Provisional Unlawful Presence Waiver

Who does this waiver concern?

Illegal immigrants who are not eligible to adjust status (because of reasons such as illegal entry or overstay of visa) in the United States to become lawful permanent residents, must leave the country and obtain an immigrant visa from abroad. However, leaving the US makes the illegal immigrant subject to being barred from reentering the United States for up to three to ten years for having accrued unlawful presence for period of six months or more. To overcome this bar from reentry to the United States, the individual must obtain a waiver. There is the current process of obtaining the waiver and an added new process of obtaining the waiver that will be more advantageous but available only to qualifying applicants.

Current Process

Under the current process of attaining the waiver, so called the "Unlawful Presence Waiver," applicant can only apply for the waiver after two important procedures. First, they have to have appeared for an immigrant visa in a consulate abroad. Second, the Department of State has determined that the applicant is barred from reentering the United States.

This current process can be very time consuming and difficult to endure, as the applicant will have to wait remain outside the United States to apply for the waiver until the Department of State makes the decision on waiver which could take up to months or years.

New Process

This new waiver, so called the "Provisional Unlawful Presence Waiver," allows individuals to apply for a waiver even before they leave the United States to obtain an immigrant visa from abroad. This can significantly reduce the time the immigrant needs to stay abroad, who are in the process of obtaining an immigrant visa.

Who is qualified for this new process?

There are five eligibility requirements for the applicant to obtain a provisional unlawful presence waiver.

  1. Applicant must be an immediate relative of a US citizen. (spouses, parents and certain children)
  2. Applicant must be physically present in the United States
  3. Applicant has not already scheduled an interview at a U.S. consulate abroad.
  4. Applicant is inadmissible only on the account of unlawful presence.
  5. Denial of the waiver would result in extreme hardship to his or her U.S. citizen spouse, or certain children. Hardship affecting the applicant him/herself is irrelevant.

What if I am not eligible for the new process?

If you do not meet the five eligibility requirements, you must follow the same procedures mentioned under the current law.

Why is the new waiver named as being "provisional"?

This is because the provisional unlawful presence waiver is not a guarantee that the case will be successful. For example, even if the provisional unlawful presence waiver is granted, if the facts change or new information regarding the applicant comes to light, the waiver can be revoked.

When can I apply?

The new law will be in effect on March 4th 2013. Filings will be accepted beginning from that date. Also, you can only apply after an immigrant petition has been approved.

Do I need to work with an attorney?

The immigration process can take months, even years, and government filing fees and other expenses are significant - it's best to know your options before investing time and money. A thorough legal consultation should look at all aspects of your immigration history to find the best solution for your family, not just evaluate eligibility for a provisional waiver.

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