Provisional Unlawful Presence Waiver

Most individuals who enter the U.S. on a visa or through the visa-waiver program are given a date specific that they must leave, often marked on Form I-94 (CBP no longer issues paper I-94 cards, but I-94 information is available online). If someone stays past the date they were required to leave, they will be deemed to be 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. This bar increases to ten years after accruing one year of unlawful presence.

If someone entered the U.S. without being inspected by an immigration official (such as by crossing the Mexican or Canadian border without permission), that person will be deemed to be accruing unlawful presence from the day they entered. The general rule is that if a noncitizen is in the U.S. without lawful status, they cannot change from being here unlawfully ]to being here lawfully from inside the U.S [1]; they must leave and ask for re-entry through a U.S. consulate or embassy. There is an exception to this general rule for the spouses of U.S. citizens – even if they have fallen out of status, as long as they were inspected or paroled when they last entered the U.S. If so, they may apply for a green card from within the U.S. However, if they entered the U.S. without inspection (EWI), they 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 article.) Because the law bars re-entry for so many years, many individuals do not feel safe leaving the U.S. even if they are otherwise eligible for a green card.

In the past, the U.S. government regularly made exceptions for immigrants who had entered the U.S. without permission. Section 245i of the Immigration and Nationality Act allowed people to apply for a green card from within the U.S. if they paid a $1000 penalty. However, that exception expired in April 2001. Nevertheless, if a family member or employer filed a petition for an immigrant visa (green card) for someone before April 30, 2001, that person may still qualify under 245i and be eligible to adjust status from within the U.S. subject to their meeting certain physical presence requirements. There is also a provisional waiver currently available to some immigrants. Eligibility for the provisional unlawful presence waiver is not restricted by date of entry or physical presence requirements.

If someone entered the U.S. with a valid visa and subsequently fell out of status, that person should still be able to apply for adjustment of status if the green card is based on their marriage to a U.S. citizen. However, if someone entered the U.S. on a valid visa and subsequently fell out of status, and is married to a lawful permanent resident, they do not qualify for the exception. They would need to apply for an unlawful presence waiver in order to be admitted back into the U.S. with their immigrant visa.

A person who is subject to the three- or ten-year bar due to their unlawful presence in the United States is required to get the bar “waived,” or forgiven, by filing a waiver application.  Then, the person must go to another country to apply for an immigrant visa, rather than adjusting status in the U.S. 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 leaving the U.S. and then not being able to return. 

USCIS now allows individuals who are inadmissible due to unlawful presence to apply for a provisional waiver of the three- and ten-year bar for unlawful presence before leaving the U.S. Even if the waiver is granted, the issuance of a visa will ultimately be the decision of a U.S. consulate abroad. In addition, an individual may be deemed inadmissible for other reasons as well, such as illegal reentry, immigration fraud or misrepresentation, criminal convictions, a prior removal order, etc. Even if an individual obtains a waiver for unlawful presence, if the individual is inadmissible due to other grounds of inadmissibility, and they leave the country to consular process, they will not be allowed to enter the United States. There are waivers available for some but not all grounds of inadmissibility. You should consult with an immigration attorney if you believe you are inadmissible to the United States.

The provisional unlawful presence waiver allows the person to remain here, in the U.S., while USCIS makes a decision on the waiver, and then leave the U.S. to attend their immigrant visa interview only after the waiver is approved. 

In order to qualify for the provisional unlawful presence waiver, one must meet ALL of the following conditions:

  1. Be at least 17 years old
  2. Be physically present in the U.S.
  3. Have an immigrant visa case pending with Department of State (DOS) because you:
    • Are the principal beneficiary of an approved Form I-130, Petition for Alien Relative, an approved Form I-140, Petition for Alien Worker, or an approved Form I-360, Petition for Amerasian, Widow(er), or Special Immigrant, and have paid the immigrant visa processing fee to DOS, and you are currently in the process of obtaining your immigrant visa;
    • Have been selected by DOS to participate in the Diversity Visa (DV) Program (that is, you are a DV Program selectee) and are currently in the process of obtaining your immigrant visa; or
    • Are the spouse or child of a principal beneficiary of an approved immigrant visa petition and have paid the immigrant visa processing fee to DOS, or you are the spouse or child of a DV Program selectee (that is, you are a DV Program derivative), and you are currently in the process of obtaining your immigrant visa; and
  4. Not be subject to any other grounds of inadmissibility

It is important to note that if a foreign national is in removal proceedings, unless the foreign national’s removal proceedings have been administratively closed and taken off the EOIR calendar, they cannot utilize the waiver. If their removal proceedings have been closed, they can submit the waiver application; once approved, they should contact EOIR and request an order officially terminating their removal proceedings before leaving the U.S. for the visa interview. If they do not fully terminate their removal proceedings before leaving, the waiver will be revoked upon their departure from the U.S. You should consult a qualified immigration attorney about this process. Please also note that as of the date of this publishing, EOIR has stopped granting administrative closure requests for the purposes of pursuing an unlawful presence waiver. Therefore, in effect, people in removal proceedings cannot avail themselves of this waiver.

If a foreign national needs to apply for a provisional unlawful presence waiver, they can do so in conjunction with consular processing. The first step is for the Immigrant visa petition (I-130 or I-140), I-360, or the DV lottery application to be filed. On the applications, the person must indicate that they intend to apply for their visa at a consulate abroad. Once the application has been approved, the National Visa Center will send the foreign national information regarding the processing fee for applying for an immigrant visa. Once the immigrant visa application fee has been paid, the foreign national should print the fee receipt. They should then email NVC to let them know that to temporarily stop work on the case as they intend to file an application for the provisional unlawful presence waiver on form I-601A. Note that, even though NVC will temporarily stop processing the immigrant visa application, the foreign national must contact NVC on their case at least once every year so as to keep their case from being deemed abandoned.

In order to apply for the provisional unlawful presence waiver, the applicant must submit the I-601A with all the relevant evidence and the filing fees. You can find the requirements for filing the provisional unlawful presence waiver application at www.uscis.gov. Additionally, they must include both the I-797 approval notice from the underlying immigrant visa case and the immigrant visa fee receipt along with the waiver application.

It is thus important to note that as long as you have an immigrant visa case pending with DOS, you may apply for the provisional waiver of unlawful presence. That being said, in order to get the waiver approved, the requirements are extremely stringent.

In order to receive a provisional unlawful presence waiver, the applicant will need to prove that their U.S. citizen or lawful permanent resident spouse and/or parent (Qualifying Relative or QR) will suffer “extreme hardship” if they are not admitted back into the U.S. Keep in mind that USCIS only considers the hardship that will be caused to the QR. Extreme hardship to the foreign national or to other individuals does not factor into this analysis. If the foreign national does not have a QR, they will not be able to apply for the waiver.

In order to get an approval on the waiver, the foreign national will have to prove that the QR will face extreme hardship in two situations: if the QR is to live in the U.S. and is separated from the foreign national, and if the QR is to relocate to the foreign national’s country of origin to be with the foreign national.

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

  • Mental and physical health concerns (e.g., the QR is suffering from a chronic condition and receives specialized treatment in the U.S. that would be unavailable abroad, or if the QR relies on support from the foreign national for their treatment, and this will be unavailable in the case of separation)
  • Financial considerations (e.g., the QR will suffer a loss from the sale of a home or business or will have few employment prospects if forced to relocate abroad or the QR cannot work due to physical and mental health conditions and relies exclusively on the foreign national for financial support, which will be lost if the foreign national is not allowed admission to the U.S.)
  • Educational opportunities (e.g., the QR 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 QR has no other family and/or support network 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 QR fears persecution or stigma abroad or will face cultural, language, religious, or ethnic obstacles to integration)

For LGBTQ couples, if the foreign spouse comes from a country that persecutes or stigmatizes them, it will also be helpful to submit information about the possible mistreatment that the U.S. citizen/LPR would face if forced to live in their country.

USCIS ultimately has discretion as to whether or not to approve a waiver request even if an applicant can show extreme hardship to the QR. The foreign national will be required to submit a statement in support of the waiver application, and in addition to discussing the extreme hardship to the QR, this statement should also include information about the foreign national’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.

Once the waiver application is approved, USCIS will send the foreign national an approval notice. USCIS will also inform NVC that the waiver application has been approved. The foreign national should also reach out to NVC and let them know that the waiver application has been approved. NVC will then continue processing the foreign national’s immigrant visa application. The foreign national should then continue the steps for consular processing listed here.

At the consular interview, the foreign national will still have to prove that they 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, they should be approved for an immigrant visa. If the applicant is found to be subject to another ground of inadmissibility, their unlawful presence waiver will be revoked, and they 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, they will be stuck abroad waiting for a decision on the I-601 waiver.

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.


Note: unlawful presence in the U.S. does not apply to immigration status in the U.S. of a humanitarian nature such as asylum, U, and T visas.

The information contained herein is for reference only and may not be up to date. It does not constitute legal advice. You should always consult an attorney regarding your matter.

This handbook is intended for use by pro bono attorneys and immigration attorneys working on LGBTQ/HIV asylum cases.

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