Provisional Unlawful Presence Waivers

Overview of Provisional Unlawful Presence Waivers

Since March 4, 2013, certain individuals who are immediate relatives of U.S. citizens—specifically spouses, children, and parents—have been eligible to apply for a provisional unlawful presence waiver before leaving the country. This process is designed for individuals who require a waiver solely due to unlawful presence in the U.S., allowing them to apply while still in the United States before traveling abroad for their immigrant visa interviews.

Minimizing Family Separation

One of the main benefits of this waiver is that it can significantly reduce the time families are separated. In the past, individuals who had entered the U.S. without inspection or who overstayed their visas were required to leave the country and wait abroad, often for extended periods, while their waiver applications were processed. This could lead to months or even years of separation from loved ones.

With the provisional waiver process, eligible individuals can remain with their families while their requests are under review. Only after the waiver is approved will they need to travel abroad to complete their visa process at a U.S. embassy or consulate.

Eligibility Requirements

To qualify for a provisional waiver, you must meet the following criteria:

• Be an immediate relative (spouse, child, or parent) of a U.S. citizen

• Be inadmissible only due to unlawful presence in the U.S.

• Be able to show that denial of the waiver would result in extreme hardship to a U.S. citizen spouse or parent

This waiver is not available to individuals who are inadmissible for other reasons, such as fraud or criminal activity.

What Happens If the Waiver Is Denied?

If your waiver application is not approved, at least you will receive the decision while still in the U.S., rather than being stranded abroad for three or even ten years. In some cases, you may be able to reapply. U.S. immigration authorities have also stated that the waiver process is not intended to be used as a tool for removal, unless there are concerns related to criminal history or public safety.