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Provisional Waiver

Many people have anxiously awaited the new provisional waiver that will allow foreign nationals to apply for a waiver of their unlawful presence prior to departing the United States to apply for an immigrant visa. Applications will be accepted beginning on March 4, 2013.

What is the current process?

Currently certain immediate relatives must travel abroad to obtain an immigrant visa before they can return to the United States and be admitted as lawful permanent residents. In many cases, these immediate relatives also must request a waiver of inadmissibility of their unlawful presence in the United States. As a result, these immediate relatives must remain outside of the United States, separated from their family, while their waiver applications are adjudicated. Waiver application processing can be lengthy, prolonging the separation of these immediate relatives from their family.

What is the new process?

The new provisional unlawful presence waiver process allows an immediate relative to apply for an unlawful presence waiver prior to leaving the United States. This allow the issuance of an immigrant visa without delay, as long as there are no other grounds of inadmissibility and the immediate relative is otherwise eligible for an immigrant visa.

Who is eligible for the provisional waiver?

An individual may be eligible for a provisional waiver if:

  1. (S)he is physically present in the United States;

  2. (S)he is at least 17 years of age at the time of filing;

  3. (S)he is the beneficiary of an approved immigrant visa petition classifying him or her as the immediate relative of a United States citizen;

  4. (S)he has an immigrant visa case pending and has already paid the immigrant visa processing fee;

  5. (S)he is, or will be at the time of the immigrant visa interview, inadmissible to the United States based on unlawful presence in the United States; and

  6. The refusal of his or her admission to the United States would result in extreme hardship to his or her United States citizen spouse or parent (not his or her children).

Who is not eligible for the provisional waiver?

Individuals are not eligible for a provisional unlawful presence waiver if:

  1. The requirements listed above are not met;
  2. (S)he has a pending Form I-485, Application to Register Permanent Residence or Adjust Status, with U.S. Citizenship and Immigration Services;
  3. (S)he is in removal proceedings (unless the removal proceedings are administratively closed and have not been re-calendared as of the date of filing the provisional waiver);
  4. (S)he has been ordered removed, excluded, or deported from the United States;
  5. (S)he is subject to reinstatement of a prior removal order;
  6. The Department of State acted to schedule the immigrant visa interview prior to January 3, 2013 (even if the individual failed to go to the interview or the interview was cancelled or rescheduled on or after January 3, 2013);
  7. U.S. Citizenship and Immigration Services has reason to believe that the Department of State may find the individual inadmissible at the time of the immigrant visa interview for grounds other than unlawful presence.

When can I apply for the provisional waiver?

Applications will be accepted beginning on March 4, 2013.

Will applying for a provisional unlawful presence waiver grant any immigration benefits while it is processing?

No. The filing or approval of a provisional unlawful presence waiver will not affect an individual’s current immigration status in the United States. A pending or approved provisional waiver also will NOT:

  1. Provide employment authorization or advance parole;
  2. Provide lawful status;
  3. Stop the accrual of unlawful presence;
  4. Provide protection from removal;
  5. Remove the requirement to depart the United States to seek an immigrant visa; or
  6. Guarantee immigrant visa issuance or admission to the United States.

Will the individual need to leave the United States?

After the provisional unlawful presence waiver is approved, the individual will need to depart the United States and attend an immigrant visa interview at the designated U.S. Embassy or consulate abroad.

Our firm can guide you through the current policies and prevent delays due to mistakes.

Call us today at (704) 556-1156


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The Law Office of Tanya M. Powers, PLLC ("the Law Office") maintains this website to provide general information about the firm and the services it provides to its clients.  The information contained on this website is not intended to be legal advice and it should not be relied on as a substitute for seeking legal counsel.   The Law Office does not seek to enter into an attorney-client relationship with any reader of its on-line content.  An attorney-client relationship with the firm can only be formed based on personal consultation with an attorney, followed by a determination that the Law Office is willing and able to accept such representation.


Law Office of Tanya M. Powers, PLLC ♦ tanya.powers@tmpowerslaw.com

520 8th Street NE ♦ Hickory, NC 28601 ♦ (828) 394-1196

5200 Park Road, Suite 221 ♦ Charlotte, NC 28209  ♦ (704) 556-1156