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.
On August 29, 2016, the provisional unlawful presence waiver process was expanded to all individuals statutorily eligible for an immigrant visa and a waiver of inadmissibility for unlawful presence in the United States.
Aliens who are not eligible to adjust their status in the United States must travel abroad and obtain an immigrant visa. Individuals who have accrued more than 180 days of unlawful presence while in the United States must obtain a waiver of inadmissibility to overcome the unlawful presence bars under section 212(a)(9)(B) of the Immigration and Nationality Act before they can return.
Typically, these aliens cannot apply for a waiver until after they have appeared for their immigrant visa interview abroad, and a Department of State (DOS) consular officer has determined that they are inadmissible to the United States.
The provisional unlawful presence waiver process allows those individuals who are statutorily eligible for an immigrant visa—immediate relatives, family-sponsored or employment-based immigrants as well as Diversity Visa selectees—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 new process was developed to shorten the time that U.S. citizens and lawful permanent resident family members are separated from their relatives while those relatives are obtaining immigrant visas to become lawful permanent residents of the United States.
The expansion of the provisional unlawful presence waiver process does not affect the continued availability of the Form I-601 process: Individuals who do not wish to seek or do not qualify for a provisional unlawful presence waiver can still file Form I-601, Application for Waiver of Grounds of Inadmissibility, after a DOS consular officer determines that they are inadmissible to the United States.
In Texas, as in all states, the federal regulations regarding provisional unlawful presence waivers apply. Since March 4, 2013, immediate relatives of U.S. citizens who are immigrant visa applicants have been able to apply for provisional unlawful presence waivers before leaving the U.S. for their consular interviews. This process was expanded on August 29, 2016, to include all individuals eligible for an immigrant visa and a waiver for unlawful presence. Those who have accrued more than 180 days of unlawful presence in the U.S. and are not eligible to adjust their status within the U.S. must obtain a waiver to overcome the bars under section 212(a)(9)(B) of the Immigration and Nationality Act before they can return. The provisional waiver process allows eligible individuals to apply for the waiver before departing for their visa interview abroad, thereby reducing the time of separation from their family members in the U.S. This process does not replace the existing Form I-601 process, which remains available for those who either do not qualify for or do not wish to seek a provisional waiver.
