Provisional Waiver of Unlawful Presence (Form 601A) waives the three and 10 year unlawful presence bars that are triggered when a person has been unlawfully present for more than six months, and more than one year.

The waiver was previously only available to children and spouses of United Citizens. The new rule, that goes into effect on August 29, 2016, allows for  spouses and children of legal permanent residents to also qualify, instead of going through original I-601 process after the consular appointment abroad.

The provisional waiver is only for unlawful presence! This waiver is based on the extreme hardship that the immediate United State citizen relative or Legal Permanent resident relative will suffer if waiver were not granted. Always consult an experienced immigration attorney regarding your individual situation, especially if there are other issues such as criminal background or other bars.

If waiver is denied. There is no appeal process available. Waiver can be re-filed as long as the case is still pending with the Department of State.

In summary, a provisional waiver:

  • Waives unlawful physical presence in US;
  • Is for immediate relatives of United States Citizens and Legal Permanent Residents (children and spouses of US citizens;
  • Can be applied for before leaving US to consular appointment;
  • Applicant is at least 17 years of age;
  • Applicant’s US citizen relative (Spouse or Parent) will suffer extreme hardship if applicant is not allowed to return; and
  • I-130 petition is approved for consular processing.

Please visit the Immigration Legal Resource Center and USCIS for more information about the provisional unlawful presence waiver process.