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 States.

Foreign nationals 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 foreign nationals 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 expansion of the provisional unlawful presence waiver process does not affect the continued availability of the Form I-601 process: Individuals who do not wish to seek or do not qualify for a provisional unlawful presence waiver can still file Form I-601, Application for Waiver of Grounds of Inadmissibility, after a DOS consular officer determines that they are inadmissible to the United States.

Find on this Page

• What You Need to Know
• Eligibility Requirements
• How to Apply
• Form Filing Tips
• Approval of Form I-601A
• Reasons Your Waiver May Be Revoked
• If Your Approved Provisional Unlawful Presence Waiver is Revoked
• If You Are in Removal Proceedings
• Denial of Form I-601A or Withdrawal of Form I-601A
• Avoid Immigration Scams

What You Need to Know

• 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 a provisional unlawful presence waiver is approved, it will only take effect after:

1. You depart the United States and appear for your immigrant visa interview; and
2. 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.
• While USCIS does not envision placing I-601A applicants in removal proceedings, USCIS will follow current Department of Homeland Security (DHS) and USCIS Notice to Appear (NTA) guidance governing initiation of removal proceedings. For more information on USCIS NTA priorities, see USCIS Policy Memorandum, Revised Guidance for the Referral of Cases and Issuance of Notices to Appear (NTAs) in Cases Involving Inadmissible and Removable Aliens (Nov. 7, 2011).

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Eligibility Requirements

To be eligible for a provisional unlawful presence waiver, you must fulfill ALL of the following conditions:

• Be physically present in the United States to file your application and provide biometrics.
• Be 17 years of age or older.
• Be in the process of obtaining your immigrant visa  and have an immigrant visa case pending with Department of State (DOS) because you:
  • Are the principal beneficiary 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;
  • Have been selected by DOS to participate in the Diversity Visa (DV) Program (that is, you are a DV Program selectee); or
  • Are the:
    • spouse or child of a principal beneficiary of an approved immigrant visa petition who has paid the immigrant visa processing fee to DOS, or
    • the spouse or child of a DV Program selectee (that is, you are a DV Program derivative)
• Be able to demonstrate that refusal of your admission to the United States will cause extreme hardship to your U.S. citizen or Legal Permanent Resident spouse or parent.
• Believe you are or will be inadmissible only because of a period of unlawful presence in the United States that was:
  • More than 180 days, but less than 1 year, during a single stay (INA section 212(a)(9)(B)(i)(I)); or
  • 1 year or more during a single stay (INA section 212(a)(9)(B)(i)(II)).
• 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 do not meet all of the conditions listed under eligibility mentioned above.
• You are in removal proceedings that have not been administratively closed.
• At the time of filing, you are in removal proceedings that have been administratively closed but have been placed back on the Executive Office for Immigration Review (EOIR) calendar to continue your removal proceedings.
• You have a final order of removal, exclusion, or deportation (including an in absentia order of removal under INA 240(b)(5)). If you have a final order of removal, exclusion, or deportation, you can only seek a provisional unlawful. presence waiver if you have applied for, and USCIS has already approved Form I-212, Application for Permission to Reapply for Admission into the United States After Deportation or Removal at the time you file the Form I-601A.
• You do not meet one or more of the requirements outlined in the Form I-601A and its instructions.

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How to Apply

Carefully follow the Form I-601A instructions and fully complete the application. USCIS will reject any application that is not accompanied by the proper filing and biometric fees OR that does not meet the filing criteria specified in 8 CFR 212.7(e)(5). Use the checklist available on the last page of the form instructions to make sure your application is complete before filing.

Do not concurrently file Form I-601A with any other application or petition.

Please make sure that you follow these steps to prevent your application from being rejected and returned to you:

1. Complete I-601A, Application for Provisional Unlawful Presence Waiver. Please visit the Form I-601A webpage for specific filing instructions, filing fees and special instructions.
   
   Read our Tips for Filing Forms with USCIS to ensure USCIS will accept your application package.
    
2. Mail your application to the USCIS Chicago Lockbox.

   If U.S. Postal Service:

   USCIS
   P.O. Box 4599
   Chicago, IL 60680

   If USPS Express Mail/Courier:

   USCIS
   Attn: I-601A
   131 S. Dearborn, 3rd Floor
   Chicago, IL 60603-5517

3. Visit an Application Support Center (ASC) to provide biometrics. After USCIS receives your Form I-601A application with fees, we will send you a notice scheduling you to visit an ASC to provide your biometric and biographic information.

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Form Filing Tips

• Read our Tips for Filing Forms with USCIS.
• Visit the Form I-601A web page and read the Special Instructions section.
• If you have questions, call the Customer Service Center at 1-800-375-5283. Do NOT visit a USCIS field office.

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Approval of Form I-601A

The USCIS National Benefits Center will adjudicate all Form I-601A applications.

Having a pending application for a provisional unlawful presence waiver or an approval of such a waiver will NOT:

• Grant you any benefit or protect you from being removed from the United States.
• Allow you to apply for interim immigration benefits such as work authorization or advance parole.
• Guarantee DOS will issue you an immigrant visa.
• Guarantee U.S. Customs and Border Protection will admit you into the United States.
• Give you a legal immigration status.
• Change the requirement that you must depart the United States in order to obtain an immigrant visa.

NOTE: USCIS may reopen or reconsider its decision on the Form I-601A at any time.

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Reasons Your Provisional Unlawful Presence Waiver May Be Revoked

Your approved provisional unlawful presence waiver is automatically revoked if:

• DOS ends the immigrant visa application process.
• USCIS revokes the underlying approved immigrant visa petition.
• The consular officer at the U.S. Embassy or U.S. Consulate determines that you are ineligible for the visa, including that you are inadmissible on grounds other than unlawful presence.
• You reenter or attempt to reenter the United States without inspection and admission or parole, while your application for a provisional unlawful presence waiver is pending with USCIS,  after your provisional unlawful presence waiver is approved, or before your immigrant visa is issued.

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If Your Approved Provisional Unlawful Presence Waiver is Revoked

If your provisional unlawful presence waiver is revoked, you may be able to file an application to waive certain grounds of inadmissibility. The Form I-601, Application for Waiver of Grounds of Inadmissibility, and instructions about which grounds of inadmissibility can be waived are available on the Form I-601 webpage.

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If You Are in Removal Proceedings

If USCIS approves your Form I-601A, you and/or your legal representative should take steps immediately to have your removal proceedings formally terminated or dismissed by EOIR before you depart the United States to attend your immigrant visa interview. If you leave the United States before your removal proceeding is terminated or dismissed, you may experience delays in the processing of your immigrant visa or risk becoming ineligible for an immigrant visa based on another ground of inadmissibility.

After you receive the approval notice for your Form I-601A, you and/or your legal representative should contact the Office of the Principal Legal Advisor at U.S. Immigration and Customs Enforcement (ICE) to make arrangements to have those proceedings dismissed. Do not contact ICE until after USCIS approves your Form I-601A.  ICE Chief Counsel phone numbers are available on the internet. When you contact ICE, you should have a copy of the approval notice available for ICE’s review.

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Denial of Form I-601A or Withdrawal of Form I-601A

If USCIS denies your provisional unlawful presence waiver, you cannot file an administrative appeal or a motion to reopen or reconsider.

However, if your provisional unlawful presence waiver request is denied or if you withdraw your provisional unlawful presence waiver application before USCIS makes a final decision, you may file a new Form I-601A, in accordance with the form instructions and with the required fees. Your immigrant visa case must also be pending with DOS. In the case of a withdrawn Form I-601A, USCIS will not refund the filing fees because USCIS has already taken steps to adjudicate the case.

Alternatively, if USCIS denies your Form I-601A or you withdraw your Form I-601A before USCIS makes a final decision, you can apply for a traditional waiver using the existing process and Form I-601, Application for Waiver of Grounds of Inadmissibility. You cannot apply for a Form I-601 until after you attend your immigrant visa interview and after DOS determines that you are subject to other grounds of inadmissibility. If you decide to file Form I-601 after the interview abroad, you must file the Form I-601 in accordance with its instructions and with the required fees.

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Avoid Immigration Scams

Please be aware that some unauthorized practitioners may try to take advantage of you by claiming they can file a provisional unlawful presence waiver. These same individuals may ask that you pay them to file such forms. To learn the facts about how to protect yourself and your family from scams, please visit www.uscis.gov/avoidscams.

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This page can be found at: https://www.uscis.gov/provisionalwaiver