Provisional Unlawful Presence Waivers

Everything you need to know about including a provisional unlawful presence waiver with your green card application.

Nutshell

In a nutshell.

A Provisional Unlawful Presence Waiver helps you if you are someone who has entered the U.S. improperly and want to apply for a green card. If you entered the U.S. improperly and are seeking a green card, you generally must leave the U.S. in order to adjust your status and apply for an immigrant visa. However, you would then come across the problem of being able to re-enter the country.

That's where the Provisional Unlawful Presence Waiver comes in. If you have a U.S. citizen who qualifies to petition for you, you can waive your unlawful entry through the Provisional Unlawful Presence Waiver I-601A and qualify to apply for a green card. If the waiver is granted, you can leave the U.S. for your consular interview and return immediately to the U.S. to become a lawful permanent resident following approval of your immigrant visa. If the waiver is denied, you can at least remain in the U.S.

I 601a

What is the Provisional Waiver and What Does it Do?

Typically, in order to apply for a green card and change your status to either immigrant or permanent resident status from within the U.S., you must not have entered the U.S. illegally. This means that if you entered the U.S. in a proper manner (after inspection by a USCIS official, or didn’t do anything that is otherwise unauthorized), you can adjust status and get your green card without ever leaving the U.S.

However, if you entered the U.S. illegally, then you must travel abroad in order to adjust status and obtain an immigrant visa. If you have been unlawfully present in the U.S. for 180+ days, it used to be much trickier to get back into the country after you had already left for your immigrant visa interview abroad. Technically, if you have been unlawfully present in the U.S. for 180+ days and leave the U.S., you would be inadmissible for re-entry for quite some time. This means that, before this waiver was available, you could have had to leave the U.S. for over a year without knowing if you would ever be able to return.

In January 2013, USCIS announced the I-601 Waiver. The provisional waiver solves this problem of needing to leave the country to finish your green card application. It allows you to apply for the waiver within the U.S. before you leave and, if approved, will allow you to return to the U.S. after leaving for your consular interview. When the provisional waiver is approved, it takes effect only after you leave the U.S. to appear for your consular interview and a consular officer from the Department of State says you are admissible to the U.S. and qualify for an immigrant visa.

The provisional waiver doesn’t change your process of getting an immigrant visa, however. Even after it is approved, you’re still required to leave the U.S. and head to a U.S. Embassy or Consulate abroad in order to process your immigrant visa. However, the waiver can reduce the amount of time you’ll need to spend abroad from over a year to just a few weeks or months.

Who is qualified?

In order to apply for a provisional waiver, you must be at least 17 years of age. You must be married to a U.S. Citizen, be an unmarried child under 21 years old of a U.S. citizen, parent of a U.S. citizen over 21 years old, or the spouse or unmarried child of a lawful permanent resident. In addition, you must show extreme hardship to your qualifying relative in the event that your admission is refused.

You must also have an approved petition (I-130 or I-360) saying that you are eligible for an immigrant visa, and a pending immigrant visa case with the State Department for the approved immediate relative petition and have already paid the immigrant visa processing fee. Additionally, you must be physically present in the U.S. in order to file your application for a provisional waiver and provide biometrics, and not have been scheduled for an immigrant visa interview by the consulate before January 3, 2013.

Who should not apply?

Because there is risk that USCIS might refer your case to ICE to institute removal proceedings, you should consult an attorney before filing for this waiver. For instance, if you entered the U.S. on a visa that expired, or on a fake visa, you may be able to adjust status without leaving the U.S. and may therefore not need a waiver.

If you have a criminal history or have committed fraud, your visa may be inadmissible for other reasons even if the unlawful presence waiver is granted. Additionally, if you are subject to a permanent bar, you are not eligible for this waiver. Typically, a permanent bar results from being unlawfully present in the U.S. for more than one year after 1996, and then re-entering or trying to re-enter the U.S. again unlawfully. Similarly, it can also result from being removed from the U.S. and then entering to re-entering unlawfully.

How do you show extreme hardship?

In order to be eligible for the provisional waiver, you must demonstrate that your removal would bring extreme hardship to your qualifying U.S. citizen or permanent resident relative (a spouse, parent, or child). The strength of you argument here will heavily depend on your individual circumstances. Extreme hardship can refer to the hardships your relative will face if forced to leave the country with you. It can also refer to the relative’s reliance your presence in the country, and therefore the hardships your relative will face if they stay in the U.S. while you are forced to leave. Extreme hardships exceed normal difficulties that would follow a family separation. For example, the potential for emotional damage is not enough by itself to constitute extreme hardship. Does your relative require regular medication that they couldn’t get in your home country? Perhaps you’re their primary caretaker and separation from you would lead to medical and physical deterioration?

If your qualifying relative would relocate with you, you can use documentation of the negative conditions of your home country to show how relocation would destroy your relative’s livelihood. Additionally, if the relative would stay in the U.S. in the event that you are removed, you can demonstrate the negative financial and emotional impact that this could have on your relative. To prove hardship, you will need evidence of the potential negative impacts on your qualifying relative. For economic hardship, documents such as utility/medical bills, receipts, and expenses, are supportive evidence of your necessary financial contribution to your relative’s well being. Additional evidence of hardship depends on your particular situation.

How to apply and what next?

The provisional waiver is filed by using Form I-601A. The filing fee is $930. If the waiver is approved, this does not guarantee that you will qualify for your immigrant visa. If your waiver is denied, then you can file for it again (this time, with additional evidence of extreme hardship). Re-filing is especially advisable if your circumstances have changed and there are now more grounds for extreme hardship to your qualifying relative in the event of your removal.

It is also important to note that, even if your waiver is denied, you’re still free to leave the U.S. to attempt obtaining your visa. In this scenario, it’s highly advisable to speak to an attorney to weigh the risks of leaving the U.S.

Final thoughts

The provisional waiver is a helpful tool for those who have entered the U.S. improperly but are diligently seeking to become citizens. Definitely seek the advice of an attorney to see if you qualify – we wish you the best of luck on your path to citizenship!