Provisional Unlawful Presence Waiver

Prior to March of this year, those persons who accrued unlawful presence and wished to obtain a green card through an immediate relative were in for a long and suspenseful wait oversees with no certainty of approval of their application.  Prior law required an applicant to leave the United States before applying for a waiver of their unlawful presence.  This requirement forced applicants to trigger their 3/10 year bar upon leaving the United States without knowing if their unlawful presence would be waived.  Not only was the wait long for review of a waiver through consular processing, but there was also a risk that the waiver would not be approved and the foreign national would not be able to return to the United States for 3 or 10 years.

As of March 4, 2013, those immediate relatives who have an approved I-130 may now apply for a provisional waiver of their unlawful presence before they depart the United States for their visa immigrant interview.  This allows the applicant to know whether their waiver is approved prior to leaving the United States (and therefore triggering the 3/10 year bar).

While the new law is a relief for many foreign nationals who feared leaving the United States without confirmation that their unlawful presence would be waived, it is important to understand some key factors about the provisional waiver.

  • The waiver may be revoked at the visa interview if the the consular officer at the U.S. embassy or consulate determines that the foreign national is inadmissible on grounds of inadmissibility other than unlawful presence.

  • The foreign national must be able to show that refusal of their admission to the United States will cause extreme hardship to their U.S. citizen spouse or parent.

  • The foreign national must not have been scheduled for an immigrant visa interview by DOS before January 3, 2013.

  • The foreign national must have an approved I-130 or I-360.

  • The foreign national must be physically present in the United States to file their application for a provisional unlawful presence waiver and provide biometrics.

Please contact us for a review of your case to determine if you or your immediate relative qualifies for a provisional unlawful presence waiver.

Posted by Erin Elliott