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Provisional Unlawful Presence Waivers


Before 2013, foreign nationals who were not eligible to adjust their status in the United States due to the 3/10 year bar were required to travel abroad and obtain an immigrant visa. This was a very lengthy, costly and burdensome process.  Families were separated for long periods of time, sometimes years.   In 2013, USCIS allowed these individuals to apply for a waiver of inadmissibility of the 3/10 year bar before they left the US for their immigrant visa interview. This waiver shortened the time U.S. citizens and lawful permanent resident family members were separated from their foreign national relatives while those relatives are obtaining immigrant visas overseas.   Only those immigrant visa applicants who had immediate relatives (spouses, children and parents) of U.S. citizens and could establish extreme hardship to the U.S. citizens were eligible for the provisional unlawful presence waiver before they left the United States.


However, since August, 2016, USCIS expanded eligibility to all individuals statutorily eligible for an immigrant visa (not just immediate relatives of USCs) to apply for a waiver of inadmissibility for unlawful presence in the United States.  This includes the principal beneficiaries of an approved Form I-130, Petition for Alien Relative; an approved Form I-140, Petition for Alien Worker; or an approved Form I-360, Petition for Amerasian, Widow(er), or Special Immigrant who has paid the immigrant visa processing fee.   This also includes those who have been selected for the “DV” Diversity Visa Program, their derivatives and the spouse and children of the principal beneficiaries’ immigrant visa.   The expanded class of eligible visa applicants requiring the waiver must still meet their burden to establish extreme hardship to a “qualifying relative”. 


As of August, 2016, a “qualifying relative” for purposes of the waiver is a spouse of a U.S. citizen or lawful permanent resident, or son or daughter of a U.S. citizen or lawful permanent resident.   The provisional unlawful presence waiver allows foreign nationals who entered without inspection, are not eligible for Section 245i relief, entered as a crewman or K-1 fiancée, and those subject to the 3/10 year bar, to possibly apply for the waiver. 


Please contact our office for a full consultation if you believe status issues are affecting your eligibility to become a lawful permanent resident. 

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