The Provisional Unlawful Presence Waiver

 Posted on June 01, 2019 in naturalization & citizenship

Many undocumented immigrants in the United States have immediate relatives who are U.S. citizens. Through their unlawful presence in the country, these individuals may have jeopardized their ability to lawfully change their status, even though they may otherwise be eligible because of their family relationship to a citizen.

It may still be possible for immigrants to adjust their status, but they must leave the country to legally obtain an immigrant visa. Before they do so, they may file Form I-601A for a provisional waiver.

Eligibility

The U.S. Citizenship and Immigration Services explains that foreign nationals who are statutorily eligible to acquire an immigrant visa may apply to waive their inadmissibility due to their unlawful presence. The waiver is provisional, and it does not change the process of obtaining an immigrant visa. It does not take effect until the foreign national leaves the U.S., appears for the immigrant visa interview, and the Department of State consular officer deems him or her admissible to the U.S. and eligible for the immigrant visa.

Individuals who want to apply for this waiver must meet all the following requirements:

• At least 17 years old
• Physically in the United States at the time of applying to provide biometrics
• Able to prove that inadmissibility to the U.S. would cause extreme hardship to the immediate relative who is a legal permanent resident or citizen
• Inadmissible only because of the unlawful presence in the U.S.
• In the process of obtaining an immigrant visa
• Have a pending immigrant visa case with the DOS

Other eligibility factors may also apply.

Ineligibility

Removal proceedings may make someone ineligible for the waiver, but proceedings are not an immediate disqualifier. Foreign nationals can only file the application for the waiver if they are not currently on the calendar for proceedings and the proceedings have been administratively closed.

Likewise, someone who has received a final order for removal, deportation or exclusion from the U.S. may still be able to obtain the Provisional Unlawful Presence Waiver. If the USCIS has already approved Form I-212, then the individual may file the form for the waiver. Acceptance of Form I-212 allows someone to reapply for admission after receiving a deportation or removal order.