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.

What is a provisional unlawful presence waiver?

A Provisional Unlawful Presence Waiver, submitted using Form I-601A, is a special waiver that allows certain individuals who are otherwise inadmissible to the U.S. due to unlawful presence to request forgiveness before departing for their immigrant visa interview at a U.S. consulate abroad.

Eligible individuals include those who:

• Are physically present in the U.S.
• Are at least 17 years old
• Have an approved immigrant visa petition (I-130 or I-140)
• Are the spouse, parent, or child of a U.S. citizen or lawful permanent resident
• Can demonstrate that denial of admission would cause extreme hardship to a qualifying relative (a U.S. citizen or LPR spouse or parent)

A Provisional Waiver of Unlawful Presence can offer peace of mind for those who are nervous to leave the country for consular processing because of the penalties set forth by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996.

The waiver allows them to avoid the waiting period within consular processing. The primary benefit is that they can receive a decision on their waiver application before departing, offering greater confidence that they can return to the U.S. after completing their visa interview abroad.

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.

What is unlawful presence?

Under U.S. immigration law, individuals who accrue more than 180 days of unlawful presence and then depart the U.S. trigger a three-year bar to reentry. If the unlawful presence exceeds one year, the bar increases to ten years. The provisional waiver process helps individuals address this issue in advance, preventing long family separations.

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.