General

information F6

How do I file for a 

provisional unlawful 

presence waiver?

The Secretary of the Department of Homeland Security 

(DHS) has created a new process that will allow certain spouses, 

children, and parents of U.S. citizens (immediate relatives) to apply 

for a provisional unlawful presence waiver while they are still in 

the United States and before departing for their immigrant visa 

interviews abroad. 

Why did DHS create the provisional unlawful presence 

waiver?

Certain immediate relatives must travel abroad to obtain an 

immigrant visa from the Department of State (DOS) before they can 

return to the United States and be admitted as lawful permanent 

residents. In many cases, these immediate relatives also must 

request a waiver of inadmissibility of their unlawful presence in the 

United States. As a result, these immediate relatives must remain 

outside of the United States, separated from their U.S. citizen 

spouses, parents, or children, while U.S. Citizenship and Immigration 

Services (USCIS) adjudicates their waiver applications. In some 

cases, waiver application processing can be lengthy, prolonging 

the separation of these immediate relatives from their U.S. citizen 

spouses, parents, and children.

USCIS anticipates that this new provisional unlawful presence 

waiver process will significantly reduce the time that U.S. citizens 

are separated from their immediate relatives. USCIS approval of 

a provisional unlawful presence waiver prior to departure also will 

allow the DOS consular officer to issue an immigrant visa without 

delay, as long as there are no other grounds of inadmissibility and 

the immediate relative is otherwise eligible for an immigrant visa. 

Individuals who may be inadmissible on any other grounds of 

inadmissibility are not eligible for the provisional unlawful presence 

waiver process. 

How do I know if I am eligible for a provisional unlawful 

presence waiver?

You may be eligible for a provisional unlawful presence 

waiver if:

• You are physically present in the United States;

• You are at least 17 years of age at the time of filing;

• You are the beneficiary of an approved immigrant visa petition 

classifying you as the immediate relative of a U.S. citizen;

• You have an immigrant visa case pending with the U.S. 

Department of State (DOS), for which you have already 

paid the immigrant visa processing fee;

• You believe you are, or will be at the time of the immigrant visa 

interview, inadmissible based on having accrued a certain period 

of unlawful presence in the United States; and

• You meet all other requirements of the provisional unlawful 

presence waiver as listed in the regulations, the Form I-601A and 

its instructions.

How do I know if I am not eligible for a provisional 

unlawful presence waiver?

You are not eligible for a provisional unlawful presence waiver and 

your application will be rejected or denied if:

• You do not meet one or more of the requirements listed above;

• You have a pending Form I-485, Application to Register 

Permanent Residence or Adjust Status, with USCIS;

• You are in removal proceedings unless your removal proceedings 

are administratively closed and have not been placed back 

on an immigration court’s calendar to continue your removal 

proceedings as of the date of filing of the I-601A;

• You are subject to an administrative final order of removal, 

exclusion, or deportation from the United States;

• You are subject to reinstatement of a prior final order of removal;

• DOS acted to schedule your immigrant visa interview prior to 

January 3, 2013, even if you failed to appear 

or you or DOS cancelled or rescheduled the interview 

on or after January 3, 2013;

• You do not establish that the refusal of your admission to the United 

States would result in extreme hardship to your U.S. citizen spouse 

or parent, or that your application should be approved as a matter 

of discretion; or

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• USCIS has reason to believe that DOS may find you inadmissible 

at the time of your immigrant visa interview for grounds other 

than unlawful presence. 

How do I apply for the provisional unlawful presence 

waiver?

To apply for a provisional unlawful presence waiver, you must file a 

Form I-601A, Application for Provisional Unlawful Presence Waiver. 

Make sure your application is complete, signed, and submitted 

with the correct application and biometric fees. Follow the I-601A 

application instructions and check the USCIS Web site at www.

uscis.gov/forms for any updates to the instructions or required 

fees.

How do I apply for the provisional unlawful presence 

waiver if I am in removal proceedings? 

Only certain individuals in removal proceedings are eligible to 

apply for a provisional unlawful presence waiver. Individuals who 

are immediate relatives of U.S. citizens may apply for a provisional 

unlawful presence waiver while in removal proceedings, if the 

removal proceedings:

• Are administratively closed; and

• Have not been placed back on an immigration court’s calendar 

to continue the removal proceedings as of the date of filing the 

I-601A.

You still must meet all the requirements for the provisional unlawful 

presence waiver, including the requirement that you have an 

immigrant visa case pending with DOS and have already paid the 

immigrant visa processing fee.

Although you are in removal proceedings, the application for a 

provisional unlawful presence waiver is filed with USCIS.

NOTE: If your I-601A is approved, your removal proceedings should 

be terminated or dismissed before you depart the United States to 

avoid delays in your immigrant visa processing and to avoid the risk 

that you may be found inadmissible on other grounds.

After you receive an approval notice for your provisional unlawful 

presence waiver, you and/or your legal representative should contact 

the Principal Legal Advisor for the Office of the Chief Counsel at U.S. 

Immigration and Customs Enforcement (ICE) to make arrangements to 

have your removal proceedings terminated or dismissed. Do not contact 

ICE until after USCIS approves your Form I-601A. A list of the ICE Chief 

Counsel phone numbers is available on the Internet at: http://www.

ice.gov/contact/opla/. When you contact ICE, you should have a 

copy of your I-601A approval notice available for ICE’s review.

Will I have to be fingerprinted or appear for an interview 

as part of the provisional unlawful presence waiver 

process?

All provisional unlawful presence waiver applicants will be required to 

appear at a USCIS Application Support Center (ASC) for biometrics 

collection (photograph and fingerprints). Generally, USCIS will not 

require provisional unlawful presence waiver applicants to appear for 

an interview but may schedule an interview for an applicant if the 

facts in a particular case warrant further inquiry and review. 

If I have a pending or approved request for a provisional 

unlawful presence waiver can I receive interim benefits?

The filing or approval of a provisional unlawful presence waiver will 

not affect an individual’s current immigration status in the United 

States. A pending or approved provisional waiver also will NOT:

• Provide interim benefits such as employment authorization or 

advance parole;

• Provide lawful status;

• Stop the accrual of unlawful presence;

• Provide protection from removal;

• Remove the requirement to depart the United States 

to seek an immigrant visa; or

• Guarantee immigrant visa issuance or admission to 

the United States. 

What should I do once a decision is made on my 

provisional unlawful presence waiver? 

USCIS will notify the National Visa Center (NVC) of its decision on 

your provisional unlawful presence waiver. Once the NVC is notified, 

DOS will resume processing your immigrant visa case. If the NVC has 

received the required forms and documents from you, the immigrant 

visa interview is scheduled at the U.S. Embassy or consulate, and 

you are notified of your interview appointment date. Next, if you are 

in removal proceedings, review the information above about having 

your removal proceedings terminated or dismissed prior to your 

departure. If you are not in removal proceedings or your removal 

proceedings have already been terminated or dismissed, you will 

need to depart the United States and attend your immigrant visa 

interview as directed by DOS. If you fail to depart and attend your 

immigrant visa interview, the provisional unlawful presence waiver 

will not take effect and the approval may no longer be valid. 

If USCIS denies my request for a provisional unlawful 

presence waiver, can I file an appeal or a motion to reopen 

or reconsider? 

No. If USCIS denies your request for a provisional unlawful presence 

waiver, you cannot file an appeal or a motion to reopen or reconsider 

the denial. USCIS reserves the right to reopen and reconsider, on 

its own motion, an approval or a denial of a provisional unlawful 

presence waiver at any time. 

What can I do if USCIS denies my request for a provisional 

unlawful presence waiver or if I withdraw my provisional 

unlawful presence waiver application? 

If USCIS denies your request for a provisional unlawful presence 

waiver, or if you withdraw your provisional unlawful presence waiver 

application before USCIS makes a decision, you may file a new Form 

I-601A, in accordance with the form instructions, with the required 

fees and any additional documentation that you believe establishes 

your eligibility for the provisional unlawful presence waiver. You can 

only file a new provisional unlawful presence waiver application 

if your immigrant visa case is still pending with DOS. For more 

information, see the DOS Web page at www.immigrantvisas.

state.gov.

Alternatively, you can file a Form I-601, Application for Waiver of 

Grounds of Inadmissibility, with the USCIS Lockbox, after you attend 

your immigrant visa interview and after the DOS consular officer 

determines that you are inadmissible to the United States. 
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If USCIS denies my request for a provisional unlawful 

presence waiver will I be placed in removal proceedings? 

USCIS does not envision initiating removal proceedings or referring 

provisional unlawful presence waiver applicants to ICE when USCIS 

approves or denies their waiver requests, or the applicant withdraws 

his or her application for a provisional unlawful presence waiver.

Under existing policy governing issuance of Notices to Appear (NTAs) 

and referrals to ICE, an individual whose request for a provisional 

unlawful presence waiver is approved or denied or who withdraws 

the Form I-601A prior to final adjudication will typically be referred to 

ICE only if he or she is considered a DHS enforcement priority – that 

is, if the individual has a criminal history, has committed fraud, or 

otherwise poses a threat to national security or public safety.

USCIS will follow the DHS NTA issuance policy in effect at the time 

of the adjudication to determine if removal proceedings should be 

initiated against a provisional unlawful presence waiver applicant. 

Furthermore, if USCIS discovers acts, omissions, or post-approval 

activity that would meet the criteria for NTA issuance or determines 

that the provisional unlawful presence waiver was granted in error, 

USCIS may issue an NTA, consistent with DHS’s NTA issuance policy, 

as well as reopen the provisional unlawful presence waiver approval 

and deny the waiver request.

Key Information

Key USCIS forms referenced 

in this guide

Form #

Application to Register Permanent Residence 

or Adjust Status

I-485

Application for Provisional Unlawful 

Presence Waiver

I-601A

Application for Waiver of Grounds 

of Inadmissibility

I-601

USCIS

• On the Internet at: www.uscis.gov

For more copies of this guide, or information about 

other citizenship and immigration services, please visit 

our website. You can also download forms, e-file some 

applications, check the status of an application, and more. 

It’s a great place to start!

If you don’t have Internet access at home or work, try 

your local library. If you cannot find what you need, please 

call Customer Service.

• Customer Service: 1-800-375-5283

• Hearing Impaired TDD Customer Service: 

 1-800-767-1833

Other U.S. Government Services

General Information about 

the U.S. Government

www.usa.gov

New Immigrants www.welcometoUSA.gov

U.S. Department of State www.state.gov

www.immigrantvisas.state.

gov

Immigration and Customs 

Enforcement (ICE)

www.ice.gov

Executive Office for 

Immigration Review

http://www.justice.gov/eoir/

orginfo.htm

USCIS Notice to Appear 

Policy

www.uscis.gov/NTA

Disclaimer: This guide provides basic information 

to help you become generally familiar with our 

rules and procedures. For more information, or 

the law and regulations, please visit our Web 

site. Immigration law can be complex, and it is 

impossible to describe every aspect of every 

process. You may wish to be represented by 

a licensed attorney or by a nonprofit agency 

accredited by the Board of Immigration Appeals.