Provisional Unlawful Presence Waiver

Since March 4, 2013, a new procedure allows immigrant visa applicants who are unlawfully present in the United States to apply for a waiver without leaving the United States.

Under the new procedure certain applicants are able to submit their application for a waiver directly to the US Citizenship and Immigration Services office in advance of the appointment for an immigrant visa at a US Consulate abroad. The most typical scenario applies to Mexican nationals who would otherwise be required to travel to Ciudad Juarez, Mexico and submit their waiver application after attending their immigrant visa appointment at the U.S. Consulate in Ciudad Juarez, Mexico.

The main advantage of the new process is that the applicant can remain in the US to take care of his or her family while waiting for USCIS to make a decision on the waiver application. In the past the applicant submitted the waiver application in Ciudad Juarez and waited in Mexico while the case was adjudicated. That process took from 4 to 12 or more months depending on the case.

Only certain immediate relatives of US citizens qualify for the new procedure. You must be the child or spouse of a U.S. citizen, or the parent of a U.S. citizen who is 21 years or older. This DOES NOT include adult (21 or older) sons and daughters of U.S. citizens; children and spouses of lawful permanent residents; brothers and sisters of U.S. citizens; or any other family relationships.

In order to use this procedure, the applicant must be physically present in the U.S. at the time of filing. Also, the applicant must be the beneficiary of an approved I-130 immediate relative petition. The applicant must be able to demonstrate that the denial of a waiver of inadmissibility would result in EXTREME HARDSHIP to his or her U.S. citizen spouse or parent. Proving hardship is the key to a successful case. Hiring an immigration law attorney can make the real difference in putting together a convincing waiver application.

There are many factors that could disqualify an applicant from a provisional waiver. There are also special rules for applicants already in removal proceedings or who have a final order of removal. In addition, there are special rules for people who have already started but not completed consulate processing. For these and other reasons it is important to consult with an immigration attorney to review your eligibility before you apply for a provisional Unlawful Presence Waiver.

If your case has already been assigned to the National Visa Center for consulate processing it is important for the attorney to properly notify the NVC of the provisional waiver process.

The form that is used to apply for the waiver is Form I-601A.

The filing fee for the provisional unlawful presence waiver is $585, plus $85.00 for biometrics.

The Law Office of V. Thomas Langford has many years of experience submitting unlawful presence waivers. We can help you put together the evidence in support of the extreme hardship claim and can help you navigate the procedural requirements of the new provisional waiver process.

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