Since March 4, 2013, certain immigrant visa applicants who are immediate relatives
(spouses, children and parents) of U.S. citizens can apply for provisional unlawful presence
waivers before they leave the United States for their consular interview. On August 29, 2016,
the provisional unlawful presence waiver process was expanded to all individuals statutorily
eligible for an immigrant visa and a waiver of inadmissibility for unlawful presence in the United
Aliens who are not eligible to adjust their status in the United States must travel abroad and
obtain an immigrant visa. Individuals who have accrued more than 180 days of unlawful
presence while in the United States must obtain a waiver of inadmissibility to overcome the
unlawful presence bars under section 212(a)(9)(B) of the Immigration and Nationality Act before
they can return. Typically, these aliens cannot apply for a waiver until after they have appeared
for their immigrant visa interview abroad, and a Department of State (DOS) consular officer has
determined that they are inadmissible to the United States.
The provisional unlawful presence waiver process allows those individuals who are
statutorily eligible for an immigrant visa (immediate relatives, family-sponsored or employment-
based immigrants as well as Diversity Visa selectees); who only need a waiver of
inadmissibility for unlawful presence to apply for that waiver in the United States before they
depart for their immigrant visa interview.
This new process was developed to shorten the time that U.S. citizens and lawful permanent
resident family members are separated from their relatives while those relatives are obtaining
immigrant visas to become lawful permanent residents of the United States.
The provisional waiver process does not change the immigrant visa process. Even if your
provisional unlawful presence waiver is approved, you are still required to depart the United
States to process your immigrant visa at a U.S. Embassy or U.S. Consulate abroad. The approval
of a provisional unlawful presence waiver does not make you eligible for adjustment of status in
the United States.
If your provisional unlawful presence waiver is approved, it will only take effect after two
things are done. You must first depart the United States and appear for your immigrant visa
interview. Second, a DOS consular officer determines that you are otherwise admissible to the
United States and eligible to receive an immigrant visa.
DOS may cancel your immigrant visa application process if you fail to appear at your
immigrant visa interview at a U.S. Embassy or U.S. Consulate.
If you are in removal proceedings, you are ineligible for a provisional unlawful presence
waiver unless, at the time you file your Form I-601A, your proceedings are administratively
closed and have not been put back on the Department of Justice, Executive Office for
Immigration Review (EOIR) calendar to continue your removal proceedings.
To be eligible for a provisional unlawful presence waiver, you must meet ALL of the
You are not eligible for a provisional unlawful presence waiver if any of the following conditions apply to you:
Provisional waivers for unlawful presence are some of the most common immigration
applications. Here at The Law Office of Cindy Ramjattan-Paul the majority of cases that come to
us that involve an immigration matter have had or will need a provisional waiver. We pride
ourselves in our system and successes in handling Provisional Waivers for unlawful Presence (I-