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New Unlawful Presence Waiver for Immediate Relatives of US Citizens

Posted on February 17, 2013 at 11:45 PM

The new waiver process will allow the immediate relatives of U.S. citizens to apply for a provisional unlawful presence waiver while they are still in the United States and before they leave to attend their immigrant visa interview abroad. Under the old rule, applicants who are not eligible to adjust status in the US to become lawful permanent residents must leave the US and obtain an immigrant visa and unlawful presence waiver abroad. The current process involved a long wait and a lot of uncertainty because the applicant had to prove extreme hardship to a US citizen parent or spouse to have a waiver for unlawful presence approved in order to return to the US. The new process is intended to reduce the reluctance of non-citizens who may wish to obtain a green card through their marriage to US citizens or relationship to a US citizen parent, because the applicant would no longer be deterred by lengthy separation and uncertainty of success imposed by the process.

Under the new rule, an applicant must meet all of these requirements to qualify for the provisional waiver: 


  • Applicant must be present in the US at the time he or she files for the waiver;
  • Applicant must prove hardship to a US citizen spouse or parent;
  • Applicant must be barred from readmission based only on unlawful presence in the US and have no other grounds of inadmissibility;
  • Applicant must be a beneficiary of an approved immediate relative petition (Form I-130 or Form I-360);
  • Applicant must have a case pending with the Department of State based on the approved immediate relative petition and paid the immigrant visa processing fee;
  • Applicant must depart from the US to obtain the immediate relative immigrant visa; and
  • Applicant must be able to prove extreme hardship to his or her US citizen spouse or parent.


Below we have summarized a few things you should know about the new provisional waiver process: 

The provisional waiver is limited to immediate relatives of US citizens who can prove extreme hardship to their US citizen spouse or parent. The extreme hardship to a US citizen spouse or parent is a discretionary determination based on a totality of circumstances.

The waiver is limited to waiver for unlawful presence, and not other grounds of inadmissibility. Non-citizens who have other grounds of inadmissibility besides unlawful presence are not eligible for this new I-601A provisional waiver process but may be eligible to apply for additional waiver and ultimately, an immigrant visa, through the existing regular I-601 waiver process.

The waiver is available to non-citizens in removal proceedings who have their proceedings administratively closed or terminated. Non-citizens in removal proceedings should have their proceedings administratively closed or terminated and apply directly to the USCIS for the waiver. For cases that have been administratively closed, the non-citizen should seek termination and receive termination before departure from the US to avoid triggering other bars of inadmissibility. The waiver is unavailable to applicants who have received deferred action but have final orders of removal or other grounds of inadmissibility beyond unlawful presence. Individuals with final orders of removal should seek to have their proceedings reopened and then administratively closed to apply for the waiver with USCIS.

Consular interviews take place abroad. Under the new provisional waiver process, immediate relatives of US citizens who have already departed the US must pursue their waiver from abroad.  Further, immediate relatives of US citizens who are still in the US must still depart the US for the consular immigrant visa process. However, the immediate relatives who are in the US can apply for the provisional waiver from within the US and wait until it has been approved to depart the country so that they do not face lengthy separation from their families.  Non-citizens who have already been scheduled for their immigrant visa interviews at consular posts abroad are ineligible for the new provisional waiver process. However, if Department of State ("DOS") scheduled the immigrant visa interview after the publication of the final rule, the non-citizen can apply for a provisional unlawful presence waiver. An individual can also qualify for the waiver process in the US if he or she has a new immigrant visa case because DOS terminated the immigrant visa registration associated with the previous interview and they have a new immediate relative petition filed by a different US citizen petitioner.

Waiver can be refiled. The filing of the provisional unlawful presence waiver is not limited to those filing for the first time as USCIS agrees the one-time filing limitation that was initially proposed was too restrictive. Rather, when an applicant’s waiver has been denied or withdrawn, the applicant can file a new waiver with the appropriate filing fees. This is especially pertinent to cases where circumstances have changed since the first filing or the first filing was done through non-licensed notarios or ineffective assistance of counsel.

Who is not eligible? USCIS has specifically stated that the following non-citizens would be ineligible for the new unlawful presence provisional waiver: 

  • Applicants under age 17 (seventeen);
  • Applicants subject to other grounds of inadmissibility;
  • Applicants who have already scheduled an immigrant visa interview abroad before the publication of this rule;
  • Applicants who do not have an immigrant visa pending with DOS based on the approved immediate relative petition and have not paid the immigrant visa processing fee;
  • Applicants in removal proceedings unless the proceedings are administratively closed or terminated;
  • Applicants subject to final orders of removal; or
  • Applicants with pending applications to USCIS for adjustment of status.


Removability from the US. For individuals who are denied a waiver, USCIS will follow the NTA issuance policy in effect at the time of adjudication. This means that individuals whose waiver request is denied or who withdraw before final adjudication will only be referred to ICE for removal proceedings if he or she is considered a removal priority by the agency, such as having a criminal history, engaging in fraud, misrepresentation, national security, or public safety threat.

No appeal process is available. There is no appeal for denial of an I-601A provisional waiver. However, in the event of denial, there are several alternate avenues, such as filing a new Form I-601A with the required filing fees or filing a Form I-601 after attending the immigrant visa interview abroad and after DOS makes a determination that the individual is inadmissible. I-601 waiver can be appealed to the Administrative Appeals Office of USCIS.

No right to employment authorization or parole upon filing of waiver application. A pending or approved provisional waiver does not create lawful immigration status, extend an authorized period of stay, or protect non-citizens from removal or grant of any other immigrant benefit, such as employment authorization or advance parole.

Fees. Fees for the new provisional waiver process will consist of a filing fee $585 and a biometrics fee $85. There are no fee waivers available for this process.

The new procedure does not take effect until March 4, 2013. Before filing any waiver application, we highly recommend that you contact our office at (206) 915-5085 to have a consultation with an immigration attorney regarding your particular situation.  

Categories: Immigration Law (English)