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Provisional Waivers For Unlawful Presence

The U.S. Citizenship and Immigration Services (USCIS) recently employed a new procedure whereby starting March 4, 2013, a provisional waiver can be requested for the three-year and ten-year unlawful presence inadmissibility bars. The waiver is only available to spouses or children of a U.S. citizen.

Before the enactment of this procedure, individuals who were unlawfully present in the United States had to leave the U.S. before seeking a waiver to allow for their return. However, with the new procedure in place, a select group of qualified individuals can now apply for a waiver of inadmissibility for unlawful presence before leaving the U.S. This process is expected to shorten the time U.S. citizens are separated from their immediate family.

Who Is Eligible?

To qualify for the provisional waiver the applicant has to be an immediate relative ( spouses or children) of a U.S. citizen. They will need to demonstrate that their departure will cause extreme hardship their U.S. citizen spouse or parent. In addition, they will need an approved I-130 petition and be physically present in the United States at the time of the application.[1] Further the applicant must not be in any removal or deportation proceeding (unless they have been administratively closed or terminated).

How to ask for a waiver?

In order to seek the provisional waiver for unlawful presence, an I-601A form needs to be filled. The form along with supporting documents and a filing fee needs to mailed to USCIS Chicago Lockbox.

Why is a waiver necessary?

Under current law, individuals who have accrued more than 180 days of unlawful presence must obtain a waiver of inadmissibility so that they are able to adjust their status and eventually obtain a Green Card.

When does the provisional waiver take effect?

Even though immediate relatives of a U.S. citizen can now file for the waiver before leaving the U.S., the waiver does not change the immigration visa process. The waiver applicant still needs to leave U.S. even if their provisional unlawful presence waiver is approved. An approved waiver will only take effect after the applicant departs U.S. and appears for their visa interview and after a Department of State (DOS) consular officer determines that the applicant would otherwise be admissible to the United State and eligible to receive an immigrant visa.


This new provision has been long awaited and will shorten the time that families will have to stay apart. We, at the Law Firm of Moumita Rahman, are already seeing the positive impacts of this provision on families and if you feel you or your family member may qualify, please set up a consultation with our firm. We can be reached by phone at 212-248-7907 so call us today.

[1] For detailed criteria for eligibility please visit USCIS website at https://www.uscis.gov/family/family-us-citizens/provisional-waiver/provisional-unlawful-presence-waivers