Since March 4, 2013, certain immigrant visa applicants who are immediate relatives (spouses, children and parents) of U.S. citizens can apply for provisional unlawful presence waivers before they leave the United States for their consular interview.

On August 29, 2016, the provisional unlawful presence waiver process was expanded to all individuals statutorily eligible for an immigrant visa and a waiver of inadmissibility for unlawful presence in the United States.

Aliens who are not eligible to adjust their status in the United States must travel abroad and obtain an immigrant visa. Individuals who have accrued more than 180 days of unlawful presence while in the United States must obtain a waiver of inadmissibility to overcome the unlawful presence bars under section 212(a)(9)(B) of the Immigration and Nationality Act before they can return.

Typically, these aliens cannot apply for a waiver until after they have appeared for their immigrant visa interview abroad, and a Department of State (DOS) consular officer has determined that they are inadmissible to the United States.

The provisional unlawful presence waiver process allows those individuals who are statutorily eligible for an immigrant visa—immediate relatives, family-sponsored or employment-based immigrants as well as Diversity Visa selectees—who only need a waiver of inadmissibility for unlawful presence to apply for that waiver in the United States before they depart for their immigrant visa interview.

This new process was developed to shorten the time that U.S. citizens and lawful permanent resident family members are separated from their relatives while those relatives are obtaining immigrant visas to become lawful permanent residents of the United States.

The expansion of the provisional unlawful presence waiver process does not affect the continued availability of the Form I-601 process: Individuals who do not wish to seek or do not qualify for a provisional unlawful presence waiver can still file Form I-601, Application for Waiver of Grounds of Inadmissibility, after a DOS consular officer determines that they are inadmissible to the United States.

The provisional unlawful presence waiver process allows certain immigrant visa applicants who are immediate relatives of U.S. citizens to apply for waivers for unlawful presence before leaving the U.S. for their consular interviews. This process, which began on March 4, 2013, was expanded on August 29, 2016, to include all individuals eligible for immigrant visas and waivers of inadmissibility for unlawful presence. Applicants who have accrued more than 180 days of unlawful presence and are not eligible to adjust their status in the U.S. must obtain a waiver to overcome the bars under section 212(a)(9)(B) of the Immigration and Nationality Act. The provisional waiver process aims to reduce the time U.S. citizens and lawful permanent residents are separated from family members who are obtaining immigrant visas. It is important to note that this process is specific to federal immigration law and applies uniformly across all states, including Arkansas. Those who do not qualify for the provisional waiver can still apply for a waiver using Form I-601 after being found inadmissible by a consular officer.