In most situations where an individual has entered the United States without documents (entry without inspection, or “EWI”), they must return to their home country in order to apply for an immigrant visa, even if married to a U.S. citizen. If that person has accrued unlawful presence in the U.S., they can be found inadmissible when they leave the U.S. and apply for a visa abroad. If an individual has been in the United States for more than one year without lawful status can be found inadmissible and ineligible to return to the United States for 10 years, unless they can establish that they merit a waiver of the unlawful presence bar.

However, since March 4, 2013, certain immigrant visa applicants who are immediate relatives (spouses, children and parents) of U.S. citizens can apply for provisional unlawful presence waivers before they leave the United States for their consular interview.

The provisional unlawful presence waiver process allows immediate relatives who only need a waiver of inadmissibility for unlawful presence to apply for that waiver in the United States before they depart for their immigrant visa interview. This process was created in order to shorten the time that U.S. citizens are separated from their immediate relatives while those family members are obtaining immigrant visas to become lawful permanent residents of the United States.

In order to qualify for a provisional waiver, filed on form I-601A, the applicant must have a “qualifying relative,” i.e. a U.S. citizen or lawful permanent resident spouse or parent. Further, the applicant must establish that their spouse or parent will suffer “extreme hardship” if the applicant is not able to return to the United States from abroad. In addition, the applicant cannot be inadmissible for other grounds, such as prior immigration fraud, a formal removal order, or certain crimes.

Proving Extreme Hardship

Before an individual can be approved for an I-601A provisional waiver, he or she must demonstrate that their departure from the United States will cause extreme hardship to their qualifying spouse or parent. A few examples of factors that are considered in evaluating extreme hardship to a spouse or parent include:

• The spouse or parent in the United States suffers from a medical condition;
• The spouse or parent would face risks to their personal safety if they must live abroad;
• The spouse or parent faces separation from their family ties in the U.S.;
• The spouse or parent will suffer severe economic hardship without the contributions of the immigrating applicant’s income;
• The spouse or parent would lose educational and professional investment if they live abroad with the applicant.

If the provisional waiver is approved, then the applicant goes to a consular interview abroad. The applicant still must complete the standard immigrant visa processing while abroad, including a medical exam and background checks. However, if no other ground of inadmissibility applies, then the immigrant visa can be issued and the applicant can return to the United States lawfully.

Please note that if a person is grandfathered under INA sec 245(i), the provisional waiver process is not required. A person who is the direct beneficiary or derivative beneficiary of a visa petition or labor certification application filed on or before April 30, 2001, may not have to travel abroad, but rather can adjust their status in the United States. If you believe you may qualify under INA section 245(i), it is important to have your case evaluated before proceeding with the provisional waiver process.

We are happy to assist you with your provisional waiver process. Feel free to contact us by email or at (415) 627-9161 for an evaluation of your case.