EXPANDED Eligibility for Provisional Waivers of Inadmissibility

USCIS expanded eligibility for certain individuals seeking provisional waivers of unlawful presence.

Background

In March 2013, the government began accepting applications for provisional waivers of inadmissibility for unlawful presence. This meant that individuals who had to return to their countries of origin to apply for lawful permanent residence at the consulate could apply for waivers of unlawful presence in the United States before departing the U.S. using the Form I-601A. Up until now, this option was only available for spouses and children of U.S. citizens.

Who is now eligible? 

Under the expanded rules, the provisional waiver is now available to applicants who can show extreme hardship to a U.S. citizen or lawful permanent resident spouse or parent.

In order to qualify for this provisional waiver, you must meet all of the following criteria:

• Be 17 years of age or older;
• Be the spouse, child, son or daughter, or parent of a U.S. citizen OR the spouse, son, or daughter of a lawful permanent resident;
• Have an approved Form I-130 (Immigrant visa petition) or Form I-360;
• Be able to show that your U.S. citizen or lawful permanent resident spouse or parent will suffer extreme hardship if you are unable to return to the United States;
• Be physically present in the United States at the time that you file your I-601A application and are scheduled for a fingerprint appointment; and
• Not have been scheduled for an immigrant visa interview at the consulate before January 3, 2013.

In order to apply for this waiver, your only ground of inadmissibility must be unlawful presence in the United States. Because inadmissibility can be a complex area of immigration law, you should consult with an Immigration attorney before filing an application for this waiver.

When can I apply?

Applications under the old rules are currently being accepted. Applications under the expanded rules will be accepted beginning on August 29, 2016. In the meantime, you can consult with an immigration attorney about your eligibility and begin gathering documentation for your case.

What if my only family member with legal status is an adult child?

Unfortunately, hardship to a U.S. citizen child does not qualify for an I-601A provisional waiver at this time.