As of August 29, 2016, the provisional waiver process has been expanded to all individuals who are statutorily eligible for the waiver of unlawful presence ground of inadmissibility. Previously, the provisional waiver was only available to spouses and sons/daughters of U.S. citizens. Under the new expansion, the waiver is now also available to spouses and sons/daughters of U.S. lawful permanent residents (“LPRs”).
What is the provisional waiver process? On January 3, 2013, the Department of Homeland Security published a regulation (thanks to Obama’s executive action) that allows spouses and sons/daughters of U.S. citizens who entered the U.S. without inspection and have been living unlawfully in the U.S. to apply for and obtain a waiver before traveling back to their home country to attend their immigrant visa interview. Under previous law, individuals who had entered without inspection and accrued more than six months of unlawful presence in the U.S. had to travel abroad to obtain an immigrant visa through a U.S. consulate in their home country and then apply for a waiver of inadmissibility before they could return to the U.S. These individuals had to be separated from their families for several months or even years before they could obtain approval on their waiver and return to the U.S. The provisional waiver program, which became effective March 4, 2013, was aimed to avoid having immediate relatives of U.S. citizens submit a waiver application abroad, causing them to be separated from their families for an extended period of time until their waivers were approved.
Under the newly expanded I-601A provisional waiver program, an applicant must be an immediate relative (spouse or son/daughter) of a U.S. citizen or lawful permanent resident (“LPR”), inadmissible only on account of unlawful presence, and demonstrate that the denial of the waiver would result in “extreme hardship” to his or her U.S. citizen or LPR spouse or parent. Once the waiver is approved, the applicant can travel abroad to attend their immigrant visa interview and return to the U.S. immediately upon issuance of the visa.
