Provisional Unlawful Presence Waiver Guidance

As of March 4, 2013, immediate relatives of U.S. citizens (spouses, parents of adult U.S. citizens, and minor children) who are physically present in the U.S. will be able to request a provisional waiver of unlawful presence bars to admissibility under INA 212(a)(9)(B)(i) before departing the U.S. for consular interview in connection with their immigrant visa for permanent residence ("green card"). Applicants will have to pay the immigrant visa processing fee before departing the U.S., as well as demonstrate that denial of the waiver would result in extreme hardship to the U.S. citizen immediate relative. The waiver may be denied if other bases of inadmissibility are suspected, but even if not, inadmissibility is still possible though much less likely, particularly with a meticulously prepared application and thorough examination of other possible inadmissibility before any application is filed. If there are not other bases of inadmissibility, such waivers will be granted. The provisional waiver should prove to be an enormous benefit to keeping families together with as little separation as possible and heartbreak on account of denial with no advance warning. Such has been the case until now.