By: Stephanie E. Cangialosi, Esq.

The United States of America, often referred to as the land or opportunity, has inevitably drawn various immigrant populations to venture on long and often dangerous journeys to enter the United States in search of employment, education and overall stability. For foreign nationals seeking such opportunities, the possibility of lawful entry into the United States is not always within reach and in certain circumstances, those individuals proceed to enter the United States illegally or without inspection by U.S. Immigration officials.

Upon entering the United States without inspection, or overstaying a legal admission, individuals may begin to accrue what is referred to as “unlawful presence”, which can later become a significant impediment to legalizing through a certain qualifying family relationships or employment petitions. Specifically, the issue will arise where the applicant for permanent residence, who generally cannot adjust his or her status in the United States after entering without inspection or overstaying, is required to complete the application process by traveling to his or her country of origin to appear before a U.S. consular officer. However, as a consequence of accruing unlawful presence, the moment the applicant steps foot out of the United States, whether for processing his or her application or otherwise, he or she will be automatically barred from re-entering the United States for either three or ten years, depending upon the period of unlawful presence s/he has accrued; six to twelve months of unlawful presence prior to voluntarily departing and s/he will be barred from re-entering for three years; more than twelve months and it is a ten year bar against re-entry.

Clearly, the three and ten year unlawful presence bars have the potential to destroy individual lives and families. Fortunately, in March of 2013, the Secretary of Homeland Security was given discretionary authority to waive the unlawful presence bar before an applicants would be required to travel abroad if they can demonstrate that their U.S. Citizen spouse or parent would suffer extreme hardship in the event that they were barred from reentering the United States for either three or ten years for unlawful presence.

Prior to the enactment of the Provisional Unlawful Presence Waiver, foreign nationals who traveled abroad to complete the application process were required to apply for the waiver while outside of the United States. In the interim, they were separated from their families and awaited adjudication of their waiver risking the possibility that it might not be approved. Since its enactment, the Provisional Unlawful presence waiver has eliminated prolonged separation of families by allowing the applicant to remain in the U.S. while awaiting adjudication of their waiver.

The Provisional Unlawful Presence Waiver is an excellent tool that can be used by certain applicants to overcome the above-described bars that otherwise hinder their ability to obtain lawful status in this country. It should be noted that this particular waiver does not waive anything more than unlawful presence and may not be appropriate for individuals with certain criminal convictions, removal orders or those who have made multiple unlawful entries into the United States.

The following criteria will determine if you may qualify to apply for a provisional waiver:

  • You must be at least 17 years of age;
  • You must be the beneficiary of an approved immigrant visa petition classifying you as an “immediate relative” of a U.S. Citizen;
  • You must have already paid the Department of State (“DOS”) immigrant visa processing fee (IV Fee) for the case associated with the approved immigrant visa petition;
  • You are able to demonstrate that refusal of your admission to the United States will cause extreme hardship to your U.S. citizen spouse or parent;
  • You are physically present in the United States to file your application for a provisional unlawful presence waiver and provide biometrics;
  • The Department of State did not DOS did not initially act before January 3, 2013 toschedule your Immigrant Visa interview for the approved immediate relative petition upon which your provisional unlawful presence waiver application is based; and
  • You meet all other requirements for the provisional unlawful presence waiver, as detailed in 8 CFR 212.7(e) and the Form I-601A and its instructions.

Furthermore, the provisional unlawful presence waiver process only allows immediate relatives who only need a waiver of inadmissibility for unlawful presence to apply for that waiver in the United States before they depart for their immigrant visa interview. It does not forgive other grounds of inadmissibility. Those other individuals may be able to apply for a waiver of other grounds of inadmissibility abroad, after a DOS consular officer determines that they are inadmissible to the United States. The same is true for immediate relatives who are ineligible for provisional unlawful presence waivers.

Before applying for a provisional waiver, it is important to understand the following:

  • The provisional unlawful presence waiver process does not change the immigrant visa process. Even if your provisional unlawful presence waiver is approved, you are still required to depart the United States for your immigrant visa interview with a U.S. consular officer abroad.
  • If a provisional unlawful presence waiver is approved, it will only take effect after:

1  You depart the United States and appear for your immigrant visa interview; and

2  A DOS consular officer determines that you are otherwise admissible to the United States and eligible to receive an immigrant visa.

  • DOS may cancel your immigrant visa application process if you fail to appear at your immigrant visa interview at a U.S. embassy or consulate.
  • If you are in removal proceedings, you are ineligible for a provisional unlawful presence waiver unless, at the time you file your Form I-601A, your proceedings are administratively closed and have not been put back on the Department of Justice, Executive Office for Immigration Review (EOIR) calendar to continue your removal proceedings.
  • While USCIS has indicated that it does not envision placing I-601A applicants in removal proceedings, USCIS will follow current Department of Homeland Security (DHS) and USCIS Notice to Appear (NTA) guidance governing initiation of removal proceedings. For more information on USCIS NTA priorities, see USCIS Policy Memorandum, Revised Guidance for the Referral of Cases and Issuance of Notices to Appear (NTAs) in Cases Involving Inadmissible and Removable Aliens (Nov. 7, 2011).

Finally, although provisional waivers can provide hope for otherwise hopeless immigrants, it should be understood that such waivers can be extremely complicated, that proving the requisite level of hardship to the qualifying relative can be quite difficult. Accordingly, any individual who thinks that he or she may qualify for a provisional waiver should seek the counsel of an experienced immigration attorney.


Stephanie E. Cangialosi is an immigration attorney

with Cella & Associates, LLC – US Immigration Lawyers

Clifton and Fort Lee, NJ and Aventura, FL



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