USCIS Expands I-601A Provisional Waiver of Unlawful U.S. Presence

Provisional waiver no longer limited to immediate relatives of U.S. citizens.

In 2013, U.S. Citizenship and Immigration Services (USCIS) implemented what's known as the provisional waiver or “stateside waiver,” which allowed immediate relatives of U.S. citizens (but no other family-based visa applicants) to apply for a waiver of unlawful presence time bars prior to leaving the U.S. in order to apply for a green card at a consulate abroad.

This new process enabled those foreign citizens who had remained in the country unlawfully for six months or more to learn whether or not they would be required to wait outside the U.S. for several years (as a penalty for their unlawful presence) before being permitted to apply for permanent residency. Immigration advocates credited the new provisional waiver process for reducing the time that applicants were separated from their family members during immigration processing.

On July 29, 2016, USCIS published a final rule in the Federal Register expanding the class of immigrants who qualify for a provisional waiver of unlawful presence. This rule eliminated those limitations on the provisional waiver process that restricted eligibility to only U.S. citizens’ spouses, parents, and unmarried children under age 21. Effective August 29, 2016, the spouses and children of permanent residents, siblings of U.S. citizens, and both adult and married children of U.S. citizens are permitted to apply for the provisional waiver, greatly expanding the number of people who can benefit from this process.

Keep in mind that in order to qualify for a provisional waiver, applicants must establish that their U.S. citizen or lawful permanent resident relatives would experience “extreme hardship” if the applicants are not allowed to return to the United States. It is highly recommended that all applicants contact an experienced immigration attorney before proceeding with a stateside waiver application as proving extreme hardship can be quite difficult and involve preparing extensive documentation, including personal statements.

(Get more information about stateside waivers and completing Form I-601A, Application for Provisional Unlawful Presence Waiver.)