The Provisional Waiver otherwise known as the Unlawful Presence Waiver was created by the Obama Administration in 2012 to allow people who are subject to the 3-year and 10-year bars to apply for a waiver of inadmissibility before they leave the United States to consular process their visas. Prior to this waiver, individuals would have to leave the country to apply for a waiver, leaving them outside the country for months or even years waiting for a decision. The waiver created in 2012 only allowed for US citizens to petition for this waiver on behalf of their spouse, child (under 21 years) or parent.
Effective August 29, 2016, the rule has been expanded as follows:
1. File for the Unlawful Presence Waiver Inside of the United States
The new expanded provisional waiver allows filing for anyone who has an approved immigrant visa such as an I-130, I-140, diversity, or I-360, and who has a spouse or parent who is US citizen or permanent resident and can show “extreme hardship” if not approved for the waiver. The individual has to be physically present in the United States when the waiver is filed, and upon approval will be scheduled for an interview in his/her home country where they would depart to do consular processing of their immigrant visa.
2. Individuals with Final Orders of Removal May Have a Chance at the Unlawful Presence Waiver After All!
Previously, those with an old order of removal were not allowed to apply for a waiver in advance. They were forced to leave the United States and take their chances on applying for permission to come back. Those with previous orders of removal entered in the last ten years would need to ask for “advance permission” before applying for a new visa. Under the old rule, the individual would have to leave the country, file an I-212 and get it approved, and then apply for the waiver and get it approved. That process could take years with the individual having to wait outside the United States until they received their interview and approval to be allowed re-entry into the United States.
The new rule has changed that! Individuals with final orders of removal can apply for the I-212 in the United States, and upon approval, they can submit the provisional waivers while in the United States. Once the provisional waiver is approved, then the individual would depart to do consular processing of their immigrant visa. This new rule helps alleviate the long wait time outside of the United States and helps reduce the length of time families remain separated.
If you think you qualify for the I-601A, Unlawful Presence Waiver under the old or new rule, please contact our office at (832) 792-3636 so that we may start the process on your case.