I-601A Waiver Attorney: Provisional Unlawful Presence Waiver Process FAQs (Continued)

11. Who is not eligible to apply for a provisional waiver in the United States?

According to the new rule, the following persons are not eligible to apply for a provisional unlawful presence waiver:

  1. the applicant is under 17 years old;
  2. the applicant is in removal proceedings, unless the removal proceedings are administratively closed and have not been recalendared at the time of filing the Form I-601A, Provisional Unlawful Presence Waiver;
  3. USCIS has reason to believe that the applicant may be subject to any other grounds of inadmissibility other than unlawful presence;
  4. the applicant is subject to a final removal order or a final order of exclusion or deportation;
  5. the applicant is subject to reinstatement of a prior removal order;
  6. the applicant does not have a case pending with the Department of State, based on the approved immediate relative petition, or has not paid the immigrant visa processing fee;
  7. the Department of State initially acted to schedule the immigrant visa interview prior to January 3, 2013 for the approved immediate relative petition on which the provisional unlawful presence waiver is based, even if the interview has since been cancelled or rescheduled after January 3, 2013;

    (NOTE: The actual date and time that the alien is scheduled to appear for the interview is not relevant for the eligibility determination. This rule applies even if the alien failed to appear for his or her interview, cancelled the interview, or requested that the interview be rescheduled.)

  8. the applicant has a pending Form I-485, Application to Register Permanent Residence or Adjust Status with USCIS.

    (NOTE: Individuals who are eligible to obtain LPR status while inside the United States through the adjustment of status process do not need the provisional unlawful presence waiver. The provisional unlawful presence waiver is only valid for the purpose of seeking an immigrant visa outside the United States.)

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12. May I apply for a provisional waiver if I am in removal proceedings?

No, unless your proceedings have been administratively closed and have not been recalendared at the time of filing I-601A.

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13. Can I apply for a provisional wavier if my removal proceedings have been terminated or dismissed or if my Notice to Appear (NTA) has been canceled?

Yes, aliens whose removal proceedings are terminated or dismissed are eligible to apply for a provisional waiver. Aliens who have had their NTAs cancelled by ICE are also covered in the general population of aliens who are eligible to apply for a provisional waiver, since their removal proceedings were never initiated through filing of an NTA with EOIR.

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14. What does it mean that USCIS has “reason to believe” that the applicant may be subject to any other grounds of inadmissibility other than unlawful presence?

USCIS will conduct a limited review of the waiver application to determine if: (1) The individual has self-reported a ground of inadmissibility that would render him or her ineligible for the provisional unlawful presence waiver; (2) the results of the background checks reveal conduct or actions that potentially would make an individual ineligible for an immigrant visa; or (3) the individual has engaged in activities that could impact the discretionary determination regarding whether he or she warrants a favorable exercise of discretion.

If USCIS determines that there is reason to believe that the alien may be inadmissible to the United States at the time of his or her immigrant visa interview based on another ground of inadmissibility other than unlawful presence, USCIS will deny the request for the provisional unlawful presence waiver. USCIS's determination on the provisional unlawful presence waiver is not a conclusive finding of inadmissibility. It also is not an assessment of whether a particular crime or pattern of conduct would ultimately bar an individual from obtaining a legal status under the immigration laws.

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15. What is the procedure for applying for a provisional waiver under the new process?

After filing the waiver application, the alien will receive a notice for fingerprints processing. The alien has to be physically present in the U.S. at the time of filing of the waiver application and has to appear for biometrics processing. In the coming weeks, USCIS will provide instructions and further information on how to apply using the new provisional waiver process. We will provide updates once they become available.

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16. Do I need to notify National Visa Center or Consular Post that I would like to apply for Provisional Waiver? What is the process?

Yes, before applying for the I-601A, you must notify National Visa Center or Consular Post if you choose to seek a provisional unlawful presence waiver and have a pending immigrant visa case at NVC. If you do not notify NVC, your case may be scheduled for interview at a U.S. embassy or consulate abroad. If NVC has scheduled your immigrant visa appointment, you must notify the immigrant visa processing post where your appointment has been scheduled before applying for the provisional waiver.

Notify NVC immediately after you have paid the immigrant visa processing fee and before you apply for the provisional unlawful presence waiver. NVC will schedule your immigrant visa interview after USCIS has finished processing your provisional waiver.

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17. How do I notify the NVC?

If you need to contact the National Visa Center, please email NVCi601a@state.gov Enter your NVC Case Number or USCIS Receipt Number in the Subject Line of the email. Provide the applicant’s name and date of birth and the petitioner’s name and date of birth. Provide the attorney of record’s name, law firm, and address (if applicable). Include a statement that the applicant is applying for the provisional unlawful presence waiver with USCIS.

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18. What happens if I forget to notify the NVC?

If you do not notify NVC, your case may be scheduled for interview at an overseas post, which will delay processing of your immigrant visa application once USCIS has finished processing your provisional unlawful presence waiver application.

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19. If an immigrant visa appointment has been scheduled, may I apply for the provisional waiver?

Applicants with an interview appointment letter from the National Visa Center dated before January 3rd, 2013 are not eligible to file the I-601A. Only applicants scheduled by the National Visa Center on or after January 3rd, 2013 for an upcoming initial immigrant visa interview are eligible to apply for the I-601A. “Scheduled” means the date on which NVC took the action to schedule the case – not the date of the visa interview appointment. NVC dates interview appointment letters on the day it schedules a case, so refer to the appointment notification letter to see when NVC took the scheduling action.

If the date that the NVC initially acted to schedule the immigration visa interview is on or after Jan 3, 2013, applicants are eligible to apply for a provisional unlawful presence waiver.

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20. Are there circumstances when you can apply for a provisional waiver if your immigrant visa appointment was scheduled before January 3, 2013?

In limited circumstances, an alien who is ineligible to apply for a provisional waiver because of a previously scheduled immigrant visa interview may still qualify for a provisional waiver if he or she has a new DOS immigrant visa case because

1) DOS terminated the immigrant visa registration associated with the previously scheduled interview, and they have a new immediate relative petition; or

2) the alien has a new immediate relative petition filed on his or her behalf by a different petitioner.

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