New Rule Expanding Eligibility for Provisional Unlawful Presence Waivers

Jul 29, 2016 | 601-Waiver

Basics on Waivers of Inadmissibility: Essential Guide for Law Firms

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Eligibility Criteria for Adjustment of Status

As a Miami immigration lawyer, I am pleased to see today’s announcement that the Department of Homeland Security has decided on expanding eligibility for provisional unlawful presence waivers (Form I-601). Below are some frequently asked questions. Be sure to read on, because this may well affect your case.

What kind of relief could an applicant get under the old DHS standard for provisional unlawful presence waivers?
Under the old standard, the Department of Homeland Security (DHS) allowed certain immediate relatives – specifically certain parents, spouses and children of U.S. citizens — who are in the United States to request a provisional unlawful presence waiver before departing for consular processing of their immigrant visas. The waiver was only available to those immediate relatives whose sole ground of inadmissibility would be unlawful presence under section 212(a)(9)(B)(i) of the Immigration and Nationality Act and who can demonstrate that the denial of the waiver would result in extreme hardship to their U.S. citizen spouse or parent. If you have any questions in regard to this, you may want to speak with a Miami immigration lawyer.

How has this rule changed?
Under the new rule, USCIS may grant a provisional waiver to foreign nationals if they are statutorily eligible for an immigrant visa and for a waiver of inadmissibility based on unlawful presence. The proposed rule also would expand who may be considered a qualifying relative for purposes of the extreme hardship determination to include lawful permanent resident spouses and parents.  If you have any questions in regard to this, you should immediately speak with a Miami immigration lawyer.

Can you tell me more about what this means?
This proposed change would allow any foreign national who is seeking an immigrant visa abroad, and for whom a visa is available, to submit an application for a stateside waiver of unlawful presence before departure from the United States. The waiver would still require a showing of extreme hardship to a qualifying relative if the waiver is not approved, but it would allow any U.S. citizen or permanent residence parent or spouse to be considered a qualifying relative. Again, if you have any questions, you should speak with a Miami immigration attorney.

Why is the expansion for the unlawful presence waiver a huge plus for foreign nationals?
This rule change is a huge plus for foreign nationals who are not immediate relatives of U.S. citizens, and who until this point have been unwilling to take the risk of completing the waiver application process abroad. Under the new federal regulations, all statutorily eligible immigrant visa applications, whether though family-based petitions or employment-based petitions would be eligible for this expanded stateside unlawful presence waiver. USCIS indicates that this expansion of the stateside waiver program would benefit an estimated 10,000 foreign nationals per year. If you’d like to find out whether the expansion of the unlawful presence waiver applies to you, you should immediately contact a Miami immigration lawyer.

Is there restrictions I should be aware of?
Yes. The expansion of the stateside unlawful presence waiver is still limited to those foreign nationals whose sole issue regarding admissibility is unlawful presence. Those foreign nationals with other grounds of inadmissibility, including fraud, criminal conduct, medical issues, etc. are not eligible for the stateside waiver program. Again, if you have any questions in regard to this, you should immediately speak with a Miami immigration lawyer.

If you have any questions in regard to  stateside unlawful presence waiver before an immigrant visa appointment, please contact Miami immigration lawyer The Law Office of Tatiane M. Silva, P.A., Esq. at (305) 895-2500 or visit our website at