Understanding Provisional Waivers: A Guide for Employees
Most of those who enter the U.S with a visa or through the visa-waiver program are assigned a set departure date. A person will be considered out-of-status and start to have an unlawful presence in the United States if they remain after the day they were supposed to depart. A person is ineligible to enter the United States and is prohibited from returning for three years after accumulating 180 days of unlawful presence. This restriction rises to ten years after one year of unauthorized presence.
Anyone who enters the United States without being examined by an immigration official, for example, by illegally crossing the Canadian or Mexican border, will be considered to have accrued unlawful presence from the moment of entry. The general rule is that a noncitizen in the United States illegally cannot alter their status from illegal to lawful while inside the country.
Understanding Your Visa Type
Those who are statutorily eligible for an immigrant visa (immediate relatives, family-sponsored or employment-based immigrants, and Diversity Visa selectees) and who only require a waiver of inadmissibility for unlawful presence can apply for that waiver in the United States before leaving for their immigrant visa interview through the provisional unlawful presence waiver process.
This procedure was created to reduce the time that family members of U.S. citizens and lawful permanent residents must wait to see their relatives while they apply for immigration visas to enter the country as lawful permanent residents.
Provisional Waivers (Form I-601)
The provisional waivers (Form I-601) process remains available even after expanding the provisional unlawful presence waiver process. After a DOS consular officer finds someone inadmissible to the United States, they can still file Form I-601, an application for waiver of grounds of inadmissibility, even if they do not want to apply for or are not eligible for provisional waivers for the unlawful presence.
If a person’s green card is based on their marriage to a U.S. citizen, they should still be eligible to file for adjustment of status if they entered the country with a valid visa and later lost their status. However, the provision does not apply to those married to a lawful permanent resident who entered the country with a valid visa but later lost their status.
They would have to seek an illegal presence waiver if they wanted to return to the United States with their immigrant visa. A waiver application must be submitted to have the three- or ten-year ban “waived,” or forgiven, for someone subject to it because of their illegal presence in the United States.
The three- and ten-year restriction for unlawful presence can now be temporarily waived by USCIS for those who are inadmissible due to unlawful presence before they depart the country. A U.S. embassy overseas ultimately decides whether to provide a visa, even if provisional waivers are approved.
A person may also be declared ineligible for other grounds, including criminal convictions, a previous removal order, unlawful readmission, immigration fraud or misrepresentation, etc. An individual will not be permitted to enter the United States even if they receive a waiver for unlawful presence if they are inadmissible on other grounds and depart the country for consular procedures.
One must fulfill the following requirements to be eligible for the provisional waivers for illegal presence: be at least 17 years old, be in the United States in person, have a case pending with the Department of State (DOS) about an immigrant visa, and not be subject to any further inadmissibility reasons.
Hire an Immigration Attorney
Waivers are available for specific reasons of inadmissibility, but not all of them. You should speak with an immigration lawyer if you cannot enter the United States. Our immigration attorney will guide you through the step-by-step process of understanding the provisional waivers.