Waiver of the 10-year Unlawful Presence Penalty

Who needs a provisional waiver?

Most applicants that entered the United States unlawfully by crossing the border without any papers will need to submit a provisional unlawful presence waiver. For example, in our office, one of the most common scenarios we encounter involves a U.S. citizen spouse marrying an undocumented spouse. If the undocumented spouse entered the United States unlawfully by crossing the border without papers, he or she must attend a visa interview outside of the United States. The issue is that the applicant has a 10-year penalty for having lived inside the United States for over 1 year. In order to get rid of the penalty, the applicant must submit Form I-601A, Application for a Provisional Unlawful Presence Waiver. If approved, it eliminates the 10-year penalty, allowing the applicant to attend the visa interview abroad and return to the United States within 1-2 weeks instead of spending 10 years abroad.

Is there anyway to avoid leaving the United States?

There are several ways to apply inside the United States. For example, if the applicant (1) entered legally or (2) has a parent, spouse, or child in the U.S. military, or (3) is covered under a petition filed on or before April 30, 2001, then the applicant can avoid having to submit Form I-601A and continue the process inside the United States. But if the applicant does not fall into one of the categories above, then he or she must proceed with the provisional unlawful presence waiver and a visa interview abroad.

How does a provisional waiver fit into your case?

There are three steps to keep in mind. First, the U.S. citizen spouse files Form I-130, Petition for Alien Relative, which takes about 1 year to get approved. Second, the undocumented spouse files Form I-601A, Application for a Provisional Unlawful Presence Waiver, which takes an additional 3 years to get approved. Third, the undocumented spouse waits for a visa interview to be scheduled at a US Consulate abroad in Ciudad Juarez, for example,, which takes about another 1 year to be scheduled. During all the steps above, the applicant can remain inside the United States.

When must the applicant depart the United States?

Once the interview is scheduled, the National Visa Center sends the applicant an email with the date, time, and place of the interview. The applicant then makes plans to depart the country. Most of our clients are from Mexico. They board a plane in Chicago and fly to El Paso. Next, the applicant takes a taxi from El Paso to Ciudad Juarez. Once in Mexico, the applicant attends a medical exam appointment on Monday, for example. The applicant then attends a fingerprinting appointment on Tuesday. Finally, the applicant attends the visa interview at the US Consulate on Wednesday. During the visa interview, the consular officer takes the applicant's passport. The US Consulate then stamps a visa inside one of the pages of the passport on Thursday. The consulate then returns the passport to the applicant through the carrier service DHL on Friday. Altogether, the applicant spends about 1-2 weeks in Mexico going through the process outlined above.

Who Qualifies for a Provisional Waiver?

Applicants must have either (1) a spouse or (2) parent that is a U.S. Citizen or Legal Permanent Resident. This part can be a bit confusing. The applicant cannot submit Form I-601A unless he has a spouse or parent with papers. Many prospective applicants have children that are U.S. citizens or brothers that are U.S. citizens, but that does not help here. The applicant must have a parent or spouse that is a citizen or resident.

Am I Eligible for a Provisional Waiver if I Have a Criminal Conviction?

It depends upon the crime, but having a criminal conviction does not automatically disqualify you from submitting Form I-601A. On January 24, 2014, USCIS issued a memorandum regarding applicants with criminal history, which can be found here.. A person is "ineligible for a provisional unlawful presence waiver . . . if USCIS has reason to believe that the [person] may be subject to grounds of inadmissibility" aside from unlawful presence." 8 C.F.R. 212.7(e)(4)(i). In other words, if immigration officers believe that an applicant may be ineligible for anything besides unlawful presence, they will deny the provisional waiver.

However, this new guidance states that an applicant should not be denied based simply because of any criminal conviction. For example, if an applicant has been convicted of a misdemeanor retail theft offense in Illinois, that offense would not make a person inadmissible because there is any exception for a crime that involves moral turpitude that does not involve a term of imprisonment more than one year and for which a person did not actually receive a term of imprisonment of more than 6 months. INA 212(a)(2)(A)(ii)(II). Such an offense would not make a person inadmissible to the United States. Therefore, USCIS would have no reason to believe that the applicant would be inadmissible for something other than unlawful presence.

From March 4, 2013 until January 24, 2014, there have been various examples across the country of provisional waiver denials based upon a conviction for Driving under the Influence (DUI) even if the DUI occurred seven years ago, for instance, and all related fines were paid. Now, if an applicant has a DUI, the provisional unlawful presence waiver should not be denied automatically since a DUI does not make a person inadmissible under any section of the Immigration and Nationality Act. Two DUI's, however, could make a person inadmissible for having a mental disorder on account of being addicted to alcohol. INA 212(a)(1)(A)(iii)(II). If the DUI's were in the last five years, then a provisional waiver will in all likelihood be denied because USCIS would have reason to believe that the applicant may be ineligible for a visa for some other ground besides having been inside the United States unlawfully. In such a case, an applicant must instead submit a waiver after a visa interview abroad and wait abroad until the waiver is approved.

What are the Chances the Provisional Waiver will be Approved?

The approval of a Provisional Waiver depends on whether the applicant can show that his or her U.S. citizen spouse or parent will suffer extreme hardship. “Extreme hardship” refers to the aggregate amount of hardship that a person will suffer upon separation from the applicant or relocation abroad with the applicant. Economic factors, health related factors, emotional factors, educational factors, family separation, political factors, and cultural factors are all taken into account in determining whether or not “extreme hardship” exists in any given case. As a general rule, an applicant must show that his or her qualifying relative will suffer a hardship that is beyond that which is normally associated with family separation. That is, economic detriment or family separation, taken alone, will not constitute “extreme hardship” in all likelihood. Therefore, when submitting a provisional waiver application, the focus should be on detailing both the hardship that will be suffered in the United States and in the applicant's home country by the applicant's spouse or parent.