Home / Issues / Transgender / The Provisional Unlawful Presence Waiver

The Provisional Unlawful Presence Waiver

General information, such as that provided below, does not constitute individual legal advice nor is it meant to take the place of individualized legal advice; however, we do hope to answer some of the questions we hear most often. You should always consult with a qualified immigration attorney about the individual facts of your case before making any decisions about your particular situation.

What is unlawful presence and how could unlawful presence make someone inadmissible?

Unless you entered the U.S. as a Canadian visitor, student visa holder, or you crossed the border and entered the U.S. without inspection, you were likely given a specific date by which you were required to depart the country, marked on Form I-94 (the little white card in your passport). If you stay past the date on your I-94, you are out of status and begin to accrue unlawful presence in the United States. Once someone accrues 180 days of unlawful presence, that person becomes inadmissible into the U.S. and is barred from reentering the U.S. for a period of three years if he or she leaves the country. This bar increases to ten years after accruing one year of unlawful presence.

Also, if you entered the U.S. without being inspected by an immigration official (such as by crossing the Mexican or Canadian border), you have been present unlawfully and accruing unlawful presence from the day you entered.

What does “admissibility” have to do with whether I can get a green card?

There are two ways to apply for a marriage-based green card. If you are outside the U.S. you can apply to consular process and have your interview at the U.S. consulate in your country.

If you are currently in the U.S. you can apply to adjust status from within the U.S. and have the interview here with a U.S. Citizenship and Immigration Services (USCIS) officer. The general rule under U.S. immigration law is that if you are in the U.S. without lawful status, you cannot change from being here unlawfully to being here lawfully from within the U.S.; you must return to your country to consular process. There is an exception to this general rule for the spouses of U.S. citizens – even if you have fallen out of status, as long as you were inspected, you can generally get your green card from within the U.S. However, if you entered the U.S. without inspection “EWI” (by crossing the border), you cannot apply for the green card from within the U.S. (However, because immigration law is very complicated there are number of exceptions to the general rule which are beyond the scope of this FAQ.)

What was 245i?

There used to be an exception for EWI entrants under section 245i of the immigration law which allowed people to pay a $1000 penalty and apply to adjust status from within the U.S. even if they were not inspected. That exception sunsetted (stopped being the law) as of April 1, 2001. However, if a family member or employer filed a petition for an immigrant visa (green card) for you before April 2001, you may still be “grandfathered in” under 245i and eligible to adjust status from within the U.S.

I’ve been in the U.S for more than 180 days without status. Do I need to apply for a waiver?

Maybe. If you entered the U.S. with a valid visa and subsequently fell out of status, you should still be able to apply for adjustment of status (that is filing your green card application from within the U.S.) based on your marriage to a U.S. citizen without the need to apply for a waiver. However, if you entered the U.S. without a visa and without being inspected by U.S. immigration officials, you are not eligible to apply for adjustment of status, and you must apply for an immigrant visa at a U.S. consulate abroad. If you’ve been in the U.S. without status for more than 180 days, you may be found inadmissible, and leaving the country to attend your visa interview may subject you to the three or ten year bar. You would need to apply for an unlawful presence waiver in order to be admitted back into the U.S. with your immigrant visa.

What does the provisional unlawful presence waiver do?

A person who is subject to the bar is required to get the bar “waived,” or forgiven, by filing a waiver application and must return to his or her home country to apply for the green card, rather than adjusting status. Since it can be difficult to have the waiver approved, many individuals who could get a green card through a family member have chosen not to apply because they are afraid of returning home and not being permitted back to the U.S., or facing delays of months or years in their home country while the waiver is processed.

On March 4, 2013, USCIS began allowing individuals whose sole ground of inadmissibility is unlawful presence to apply for a provisional waiver of the three and ten year bar before leaving the U.S., remaining here while USCIS makes a decision on the waiver, and then returning to the home country only after the waiver is approved to attend their immigrant visa interview. This new provisional waiver shortens the time that couples are forced to remain separated.

Do I qualify for a waiver?

In order to qualify for the waiver, you must meet ALL of the following conditions:

  • Be at least 17 years old
  • Be physically present in the U.S.
  • Be the “immediate relative” (spouse, parent, or unmarried child under the age of 21) of a U.S. citizen
  • Have an approved I-130 petition filed by your immediate relative
  • Have an immigrant visa case pending with the Department of State and have paid the $230.00 immigrant visa application fee (you must submit a copy of the official receipt for this application fee along with your waiver application)
  • Be able to demonstrate that your U.S. citizen spouse or parent will suffer extreme hardship if a waiver is not granted
  • Not be subject to any other grounds of inadmissibility

I’m currently in removal proceedings. Can I apply for the waiver?

Unless your removal proceedings have been administratively closed and taken off the EOIR calendar, you cannot apply for a waiver. If your removal proceedings have been closed, you can submit the waiver application; once approved, you should contact EOIR and request an order officially terminating your removal proceedings before leaving the U.S. for your visa interview. If you don’t fully terminate your removal proceedings before leaving, your waiver will be revoked upon your departure from the U.S. You should consult with a lawyer about this process.

What do I need to do before applying for the waiver?

If you need to apply for a provisional unlawful presence waiver, you can do so in conjunction with consular processing. The first step is for the U.S. citizen spouse to file an I-130 immediate relative spousal petition. Once the I-130 has been approved, the National Visa Center will send the foreign spouse information regarding the processing fee for applying for an immigrant visa. Once the immigrant visa application fee has been paid, you can file the Form I-601A application for a provisional unlawful presence waiver. You must include both the I-797 approval notice from the spousal petition and the immigrant visa fee receipt along with your waiver application.

Is there a filing fee for the waiver itself?

Yes, the filing fee is $670, which includes $585 for Form I-601A and $85 for the biometric services fee. There are no waivers for these fees, but applicants who are 79 years of age or older are not required to pay the biometrics services fee.

What do I need to show in order to be approved for a waiver?

In order to receive a provisional unlawful presence waiver, you will need to prove that your U.S. citizen spouse will suffer “extreme hardship” if you are not admitted back into the U.S. Keep in mind that USCIS only considers the hardship that will be caused to the U.S. citizen spouse. Extreme hardship to the foreign spouse or to other individuals does not factor into this analysis.

What qualifies as extreme hardship?

While not exhaustive, USCIS takes the following factors into account when considering extreme hardship:

  • Health concerns (e.g., the U.S. spouse is suffering from a chronic condition and receives specialized treatment in the U.S. that would be unavailable abroad)
  • Financial considerations (e.g., the U.S. spouse will suffer a loss from the sale of a home or business or will have few employment prospects if forced to relocate abroad)
  • Educational opportunities (e.g., the U.S. spouse will lose the opportunity to access higher education or will have to undergo substantial retraining, especially if in a foreign language or culture)
  • Personal considerations (e.g., the U.S. spouse has no other family abroad and will face separation from other close relatives in the U.S. or will be forced to give up substantial community ties)
  • Special factors (e.g., the U.S. spouse fears persecution or stigma abroad or will face cultural, language, religious, or ethnic obstacles to integration)
  • For lesbian and gay couples, if the foreign spouse comes from a country that persecutes or stigmatizes lesbian and gay people, it will also be helpful to submit information about the possible mistreatment that the U.S. citizen would face if forced to live in his or her spouse’s country.

Are there other considerations that factor into the decision regarding whether or not to grant a waiver?

Yes. USCIS ultimately has discretion as to whether or not to approve a waiver request even if you can show extreme hardship to the U.S. citizen spouse. The foreign spouse will be required to submit a statement in support of the waiver application, and in addition to discussing the extreme hardship to the U.S. citizen, this statement should also include information about the foreign spouse’s ties to the U.S. This can include evidence of other family relationships, community involvement, education in the U.S, and overall good moral character.

What happens once the waiver is approved?

The foreign spouse will receive a notice from the National Visa Center with information about the date, time, and location of the immigrant visa interview, which will take place at a U.S. embassy or consulate abroad. At this interview, you will still have to prove that you are not subject to any other grounds of inadmissibility (such as having committed a serious crime or having certain communicable diseases). If no other grounds of inadmissibility apply, you should be approved for an immigrant visa. If you are found to be subject to another ground of inadmissibility, your unlawful presence waiver will be revoked, and you will have to submit a Form I-601 Application for Waiver of Grounds of Inadmissibility for unlawful presence and for any additional grounds of inadmissibility. Unfortunately, if this happens, you will be stuck in your home country waiting for a decision on the I-601 waiver.

What happens if the waiver is denied?

If the unlawful presence waiver is denied, there is a risk that the foreign spouse could be placed into removal (deportation) proceedings. USCIS has indicated that they are referring these cases to Immigration and Customs Enforcement based on existing guidance regarding enforcement priorities. You can find more information on this guidance as it relates to gay and lesbian binational couples on our Prosecutorial Discretion FAQ.