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Affiliated Attorneys, LLC Blog

Monday, February 12, 2018

How to Get A Provisional Unlawful Presence Waiver

Under current law, many immigrants are required to travel abroad and apply for an immigrant visa from their home country before they can return and become lawful permanent residents of the U.S.  Immigrants in the United States illegally, however, may be barred from returning to the United States for either three years or ten years under Section 212(a)(9)(B) of the Immigration and Nationality Act.  

To avoid this bar, these foreign nationals must obtain a waiver of their unlawful presence when applying for an immigrant visa.  Seeking a waiver can lead to a Catch-22, however—leaving the U.S. in order to return as a lawful resident only to be barred from returning.  One way to avoid this dilemma is to obtain a Provisional Unlawful Presence Waiver.

What is a Provisional Unlawful Presence Waiver?

A Provisional Unlawful Presence Waiver or stateside waiver allows immigrants with close relatives who are U.S. citizens to request a waiver while still unlawfully in the United States.  A provisional waiver alleviates hardship to families by assuring immigrants, before they leave for a visa interview abroad, that the United States Citizenship and Immigration Services (USCIS) will not bar them from returning.

Who is Eligible?

Candidates with some period of unlawful presence in the United States can apply to have it waived if they are at least 17 years old and listed as an immediate relative of a U.S. citizen on an approved immigrant visa petition.  They must have an immigrant visa case already pending with the Department of State and they must comply with all the documentary requirements of Form I-601A -Application for Provisional Unlawful Presence Waiver, such as providing proof of their relationship to a qualifying relative.

Who is Ineligible?

Foreign nationals who meet these requirements may be ineligible if they already have a pending application for permanent residence or adjustment of status on Form I-485.  Foreign nationals currently involved in removal proceedings are also usually ineligible, with a few exceptions.  They may also be ineligible if they fail to demonstrate that refusal of admission to the United States would result in hardship.

What if the USCIS Denies the Request for a Waiver?

Some immigrants may not receive a provisional waiver.  They can try to address the reasons for their rejection and reapply from within the United States rather than from overseas.  Waiver denials cannot be appealed, but an applicant can file a new application with new information, as long as there is still an active immigrant visa case before the State Department.  If that fails, there are still other paths to lawful permanent residency, but the foreign national may have to go through a consular visa interview abroad.

According to government statements, immigrants whose applications for a waiver are denied will not be targeted for deportation unless they have committed crimes or otherwise pose a threat to national security or public safety.

Being represented by an attorney can increase your chances of receiving a favorable outcome in your application for a Provisional Unlawful Presence Waiver.  Contact our offices today for a consultation.


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Serving Southeastern Wisconsin, with offices in Milwaukee and West Bend, Affliated Attorneys, LLC represent clients throughout Milwaukee County, Washington County, Waukesha County, Dodge County, Ozaukee County, Racine County, Sheboygan County, Jefferson County, Fond du Lac County and Walworth County.



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