Provisional Waivers for Unlawful Presence in the U.S.

David Sturman


After over eight months of deliberation and consideration, the USCIS announced on the first business day of 2013, that it has published a final rule instituting what it calls the “Provisional Waiver” law.  This law is very exciting and long awaited because it will help hundreds of thousands of persons who otherwise would not be able to safely obtain permanent residence.

The problem begins with what is known as the ten year bar.  This law states that persons who overstay their permitted period of stay or persons who enter as crewmen, in transit or illegally without a visa accrue unlawful presence.  Once a persons has accrued one year or more of unlawful presence in the U.S., any trips outside this country will prohibit the person from returning for ten years-unless that person obtains permission to return sooner.  The application to obtain permission to return to the U.S. is called a waiver form.  Up until now the problem has been that waivers could only be sought outside the U.S. at the U.S. Embassy in the applicant’s home country.  This was very risky as if the waiver was denied, the applicant was barred from returning to the U.S. for ten years.  For this reason, very few persons risked leaving the U.S. to seek an immigrant visa.

Under present law, the only persons who can adjust status in the U.S. are those who entered lawfully, maintained lawful status at all times, or those who entered lawfully overstayed and were petitioned by U.S. citizen spouses, adult children or were petitioned as minor children of U.S. citizens.  Persons who entered illegally, entered as crewmen, or entered legally but cannot prove it, could not adjust status in the U.S.  There are literally hundreds of thousands of persons in this situation who are virtually stranded in the U.S. because they cannot adjust and they fear taking a risk of leaving the U.S. to seek a waiver abroad.

Now the risk of travel has been greatly reduced. Under the new Provisional Waiver law, persons who plan to travel abroad to obtain an immigrant visa can have their waivers of unlawful presence filed and approved before they travel abroad to collect their immigrant visas.  This greatly cuts down the risk of being stranded abroad by getting preapproval.

Under the new regulations, persons file the new waiver form with the USCIS in the U.S. and obtain the approval before departing the country.  To obtain approval, under the regulations, the applicant must be married to a U.S. citizen or otherwise be what is called an immediate relative of a citizen, that is a parent of a citizen or a minor child.  He must prove that his spouse and/or parent will suffer extreme hardship if he is not permitted to return promptly. Hardship can be in the form of economic hardship, physical hardship, or emotional hardship or a combination of these forms.  However, it must be proven that the hardship to be suffered is not just ordinary but what is termed “extreme” meaning out of the ordinary.  The burden is on the applicant to prove this hardship.  We have had lots of experience in helping clients establish extreme hardship for waivers in the past and we admit that it is not easy.  However, if properly documented, the waiver can and will be approved paving the way for the immigrant visa to be issued at a U.S. embassy abroad.

The USCIS promises that the new law will go into effect on March 4, 2013.  Waivers will be filed on a new form I-601A.  This new regulation is not amnesty, but a generous provision that will help many persons obtain the dream of U.S. permanent residence.

DAVID M. STURMAN is an immigration attorney. Contact him at 818-714-2226 or the Contact Us Page to receive a free consultation. He will answer all of your questions concerning the new Provisional Waiver Law and Form I-601A. PHILIP ABRAMOWITZ is the law office’s administrator. Call 818-324-8110 to reach him.