional Unlawful Presence Waiver. Make sure your application is complete, signed, and submitted with the correct application and biometric fees. Follow the I-601A application instructions and check the USCIS web site at www.uscis. gov/forms for any updates to the instructions or required fees.
You should notify the Department of State of your intention to file a provisional unlawful presence waiver. See the DOS website at www.state.gov for more information on how to notify DOS.
The application process
To apply for the provisional unlawful presence waiver, the applicant must file Form I-601A and supporting documents with the USCIS. The form will be available for filing as of March 4, 2013 and USCIS will not accept applications filed before this date. The filing fee will be $585. Fee waivers are not available for the filing or biometric fees associated with Form I-601A. Biometrics processing is a required component of the application process and applicants are required to appear for biometrics appointments prior to the adjudication of Form I-601A. After the biometrics collection, the USCIS National Benefits Center will adjudicate the I-601A. Adjudicators may issue requests for evidence for missing critical information relating to extreme hardship or a favorable exercise of discretion if the additional evidence will aid in the adjudication. Pending or approved provisional unlawful presence waivers do not authorize any interim benefits such as employment authorization or advance parole.
In anticipation of filing Form I-601A, the applicant must notify the U.S. Department of State, National Visa Center (NVC) of the intent to file the provisional unlawful presence waiver. Instructions on notifying the NVC are located on the State Department’s website here. The NVC will then place the immigrant visa case on hold and ensure that an immigrant visa interview is not scheduled prior to the adjudication of Form I-601A. If the USCIS approves Form I-601A, then the immigrant visa applicant must notify the NVC, which in turn will schedule the immigrant visa interview at the U.S. Consulate abroad. The U.S. Department of State estimates that it will schedule the immigrant visa interview within two to three months after approval of the provisional unlawful presence waiver and the applicant’s submission of the required immigrant visa processing documents to the NVC. During the immigrant visa interview, the consular officer retains the authority to identify other grounds of inadmissibility (i.e. for criminal convictions, fraud/misrepresentation, failure to attend an immigration hearing, outstanding removal order, etc.) and to require another waiver application for these identified grounds. The USCIS will automatically revoke the provisional unlawful presence waiver if the applicant reenters or attempts to reenter the United States without being admitted or paroled.
The new provisional unlawful presence waiver does not alter the standard for approval. Non-citizens must still show that their qualifying relatives would suffer “extreme hardship” if the waiver applications were not approved. The provisional unlawful presence waiver does limit the qualifying relatives which may be considered for the waiver to include only U.S. citizen spouses and parents, as opposed to U.S. citizen or Lawful Permanent Resident spouses or parents which may be considered under normal processing. USCIS will consider expanding the provisional unlawful presence waiver to other categories.
If USCIS denies Form I-601A or the applicant withdraws the form, the applicant may file a new provisional unlawful presence waiver application with the required fees, assuming that he remains eligible for the provisional waiver. Applicants may not file appeals or motions to reopen or reconsider following the denial of Form I-601A. The U.S. Department of Homeland Security will follow its current policy regarding issuing Notices to Appear to place individuals in removal proceedings, and DHS does not envision initiating removal proceedings for applicants with approved provisional unlawful presence waivers or in cases where I-601As are denied or withdrawn.
How do I apply for the provisional unlawful presence waiver if I am in removal proceedings?
Only certain individuals in removal proceedings are eligible to apply for a provisional unlawful presence waiver. Individuals who are immediate relatives of U.S. citizens may apply for a provisional unlawful presence waiver while in removal proceedings, if the removal proceedings:
- Are administratively closed; and
- Have not been re-calendared as of the date of filing the I-601A.
You still must meet all the requirements for the provisional unlawful presence waiver, including the requirement that you have an immigrant visa case pending with DOS and have already paid the immigrant visa processing fee. Like individuals who are not in removal proceedings, you should also notify DOS of your intention to file a provisional unlawful presence waiver.
Although you are in removal proceedings, the application for a provisional unlawful presence waiver is filed with USCIS. You should inform the Immigration Judge and the local U.S. Immigration and Customs Enforcement (ICE) counsel that you have applied for a provisional unlawful presence waiver. Promptly notifying the immigration court and ICE counsel will help with the process to have the removal proceedings terminated or dismissed before you depart for your immigrant visa interview.
NOTE: Your removal proceedings should be terminated or dismissed before you depart the United States to avoid delays in your immigrant visa processing and to avoid the risk that you may be found inadmissible on other grounds.
Will I have to be fingerprinted or appear for an interview as part of the provisional unlawful presence waiver process?
All provisional unlawful presence waiver applicants will be required to appear at a USCIS Application Support Center (ASC) for biometrics collection. Generally, USCIS will not require provisional unlawful presence waiver applicants to appear for an interview but may schedule an interview for an applicant if the facts in a particular case warrant further inquiry and review.
If I have a pending or approved request for a provisional unlawful presence waiver can I receive interim benefits?
The filing or approval of a provisional unlawful presence waiver will not affect an individual’s current immigration status in the United States. A pending or approved provisional waiver also will NOT:
- Provide interim benefits such as employment authorization or advance parole;
- Provide lawful status;
- Stop the accrual of unlawful presence;
- Provide protection from removal;
- Remove the requirement to depart the United States to seek an immigrant visa; or
- Guarantee immigrant visa issuance or admission to the United States.
What should I do once my provisional unlawful presence waiver is approved?
After your provisional unlawful presence waiver is approved, you will need to depart the United States and attend your immigrant visa interview at the designated U.S. Embassy or consulate abroad.
If you fail to depart and attend your immigrant visa interview, the provisional unlawful presence waiver will not take effect and the approval may no longer be valid.
If USCIS denies my request for a provisional unlawful presence waiver, can I file an appeal or a motion to reopen or reconsider?
No. If USCIS denies your request for a provisional unlawful presence waiver, you cannot file an appeal or a motion to reopen or reconsider the denial. USCIS reserves the right to reopen and reconsider, on its own motion, an approval or a denial of a provisional unlawful presence waiver at any time.
What can I do if USCIS denies my request for a provisional unlawful presence waiver or if I withdraw my provisional unlawful presence waiver application?
If USCIS denies your request for a provisional unlawful presence waiver, or if you withdraw your provisional unlawful presence waiver application before USCIS makes a decision, you may file a new Form I-601A, in accordance with the form instructions, with the required fees and any additional documentation that you believe establishes your eligibility for the provisional unlawful presence waiver. You can only file a new provisional unlawful presence waiver application if your immigrant visa case is still pending with DOS. You should notify DOS that you intend to file a new I-601A. See the DOS website – www.state.gov – for more information on how to notify DOS and to find out if your immigrant visa case is still pending with DOS.
Alternatively, you can file a Form I-601, Application for Waiver of Grounds of Inadmissibility with the USCIS Lockbox, after you attend your immigrant visa interview and after the DOS consular officer determines that you are inadmissible to the United States.
If USCIS denies my request for a provisional unlawful presence waiver will I be placed in removal proceedings?
USCIS does not envision initiating removal proceedings or referring provisional unlawful presence waiver applicants to ICE when USCIS approves or denies their waiver requests, or the applicant withdraws his or her application for a provisional unlawful presence waiver.
Pursuant to its existing policy governing issuance of Notices to Appear (NTAs) and referrals to ICE, an individual whose request for a provisional unlawful presence waiver is approved or denied or who withdraws the Form I-601A prior to final adjudication will typically be referred to ICE only if he or she is considered a DHS enforcement priority – that is, if the individual has a criminal history, has committed fraud, or otherwise poses a threat to national security or public safety.
USCIS will follow the DHS NTA issuance policy in effect at the time of the adjudication to determine if removal proceedings should be initiated against a provisional unlawful presence waiver applicant. Furthermore, if USCIS discovers acts, omissions, or post-approval activity that would meet the criteria for NTA issuance or determines that the provisional unlawful presence waiver was granted in error, USCIS may issue an NTA, consistent with DHS’s NTA issuance policy, as well as reopen the provisional unlawful presence waiver approval and deny the waiver request.
- Application to Register Permanent Residence or Adjust Status I-485
- Application for Provisional Unlawful Presence WaiverI-601A
- Application for Waiver of Grounds of Inadmissibility I-601
How Do I File for a Provisional Unlawful Presence Waiver? (636KB PDF)
MPORTANT NOTICE: Provisional Unlawful Presence Waiver –
On January 2nd, 2013, U.S. Citizenship and Immigration Services (USCIS) announced that certain immediate relatives of U.S. citizens present in the United States, who are in the process of seeking immigrant visas with the Department of State to become lawful U.S. permanent residents, may apply for provisional waivers before departing the U.S. to attend their immigrant visa interviews. Refer to the News Release and Instructions on the USCIS Website for eligibility information and instructions. Learn more. USCIS will begin accepting provisional unlawful presence waiver, Form I-601A applications on March 4th, 2013. Immigrant visa applicants with an immigrant visa interview appointment letter from the National Visa Center dated before January 3rd, 2013 are not eligible to file the I-601A.
Important Information – For I-601A Applicants:
- You must submit proof of payment of your immigrant visa (IV) application fee with your provisional waiver, Form I-601A application to USCIS. If you do not have an IV application fee receipt already, learn how obtain a fee receipt, see Provisional Waiver-NVC FAQs.
- USCIS will notify the NVC that you have applied for a provisional unlawful presence waiver. For more information about the NVC process, review our NVC FAQs.
