Provisional Waivers for Unlawful Presence, March 2013

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Kolko & Associates, P.C. is pleased to announce an important change in the immigration law with regard to the processing of waivers for the Unlawful Presence ground of inadmissibility. This new process is only available for spouses, children and certain parents of U.S. citizens (immediate relatives).

Applicants applying for an Immigrant Visa to the United States are required to demonstrate that they are “admissible” to the United States. The Immigration and Nationality Act (INA) sets forth a long list of reasons that a person is not admissible to the United States and therefore may be denied admission to the United States as a lawful permanent resident.

Under the current law, people who have been unlawfully present in the Unites States for more than 180 days and who must leave the United States apply for their

Immigrant Visa at the U.S. Embassy in their home country are inadmissible to the United States under section 212(a)(9)(B) of the INA and must obtain a waiver of inadmissibility to overcome the unlawful presence bar before they can return to the United States.

In the past, all Immigrant Visa applicants who were inadmissible to the United States for any reason, including unlawful presence, were required to first attend an interview at the U.S. Embassy in their home country, and if they were eligible for a waiver, apply for the waiver while outside of the United States and await a decision on the waiver application while outside of the United States. This often resulted in long separations between the Immigrant Visa applicant and their family members in the United States.

Beginning March 4, 2013, Immigrant Visa applicants who are spouses, children and parents of U.S. citizens (immediate relatives) can apply for provisional unlawful presence waivers before they leave the United States for their required Immigrant Visa interview abroad.

This new waiver procedure will shorten the time that U.S. Citizens are separated from their immediate relative family members while those family members are obtaining Immigrant Visas overseas to become lawful permanent residents of the United States.

This provisional waiver process is only available to waive the ground of inadmissibility for unlawful presence and is only available to spouses, children and certain parents of U.S. citizens.

Any person who is not the spouse, child or parent of a U.S. citizen or who is subject to any other ground of inadmissibility besides unlawful presence is not eligible to apply for the provisional waiver in the United States and must attend his or her Immigrant Visa interview at the U.S. Embassy in their home country first and then file a waiver application while waiting outside of the United States.

The new provisional unlawful presence waiver process does not change the existing Immigrant Visa process. Even if a provisional unlawful presence waiver is approved by the immigration service while the Applicant is waiting in the United States, he or she will still be required to depart the United States to attend an immigrant visa interview at the U.S. Embassy in his or her home country prior to being admitted to the United States as a lawful permanent resident.

Once a provisional unlawful presence waiver is approved, it will only take effect after:

1. The Applicant departs the United States and appears for his or her immigrant visa interview at the U.S. Embassy in his or her home country, and
2. A Department of State (“DOS”) consular officer determines that the Applicant is otherwise admissible to the United States and eligible to receive an immigrant visa.

NOTE: The Applicant should not leave the United States until the National Visa Center (NVC) notifies the applicant of his or her scheduled immigrant visa interview date and time at the designated U.S. Embassy or Consulate.

Eligibility Requirements for Provisional Waiver

To be eligible for a provisional unlawful presence waiver an Applicant must fulfill ALL of the following conditions:


1. Be 17 years of age or older.
2. Be an immediate relative of a U.S. citizen. An immediate relative is an individual who is the spouse, child or parent of a U.S. citizen.
3. Have an approved Form I-130, Petition for Alien Relative, or Form I-360, Petition for Amerasian, Widow(er), or Special Immigrant.
4. Have a pending immigrant visa case with the DOS for the approved immediate relative petition and have paid the DOS immigrant visa processing fee.
5. Be able to demonstrate that refusal of his or her admission to the United States will cause extreme hardship to his or her U.S. citizen spouse or parent.
6. Be physically present in the United States to file his or her application for a provisional unlawful presence waiver and provide biometrics.
7. Not have been scheduled for an immigrant visa interview by DOS before January 3, 2013.
8. Meet all other requirements for the provisional unlawful presence waiver.

An Applicant is not eligible for a provisional unlawful presence waiver if any of the following conditions apply:

1. He or she is subject to any other ground of inadmissibility other besides unlawful presence.
2. DOS initially acted before January 3, 2013, to schedule his or her Immigrant Visa interview.
3. He or she is currently in removal proceedings in the U.S. Immigration Court and those proceedings have not been administratively closed.

Waivers for grounds of inadmissibility are very complex legal matters, and those seeking this type of legal benefit/relief should consult with an experienced immigration attorney.

Kolko & Associates, P.C. has one of the most experienced teams of legal professionals in Colorado assisting individuals with waiver cases. Our firm offers a “no fee consultation” for anyone considering this immigration option and we strongly recommend that people consult with a qualified and experienced immigration attorney before filing any applications with the immigration service.

Kolko & Associates, P.C., is currently reviewing and accepting additional cases for provisional unlawful presence waivers. For any person or family considering eligibility for this benefit, please email or contact our office by phone to speak with our legal team.

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Kolko & Associates is a full service immigration and naturalization law firm providing professional legal services to individuals and businesses throughout Colorado, the Rocky Mountain West, the United States, and the World. Our professional staff speaks English, Spanish, Korean, German, and Slovak, and we can arrange for translators in any other language.