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Unlawful Presence Provisional Waiver Update

| Feb 7, 2024 | Firm News

USCIS Director Alejandro Mayorkas and Ed Ramatowsky from Department of State were on the USCIS Teleconference on unlawful presence provisional waivers today.

I have taken some notes from the call and will provide a link to information from USCIS’s website

The final rule will be published tomorrow and the unlawful presence waiver process will be effective March 4, 2013.  The rules can be viewed on

The waiver applicant must depart the U.S. to obtain the immigrant visa abroad.  If they have accrued unlawful presence and face a three or 10-year bar, they must obtain a waiver before they can return.

The new process allows certain Immediate Relatives (IR) with no other ground of inadmissibility, the ability to apply for a provisional waiver before departing the U.S.

  • Must be 17 years old or older;
  • Must be an Immediate Relative (IR) of a U.S. Citizen (USC);
  • Have an approved I-130 petition for alien relative or I-360 petition for Amerasian Widow;
  • Have an immigrant visa case pending with Department of State (DOS) and have already paid DOS processing fee;
  • Must prove denying residence will cause the USC spouse or parent to suffer extreme hardship;
  • Provide biometrics;
  • Must not be scheduled for the DOS immigrant visa interview prior to the date of publication of the final rule;  and again, clarified,
  • An IR is ineligible if DOS scheduled an immigrant visa interview prior to the date of publication.

This new process facilitates the legal immigration process and lessens the time period of separation between relatives.  It does not change the waiver criteria.  The applicant must still leave the U.S. to apply for the visa at a consulate abroad.

Individuals may file on March 4, 2013.  Any waiver applications received before that date will be rejected and returned, along with the fees.

Changes to the final rule from the draft based on stakeholder comments:

1.USCIS will consider expanding provisional unlawful presence waiver to other categories such as lawful permanent residents.
2.USCIS will consider allowing the individual to apply more than once provided petition is still pending at DOS.
3.The final rules includes individuals in removal proceedings if the proceedings have been administratively closed or terminated.

If waivers are denied, will NTAs be issued?  Director Mayorkas referred the caller to the Notice to Appear (NTA) policy on website, which outlines the instances where ICE will place an individual in removal proceedings pursuant to a Notice to Appear (NTA).

If the denial takes place because of an egregious public safety risk, for example, he or she may be referred to ICE.  If there is no public safety issue or similar factors, then it is not likely that an NTA will be issued.

File Form I-601A for a provisional waiver.  If it is approved, you will schedule an interview at a consular office in your country of origin.  Your medical examination will be scheduled and DOS will also review your case for any other eligibility issues.  You will need to attend that interview and await approval before being able to return to the U.S. on the immigrant visa.

There are no processing time goals yet.

If you have a criminal history and USCIS feels that DOS would find you ineligible, then they can deny your waiver.