Provisional Unlawful Presence Waivers

One of the immigration policies that the Obama Administration has implemented, is what is called the provisional unlawful presence waiver.  Since March 4, 2013, certain immigrant visa applicants could apply for this waiver in the U.S. before leaving the U.S. for their interviews at the U.S. Consulate in their native countries.  This policy significantly lessened the amount of anxiety and time of separation between the applicants and their U.S. citizen family members during the waiver process.

Generally, a foreign national who wants to obtain lawful permanent resident status in the U.S. has to either go through the adjustment of status process in the U.S., or apply for an immigrant visa in their native countries.  For those foreign nationals that do not qualify for adjustment of status, and who have lived in the U.S. for more than 180 days without lawful status, have to return to their native countries to obtain their immigrant visa.  The problem in this scenario is that once the applicants leave the U.S. to get their visa, they incur the unlawful presence bar under INA 212(a)(9)(B) – that they cannot return to the U.S. for a period of at least 3 years unless they apply and obtain approval for a waiver for that unlawful presence.  Before the provisional waiver policy was implemented, applicants would have to wait the adjudication of the waiver in their native countries, anxiously awaiting an approval to return to their families.  In the case of a denial, that wait would become much longer.

The provisional waiver allows immediate relatives of U.S. citizens to apply for the unlawful presence waiver in the U.S. prior to leaving the U.S. to obtain their immigrant visas.  The applicant must not be inadmissible for any other reason, such as for misrepresentation or criminal grounds.  The result is that the applicant can stay in the U.S. until they obtain approval from the U.S. Consulate in their native country.  Then the applicant need only travel to obtain their visa and return in a very short amount of time.  There are less uncertainties of time or approval.

Although the waiver is limited to waivers for unlawful presence and only to those that are immediate relatives of U.S. citizens the waiver has benefited thousands of people.  Since its inception, the average approval rate has been 70.2%.  Contact an experienced attorney if you believe you can benefit from this policy.

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