Eligibility for Provisional Waivers

Foreign nationals living in the United States illegally who qualify for a family-based Green Card will have to return to their home country for a visa interview at the U.S. Consulate. In the past, this could result in a stay of up to ten years in their home country if their visa application were unapproved before they could apply again.   

Beginning in 2013, however, a “provisional waiver,” also called a “stateside waiver,” allowed those who must return home for a visa interview to obtain a provisional “yes” or “no” answer from the United States Citizenship and Immigration Services (USCIS) regarding their chances of approval before departing the U.S. A “yes” answer meant they could be fairly certain that their visa application would be approved and they could return to the U.S. in a matter of weeks rather than years.  

There are, of course, certain criteria one must meet before applying for the provisional waiver using USCIS Form I-601A. If you don’t meet the criteria, you will be required to use Form I-601, which does not provide a yes or no answer in advance, and you could face years away from your family members before applying again for a visa.  

If you’re residing in the U.S. illegally but have a family member – spouse or parent – who is a U.S. citizen or lawful permanent resident and you wish to pursue a provisional waiver in or around Tulsa, Oklahoma, contact me at the Military Law Group. I will help you navigate the immigration process to obtain a provisional waiver that helps assure you can return to the U.S. as soon as your consular interview processes.  

Fortunately, due to an expansion of the program in 2016, you may also qualify for a provisional waiver based on specific factors.  

I proudly serve clients throughout the Tulsa metro area, including Rogers County, Creek County, and the Creek and Cherokee Nations, Oklahoma.   

What is a Provisional Waiver? 

As discussed above, a provisional waiver provides some assurance that a foreign national who needs to return to their home country to complete the visa process based on a family relationship or other qualifying factor will not be stuck abroad for years if the decision is unapproved.  

The Immigration and Nationality Act (INA) bars foreign nationals from returning to the U.S. after an illegal stay of 180 days or more. If their illegal stay is between 180 and 364 days, the bar is three years; for 365 days or more, the bar rises to 10 years.  

These standards still apply, but with the introduction of the provisional waiver in 2013, foreign nationals returning to their home nations could have some assurance that their visa application would be approved and they would not have to remain abroad for three or ten years. They can resume their U.S. residency once the visa process concludes affirmatively. 

Who Is Eligible for a Provisional Waiver? 

First, before submitting a Form I-601A application for a provisional waiver based on a family relationship, the sponsoring U.S. citizen or lawful permanent resident (LPR) must submit Form I-130, Petition for Alien Relative, and it must be approved.   

When it was introduced in 2013, the provisional waiver option using Form I-601A was limited to applicants who were immediate relatives of U.S. citizens, that is, spouses, children, and parents. An expansion in 2016 was expanded to include all individuals statutorily eligible for an immigrant visa and a waiver of inadmissibility for unlawful presence in the United States.  

Now, anyone who is eligible for an immigrant visa -- based on family ties, employment, the diversity visa lottery, or a special immigration classification -- may apply for a provisional unlawful presence waiver. The main eligibility requirements, however, still are that:  

• You must be at least 17 years of age. 

• You must be physically present in the United States when applying. 

• You must be otherwise admissible to the United States; in other words, you cannot also be seeking a waiver for crime, fraud, or other grounds for admissibility. 

• You can supply evidence that your qualifying U.S. relative – citizen and permanent resident spouses and parents only – will suffer extreme hardship if your visa is denied. 

Applying for the waiver allows the noncitizen to remain in the United States while awaiting a decision, which can take months. If the waiver is denied, there is no appeal process, but the person can reapply. Also, facing a denial, the noncitizen can decide to postpone the consular visa process altogether, realizing they cannot overcome the unlawful presence inadmissibility standard if they depart.  

However, if the waiver is allowed and the noncitizen undergoes the visa interview process overseas, there is no guarantee that the U.S. Consul staff might not discover other grounds for inadmissibility and revoke the waiver. 

Speak with an Experienced Immigration Attorney 

After its expansion in 2016, the provisional waiver program applies to many more noncitizens than it did when introduced in 2013. You may qualify, so you need to speak with an immigration attorney to determine your eligibility.  

If you’re in the Tulsa metro area or in neighboring communities, contact me at the Military Law Group. I have represented many other immigrants in their quest for lawful resident status and U.S. citizenship. Also, I can help you navigate the system and overcome any administrative hurdles you may face. Reach out with all your immigration questions and concerns.