Provisional Waiver for Unlawful Presence Inadmissible Immediate Relatives to Apply in the United States

On January 2, 2013, Secretary of Homeland Security Janet Napolitano announced the posting of the final rule for provisional waivers, effective March 4, 2013. This establishes a process that allows certain individuals to apply for a provisional unlawful presence waiver before they depart the United States for immigrant visa interviews.

Prior to this announcement, immediate relatives of U.S. Citizens  who were not eligible to adjust status in the United States must leave the U.S. and OBTAIN A WAIVER ABROAD AFTER their immigrant visa interviews,  when they are found inadmissible due to previous unlawful presence in the U.S.

But with this new provision, these applicants can apply for the waiver IN THE UNITED STATES, obtain an approval, and leave for only a short time to get the immigrant visa abroad.

To obtain an approval of the provisional unlawful presence waiver, the applicant must be inadmissible ONLY ON ACCOUNT OF UNLAWFUL PRESENCE, and demonstrate that the denial of the waiver would result in EXTREME HARDSHIP to his or her U.S. Citizen spouse or parent. The USCIS will publish a new form, Form I-601A, for individuals to use when applying for a provisional unlawful presence waiver under the new process.

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