J. Castro Law Group, PLLC
J. Castro Law Group, PLLC

Pathway to legal immigration

The Provisional Unlawful Presence Waiver

The Provisional Unlawful Presence Waiver

The Provisional Unlawful Presence Waiver does not have a very exciting name.  Others know it by its numeric form name, an I-601a waiver, a name that makes it even more uninteresting and more mundane than its legal name.  But don’t let the name fool you.  For many, it could mean the difference between years of separation from their loved ones or just weeks of separation.

To start, according to the law, 8 C.F.R. 212.7(e), and according to the U.S. Citizenship and Immigration Service “[c]ertain immigrant visa applicants who are relatives of U.S. citizens or Lawful Permanent Residents (LPRs) may …  request a provisional waiver of the unlawful presence grounds of inadmissibility under Immigration and Nationality Act Section 212 (a)(9)(B), before departing the United States to appear at a U.S. Embassy or Consulate for an immigrant visa interview.”

If after reading that, you still don’t know how useful this waiver is, you are not alone.  Immigration law is complex and nuanced, meaning unless you live and breathe immigration law, this might all sound like gibberish to you.  But the real world application of the waiver is significant because it addresses very real human needs and concerns—to avoid being separated from their families for longer than necessary.

So how does it help me?

Well, if you already in the United States, but are not eligible to adjust your status—maybe because you entered the U.S. without admission or inspection— then you would be required to apply for an immigrant visa at tbe U.S. Embassy in your home country.  That means, you have to leave the United States.  So far so good?  

Well the problem is that for most people that are already in the U.S. after entering the illegally, they’ve also accrued unlawful presence.  Unlawful presence may result in a 3 or 10 year bar depending on how much unlawful presence you’ve accrued.  The real kicker is that your very act of leaving the U.S. is what triggers the 3 or 10 year bar.  

You might be thinking, but I am leaving because I’m following the rules and rules say I have to leave to apply for a visa at a U.S. Embassy in my home country.  Yes, and that is the Catch-22 that most people find themselves.  It is possible to waive the unlawful presence bars, but the old way meant you had to leave the U.S., file for a waiver, wait months or a year, to get it approved, and if it’s denied, you face the consequences of being barred from the U.S. for at least 3 to 10 years.  If you’re thinking, that is a very long time to be away from your family, and such a big risk of being barred from the U.S., then you are more than right.  

This is where the Provisional waiver is extremely helpful. The I-601a waiver can be filed while you are still here in the U.S.  If and when it is approved, you would then leave the U.S. to apply for a visa at the U.S. Embassy.  You would still need to meet the requirements for the immigrant visa, but at least you know that your application would not be denied based on unlawful presence in the U.S.  The provision waiver helps to shorten the time away from family and gives more clarity to the outcome of your application.

What are the requirements?

This is a very specific kind of waiver, and it has special requirements an applicant must meet:

·      You must be 17 years or older.

·      You must be physically present in the U.S.

·      You should be in the process of obtaining an immigrant visa and have this case pending with the Department of State.

·      You must demonstrate that refusal to admit you to the United States will cause “extreme hardship” to either your U.S. citizen spouse   parent, who is either a U.S. citizen or a lawful permanent resident.

·      You believe that you are will only be inadmissible because of accrued unlawful presence in the U.S.

You have to meet all the requirements or your application would get denied.  An experienced attorney can help you with this process.  Our office can help you!

This article provides general information only. It is based on law, regulations and policy that are subject to change. Do not consider it as legal advice for any individual case or situation. Each legal case is different and case examples do not constitute a prediction or guarantee of success or failure in any other case. The sharing or receipt of this information does not create an attorney-client relationship.

Jason Castro