Provisional Unlawful Presence Waivers: Still a Good Backup Option

While the Keeping Family’s Together Program remains on hold, many eligible applicants would be wise to pursue collateral alternatives, including the provisional unlawful presence waiver (Form I-601A).

An approved immigrant visa petition gives a foreign national a path to legal permanent residence. However, the process is not so simple for people who entered the United States without inspection and/or those who have accrued unlawful presence of more than 180 days. In most circumstances, those foreign nationals are not eligible to adjust status, meaning that they cannot apply for legal permanent residence in the United States.

Instead, those foreign nationals will have to travel abroad and obtain residence through an interview at a U.S. embassy or consulate abroad. Sadly, the accrual of unlawful presence for more than 180 days in the United States renders them unable to return to the United States for three or 10 years, depending on the amount of unlawful presence. To overcome the entry bar from the United States, the foreign national will have to apply for a waiver of inadmissibility to re-enter the United States.

Fortunately, due to regulatory change in 2013 by the Obama Administration, foreign nationals subject to the unlawful presence bar can apply within the United States before departing to consular process. To be eligible for an I-601A waiver, applicants must be at least 18 years old, physically present in the United States, and have an immigrant visa case pending with the Department of State. Importantly, the applicant will have to show that refusal of their admission to the United States will cause extreme hardship to their U.S. citizen or legal permanent resident spouse or parent, either by separation or relocation to the applicant’s home country. Applicants must also show they merit favorable discretion.

It is critical to note that foreign nationals are not eligible for the I-601A provisional unlawful presence waiver if they face other grounds of inadmissibility. In addition, foreign nationals are not eligible for the I-601A waiver if they are in removal proceedings that have not been administratively closed.

While the I-601A waiver has benefited many families, the process is challenging and may cause significant anxiety for applicants. Current processing times for the unlawful presence waiver is greater than 3½ years at USCIS. Even once approved, applicants have to depart the United States for a minimum of several weeks to complete a medical exam, attend their consular interview, and await their immigrant visa.

The approval of the provisional waiver by USCIS does not guarantee a safe return, and consular officers can find the applicant inadmissible on other grounds and refuse the immigrant visa, creating a prolonged separation. Even administrative delays, errors, and misunderstandings can be economically and emotionally devastating for applicants and their families.

Pending and approved I-601A petitions offer the beneficiary no protection from removal and no interim immigration benefits. Applications that are denied cannot be appealed; however, it is possible to refile applications and there is no limit to how many times an applicant can reapply. Current USCIS approval rates of provisional waivers are around 70 percent.

Despite the limitations and challenges of this benefit, the provisional waiver program has helped hundreds of thousands of families secure lawful permanent residence in the United States. For many individuals, this is the only viable pathway to permanent residence. Prior to the 2013 regulatory change, obtaining an unlawful presence waiver was undesirable, as applicants subject to unlawful presence bars had to depart the United States and apply from abroad, which was often too risky to be a viable option. Families pursuing parole-in-place through the Keeping Families Together Program can simultaneously pursue provisional unlawful presence waivers.