Provisional Unlawful Presence Waiver

If you have reason to believe that your provisional unlawful presence waiver could be revoked, please contact an immigration attorney from our office.

On March 4, 2013 the United States Citizenship and Immigration Services (USCIS) extended a new provision to certain immigrants who have applied for a visa in the U.S. Referred to as a provisional unlawful presence waiver, the newly implemented provisions that have been implemented by the USCIS allow for certain immigrant visa applicants who are immediate relatives of a U.S. citizen, i.e. parents, spouses, and children, to apply for a provisional unlawful presence waiver.

Provisional unlawful presence waivers are applied for before the immigration applicant would otherwise be expected to depart from the United States. The process of applying for a provisional unlawful presence waiver thus allows immigrants to reduce the period of separation that families would otherwise be forced to spend apart as they work toward completing their immigrant visa interviews at a U.S. embassy or consulate abroad. If you’re interested in completing this process, we urge you to speak with a New York immigration attorney from our team.

Eligibility Requirements

The general immigrant visa process is not altered when pursuing a new provisional unlawful presence waiver. If your provisional unlawful presence waiver is approved, you will still be expected to depart from the U.S. in order to complete your immigrant visa interview with the abroad U.S. consular officer who has been designated to your case. To qualify for this type of waiver, however, you must meet all of the requirements associated with it. These requirements are as follows:

The immigrant is an immediate relative of a U.S. Citizen (spouse, child, parent)

The immigrant is at least 17 years of age

The immigrant currently has a visa case pending with the DOS & has paid the processing fees

The immigrant has an approved Form I-30, Petition for Alien Relative or a Form I-360, Petition for Amerasian, Widow(er), or Special Immigrant

The immigrant is currently physically present in the U.S. & available to provide biometrics

The immigrant has not yet been scheduled for an immigrant visa interview by the DOS

The immigrant can prove that refusal of admission to the U.S. would cause extreme hardship to the U.S. citizen who is the immigrant’s immediate relative

Important Information You Need to Know

If your provisional unlawful presence waiver is approved, it will only take effect after certain requirements have been fulfilled by the immigrant applicant. These requirements include the immigrant’s departure from the U.S. in order to appear before a U.S. embassy abroad for their immigrant visa interview. The immigrant must also be determined admissible to the U.S. by a U.S. Department of State (DOS) consular officer, who must also verify that the immigrant is eligible to receive an immigrant visa.

Immigrants who fail to appear at their interview will be subject to the cancellation of their immigrant visa application process, as advised by the DOS. Immigrants must also keep in mind that they will be considered ineligible for a provisional unlawful presence waiver if they are currently in a removal proceeding. Exceptions to this rule are sometimes made, however, which is why it is vitally important to have an immigration attorney working with you through the process. With a legal professional guiding you through all of the steps that need to be taken, you can rest assured that the process will be completed according to USCIS expectations and requirements.

Is your waiver at risk of being revoked?

A provisional waiver for unlawful presence can be automatically subject to revocation under a very specific set of circumstances. If any one of the following conditions is present, your wavier can be revoked:

USCIS revoked your Form I-130 or Form I-360, which is the underlying approved immigration visa petition

The Department of State ended the immigrant visa application process for a specific reason

A consular officer at the U.S. embassy (or consulate) determined you to be inadmissible on grounds unrelated to your unlawful presence

You re-entered the U.S. without first being inspected and admitted / paroled before or after the date at which your provisional unlawful presence waiver was approved; OR before your immigrant visa was issued

Work with Pozo Goldstein, LLP

In New York City, immigrants and their family members can turn to Pozo Goldstein, LLP for the support and professional guidance that they need during any type of immigration process. Our legal team consists of a former judge and former U.S. immigration prosecutors, all of whom are prepared to tackle the many nuances of the immigration cases that we handle. We are more than willing to do the same for your case, and we would be happy to discuss this with you in person. To schedule a consultation with an attorney at our office, don’t hesitate to contact us by phone or by utilizing our free case evaluation form.