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LAW OFFICE OF JIMENA G. CABRERA
SPECIALIZING EXCLUSIVELY IN IMMIGRATION LAW
EB-5 INVESTOR REPRESENTATION

“I sustain myself with the love of family.” Maya Angelou.

Provisional Unlawful Presence Waiver

The provisional unlawful presence waiver process allows individuals, who only need a waiver of inadmissibility for unlawful presence, to apply for a waiver in the United States and before they depart for their immigrant visa interviews at a U.S. embassy or consulate abroad.

On January 3, 2013, U.S. Citizenship and Immigration Services (USCIS) finalized its regulations regarding the provisional adjudication of waivers for those who will be attending a consular appointment at a U.S.embassy or consulate and would be triggering the unlawful presence ground of inadmissibility.The rule became effective on March 4, 2013. On July 29, 2016, the agency amended its regulations and expanded the program in significant ways.Those changes took effect on August 29, 2016.

The provisional waiver program provides a process by which USCIS will adjudicate waivers of unlawful presence before applicants depart the United States for their immigrant visa interview. Although this provisional waiver process is limited to the unlawful presence ground of inadmissibility, this ground is currently the most common reason for refusing the applicant an immigrant visa. After the provisional waiver is approved and the consular interview is scheduled, an applicant who is eligible for an immigrant visa can travel abroad for the interview with the knowledge that there will likely be no delay in the issuance of the immigrant visa.

The waiver is approved on a “provisional” basis is because the U.S. Department of State (DOS) will still conduct its own investigation as to potential inadmissibility based on other grounds, as well as verify eligibility for the underlying visa. If the applicant is determined to be inadmissible based on another ground, the provisional waiver will automatically be revoked.Type your paragraph here.

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*The information contained herein is intended for general informational purposes only. It is not intended for legal advice. You must consult with an attorney to obtain specific, comprehensive legal advice. Government processing times may change at any time. For current USCIS processing times contact USCIS directly.

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Eligibility

To be eligible for a provisional unlawful presence waiver, you must meet ALL of the following conditions:

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: a) 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 I-360, Petition for Amerasian, widow(er),or Special immigrant who has paid the immigrant visa processing fee; b) you are a selectee of the Diversity Visa (DV) Program; c) are the spouse or child of a principal beneficiary of an approved immigrant visa who has paid the immigrant visa processing fee to DOS; or are the spouse or child of a DV Program selectee.
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.

Extreme Hardship

In order to satisfy the requirements for extreme hardship, you must be able to clearly show that your absence would cause hardship above and beyond what is normally caused by family separation.