When Are Immigrants Eligible for Provisional Unlawful Presence Waivers?

 Posted on April 10, 2023 in Immigration

Immigrating to the United States can be a daunting process. One of the biggest hurdles that many immigrants face is being able to stay in the country legally. Those who entered the United States without authorization or stayed in the country after the expiration of a visa may be concerned that they will be deemed "inadmissible" when applying for a visa or Green Card. However, certain types of waivers of inadmissibility may help address these issues. One of these is known as the provisional unlawful presence waiver. These provisional waivers are available in certain situations, and they may facilitate the process of receiving a visa that will give them authorization to enter the United States and remain in the country permanently.

What Are Provisional Unlawful Presence Waivers?

Provisional waivers exist to help certain immigrants achieve lawful status in the United States. These waivers are available to people who are already in the U.S. but believe that they are inadmissible due to a period of "unlawful presence," such as those who came to the country on a tourist visa or student visa but did not depart after the visa expired and remained in the country for at least 180 days. If an immigrant can prove that their absence from the country will cause extreme hardship for a spouse or parent who is a U.S. citizen or permanent resident, they may apply for a provisional waiver. If the waiver is approved, they will be required to leave the United States and attend an interview for an immigrant visa at a U.S. embassy or consulate.

Eligibility for Provisional Waivers

An immigrant must be at least 17 years old to apply for a provisional waiver, and they must be in the United States at the time they file their application. They must already be in the process of applying for an immigrant visa, such as by receiving approval on an I-130 form filed on their behalf by an immediate family member. Provisional waivers will only be available for immigrants who are subject to a three-year bar due to an unlawful presence in the United States for between 180 days and one year or a 10-year bar due to an unlawful presence in the U.S. for more than one year.

How to Apply for a Provisional Unlawful Presence Waiver

To apply for a provisional waiver, an immigrant must file Form I-601A with U.S. Citizenship and Immigration Services (USCIS). This form needs to be filled out completely and accurately and should include all supporting documentation. Once USCIS approves the form, the immigrant will participate in consular processing, which involves scheduling an appointment with a U.S. consulate or embassy to obtain their immigrant visa.

Reasons a Provisional Unlawful Presence Waiver May Be Denied

In addition to a failure to meet the eligibility requirements, there are certain other reasons a person may not be able to receive a provisional waiver. Those who are in the midst of deportation proceedings cannot apply for provisional waivers until their case is administratively closed. Those who have been subject to a deportation, removal, or exclusion will usually also be ineligible, although they may be able to apply for consent to reapply to be admitted to the United States. A provisional waiver may also be denied if a person does not adequately establish that their inability to be admitted to the United States would result in extreme or severe hardship for a qualifying immediate family member.

Contact Our Plano Provisional Waiver Lawyer

Provisional unlawful presence waivers can be an excellent option for some immigrants, and they may help them gain lawful status in the U.S. However, the eligibility requirements for provisional waivers are strict, and the process of applying for a waiver can be complicated. At Law Office of Jae Lee, we work with immigrants and their family members to address inadmissibility and other immigration-related issues. To learn more about how we can assist you, contact our Dallas provisional unlawful presence waiver attorney at 214-295-3014 and set up a free consultation today.

Sources:

https://www.uscis.gov/sites/default/files/document/forms/i-601ainstr.pdf

https://www.uscis.gov/family/family-of-us-citizens/provisional-unlawful-presence-waivers