All you need to know about Provisional Unlawful Presence Waivers

Since March 4, 2013, a great deal of immigrant visa applicants who are immediate relatives (spouses, children, or parents) of American citizens, can apply for a a Provisional Unlawful Presence waiver if they are in the United States. This waiver can help them to reduce the time they have to be in their countries of origin and away from their families, while they finish their immigrant visa process before the corresponding embassy or consulate.

This means that its goal is to shorten the time American citizens remain separate from their close relatives while they obtain a visa that would allow them to become permanent legal residents in the country.

At Xavier Law Fir, immigration attorneys in Houston, TX and Los Angeles, CA, we are delighted to bring all the information you need to know about Provisional Unlawful Presence waivers. Let’s start.

What is the Provisional Unlawful Presence waiver? 

Before a Provisional Unlawful Presence waiver, the immediate relatives of American citizens who are not eligible to adjust their immigration status (click here to find out more about Adjustment of Status), should finish their immigrant visa process abroad although that is not always the case. However, whoever has been in the United States for more than 180 days can (and should) get a provisional unlawful presence waiver to stop the application of processes and fines for the time he or she has been in the United States illegally.

It is important to keep in mind that the waiver does not change the immigrant visa process. Even if a waiver is approved, he must leave the United States and have an interview in a consular office in his country of origin.

If the waiver is approved, it will only be valid on, once you leave the United States, and a consular officer determines during the interview whether you are eligible to get an immigrant visa.

In other words, this process allows USCIS (the immigration authority in the United States) to legally reduce the time American citizens are away from their relatives since it permits consular officers to grant an immigrant visa without much delay, as long as that is the only thing that makes the petitioner ineligible. If there is any other criteria of ineligibility, he will not be able to request a provisional unlawful presence waiver.  

If you would like to request a provisional unlawful presence waiver, you would need to present a I-601A form, and pay the corresponding $630 fee and a $85 fee for them to take your biometric data. So, in total it would amount to $715.

If you do not qualify for a provisional unlawful presence waiver, you could fill a I-601 Form and apply for a waiver in regards to your inadmissibility case, and then apply for the unlawful presence waiver.

“If you would like to request a provisional unlawful presence waiver, you would need to present a I-601A form”

Who can apply for a provisional unlawful presence waiver? 

Those who meet the following requirements:

  • People who are over 17 years of age.
  • Immediate relatives (spuse, child, or parent) of American citizens who are over 21 years. If your immediate relative is a Green Card holder, you cannot apply.
  • You need to have a pending immigrant visa case for an immediate relative before the Department of State, for example:
    • The beneficiary of an approved foreign relative I-130 form, a petition for an Amerasian, widower, or special immigrant who has paid for the processing fee.
    • The Department of State has chosen him by the Diversity Visa Program.
    • He is the spouse of the main beneficiary of an approved immigrant visa petition or of a winner of the Diversity Visa Program.
  • You must prove that if you were denied admission, there would be great difficulties to an immediate relative of an American citizen.
  • Be in the United States to represent the application.
  • Consider to be inadmissible only because you are in the United States illegally  because you have been there for over 180 days.
  • Meet all requirements in the I-601A Form.

People who meet any of the following conditions are ineligible:

  • If you have any other basis of inadmissibility other than your current unlawful presence.
  • If you are in the middle of an open deportation process that has not been administratively closed.
  • If you are in a deportation process that has been administratively closed but such proceedings have been scheduled in the judicial calendar so they can continue. 
  • If you have a pending adjustment of status case.
  • When you have a final removal, exclusion, or deportation order. In that case, you can ask for the provisional waiver if you have applied and been granted a I-212 Permission to Reapply for Admission into the United States After Deportation or Removal, when you present the I-601A Form.
  • If your I-601A Form is incomplete or the presentation and biometric data fees are missing, or you present them along with a different form.

Also, if you obtain are granted a waiver, it could be revoked for one of the following reasons:

  • The State Department ends the enrollment process of your immigrant visa.
  • USCIS revokes your pre-approved immigrant visa petition ( I-130 o I-360 Forms) 
  • The consular office where your immigrant visa interview is held determines that you are inadmissible for reasons other than your unlawful presence.
  • You returned or tried to return to the United States without permission while your provisional unlawful presence application is in process, after the approval of the unlawful presence waiver or before your immigrant visa is approved.

Important information about the Provisional Unlawful Presence Waiver

It important to point out that an Unlawful presence waiver:

  • It does not grant any immigration benefits or protect you from being removed from the United States. 
  • It does not allow you to request immigration benefits such as an employment authorization or an advanced parale.
  • I does not guarantee that you will get an immigrant visa.
  • It does not guarantee admission to the United States.
  • It will by itself grant you legal immigration status.
  • It will not exempt you from leaving the United States in order to obtain an immigrant visa.

On the other hand, if you I-601A Form is approved, you will have to finish any pending removal process in which you might be, whether it is stopped or dismissed, before you leave the United States for the immigrant visa interview in a United States consular office abroad. If you leave the United States before the process ends, it is likely that your immigrant visa will be longer, or you may even be deemed ineligible based on a different inadmissibility criteria.

If USCIS denies your provisional unlawful presence waiver, unfortunately, there are no more grounds for reconsideration

However, if your waiver is denied or if you withdraw the application before a decision is made, you can apply with a new I-601A Form, which means that you can start the process all over again. You could do this as long as your immigrant visa in the State Department is still pending and you must let them know that you wish to apply again.

The other procedure you can apply to if your I-601A is denied, as we mentioned before, is applying for a waiver with you I-601A Form. This form can only be requested after you have had your immigrant visa interview, and the State Department determines that there is another reason for you inadmissibility. 

If your provisional unlawful presence waiver is rejected, USCIS will neither try to start a removal process against you without, not turn you to ICE. USCIS will only turn a case to ICE when the person has a criminal record, has committed some kind of fraud, or is perceived as a threat to national security. 


The Provisional Unlawful Presence Waiver can be very helpful to you and your family if you are in the middle of an immigration process, because it shortens this otherwise long process. Many people find themselves under a lot of stress because they run out of the time they can legally stay in the United States, and they do not know that such an application could have been much shorter when they apply for this waiver.

If this article has been of help, and you feel that you need more help, it would be our pleasure to analyze your case and help you through and through. We are immigration attorneys in Houston, Texas and Los Angeles, California.

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