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Provisional Unlawful Presence Waiver

The provisional waiver process is not a substantive change to the immigration laws but a procedural change in the way that a specific type of waiver application can be filed with the USCIS. While current waiver filing procedures for an individual processing an immigrant visa application, at US embassy outside the United States consular post requires that individual to apply for a waiver of grounds of inadmissibility while outside the US and after his or her immigrant visa interview, under this final rule, DHS is permitting a certain category of aliens to file a waiver of inadmissibility for unlawful presence while still in the US.

The filing of a provisional unlawful presence waiver application will not:

(1) confer any legal status; (2) protect against the accrual of additional unlawful presence; (3) authorize an alien to enter the United States without securing a visa or other entry document: (4) convey any interim benefits (such as employment authorization, advance parole or eligibility to be paroled based solely on a pending or approved Form I-601A)) or (5) protect an alien from being placed in removal proceedings or removed from the United States.

  1. Requirements:
    1. Applicant must be immediate relative of a U.S. citizen (parent, spouse, children)
    2. Inadmissible only on account of unlawful presence
    3. Demonstrate the denial of the waiver would result in extreme hardship
    4. Notify the DOS national Visa Center that they are or will be seeking a provisional wavier by filing the Form I-601A
    5. Pay the biometric and Form I-601A filing fees ($585)
    6. Depart the United States for the consular visa process interview

  2. Who is Eligible?
    1. Aliens over 17
    2. Aliens who are not already scheduled for immigrant visa interviews are eligible for the Provisional. (the date that the DOS initially acted to schedule the visa interview is after 1-3-13)
    3. Aliens in removal proceedings ARE eligible if their removal proceedings are administratively closed and have not been recalendared at the time of filing the Form I-601A (If granted the provisional, applicants should seek termination or dismissal of their removal proceedings prior to departure or they risk becoming ineligible for their visa based on another ground.)
    4. If denied or withdrawn, an alien can refile a new Form I-601A with the required fees
    5. Aliens who are deferred ( such as DACA) must meet all requirements under 8 CFR 212.7(e) to receive a provisional
    6. Aliens under TPS who need a waiver for unlawful presence, must meet the same criteria, and are eligible for provisional waivers

  3. Who is Not Eligible
    1. Aliens who are already scheduled for immigrant visa interviews are NOT eligible for the Provisional. (the date that the DOS initially acted to schedule the visa interview is prior to 1-3-13! - this may attach to anyone who cancelled their interview in hopes of using the provisional method)
    2. Individuals outside of the United States must pursue a waiver of inadmissibility through the current Form I-601 process
    3. Aliens with final orders of removal
    4. Aliens with other grounds of inadmissibility beyond unlawful presence (such as crimes, misrepresentation etc)
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