Most undocumented immigrants who entered the U.S. illegally must depart to apply for an immigrant visa at their U.S. Consulate overseas. Unless they qualify for 245(i) benefits, they cannot file a Form I-485 to adjust to permanent resident status while they are in the U.S.

If the person accumulated more than 180 days of unlawful presence prior to departing the U.S., it is much harder to obtain the visa overseas. To get the visa, the person first needs to receive a waiver of inadmissibility for the unlawful presence.

The Provisional Unlawful Presence Waiver, which was introduced on March 4, 2013, may be obtained before the immigrant visa applicant departs the U.S.  It reduces the uncertainty and risk that come with consular processing, but has many limitations.  To get this waiver, applicants must file the Form I-601A with USCIS while they are still in the U.S.

When is the Unlawful Presence Waiver Required? 

In 1996, Congress passed a law that bars foreign nationals from lawfully re-entering the U.S. for 3 or 10 years, if they accumulated a certain period of unlawful presence in the U.S. before they left the country.  Persons are unlawfully present if they:

(1) entered the U.S. without inspection (e.g. crossing the U.S.-Mexico border illegally or stowing away in a car crossing from Canada to the U.S.); or

(2) entered the U.S with inspection but failed to leave on time (e.g. entering the U.S. lawfully on a visitor’s visa or Visa Waiver program and overstaying the authorized period, in which case unlawful presence normally begins to accrue after the authorized stay expires).

Persons who accumulate more than 180 days but less than 1 year of unlawful presence after the age of 18 and after April 1, 1997 (for a continuous period), and then leave the U.S., are barred from re-entering the U.S. for 3 years. Persons who accumulate one year or more of unlawful presence after age 18 and after April 1, 1997 (for an aggregate period) and then leave the U.S., are barred from re-entering the U.S. for 10 years. This is commonly known as the 3/10 year bar.

Being in unlawful status does not necessarily mean you are unlawfully present for purposes of the 3/10 year bar. Some examples include:

1) A minor under 18 years old. Minors do not accrue unlawful presence until the day after their 18th birthday.

2) F-1 students who are admitted for the duration of their status. F-1 students do not begin to accrue unlawful presence until USCIS or an immigration judge finds they violated their status.

3) Adjustment of status applicants.  Persons with a properly filed Form I-485, application for adjustment of status, do not accumulate unlawful presence while the application is pending. The accrual of unlawful presence is tolled until USCIS denies the application.

When the 3/10 year bar applies, the person must obtain an unlawful presence waiver to lawfully re-enter the U.S. before the bar expires. For example, if you accumulated 190 days of unlawful presence and then depart the U.S. on June 4, 2015, you must obtain the waiver to receive an immigrant visa prior to June 4, 2018 (3-year bar).  If the unlawful presence lasted 10 years, you must obtain the waiver to receive an immigrant visa prior to June 4, 2025 (10-year bar).

Because the waiver is difficult to get, persons with unlawful presence should stay in the U.S. and apply for adjustment of status, instead of apply for an immigrant visa overseas, whenever possible. For instance, if you overstayed after entering the U.S. lawfully on a temporary visa (e.g. B-2, F-1 or H-1B visa), you may file for adjustment of status if you marry a U.S. citizen who files an immigrant visa petition for you.  The 3/10 year bar is not triggered unless you depart the U.S.

Advantages of the Provisional Unlawful Presence Waiver

Many undocumented immigrants are unwilling to take the risk of departing the U.S. to legalize their status, especially when they do not know whether a waiver of the 3/10 year bar will be granted. The provisional waiver provides two main advantages:

1. Higher likelihood that immigrant visa will be granted by the U.S. Consulate

Being granted the provisional waiver increases the likelihood that the U.S. Consulate will issue the immigrant visa at or shortly after the interview.

Applicants who do not qualify for the provisional waiver must file the regular Form I-601, Application for Waiver of Grounds of Inadmissibility, after they attend the visa interview. In contrast, Form I-601A applicants already have the provisional waiver at the time of the interview. Unless there are other grounds of inadmissibility, the U.S. Consulate typically grants the visa when USCIS has provisionally waived the unlawful presence.

2. Shorter wait time abroad and separation from family in the U.S.

Regular Form I-601 applicants must wait abroad, after attending their visa interview, while USCIS reviews their waiver request. Because USCIS normally takes at least six months to process the waiver, applicants must plan to wait outside the U.S. for this time period or longer.

If USCIS grants the waiver, the U.S. Consulate could take at least another month to contact the applicant to send in more documents to finish processing or attend a second interview to update the case and make sure the applicant is eligible for the visa.  The wait time abroad and separation from family often last at least six months and, in some cases, one year or more.

The provisional waiver process allows applicants to obtain the waiver ahead of time, before they depart the U.S. to attend the visa interview. You get to stay in the U.S. with your family while USCIS processes the waiver request, which reduces the time you are separated from your family. After the waiver is approved, you then depart the U.S. to attend the interview at the U.S. Consulate. Instead of waiting abroad for months like regular Form I-601 applicants, you normally get the visa within days to resume your life in the U.S.

Limitations of the Provisional Unlawful Presence Waiver

The Provisional Unlawful Presence Waiver is not available to all immigrant visa applicants and waives only inadmissibility due to unlawful presence.

1. Applicant must be an immediate relative of a U.S. citizen

The March 2013 regulations allow only immediate relatives of U.S. citizens to apply for the provisional waiver.

An immediate relative is the spouse of a U.S. citizen, child (unmarried and under 21) of a U.S. citizen, or parent of a U.S. citizen (who is over age 21). NOTE: Some persons over age 21 may still be classified as a “child” under the Child Status Protection Act (CSPA).

In November 2014, the Obama Administration directed USCIS to issue new regulations expanding the Form I-601A waiver to other applicants, but USCIS has yet to take this step. Until such time,  all applicants except immediate relatives of U.S. citizens must file the regular Form I-601.

[UPDATE: On July 29, 2016, DHS published a final rule expanding the I-601A waiver. As of August 29, 2016, the provisional waiver is available to all eligible applicants.]

2. Applicant must be physically present in the U.S.

You may apply for the provisional waiver only if you are already in the U.S. and are still in the U.S.

If you are living overseas or if you already departed the U.S., you must file the regular Form I-601 with USCIS after you attend the immigrant visa interview.

3. Applicant must prove that the qualifying relative will suffer extreme hardship if the waiver is denied

Applicants for the provisional waiver must meet the same standards under the regular Form I-601. You still must prove that your “qualifying relative” will suffer “extreme hardship” if you are not admitted to the U.S. before the 3/10 year bar expires.

Qualifying relatives are your U.S. citizen or permanent resident spouse or parent. U.S. citizen or permanent resident children are not qualifying relatives under immigration law.

The qualifying relative and the immediate relative need not be the same person. For example, when the undocumented immigrant’s spouse is a permanent resident, and the couple has an adult U.S. citizen son, the spouse is the qualifying relative and the son is the immediate relative. Although the son files the immigrant petition in the immediate relative category, the visa applicant must prove that the spouse will suffer extreme hardship if the 3/10 year bar is not waived.

Meeting the “extreme hardship” standard is challenging. “Extreme hardship” is more than just the normal hardships that arise when families are separated.

USCIS considers a variety of factors when determining whether your qualifying relative will suffer extreme hardship either by staying abroad with you or remaining in the U.S. without you. They include:

Health: Ongoing or specialized treatment requirements for a physical or mental condition; availability and quality of such treatment in your country, anticipated duration of the treatment; whether a condition is chronic or acute, or long-or short-term; need for applicant to assist with physical or mental conditions.

Financial Considerations: Future employability; loss due to sale of home or business or termination of a professional practice; decline in standard of living; ability to recoup short-term losses; cost of extraordinary needs such as special education or training for children; cost of care for family members (e.g. elderly and sick parents).

Education:  Loss of opportunity for higher education; lower quality or limited scope of education options; disruption of current program; requirement to be educated in a foreign language or culture with ensuing loss of time for grade or pay level; availability of special requirements, such as training programs or internships in specific fields.

Personal Considerations: Close relatives in the U.S.; separation from spouse or children; ages of involved parties; length of residence and community ties in the U.S.

Special Factors: Cultural and language barriers; religious and ethnic obstacles; social unrest or civil war in your country; valid fears of persecution, physical harm, or injury; social ostracism or stigma; access to social institutions or structures for support, guidance and protection.

USCIS considers the totality of the circumstances and weighs all the factors in the aggregate. USCIS will grant the waiver only if determines that the qualifying relatives will suffer extreme hardship if they remain in the U.S.  without the applicant or if they joined the applicant abroad, due to a combination of factors. 

4. Applicant cannot be inadmissible to the U.S. on other grounds

You may apply for the provisional waiver if you are inadmissible only on account of your unlawful presence in the U.S. If you are subject to other grounds of inadmissibility, such as illegal re-entries, false claims to U.S. citizenship, immigration fraud, or criminal convictions, you may not file the Form I-601A .

If USCIS determines, based on the record, there is reason to believe you are inadmissible on grounds other than unlawful presence, it will deny your Form I-601A.

Illegal re-entries or attempts to illegally re-enter the U.S. following one year or more of unlawful presence or following a removal order, after April 1, 1997,  is a permanent bar.  This cannot be waived by the filing of a Form I-601A. Rather, the applicant must wait outside the U.S. for 10 years and then request permission to be admitted to the U.S. by filing a  Form I-212.

There is no waiver for false claims to U.S. citizenship to obtain benefits under immigration law or federal or state law.  Rather, applicants must prove that no such claim was made or that they timely retracted the false claim.

In some cases, grounds of inadmissibility due to fraud or willful misrepresentation of a material fact to obtain immigration benefits, or due to criminal convictions, may be waived through the filing of a regular Form I-601 waiver application.

In January 2014, USCIS clarified that it will not automatically deny the Form I-601A when the applicant has a criminal history. USCIS will review the entire record to determine whether the criminal offense falls within the “youthful offender” or “petty offense” exception, or is not a crime involving moral turpitude. If any exception applies, USCIS will continue to process the waiver request and approve it, assuming the requirements are met and a favorable exercise of discretion is appropriate.

5. Applicant must not be in removal proceedings or subject to a removal order

If you are in removal proceedings, you may not apply for the provisional waiver unless the Immigration Court administratively closes your removal proceedings and does not place your case back on the calendar to continue removal proceedings as of the date of filing the Form I-601A.

You do not qualify for the provisional waiver if you (a) have been ordered removed, excluded, or deported from the U.S. or (b) are subject to reinstatement of a prior order of removal.

6. Applicant does not receive any lawful status or protection from removal

Applying for the provisional waiver does not give you any lawful status in the U.S., does not grant any immigration benefits such as employment authorization, and does not protect you from removal.

Although USCIS does not intend to place Form I-601A applicants in removal proceedings, it must still follow Department of Homeland Security (DHS) and USCIS Notice to Appear (NTA) guidance related to initiation of removal proceedings. So, if you mistakenly apply for the provisional waiver when you are removable or inadmissible for reasons other than unlawful presence, e.g. criminal convictions, you are alerting USCIS and could end up in removal proceedings.

How to Apply for the Provisional Waiver

To apply for the provisional waiver, you must:

(a) Be the beneficiary of an approved I-130 immigrant visa petition classifying you as an immediate relative of a U.S. citizen;

(b) Intend to pursue an immigrant visa at the U.S. Consulate abroad instead of apply for adjustment to permanent residence within the U.S.;

(c) Have an immigrant visa case pending with the U.S. Department of State (DOS);

(c) Pay the immigrant visa processing fee to the DOS; and

(d) File a Form I-601A, Application for Provisional Unlawful Presence Waiver, with USCIS. Make sure your application is complete, signed, and submitted with the correct application and biometrics fees. You must also include supporting documents and information showing how your qualifying relative would suffer extreme hardship if you are not granted the waiver.

If USCIS denies your Form I-601A, you may not appeal the decision or file a motion to reopen or reconsider the decision. You may, however, file a new waiver application with additional evidence and pay the fees again.

In some cases, even when you are not eligible for the provisional waiver, you may seek a waiver for the 3/10 year bar and other grounds of inadmissibility through the regular Form I-601 waiver process. This means you first need to depart the U.S. and attend the immigrant visa interview at a U.S Consulate abroad, which would then instruct you to file the Form I-601 if you qualify for a waiver.

* * *

Consult an experienced immigration attorney to help you determine whether you must apply for an immigrant visa instead of file for adjustment of status; whether you are inadmissible due to unlawful presence or other grounds; and whether you qualify for the provisional waiver (or the regular waiver).

Working with an attorney is critical to presenting a strong waiver application with the necessary information and documents showing you meet the extreme hardship standard.

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.

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Photo by: John Sonderman