Provisional Waiver of Unlawful Presence

Introduction

Most foreign nationals who entered the United States without inspection or have overstayed their visa are required to leave the US in order to apply for permanent residence. However, once they depart the U.S., they may be barred from returning to their families for 3 to 10 years. The provisional unlawful presence waiver process allows individuals who are statutorily eligible for an immigrant visa (immediate relatives, family-sponsored or employment-based immigrants as well as Diversity Visa selectees), but are subject to the unlawful presence bar to apply for the required waiver in the United States before they depart for their immigrant visa interview.

This new process significantly shortens the time that U.S. citizens and lawful permanent resident family members are separated from their relatives while undergoing immigrant visa processing.

Who can benefit from the provisional waiver process?

• Is physically present in the United States at the time of filing and when biometrics are collected;
• Is at least 17 years of age;
• Is in the process of obtaining an immigrant visa and has an immigrant visa case pending with Department of State (DOS) as a:
• principal or derivative beneficiary of an approved I-130, Petition for Alien Relative; an approved I-140, Petition for Alien Worker; or an approved I-360, Petition for Amerasian, Widow, or Special Immigrant who has paid the immigrant visa processing fee;
• a DV Program principal selectee or derivative beneficiary

• Is inadmissible based solely on having accrued a period of unlawful presence, and is not subject to any other grounds of inadmissibility;
• Can demonstrate that the refusal of admission would result in extreme hardship to a U.S. citizen or lawful permanent resident spouse or parent

What is extreme hardship?

The standard of proof is very high. The simple fact of being separated from the relative is not considered to be extreme hardship. There must be documentation of special circumstances raising the hardship to an extreme level. This is usually a balancing test that takes into account all positive and negative factors that must be weighed together to determine whether a given person deserves to be admitted to the U.S. despite their prior period of unlawful presence. Relevant factors include family ties, social and cultural issues, economic issues, age and health conditions, country conditions, and length of residence in the US. USCIS may grant the waiver if these factors in the aggregate show that the US citizen or permanent resident spouse or parent would suffer extreme hardship if they were separated from the applicant.

Why does USCIS refer to the waiver as "provisional?"

USCIS refers to the waiver as "provisional" because it will not take effect until after the applicant departs the United States, appears for his or her immigrant visa interview, and is determined by a consular officer to be otherwise admissible to the United States.

If a waiver is granted, applicants are still required to return to their home countries in to apply for their visa and re-enter the U.S. legally. However, the stay abroad will generally be much shorter, since the waiver has been pre-adjudicated.