It is not uncommon for a foreign national to be required to leave the United States to obtain an immigrant visa. Unfortunately, many of these individuals have accrued more than 180 days of unlawful presence in the U.S. By obtaining a provisional unlawful presence waiver - or, simply, provisional waiver - an individual can protect himself or herself and shorten the amount of time outside of the U.S. away from their relatives.
Unfortunately, there are several requirements that must be met to be eligible for a provisional waiver.
U.S. Citizenship and Immigration Services (USCIS) has specified the eight conditions that must be met in full to be eligible for a provisional waiver.
- Be 17 years of age or older.
- Be an immediate relative of a U.S. citizen.
- Have an approved Form I-130 or Form I-360.
- Have a pending immigrant visa case with DOS for the approved immediate relative petition and have paid the DOS immigrant visa processing fee.
- Be able to demonstrate that refusal of your admission to the United States will cause extreme hardship to your U.S. citizen spouse or parent.
- Be physically present in the United States to file your application for a provisional unlawful presence waiver and provide biometrics.
- DOS did not initially act before January 3, 2013 to schedule your immigrant visa interview for the approved immediate relative petition upon which your provisional unlawful presence waiver application is based.
- Meet all other requirements for the provisional unlawful presence waiver.
A consular interview can be a stressful time. You can remove a great deal of worry by applying for a provisional unlawful presence waiver before you leave the U.S. for your interview. To fully understand your rights and legal options, you should discuss your unique situation with a skilled immigration attorney.
Source: USCIS, "Provisional Unlawful Presence Waivers." Accessed 3/1/2016