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May 27

Provisional Waiver Processing to Begin on March 4, 2013

USCIS has recently published guidelines on the provisional waiver processing to begin on March 4, 2013.

The news coverage of the new waiver process and centralized filing in the U.S. has left many people confused. It is important to first clear up that the provisional waiver does not eliminate the requirement for certain family based applicants to consular process. The new regulations will change the waiver process, but will not change the eligibility requirements for Adjustment of Status.

Below is a basic breakdown of the “provisional waiver” and eligibility requirements:

  • Applicable only to Immediate Relatives (Spouse, Parents, Children under 21 of U.S. citizens)
  • Will only waive inadmissibility due to Unlawful Presence. Criminal inadmissibility will require a separate waiver filed after the visa interview at the U.S. Consulate abroad.

The provisional waiver is designed to allow “pre-approval” of the unlawful presence waiver for only a certain category of immigrants. It does not apply to all applicants for an Immigrant Visa who require waivers due to unlawful presence. For example, the spouse of a lawful permanent resident or the sibling of a U.S. citizen who require a waiver of unlawful presence would not be eligible to have a provisional waiver adjudicated before their consular visa interview.
In order to obtain a provisional unlawful presence waiver, the applicant must be an immediate relative of a U.S. citizen, inadmissible only on account of unlawful presence, and demonstrate the denial of the waiver would result in extreme hardship to his or her U.S. citizen spouse or parent. USCIS will publish a new form, Form I-601A, Application for a Provisional Unlawful Presence Waiver, for individuals to use when applying for a provisional unlawful presence waiver under the new process.


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