Unlawful Presence

Foreign individuals who are present in the United States without legal permission from the Department of Homeland Security are accumulating Unlawful Presence. There are many reasons for Unlawful Presence like illegal entry, overstaying a visa past the expiration date of the I-94 Form, and many others. Certain Waivers can be granted by USCIS, depending on the circumstances.

Provisional Waiver of Unlawful Presence of Undocumented Spouse

The I-601A Provisional Waiver allows the spouse, children, and sons and daughters (married or unmarried) of U.S. citizens or U.S. lawful permanent residents to apply for a provisional waiver of the unlawful presence ground of inadmissibility while still in the United States. They need to demonstrate that being separated from their U.S. citizen or U.S. lawful permanent resident spouse or parent would cause that U.S. citizen resident relative “extreme hardship.”

Eligibility for the provisional waiver also extends to the spouse and children who accompany or follow to join the principal immigrant.

Foreign nationals who voluntarily depart the United States after accruing over 6 months of “unlawful presence” in the United States are deemed ineligible to re-enter the U.S. for three years starting from the date of their departure.

A foreign national who departs the United States after over 12 months of unlawful presence in the United States is ineligible to re-enter the U.S. for ten years starting from the date of their departure.

Approval of the provisional waiver means that the “risk” of going abroad to process for an immigrant visa is significantly reduced since a provisional waiver of the unlawful presence ground of inadmissibility has already been received before the applicant departs the United States.

The I-601A Provisional Waiver does not change the immigrant visa process.  In order to be eligible to file the I-601A Provisional Waiver, you must have a case pending with the U.S. Department of State based on an approved immigrant visa petition (either family-based or employment-based) or selection by the U.S. Department of State to participate in the Diversity Visa Program; have paid the Department of State visa processing fee; and be physically inside the United States to file the I-601A waiver and provide biometrics.