Provisional Waivers of Unlawful Presence Expanded

The U.S. Citizenship and Immigration Services (USCIS) has expanded the availability of provisional waivers of unlawful presence. Effective August 29, 2016, provisional waiver requests may be filed in all cases that qualify for a standard (non-provisional) waiver of unlawful presence.

Background on Provisional Waivers

As explained in the MurthyDotCom NewsBrief, Provisional Waivers of Unlawful Presence (11.Mar.2013), a foreign national who accrues more than 180 days of unlawful presence in the United States is subject to a three-year inadmissibility bar after departure from the country. This bar increases to ten years if the period of unlawful presence lasted more than a year prior to the departure from the U.S. This means that such an individual is not allowed to return to the U.S. for either three or ten years from the time s/he leaves the country and triggers the bar.

The purpose of the provisional waiver is to provide a mechanism for requesting a waiver of the three- or ten-year bar prior to departing the United States, which is when the bar actually is triggered. The provisional waiver can only be used by a foreign national who has a qualifying relative and is seeking the waiver of the unlawful presence bar for purposes of applying for an immigrant visa (as opposed to a nonimmigrant visa, such as an H1B). For information on applying for a nonimmigrant waiver, see the MurthyDotCom NewsBrief, Obtaining a Waiver for a Nonimmigrant (29.Sep.2014).

Purpose of Provisional Waivers

Prior to creation of the provisional waiver option in 2013, if an individual in the United States had accrued at least 180 days of unlawful presence, the only way to apply for the waiver would be to first leave the U.S. and then file a standard application for waiver of grounds of inadmissibility (form I-601). Many foreign nationals in this situation feared the prospect of leaving the U.S. and being separated from their respective families for extended periods of time while their I-601s were being processed. And, if the I-601 was denied, the separation could continue indefinitely.

The application for provisional unlawful waiver (form I-601A), addresses some of these problems by allowing certain classes of foreign nationals to file waiver applications from within the United States. Assuming one’s application is approved, s/he still must depart the U.S. in order to apply for the immigrant visa. But, it provides a strong measure of assurance that returning to the United States will be possible, and greatly tends to reduce the time that families otherwise would spend apart.

Eligibility for Provisional Waivers

Under the current regulations, which went into effect in 2013, in addition to the restrictions explained above, provisional waivers are only available if the foreign national is sponsored for an immigrant visa as an “immediate relative” – that is, spouse, parent, or (minor, unmarried) child – of a U.S. citizen. In addition, the applicant is required to show that her/his U.S. citizen spouse or parent would suffer extreme hardship if the applicant is not allowed to return to the United States.

Effective August 29, 2016, however, the provisional waiver will be made available for all immigrant, unlawful presence waiver cases, no matter what the basis for the immigrant visa application. Notably, this means that one potentially may qualify for a provisional waiver based on having a parent or spouse who is a lawful permanent resident (i.e. LPR, or “green card” holder). The extreme hardship criteria still must be satisfied; but, under the revised regulation, the USCIS may consider “extreme hardship, not only to U.S. citizen spouses or parents, but also to LPR spouses or parents.”

Cannot File Under New Regulation Until Aug 29

Applicants cannot file under the new guidelines until the rule goes into effect on August 29, 2016. An updated version of the I-601A, consistent with these changes, will be posted on the USCIS website by that date.


In addition to the waiver, there must be a separate legal basis for requesting the immigrant visa. At a minimum, there are multiple immigration filings required, all of which must be coordinated and, ultimately, approved, in order to allow for return to the United States. Accordingly, individuals who believe they may be eligible for this relief should obtain qualified immigration advice.


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Disclaimer: The information provided here is of a general nature and may not apply to any specific or particular circumstance. It is not to be construed as legal advice nor presumed indefinitely up to date.