The USCIS Provisional Unlawful Presence Waiver permits individuals – who only need a waiver of inadmissibility for unlawful presence [under INA Section 212(a)(9)(B)] in order to obtain an immigrant visa and are not eligible to adjust status in the United States – to apply for a waiver in the United States prior to departing for their immigrant visa interviews at a U.S. embassy or consulate abroad (if the unlawful presence waiver application is approved).
To be eligible for a provisional unlawful presence waiver one must fulfill ALL of the following conditions:
1. Be 17 years of age or older.
2. Be an immediate relative of a U.S. citizen (not a preference category immigrant who has a visa available). An immediate relative is an individual who is the spouse, child or parent of a U.S. citizen.
3. Have an approved Form I-130, Petition for Alien Relative, or Form I-360, Petition for Amerasian, Widow(er), or Special Immigrant.
4. Have a pending immigrant visa case with DOS for the approved immediate relative petition and have paid the DOS immigrant visa processing fee.
5. 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.
6. Be physically present in the United States to file your application for a provisional unlawful presence waiver and provide biometrics.
7. Not have been scheduled for an immigrant visa interview by DOS before January 3, 2013.
8. Meet all other requirements for the provisional unlawful presence waiver, as detailed in 8 CFR 212.7(e) and the Form I-601A and its instructions.
One requirement for eligibility to seek the provisional unlawful presence waiver is that the applicant be the immediate relative of a U.S. citizen. The immediate relative of a U.S. citizen is (1) the spouse of a U.S. citizen, (2) a child (under the age of 21) of a U.S. citizen, and (3) the parent of a U.S. citizen son or daughter who is 21-years of age or older.
The approval of a Petition for Alien Relative (Form I-130) and a current priority date alone is not sufficient to establish eligibility for the provisional unlawful presence waiver if the applicant (and beneficiary of the approved Form I-130) is not the immediate relative of a U.S. citizen. For example, an individual whose approved Form I-130 falls under the First Family-Based Preference Category – unmarried son or daughter (21 years of age or older) of a U.S. citizen – is not eligible to seek the provisional unlawful presence waiver because he or she is not an immediate relative of a U.S. citizen but rather is in a preference category listed in the U.S. Department of State Visa Bulletin.
Multiple individuals, who are not the immediate relative of a U.S. citizen and have recently come to my office for a consultation, have informed me that they were incorrectly advised they were eligible to seek the provisional unlawful presence waiver.