Waivers are filed to waive certain grounds of inadmissibility which take effect when an individual is applying for residency or admission into the United States.   The most common grounds of inadmissibility include the following:  criminal convictions, fraud and misrepresentation to immigration officials, and unlawful presence in the U.S.


In general to be granted a waiver, the foreign national must demonstrate to USCIS/Immigration Court that the U.S. citizen or Lawful Permanent Resident spouse, parent, or in some case child will suffer “EXTREME HARDSHIP.”   Extreme Hardship does not have an exact definition but it is described as hardship not normally associated with the deportation of a loved one.  Simple financial loss from losing the deported individual’s salary or sadness stemming from the deportation of someone you love is not sufficient to prove extreme hardship.  A person must show hardship above and beyond the baseline.  A hardship waiver must also address the hardship for the U.S. citizen or resident relative both if the relative remained in the United States without the applicant or if the U.S. relative returned with the applicant to his or her native country.   Every individual who is required to file a waiver needs the help of a qualified immigration attorney who can assist in preparing and document the hardship.    Our office has obtained dozens of approvals of I-601 and I-601A waivers.  




The U.S. Citizenship & Immigration Service ("USCIS") issued a new rule on January 2, 2013.  The new rule will allow certain immigrants who have a U.S. citizen spouse or parent, but who must depart the United States as part of the process of becoming a lawful permanent residence, to file their unlawful presence waivers before they leave the country and await adjudication of the waiver while remaining in the United States.  The new process lowers the risk that such people will be denied re-entry into the United States and dramatically reduces the time they spend abroad apart from their families.  The change in process took effect on March 4, 2013 when USCIS will begin accepting the new waivers applications.   The new rule positively affects as many as one million undocumented immigrants residing in the United States. 


The new USCIS rule eliminates the risk of family separation for persons who qualify to file a “provisional unlawful presence waiver” in the United States.  The new rule changes the processing of the traditional unlawful presence waiver by allowing certain individuals to apply for a “provisional waiver” before departing the United States.  People whose provisional waiver applications are approved would then be able to travel abroad knowing that a waiver will be granted, reducing the risk they would be denied re-entry into the United States. The new process also reduces the time that such people spend abroad apart from their families, as the most time-consuming part of the residency process will already have been completed before they leave the United States. 


Who Is Eligible To File The New Provisional Waiver?


The applicant must meet the following requirements to be eligible for the new waiver program:

  • Be 17 years of age or older;
  • Be an immediate relative of a U.S. citizen (spouse, parent, or child);
  • Have an approved I-130 petition or I-360 petition;
  • Be able to show “extreme hardship” to the U.S. citizen spouse or parent;
  • Note that even if the applicant has a lawful permanent resident qualifying relative other than the U.S.citizen petitioner, the applicant CANNOT show any hardship to the lawful permanent resident.   


What is Unlawful Presence in the United States? 


Unlawful presence is any period of time when an individual is present in the United States without a valid visa or other lawful immigration status.   Normally when an application for an immigration benefit is pending, the time when the application is pending is not counted towards unlawful presence.


What Is An Unlawful Presence Waiver?


This waiver forgives periods of unlawful presence in the United States when an applicant can demonstrate that a qualifying relative will suffer “extreme hardship” if the applicant is removed from the United States or not permitted to enter the United States if applying from abroad.


What Is “Extreme Hardship”?


Although there is no exact definition of “extreme hardship,” it is commonly defined as hardship that is unusual or beyond that which would normally be expected upon deportation of a loved one.   Factors considered in determining extreme hardship include, but are not limited to, significant medical conditions, financial considerations, family ties in the United States, psychological conditions, and conditions in the country of relocation. 


Who Needs an Unlawful Presence Waiver?


Many immigrants with an approved I-130 Petition for Alien Relative are barred from obtaining residency within in the United States and must obtain his/her residency through the Consulate in his/her country of origin.   Upon departing the United States to obtain his/her residency in the Consulate abroad, the individual triggers what is known as a “Three Year Bar” or “Ten Year Bar” on re-entry to the United States.  The Three Year bar applies to individuals who have been unlawfully present in the United States between 180 days and 365 days.  The Ten Year Bar applies to those individuals who have more than 365 days of unlawful presence in the United States. 


Commonly, the following individuals are unable to obtain residency in the United States and must process through the Consulate abroad:


  • Persons who entered the United States without inspection by an immigration officer.  For example, those who crossed the U.S. border illegally or arrived by boat illegally.
  • Persons who arrived on a K visa as a fiancée, but never married the petitioner or filed for residency.
  • Persons who entered the United States as Crewmen or In Transit. 
  • Persons ordered deported from the United States who cannot reopen their removal proceedings. 


What is the New “Provisional” Unlawful Presence Waiver?


The new provisional waiver allows immigrants with an approved I-130 petition filed by their U.S. citizen relative to apply for and wait for the final decision on the unlawful presence waiver from within the United States.


How Does This Differ From a Traditional Unlawful Presence Waiver?


Prior to the implementation of the provisional waiver process, immigrants seeking an unlawful presence waiver were forced to depart the United States and attend a consular interview in their home country PRIOR to filing their waiver application.  The applicant was forced to wait in his/her home country for often up to one year.  Under the new process, the applicant is allowed to remain in the United States while he or she awaits the adjudication of the provisional waiver.  Importantly, the new process eliminates the risk of applying abroad for the waiver, receiving a denial, and being unable to return to the United States. 


What Are The Steps To Apply for a Provisional Unlawful Presence Waiver?


The first step every applicant must take is to file and wait for the approval of the I-130 Petition for Alien Relative.  An applicant must already have an approved I-130 petition to file his or her provisional waiver application.


Next, the applicant must pay the Immigrant Visa fees to the National Visa Center(“NVC”).   The applicant must then request that NVC place his consular process on hold to await the adjudication of the provisional waiver. 


After the Immigrant Visa fees are paid to NVC, only then may an applicant file Form I-601A, Application for an Unlawful Presence Provisional Waiver, with the appropriate USCIS lockbox.


Upon approval of the I-601A Provisional Waiver, the applicant will resume the consular process through NVC.  The applicant will then wait for his home consulate to notify him of the date of his consular residency interview.  The applicant must then return to his home country for a few weeks to complete all requirements for immigrant visa processing such as obtaining the medical examination, fingerprinting, and attending the interview abroad.


If you would like more information regarding the new provisional waiver program, please contact our law office for details.     



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