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    Provisional Unlawful Presence Waivers

    On January 2nd, 2013, United States Citizenship and Immigration Services (USCIS) announced that certain immediate relatives of U.S. citizens may apply for provisional unlawful presence waivers before departing the U.S. to attend their immigrant visa interviews abroad. To receive a provisional unlawful presence waiver, the immediate relatives must be present in the U.S. and in the process of seeking an immigrant visa with the Department of State (DOS) to become a lawful U.S. permanent resident.

    The purpose of this rule is to significantly reduce the length of time U.S. citizens are separated from their immediate relatives who are engaged in the consular processing of their Immigrant Visa abroad. It allows eligible applicants to apply for a provisional waiver while still in the U.S., thus reducing the financial and emotional hardship on these families. The provisional unlawful presence waiver enables an applicant to remain in the U.S. with his or her family until the applicant must depart the U.S. to attend his or her immigrant visa interview.

    The Provisional Unlawful Presence Waiver process is available only to those individuals who:

    1. Have no other grounds of inadmissibility, other than unlawful presence in the U.S.;
    2. Are currently physically present in the U.S.; and,
    3. Will be departing the U.S. for consular processing abroad.

    WHO IS ELIGIBLE FOR A PROVISIONAL UNLAWFUL PRESENCE WAIVER?

    • To be eligible for a provisional unlawful presence waiver, you must fulfill ALL of the following conditions:
      Be 17 years of age or older;
    • Be an immediate relative of a U.S. citizen (not a preference category immigrant with a visa available). An immediate relative is a spouse, child, or parent of a U.S. citizen;
    • Have an approved Form I-130––Petition for Alien Relative––or Form I-360––Petition for Amerasian, Widow(er), or Special Immigrant;
    • Have a pending immigrant visa case with the DOS for the approved immediate relative petition and have paid the DOS immigrant visa processing fee;
    • Be able to demonstrate that refusal of your admission to the U.S. will cause extreme hardship to your U.S. citizen spouse or parent;
    • Be physically present in the U.S. to file your application for a provisional unlawful presence waiver and provide biometrics;
    • Not have been scheduled for an immigrant visa interview by DOS before January 3, 2013;
    • Meet all other requirements for the provisional unlawful presence waiver, as detailed in 8 CFR 212.7(e) and the Form I-601A and its instructions.

    You are not eligible for a provisional unlawful presence waiver if any of the following conditions apply to you:

    • You are subject to one or more grounds of inadmissibility other than unlawful presence;
    • DOS initially acted before January 3, 2013, to schedule your Immigrant Visa (IV) interview for the approved immediate relative petition upon which your provisional unlawful presence waiver application is based, even if your immigrant visa interview has been canceled, you failed to appear for the interview, or your interview was rescheduled on or after Jan. 3, 2013.

    Please Note: The date and time you are scheduled to appear for your immigrant visa interview at the designated U.S. Embassy or Consulate is not the date USCIS will use to determine if you are eligible to file Form I-601A.

    Suppose DOS initially acted before January 3, 2013, to schedule your immigrant visa interview. In that case, you do not qualify to file a Form I-601A, even if you failed to appear for your interview or if you or DOS canceled or rescheduled your interview for a date on or after January 3, 2013.

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