Unlawful Presence Waivers

Provisional Unlawful Presence Waiver (Form I-601A)

Overview and Eligibility Requirements

The United States has implemented a process that allows certain immigrants who are (or were) unlawfully present in the U.S. to remain in the country while their immigrant visa application is processed. This process, known as the Provisional Unlawful Presence Waiver, may help eligible individuals avoid prolonged separation from their U.S. citizen family members during the immigrant visa process.

This guide provides a general overview of the waiver process and helps determine whether you—or someone you know—may qualify.

Background

Under current immigration procedures, many immediate relatives of U.S. citizens must depart the United States to apply for an immigrant visa at a U.S. consulate abroad. If they have accrued unlawful presence in the U.S., they must also request a waiver of inadmissibility due to that unlawful presence.

Previously, individuals had to apply for the waiver from outside the U.S., resulting in long periods of family separation while waiting for waiver adjudication.

The Provisional Unlawful Presence Waiver (Form I-601A) allows certain individuals to apply for the waiver while still in the United States. If approved, the waiver will be honored at the U.S. consulate abroad, provided there are no additional inadmissibility issues.

⚠️ Note: This waiver process is only available to individuals who are inadmissible solely due to unlawful presence. If you are inadmissible on other grounds, you are not eligible for this provisional waiver.

Eligibility Criteria

You may qualify for a provisional unlawful presence waiver if you meet all of the following requirements:

  1. You are physically present in the United States.
  2. You are at least 17 years old at the time of filing.
  3. You are the beneficiary of an approved immigrant visa petition as the immediate relative of a U.S. citizen.
  4. You have a pending immigrant visa case with the U.S. Department of State (DOS), and you have paid the immigrant visa processing fee.
  5. You believe you are (or will be at the time of your visa interview) inadmissible due to unlawful presence in the U.S.
  6. You meet all additional requirements outlined in the Form I-601A instructions and relevant regulations.

Who Is Not Eligible

You do not qualify for a provisional unlawful presence waiver if:

  1. You fail to meet any of the eligibility criteria 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 those proceedings are administratively closed and have not been re-calendared as of the date of filing.
  4. You have been ordered removed, excluded, or deported from the U.S.
  5. You are subject to reinstatement of a prior removal order.
  6. The DOS scheduled your immigrant visa interview before January 3, 2013, regardless of whether the interview was cancelled, rescheduled, or unattended.
  7. You cannot establish that denial of admission would result in “extreme hardship” to your U.S. citizen spouse or parent.
  8. USCIS believes that the DOS may find you inadmissible for reasons other than unlawful presence.

How to Apply

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

  • File Form I-601A, Application for Provisional Unlawful Presence Waiver;
  • Ensure the form is fully completed and signed;
  • Include the correct filing fee and biometric services fee, and;
  • Submit all required supporting documentation.

After Waiver Approval

If USCIS approves your Form I-601A:

  • You must depart the United States and attend your immigrant visa interview at the designated U.S. consulate abroad.
  • The waiver will only take effect once you depart and attend the visa interview.
  • If you fail to depart or attend the interview, the waiver does not take effect, and the approval may no longer be valid.

⚠️ No appeals or motions to reopen/reconsider are available for denied Form I-601A applications.

Important Limitations

A pending or approved provisional waiver does not:

  1. Grant any interim immigration status;
  2. Provide work authorization or advance parole;
  3. Stop the accrual of unlawful presence;
  4. Protect you from removal or deportation;
  5. Eliminate the requirement to depart the U.S. to obtain your immigrant visa;
  6. Guarantee the issuance of an immigrant visa or admission to the United States.

If you believe you may be eligible or have questions about this process, you are strongly encouraged to consult with an immigration attorney or contact me directly to assess your eligibility and risks based on your full immigration history.

Last Revision: March 2025.