Provisional Unlawful Presence Waivers

Since March 2013, U.S. Citizenship and Immigration Service (USCIS) has implemented a procedure via regulation to apply for a provisional waiver of the 3 and 10 year unlawful presence bars from within the United States (U.S.). As of August 29, 2016, the program has been expanded. Under the current expanded program, any individual who has any statutory immigrant visa available and a qualifying relative, no longer has to attend the visa interview prior to the adjudication of their provisional waiver application. There will still be a visa interview, but only after the decision on the provisional waiver.

Qualifying relatives are United States Citizen (USC) or Lawful Permanent Resident (LPR) spouses and parents ONLY. Please note that USC/LPR children are NOT qualifying relatives for this kind of waiver.

The provisional waiver is a regulatory change and not the result of any new law. The provisional waiver only waives the unlawful presence bar. If you are subject to any other ground of inadmissibility, such as a non-petty criminal offense or fraud, you are not eligible. However, some individuals with final orders of removal may now participate.

Obtaining lawful permanent residence (LPR) status, generally.

There are 2 ways to apply for permanent residence status:

  1. Adjustment of status in the U.S.; or
  2. Via Consular visa processing at the United States consulate in the foreign national’s home country. The provisional waiver will help some foreign nationals who are not eligible to adjust their status in the U.S. and require an unlawful presence waiver by getting a “pre-approval” of their waiver before they leave the U.S.

Under the current U.S. immigration law, only certain foreign nationals can adjust status in the U.S. This includes those who were lawfully inspected at the border and if not immediate relatives, also requires lawful inspection and maintenance of status up until the immigrant visa availability and application for adjustment of status. If a foreign national entered the U.S. without inspection, adjustment of status in the U.S. is not an available option unless the provisions of INA 245(i) apply.

What is Adjustment of status under 245(i)?

The provisions of 245(i) allows certain foreign nationals who entered without inspection, overstayed, and/ or worked without authorization to adjust status by paying a $1,000.00 penalty. It also requires that the foreign national was physically present in the USA on December 21, 2000 and that a family-based, employment-based petition or labor certification was filed for the foreign national no later than April 30, 2001. Derivative family members may also qualify for 245 (i) protection and do not need to prove physical presence.  If the immigrant petition was filed before January 14, 1998, proof of physical presence is also not required. The provisional waiver is an alternative available for some people who do not qualify under 245(i).

What is the Unlawful Presence Bar?

Foreign Nationals who have been unlawfully present in the U.S. for more than 180 days but less than one year, face a 3 year bar, which prevents the foreign national from returning to the USA after departure for 3 years. This ground of inadmissibility increases to a 10 year bar for individuals who have been unlawfully present for one year or longer prior to departure.

Application Process

Applying for a provisional waiver requires that an I-130 Immigrant petition be approved and that an immigrant visa case is pending with the National Visa Center/Dept. of State with a case number assigned and visa fee paid. The provisional waiver is requested on Form I-601A. Decisions regarding the provisional waivers are made by the USCIS prior to the foreign national’s departure for a visa interview at the consulate abroad. There is no appeal of a denied provisional waiver.

Simply filing the I-601A does not grant status or any legal privileges in the U.S. Even approval, by itself, does not grant any immigration status or benefit. In addition to qualifying for the waiver, one must separately qualify for an immigrant visa. It remains necessary to depart the U.S. and undergo the visa application process at an appropriate consulate.

If you are in removal proceedings, or even if you have a final order of removal, you may be able to qualify.

Conclusion

The provisional waiver will help some foreign nationals from being stuck abroad for months or years while awaiting waiver approval. It is intended to allow qualified individuals to reduce the time they must spend outside of the U.S. The purpose behind it being family unity.

It also should serve the purpose of reassuring such individuals that they will likely be able to return to the U.S. following their departure. Those who may need this type of waiver should seek qualified immigration advice. Waivers can be rather complex and creativity in developing your evidence to meet the extreme hardship standard may be needed. There are a variety of risks in this process, and various procedural considerations that you should discuss with a highly qualified Immigration Attorney.

The Expanded Provisional Waiver: Some Examples

Here are 2 examples of cases where the provisional waiver would apply:

Example 1: Provisional waiver through qualifying relative petition

Vitor came to United States from Brazil lawfully with his parents in 2000 when he was 16. Vitors’s father was a Pastor for a Brazilian congregation on an R-1 religious worker visa and Vitor had R-2 dependent status until he turned 21. His father’s church petitioned for Vitor’s father, but they did not have legal advice or representation and Vitor was already 21 when the petition was filed.

Luckily, the I-360 petition was eventually approved, but they did not realize that Vitor needed his own status when he turned 21. Therefore, Vitor’s parents became lawful permanent residents, but Vitor did not. Vitor began accruing unlawful presence in 2005 and is subject to a 10 year unlawful presence bar. Vitor visited my office some years back and his father filed an immigrant petition for him. Vitor has the visa available now, but is not eligible to adjust status.

However, now, under the expanded provisional waiver, Vitor can apply for a 601A waiver due to his LPR parents being qualifying relatives. Vitor is unmarried and provides primary care to his aging parents with whom he lives. Due to the fact that they do not speak English very well and rely on him for many things including transportation and visits to numerous doctor’s appointments he should have a good chance at establishing extreme hardship.

Example 2: Provisional waiver through employer petition with parent as qualifying relative

Diego, a citizen of Mexico, came to the USA when he was 17. His mother had fled Mexico many years earlier due to domestic violence and won her asylum case in court. She is now an LPR and filed a petition for Diego, her only child now 25, one year ago. However, the visa will not be available for many years and she is very sick with diabetes. Diego also tried to apply for asylum, but was denied and has a final order of removal.

Diego works in an accounting office where he must speak Spanish and Portuguese and his employer is willing to petition for him via labor certification and I-140 employer immigrant petition.

Diego can apply for a provisional waiver with his mother as the qualifying relative. The immigrant visa process through his employer will be much faster than waiting for his mother’s petition and due to his mother’s sickness he should be able to establish extreme hardship.

Diego has a final order of removal, so he needs to get permission to re-apply for admission (I-212) before filing for his provisional waiver.

Contact our Board Certified Immigration Attorney

If you believe that you, or someone that you care about, may qualify for the new Provisional Waiver of Unlawful Presence or would like to find more information on this subject, please call us during office hours at (407) 674-6968. You may also call us at 813-400-0055 to make an appointment at our Tampa location. If you have an emergency after office hours please call us at (407) 925-2554 and we will contact you shortly. You may also send us an email at info@immigrationhelptoday.com. For answers to some of the most frequently asked questions we get on this subject please visit our Provisional Waiver Program FAQs page!

Immigration News

 

Immigration Overview
Practice Areas

Featured Articles
CONTACT US

Name

Email Address

Phone

Legal Issue

captchaRefresh

Please enter the text from the image:



 

Google+ Like Suzanne Vazquez in Facebook Twitter Account
Portuguese Version of the Website for the Orlando Immigration Law Offices of Suzanne E. Vazquez

Telephone: (407) 674-6968 • After Hours: (407) 925-2554 • Fax: (407) 965-5328 • Email: info@ImmigrationHelpToday.com

319 North Fern Creek Avenue, Orlando, Florida 32803

Tampa Office. By appointment only: 813-400-0055


Copyright 2017, Suzanne E. Vazquez, P.A.

Member of the AILA - American Immigration Lawyers AssociationAVVO Top Immigration Attorney Suzanne E. VazquezAVVO Board Certified Immigration Lawyer - Clent's Choice 2012Board Certified Immigration Attorney by The Florida Bar

The Information obtained at this site is not, nor is it intended to be, legal advice. You should consult an attorney for individual advice regarding your own particular case.