Provisional Unlawful Presence Waivers Explained
Since March 2013, certain immigrant visa applicants who are immediate family members (spouses, children, and parents) of U.S. citizens can apply for provisional unlawful presence waivers before leaving the United States for their consular interview. As of August 2016, this process was expanded to all individuals eligible for an immigrant visa and a waiver of inadmissibility for unlawful presence in the United States.
What are Provisional Pardons?
Provisional waivers allow noncitizens who cannot adjust their status in the United States to travel abroad and obtain an immigrant visa. Those who have accumulated more than 180 days of unlawful presence in the United States must obtain a waiver of inadmissibility to overcome the barriers of unlawful presence under section 212(a)(9)(B) of the Immigration and Nationality Act before they can return.
Provisional Forgiveness Process
This process allows those who are eligible for an immigrant visa to apply for a waiver of inadmissibility for unlawful presence in the United States before departing for their immigrant visa interview. It was developed to shorten the time that U.S. citizens and lawful permanent resident family members are separated from their family members while they obtain immigrant visas to become lawful permanent residents of the United States.
Eligibility Requirements for Waivers
To be eligible for a provisional unlawful presence waiver, you must meet all of the following conditions:
• Be physically present in the United States to submit your application and provide biometric data.
• Be 17 years of age or older.
• Be in the process of obtaining your immigrant visa and have a pending case with the Department of State (DOS).
• Demonstrate that denial of your admission to the United States will cause extreme suffering to your U.S. citizen or legal permanent resident spouse or parent.
• Believing that you are or will be inadmissible only for a period of unlawful presence in the United States.
How to Apply for Waivers?
Follow the instructions on Form I-601A and complete the application. You will need to submit supporting documents with your application. You cannot file Form I-601A with another application or petition.
Approval of Form I-601A
Approval of your provisional waiver application does not grant you any benefits or protect you from being removed from the United States. It also does not allow you to request intermediate immigration benefits such as work authorization or parole. What’s more, it does not give you legal immigration status nor does it change the requirement that you must leave the United States to obtain an immigrant visa.
Revocation of Provisional Pardon
Your approved provisional waiver may be revoked if DOS terminates processing your immigrant visa application, if USCIS revokes the underlying immigrant visa petition, or if a consular officer determines that you are ineligible for the visa.
If You Are in Removal Procedures
If you are in removal proceedings, you cannot apply for a provisional waiver unless your case has been administratively closed by an immigration judge or the Board of Immigration Appeals.