Everything You Need to Know about Provisional Waivers

For immigrants present unlawfully in the United States who have a relative (a spouse or parent) who is a United States citizen or legal permanent resident , a provisional waiver can shorten the time they are separated from relatives during the application process.

Eligibility Requirements

To be eligible for a provisional waiver, you must have a relative — a United States citizen or legal permanent resident spouse or parent to qualify.

In addition, you must meet all of the following requirements:

  • Be physically present in the United States to file your application and provide biometrics
  • Be 17 years of age or older
  • Be in the process of obtaining your immigrant visa  and have an immigrant visa case pending with Department of State (DOS) because you
    • Are the principal beneficiary of an approved Form I-130, Petition for Alien Relative; an approved Form I-140, Petition for Alien Worker; or an approved Form I-360, Petition for Amerasian, Widow(er), or Special Immigrant who has paid the immigrant visa processing fee
    • Have been selected by DOS to participate in the Diversity Visa (DV) Program (that is, you are a DV Program selectee)
    • Are the spouse or child of a principal beneficiary of an approved immigrant visa petition who has paid the immigrant visa processing fee to DOS
    • Are the spouse or child of a DV Program selectee (that is, you are a DV Program derivative)
  • Be able to 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 that was:
    • More than 180 days, but less than 1 year, during a single stay (INA section 212(a)(9)(B)(i)(I)); or
    • 1 year or more during a single stay (INA section 212(a)(9)(B)(i)(II)).
  • 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.

Also, 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 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)). If you have a final order of removal, exclusion, or deportation, you can only seek a provisional unlawful presence waiver if you have applied for, and we have 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

As you can imagine, the most difficult part of obtaining a provisional waiver is not the filing itself, but making sure you meet the extensive list of requirements. You should work with an experienced immigration attorney to ensure everything goes as smoothly as possible.

I have successfully obtained hundreds of provisional waivers for clients. Contact me today to schedule your consultation!

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