I Am an Immediate Relative of a U.S. Citizen...How Do I...File for a Provisional Unlawful PresenceWaiver? 

March 2013

I Am an Immediate

Relative of a

U.S. Citizen

How Do I...

File for a Provisional

Unlawful Presence Waiver?

March 2013

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:

1. You are physically present in the United States;

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

3. You are the beneficiary of an approved immigrant visa 

petition classifying you as the immediate relative of a U.S. 

citizen;

4. 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;

5. 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

6. 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:

1. You do not meet one or more of the requirements listed 

above;

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

Permanent Residence or Adjust Status, with USCIS;

3. You are in removal proceedings unless your removal 

proceedings are administratively closed and have not been 

placed back on EOIR’s calendar to continue your removal 

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

4. You are subject to an administrative final order of removal, 

exclusion, or deportation from the United States;

5. You are subject to reinstatement of a prior final order of 

removal;

6. 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.

7. 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;
I Am an Immediate Relative of a U.S. Citizen...How Do I...File for a Provisional Unlawful PresenceWaiver? 

March2013

8. 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 EOIR’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. 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:

1. Provide interim benefits such as employment authorization 

or advance parole;

2. Provide lawful status;

3. Stop the accrual of unlawful presence;

4. Provide protection from removal;

5. Remove the requirement to depart the United States 

to seek an immigrant visa; or

6. 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.
I Am an Immediate Relative of a U.S. Citizen...How Do I...File for a Provisional Unlawful PresenceWaiver? 

March2013

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 webpage 

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.

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.

Pursuant to its 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–Click or Call

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

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 website. 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.