Provisional Waiver – Purpose and Eligibility

Provisional waiver

U.S. Citizenship and Immigration Services (USCIS) amended its regulations, expanding the provisional waiver eligibility program, with changes taking effect last year. These changes affect those whose attendance of a consular appointment at a United States embassy or consulate would trigger the unlawful presence ground of inadmissibility.

The program provides a process for USCIS to adjudicate the waivers of unlawful presence before an applicant’s departure for his or her visa interview, and should encourage lawful permanent residents and spouses of U.S. citizens to move forward with their immigrant visa applications.

An applicant can travel abroad for a visa interview without worry of delay in the issuance of visa, once the provisional waiver is approved. The waiver remains “provisional” while the U.S. Department of State conducts its own investigation, verifying eligibility and eliminating concerns about other grounds for inadmissibility. If an applicant is determined to be inadmissible, the provisional waiver is entirely revoked.

The ground of unlawful presence inadmissibility is the most common reason for the denial of immigrant visa applications, accounting for 60 percent of all refusals in 2015.

Purpose

The purpose of the Provisional Waiver is to reduce the time that applicants for immigrant visas are separated from family and employment when subject to the unlawful presence ground. It also reduces uncertainty when applicants travel abroad for consular interviews.

Applicants who do not qualify for permanent residency in the U.S. through adjustment of status must undergo consular processing at a U.S. embassy or consulate abroad, for an immigrant visa. The process includes a medical examination and an interview abroad at a United States consulate, which usually only takes days. Then, the applicant can return to the United States as a lawful permanent resident.

If the applicant is refused a visa, he or she must remain abroad until the Application for Waiver of Grounds of Inadmissibility is filed, adjudicated by the Nebraska Service Center, granted and forwarded to the consulate. During adjudication, which can take between four to six months or longer, the applicant is usually separated from family and employment. If denied, the applicant will be denied entry as an immigrant for a designated period of time, sometimes permanently.

If the applicant is found inadmissible based on unlawful presence, but denied a waiver, they are typically denied entry as an immigrant for either three or ten years. This depends on how much unlawful presence took place before the immigrant’s departure.

Provisional Waiver Eligibility

Any immigrant visa applicant is eligible if he or she will be found inadmissible based on unlawful presence, and can establish extreme hardship for a U.S. citizen, including a spouse who is a lawful permanent resident. In addition, he or she must also:

  • Be 17 years of age or older
  • Have a case pending with the Department of Justice and paid the immigrant visa fee
  • Not be inadmissible under any other ground or be an applicant for adjustment of status
  • Not be subject to a final order of removal, deportation or exclusion (unless USCIS has already granted the applicant’s Form I-212).
  • Not be subject to a prior order of removal that has been reinstated by Customs or ICE, and not be in removal proceedings (unless proceedings have been closed at the time of filing waiver)
  • Be in the U.S. at the time of filing, and during collection of biometrics.
  • Have an approved immigrant visa petition or be selected to participate in the Immigration and Nationality Act’s Diversity Visa Program.

How to Apply

First, you should read the Form I-601A instructions and fill out the application.  After you completed the form, you should file it with the USCIS along with supporting documents.  Form I-601A should be filed separately without any other applications or petitions.  Keep in mind that applying for the waiver without a qualified attorney’s assistance dramatically increases the chances of denial.

Should you have any questions or if you would like to schedule a consultation, please contact me by submitting the form or by calling me at (917) 426-8227 or (248) 630-3239.  I accept clients from across the U.S. and around the world.  My law offices are conveniently located in Troy, Michigan and in Lower Manhattan, New York for in-person meetings.  For phone consultation, you can reach me from any part of the United States or abroad.