The United States Citizenship and Immigration Service has issued a fact sheet concerning the recently updated rules concerning Provisional Unlawful Presence Waivers.   It contains frequently asked questions (FAQ) on the new process that will allow certain spouses, children and parents of a U.S. citizen to apply for a the I-601A waiver while they are still in the U.S.


On January 2, 2013, Secretary of Homeland Security Janet Napolitano announced the posting of a final rule in the Federal Register that reduces the time U.S. citizens are separated from their immediate relatives (spouse, children and parents), who are in the process of obtaining visas to become lawful permanent residents of the United States under certain circumstances. The final rule establishes a process that allows certain individuals to apply for a provisional unlawful presence waiver before they depart the United States to attend immigrant visa interviews in their countries of origin. The process will be effective on March 4, 2013 and more information about the filing process will be made available in the coming weeks at  USCIS indicated during the 1/2/12 teleconference that the form would be made available in advance of the March 4 filing date, but did not give further specifics.

Under current law, immediate relatives of U.S. citizens who are not eligible to adjust status in the United States to become lawful permanent residents because they have accrued more than six months of unlawful presence must leave the U.S. and obtain an immigrant visa abroad. These individuals must obtain a waiver to overcome the unlawful presence inadmissibility bar before they can return to the United States after departing to obtain an immigrant visa. Under the existing waiver process, which remains available to those who do not qualify for the new process, immediate relatives cannot file a waiver application until after they have appeared for an immigrant visa interview abroad and the Department of State has determined that they are inadmissible.

In order to obtain a provisional unlawful presence waiver, the applicant must be an immediate relative of a U.S. citizen, inadmissible only on account of unlawful presence, and demonstrate the denial of the waiver would result in extreme hardship to his or her U.S. citizen spouse or parent. USCIS will publish a new form, Form I-601A, Application for a Provisional Unlawful Presence Waiver, for individuals to use when applying for a provisional unlawful presence waiver under the new process.

Under the new provisional waiver process, immediate relatives must still depart the United States for the consular immigrant visa process; however, they can apply for a provisional waiver before they depart for their immigrant visa interview abroad. Individuals who file the Form I-601A must notify the Department of State’s National Visa Center that they are or will be seeking a provisional waiver from USCIS. The new process will reduce the amount of time U.S. citizen are separated from their qualifying immediate relatives. Details on the process changes are available



US Citizenship and Immigration Services (USCIS) is set to issue its final rule on the I-601 stateside processing of unlawful presence waivers before the end of 2012.

Provisional waivers for unlawful presence was introduced under rule making proposed by USCIS on April 2, 2012.  Under the new rules, certain immediate relatives of U.S. Citizens may apply for a waiver of the unlawful ground of inadmissibility from the United States – if they can demonstrate that their removal would cause extreme hardship to a U.S citizen spouse or parent.

Under the current law foreign nationals who entered without inspection generally must leave the U.S. to apply for a green card abroad.  The law states that once they depart the United States, they are banned from returning for up to 10 years.  The law does include a waiver for foreign nationals if they can show refusal of their admission will cause “extreme hardship” to their U.S. citizen or legal permanent resident spouse.  Although the I-601 waiver application is currently available to those with unlawful presence, one must leave the country for the immigrant visa process, forcing you to remain in your home country for six months or more while the waiver is being processed. The new procedure will permit certain foreign nationals to apply for the waiver before departing the U.S.

While the provisional waiver allows you to remain with relatives in the United States, it does not change the existing standards for unlawful presence and extreme hardship.  Criteria include:

  • Extreme hardship must be thoroughly documented.
  • You must have an approved I-130 petition.
  • You must be physically present in the United States.
  • You must be at least 17 years old.
  • You must be actively pursuing an immigrant visa.
  • You must have paid the Department of State Immigration Processing Fees.
  • You cannot be subject to any other grounds of inadmissibility.
  • You must demonstrate that the refusal of your immigrant visa would result in extreme hardship to a United States spouse or parent.

If you require a waiver for the inadmissibility ground of unlawful presence, you should consult with an attorney to see if you qualify for the provisional waiver, and can demonstrate a sufficient hardship to your U.S. citizen relatives.