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Application for Provisional Unlawful Presence Waiver

by Hamid R. Kashani, Attorney at Law
Nov 07, 2018

What is the Application for Provisional Unlawful Presence Waiver?

The Application for Provisional Unlawful Presence Waiver allows nonimmigrants in the United States, who have accumulated more than 180 days of unlawful presence in the United States and, thus, have become inadmissible, to seek a waiver of their ground of inadmissibility before leaving the United States for a visa interview at a U.S. consulate overseas.

The principal benefit of the Application for Provisional Unlawful Presence Waiver is that it allows the nonimmigrant to stay in the United while the application is being decided by the USCIS.

The Application for Provisional Unlawful Presence Waiver allows only for waiver of inadmissibility resulting from unlawful presence in the United States.  Nonimmigrants, who accumulate more than 180 days, but less than one year, of unlawful presence during a single stay will be inadmissible for three (3) years. Those accumulating one year or more of unlawful presence, during a single stay, will be inadmissible for ten (10) years.

Why should I apply for Provisional Unlawful Presence Waiver?

Some nonimmigrants in the United States may be the beneficiaries of an immigrant petition, e.g., a family-based petition, filed by their citizen spouse, or an employment-based petition filed by their prospective employers. To obtain the permanent resident status, these nonimmigrants may either adjust their status in the United States without leaving the country or may go through consular processing at a U.S. consulate overseas.

Some nonimmigrants cannot adjust their status in the United States. For example, undocumented immigrants (those who have entered the country without inspection) may not adjust status in the United States. They must leave the country and seek an immigrant visa through consular processing at a U.S. consulate overseas.  However, by the time they leave the country, they may have accumulated considerable days of unlawful presence, which would make them inadmissible for 3 or 10 years.

Ordinarily, those inadmissible nonimmigrants, who are required to go through consular processing, must apply for a waiver of the grounds of their inadmissibility, after they leave the country and go through the initial visa interview. Thereafter, they must file the Application for Waiver of Grounds of Inadmissibility (Form I-601) and wait for a decision, while they are outside of the United States. Once that application is approved, they can continue with the consular processing and possibly receive their immigrant visa (green card).  This process likely will take more than a year, and the success is not certain.

Since 2013, certain inadmissible nonimmigrants are allowed to file an Application for Provisional Unlawful Presence Waiver, while they remain in the United States with their family.  After their application is approved, they can make an appointment with a U.S. consulate overseas and leave the country for a short trip to obtain their immigrant visa.

What are the qualifications for Provisional Unlawful Presence Waiver?

You may apply for provisional unlawful presence waiver, if you meet all of the following requirements:

  • You are physically present in the United States;
  • You are at least 17 years old;
  • You fall within one of the following categories:
     
    • You are the principal beneficiary (or the spouse or child of the principal beneficiary) of an approved Petition for Alien Relative (I-130), Petition for Alien Worker (I-140), or Petition for Amerasian, Widow(er), or Special Immigrant (I-1360); you have paid the required immigrant visa processing fee to the U.S. Department of State (DOS); and you are in the process of obtaining your immigrant visa; or
    • You are the selectee (or the spouse or child of the selectee) of the DOS' Diversity Program (DV visa) and you are in the process of obtaining your immigrant visa, i.e., “the DOS Kentucky Consular Center (KCC) has assigned you a DV case number, and you are awaiting an immigrant visa interview;
  • Your absence in the United States would result in “extreme hardship” to your citizen or permanent resident spouse or parent; and
  • Your case warrants favorable exercise of discretion.

Proof of “extreme hardship” to your citizen or permanent resident spouse or parent is the critical aspect of an Application for Provisional Unlawful Presence Waiver.  You must assemble comprehensive evidence to demonstrate how your absence from the country would inflict “extreme hardship” upon your spouse or parent. While the impact of your absence on your children is not a direct factor in determination of the waiver application, you may be able to demonstrate how the impact of your absence on your children would in turn work an “extreme hardship” upon your citizen or permanent resident spouse or parents, who may end up caring for the children.  Finally, do not ignore the adverse impact upon yourself, you should document and present evidence regarding your character and the immense impact of being excluded from the United States.  Those factors, though not directly relevant to determination of “extreme hardship” on your relatives, will be relevant to the exercise of favorable discretion in your favor.

Note. Your qualified relative who would suffer “extreme hardship” in your absence from the United States need not be the individual or entity who files an immigration petition on your behalf.

Who is not qualified to apply for Provisional Unlawful Presence Waiver?

You are not qualified to apply for provisional unlawful presence waiver, if

  • You are in removal proceeding, but see the exception below;
  • You are already subject to a final order of removal, deportation, or exclusion, unless you first apply for and receive “consent to reapply” for admission into the United States, using USCIS Form I-212;
  • The Department of Homeland Security (DHS) has entered a final order reinstating the prior deportation, exclusion, or removal order against you. However, if DHS has served you a notice of its intent to do so, you must supplement your provisional unlawful presence waiver application and inform the USCIS; or
  • You currently have an order of voluntary departure, which has not expired.

When would it not be beneficial to apply for Provisional Unlawful Presence Waiver?

If you are inadmissible on any grounds other than unlawful presence, applying for Provisional Unlawful Presence Waiver would not benefit you and, in fact, may bring you to the attention of immigration authorities. For waiver of some of the inadmissibility grounds, you may file an Application for Waiver of Grounds of Inadmissibility (Form I-601), which would allow you to apply for waiver of selected grounds of inadmissibility.

Some grounds of inadmissibility are permanent bars and cannot be waived. If you are an undocumented immigrant, who has entered or attempted to enter the United States without inspection either (a) after previously having accumulated more than one year of unlawful presence after 1996, or (b) after having been ordered removed through a removal proceeding or expedited removal, then you are permanently inadmissible. For example, if you illegally entered the United States in 2000, a year and one day later left the country for a few days (or even for an hour), and then again entered the country illegally (i.e., without inspection), then you are permanently inadmissible.

Can I apply for Provisional Unlawful Presence Waiver if I am in a removal proceeding?

If you are in removal proceeding, you can apply for provisional unlawful presence waiver only if the immigration court administratively closes your case without placing it on calendar.

Note that even if the court administratively closes your case and does not place it back on its calendar, you are still in removal proceeding. You remain in removal proceeding until the immigration court dismisses or terminates the case.  If the USCIS approves your provisional unlawful presence waiver application, and your removal proceeding has not been terminated or dismissed, you must resolve the situation before you leave the country.

How do I apply for Provisional Unlawful Presence Waiver?

To apply for provisional unlawful presence waiver, you must file a Provisional Unlawful Presence Waiver (Form I-601A), and all of the supporting documents, with the USCIS.

To see the current USCIS fee for this application, see USCIS Fee Schedule.

To see how long the USCIS would take to adjudicate your application, see USCIS Processing Times.

Premium processing is not available for processing Form I-601A. Further, you cannot file any other application concurrently with Form I-601A.

Approval of provisional unlawful presence waiver application would not allow you to adjust your status to that of a permanent resident while in the United States.  You will have to leave the United States and go through consular processing at a U.S. consulate overseas. The consular officer, who would interview you, must then find you eligible for an immigrant visa.

What should I do after USCIS approves my Provisional Unlawful Presence Waiver application?

Once you receive the approval of provisional unlawful presence waiver application, you should make an appointment with the U.S. consulate overseas and appear before a consular officer for your immigrant visa (green card) interview.  For further details, see Consular Processing.

If you are already in a removal proceeding, ensure that you resolve that proceeding before leaving the country. Otherwise, your visa interview process may be delayed significantly and, under some circumstances, the approval of your provisional unlawful presence waiver application may be automatically revoked.

Approval on your provisional unlawful presence waiver application is not a guarantee that you would receive an immigrant visa at the U.S. consulate during the consular processing of your immigrant visa application. Your case will be evaluated by the consular officer like any other application for an immigrant visa, except that your unlawful presence in the United States, as disclosed on your provisional unlawful presence waiver application, will be excused.

Equally, having the approval of your provisional unlawful presence waiver application is not a guarantee that the U.S. Customs and Border Protection (CBP) officer at the port of entry would admit you into the country. Again, the CBP officer will evaluate tour situation like any other applicant for an immigrant visa who seeks to enter the country, except that your unlawful presence in the United States, as disclosed on your provisional unlawful presence waiver application, will be excused.

Therefore, it would be prudent that, before applying for provisional unlawful presence waiver, you ensure that you are not inadmissible for any reason other than unlawful presence.

What actions would revoke the approval of my Provisional Unlawful Presence Waiver?

Any approval of the provisional unlawful presence waiver will be automatically revoked, if you enter or try to enter the United States without inspection.  So, do not leave and then try to reenter the country without inspection while your application is pending or at any time after receiving your approval-- not even if you have the approval in hand.

What is the validity period of an approved Provisional Unlawful Presence Waiver?

An approved provisional unlawful presence waiver becomes effective after the consular officer interviews you and determines that you are admissible into the United States. Thereafter, that waiver will be effective indefinitely for the period of unlawful presence that was waived.

What are my options, if the USCIS denies my Provisional Unlawful Presence Waiver application or if the USCIS subsequently revokes my approved waiver?

You cannot seek reconsideration of, or appeal, a denial of Form I-601A.  If the USCIS denies your provisional unlawful presence waiver application or revokes its earlier approval or if you withdraw your application, you may file a new application, especially if the circumstances have changed since your previous application.  As a matter of practice, however, it is always best that you present a strong case the first time around.

Alternatively, if you leave the country, apply for a visa at a U.S. Consulate, and the consular officer determines that you are inadmissible, you may file an Application for Waiver of Grounds of Inadmissibility.

If USCIS denies my Provisional Unlawful Presence Waiver application, would it start a removal proceeding against me?

In the past, USCIS has specifically stated that denial of a provisional unlawful presence application “does not automatically trigger initiation of removal proceedings” and that it independently follows its guidelines for initiation of removal proceeding.

On June 28, 2018, the USCIS issued a new policy on issuance of NTA's.  Buried in a short statement at the bottom of its page 7, the new policy states: “USCIS will issue an NTA where, upon issuance of an unfavorable decision on an application, petition, or benefit request, the alien is not lawfully present in the United States.”  NTA's, or Notices to Appear, are the initial documents for starting removal proceedings.

The USCIS policy and procedure in this regard is changing. You should consult an immigration attorney, before filing a provisional unlawful presence waiver application.

Related Topics:

Application for Waiver of Grounds of Inadmissibility

Grounds of Inadmissibility to the United States

Consequences of Overstaying in the United States

Consular Processing

Child Status Protection Act (CSPA)

 

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