Expanded Eligibility for Provisional Unlawful Presence Waivers: FAQ

Some visa applicants who are relatives of U.S. citizens or lawful permanent residents (LPRs) may now request a provisional waiver of the unlawful presence grounds of inadmissibility before leaving the U.S. for immigrant visa interviews (at a U.S. Embassy or Consulate office).
This is the result of a new final rule that has built on a process established in 2013 “to support family unity.”

Answers about the New Final Rule for Provisional Unlawful Presence Waivers

Explaining more about this new final rule, the expansion of eligibility and how to apply for these waivers, the following answers some common questions about recent updates to the standards and processes for applying for provisional unlawful presence waivers.

Although the following answers are general, please be aware that you can contact an experienced Los Angeles immigration lawyer at the Hanlon Law Group, P.C. when you are ready to receive specific information pertaining to you, your situation and your immigration issue(s). Simply call (800) 976-5675 or email us via the contact form on this page to get more information from our immigration attorneys.

Q – Who is eligible for a waiver under the new final rule?

A – In order to be eligible for a provisional unlawful presence waiver, you must:

• Be at least 17 years old when applying
• Be physically presence in the U.S.
• Have a pending visa case with the U.S. Department of State (DOS) – Specifically, this means that one of the following applies to you:
  • Your Form I-130, I-140, or I-360 has been approved, processing fees have been paid (to the DOS), and you are in the process of securing an immigrant visa.
  • You are in the process of obtaining an immigrant visa via the Diversity Visa (DV) Program.
  • You are in the process of securing a visa, and you are the spouse or child of an immigrant visa holder or someone who has been selected to participate in the DV Program.
  • Be (or will be) “inadmissible” as a result of a single stay in the U.S. (that lasted at least 180 days)
• Be able to prove that, if you were refused a waiver/admission to the U.S., the relative (who is a citizen or LPR), would experience “extreme hardship.”

Those who are NOT eligible for these waivers include individuals who:

• Do not meet all of the above eligibility requirements
• Are currently involved in an open removal or deportation case
• Have been issued a final order of deportation, removal or exclusion.

Q – What qualifies as “extreme hardship” and how do I prove this?

A – According to U.S. Citizenship and Immigration Services (USCIS), the “extreme hardship” requirement for these waivers can involve factors like (but not necessarily limited to):

• Health issues, including chronic or acute mental and physical health conditions
• Financial issues, such as downgrades to quality of life, loss of a home, or loss of a business
• Personal factors, like ties to the U.S., the impending birth of a child, or the age(s) of the parties involved
• Education-related factors, such as losing future educational opportunities or interrupting a current course of education
• Other “special” factors, including reasonable fears of persecution aboard and limited (or no) access to essential social support (or protections) in a home country.

The bottom line is that you have to be able to prove that your absence from the U.S. would place your LPR or citizen relative under extreme hardship because (s)he would have to live without you in the U.S. or would have to move with you abroad if you are not granted admission to the U.S.

Examples of the type of evidence that can be used to establish extreme hardship include (and are by no means limited to):

• Financial documents or records
• Medical records or test results
• Expert opinions
• Enrollment records (for educational institutions)
• Records of memberships with community organizations.

Q – How do I apply for a provisional unlawful presence waiver?

A – The application process starts by properly completing Form I-601A and submitting it, along with the appropriate filing fees and supporting documentation to USCIS (filing fees are $585; applicants who are younger than 79 years old must also pay an additional $85 for biometrics).

Here are some helpful tips for properly completing this Form:

• Only use black ink (other color ink will not show up when forms are later scanned).
• Be sure to complete all required fields on the form.
• Sign all forms before sending them back to USCIS.
• Be sure to include all necessary supporting documentation (to establish your relationship with a citizen or LPR, prove that you meet the “extreme hardship” factor, etc.).
• Do NOT submit Form I-601A with any other form that requests an immigration status change in the U.S. (otherwise all petitions will be rejected).

After filing the petition with USCIS, the agency will then send you information regarding the required biometrics (the background check and fingerprinting process) if you are younger than 79 years old (petitioners who are 79+ do not typically have to submit to biometrics as part of this application process).

Q – Do I need an immigration lawyer to help me apply for a provisional unlawful presence waiver?

A – Yes. If you are determined to secure this waiver, the help of an experienced immigration attorney will be essential. This is because an immigration lawyer can help you:

• Properly complete the complicated forms needed to initiate your case
• Compile the necessary supporting documents to complete your petition
• Avoid common mistakes or pitfalls that could lead to costly processing delays (or, in the worst cases, outright denials of your petition)
• Explain what to expect as you move forward
• Appeal denials if the first petition is not approved by USCIS authorities.

Get More Answers Now: Contact a Los Angeles Immigration Lawyer at the Hanlon Law Group, P.C.

When you are ready for more answers about pursuing an unlawful presence waiver – or resolving any immigration issue, contact an experienced Los Angeles immigration lawyer at the Hanlon Law Group, P.C. by calling (800) 976-5675 or by emailing us via the contact form on this page.

During a free, confidential initial consultation, you can receive clear, expert advice regarding your rights, immigration law, and how to proceed in order to resolve your immigration issues.

From offices based in Pasadena, we serve clients throughout the Los Angeles area, across the state of California and from around the world. We are proud to provide immigration legal services in various languages, including in Spanish, Mandarin, Cantonese, Vietnamese, Korean, Japanese, Bahasa Indonesian, Tagalog and Fukienese.

More in-depth USCIS information about Provisional Unlawful Presence Waivers