What is a Provisional Presence Waiver, and how do I apply for one?

A Provisional Unlawful Presence Waiver, often referred to as a Provisional Waiver, is a legal provision under U.S. immigration law that allows certain individuals who are family members of U.S. citizens or Lawful Permanent Residents (LPRs) to apply for a waiver for the unlawful presence bars before leaving the United States to attend their visa interview in their home country. This waiver is crucial for individuals who have accrued more than 180 days of unlawful presence in the U.S. and are subject to a 3-year or 10-year bar from re-entering the United States. The Provisional Waiver process helps minimize the time that families are separated during the immigrant visa process.

Understanding Unlawful Presence

Unlawful presence begins to accrue when an individual stays in the U.S. beyond the expiration date of their visa, or if they entered the country without inspection. Under U.S. immigration law, accumulating more than 180 days but less than one year of unlawful presence results in a 3-year bar from re-entry if they leave the U.S. Accumulating one year or more of unlawful presence results in a 10-year bar from re-entry.

Eligibility for a Provisional Waiver

To be eligible for a Provisional Unlawful Presence Waiver, an applicant must meet the following criteria:

• Be physically present in the United States to file the application and provide biometrics.
• Be at least 17 years old at the time of filing.
• Have an immigrant visa case pending with the Department of State (DOS) for the consular processing of their visa application and have paid the DOS visa processing fee.
• Be able to demonstrate that refusal of admission to the U.S. would cause extreme hardship to their U.S. citizen or LPR spouse or parent.
• Not have a final order of removal, deportation, or exclusion against them.

It's important to note that the waiver is available only for the unlawful presence grounds of inadmissibility.

How to Apply for a Provisional Waiver

• File Form I-601A: The application process begins with filing Form I-601A, Application for Provisional Unlawful Presence Waiver, with U.S. Citizenship and Immigration Services (USCIS).
• Pay the Filing Fee: There is a fee associated with the I-601A application. Make sure to check the latest fee on the USCIS website.
• Provide Evidence of Extreme Hardship: Applicants must provide evidence that their absence would cause extreme hardship to their U.S. citizen or LPR spouse or parent. This could include medical, financial, educational, or psychological hardship evidence.
• Attend a Biometrics Appointment: After filing, the applicant will be scheduled for a biometrics appointment to provide fingerprints, a photograph, and a signature.
• Wait for a Decision: USCIS will review the application and make a decision. If the provisional waiver is granted, the applicant will be notified.
• Attend Visa Interview: If the provisional waiver is approved, the applicant must leave the U.S. and attend their immigrant visa interview at the U.S. Embassy or Consulate in their home country. The waiver does not take effect until the applicant departs the United States and appears for their visa interview.
• Return to the U.S.: If the immigrant visa is granted, the applicant can then return to the U.S. as a lawful permanent resident.

Key Considerations

• Applying for a Provisional Unlawful Presence Waiver can be complex, and the success of an application heavily depends on proving extreme hardship. It's often advisable to seek assistance from an immigration attorney to navigate the process.
• Approval of the waiver does not guarantee visa issuance; applicants must still be eligible for an immigrant visa in all other respects.
• The Provisional Waiver process is specifically designed to reduce the time U.S. citizens and lawful permanent resident families are separated from their relatives who are going through the immigrant visa process.

By understanding the Provisional Unlawful Presence Waiver and carefully preparing their application, eligible individuals have a pathway to seek relief from the 3-year and 10-year bars for unlawful presence, facilitating family unity and legal immigration processes.