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What is a provisional unlawful presence waiver?

On Behalf of | Mar 12, 2024 | Immigration Law |

A provisional unlawful presence waiver is a legal tool that allows certain individuals who are unlawfully present in the United States to apply for a waiver of the unlawful presence bar before they depart the U.S. for consular processing of their immigrant visa applications.

Also known as Form I-601A, it enables holders to seek a waiver of the three or ten-year bar for unlawful presence, which would otherwise prevent them from returning to the United States after departing to attend their immigrant visa interviews abroad.

Who is eligible for a provisional unlawful presence waiver?

Eligibility for the provisional unlawful presence waiver is determined by meeting specific criteria. These include:

  • Applicants must be 17 years of age or older and be physically present in the United States.
  • Applicants must also have a pending case with the Department of State (DOS).
  • They must also demonstrate that inadmissibility to the United States would result in extreme hardship to their U.S. citizen or lawful permanent resident spouse or parent.

Applying for a provisional unlawful presence waiver involves several steps:

  • Completing Form I-601A: The form must be properly filed along with the correct biometric fees.
  • Submitting the application: Mail the completed Form I-601A along with the required filing fee and supporting documents to the appropriate address provided by the U.S. Citizenship and Immigration Services (USCIS).
  • Biometrics appointment: After properly filing the application, applicants are required to attend a biometrics appointment at a designated USCIS Application Support Center (ASC) to provide fingerprints, photographs, and other biometric information.

It’s important to note that not all applications for the provisional unlawful presence waiver are approved. Seeking legal guidance can help to ensure that an application is properly prepared and increases the chances of approval.