The Provisional Unlawful Presence Waiver is for foreign nationals who are not eligible to adjust their status in the United States must travel abroad and obtain an immigrant visa. Individuals who have accrued more than 180 days of unlawful presence while in the United States are statutorily barred from returning to the United States. This waiver allows immediate relatives of U.S. Citizens or Lawful Permanent Residents (LPRs) to overcome the unlawful presence bar, allowing them to return to the United States after their immigrant visa interview at a U.S. Consulate abroad.
To be eligible for a provisional unlawful presence waiver, you must fulfill ALL the following conditions:
- Be physically present in the United States to file your application and provide biometrics.
- Be 17 years of age or older.
- Be a beneficiary (or the spouse or child of a beneficiary) of an approved immigrant petition or Diversity Program selectee, has a case pending at the National Visa Center and has paid the immigrant visa fee.
- can demonstrate that refusal of your admission to the United States will cause extreme hardship to your U.S. citizen or Legal Permanent Resident spouse or parent.
- Believe you are or will be inadmissible only because of a period of unlawful presence in the United States.
- 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.
Who is not Eligible?
You are not eligible for a provisional unlawful presence waiver if any of the following conditions apply to you:
- You do not meet all of the conditions listed under eligibility mentioned above.
- You are in removal (deportation) proceedings that have not been administratively closed.
- At the time of filing, you are in removal proceedings that have been administratively closed but have been placed back on the Executive Office for Immigration Review (EOIR) calendar to continue your removal proceedings.
- You have a final order of removal, exclusion, or deportation (including an in absentia order of removal under INA 240(b)(5)) unless USCIS has already approved Form I-212, Application for Permission to Reapply for Admission into the United States After Deportation or Removal at the time you file the Form I-601A.
- You do not meet one or more of the requirements outlined in the Form I-601A and its instructions.
The provisional waiver process is lengthy and complicated. If you believe you qualify for this type of relief, contact an immigration attorney. We can help determine your eligibility for this waiver and other forms of immigration relief. Contact us to see how we can help and follow the links below for more information.
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