Waiver

Here is some information on the Provisional Waiver in an easy to understand question and answer format:

Finally! We can apply for a Stateside Provisional Waiver.

Question: I have heard that the regulations for the Stateside Waiver are final.
Is that true?

Question: Who will provide the decision on the Provisional Waiver?

Question: Where must I file the Provisional Waiver?

Question: Since the approval of the Provisional Waiver is inside the United States,
Can I get a work permit while I’m waiting for my interview at the U.S. Consulate?

Question: Who exactly is eligible to apply for the Provisional Waiver?

Answer:
(i) Is present in the United States at the time of filing the application for a provisional unlawful presence waiver,
And for biometrics collection at a USCIS ASC;(ii) Upon departure,
Would be inadmissible only because of unlawful presence at the time of the immigrant visa interview;

(iii) Qualifies as an immediate relative (spouse of United States Citizen, unmarried child of United States Citizen,
Or parent of United States son or daughter over 21 years old);
(iv) Is the beneficiary of an approved immediate relative petition;
(v) Has a case pending with the Department of State based on the approved immediate relative petition and has paid the immigrant visa processing fee as evidenced by a State Department Visa Processing Fee Receipt;
(vi) Will depart from the United States to obtain the immediate relative immigrant visa; and
(vii) Meets the requirements for the Waiver and that the foreign national must show extreme hardship to his or her U.S. citizen spouse or parent.
(4) Ineligible Aliens. Notwithstanding paragraph (e)(3) of this section, an alien is ineligible for a provisional unlawful presence waiver under paragraph (e) of this section if:
(i) USCIS has reason to believe that the alien may be subject to grounds of inadmissibility other than unlawful presence under section 212(a)(9)(B)(i)(I) or (II) of the Act at the time of the immigrant visa interview with the Department of State;
(ii) The alien is under the age of 17;
(iii) The alien does not have a case pending with the Department of State,
Based on the approved immediate relative petition,
And has not paid the immigrant visa processing fee;
(iv) 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;
(v) The alien 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;
(vi) The alien is subject to a final order of removal issued under section 217, 235, 238, or 240 of the Act or a final order of exclusion or deportation under former 236 or 242 of the Act (pre-April 1, 1997), Or any other provision of law (including an in absentia removal order under section 240(b)(5) of the Act);
(vii) The alien is subject to reinstatement of a prior removal order under section 241(a)(5) of the Act; or
(viii) The alien has a pending application with USCIS for lawful permanent resident status.
(5) Filing. (i) An application for a provisional unlawful presence waiver of the unlawful presence inadmissibility bars under section 212(a)(9)(B)(i)(I) or (II) of the Act,
Including an application by an alien in removal proceedings that are administratively closed and have not been recalendared at the time of filing the Form I-601A, must be filed in accordance with 8 CFR part 103 and on the form designated by USCIS.
The prescribed fee under 8 CFR 103.7(b)(1) and supporting documentation must be submitted in accordance with the form instructions.
(ii) An application for a provisional unlawful presence waiver will be rejected and the fee and package returned to the alien if the alien:
(A) Fails to pay the required filing fee for the provisional unlawful presence waiver application or to pay the correct filing fee;
(B) Fails to sign the provisional unlawful presence waiver application;
(C) Fails to provide his or her family name, domestic home address, and date of birth;
(D) Is under the age of 17;
(E) Does not include evidence of an approved petition that classifies the alien as an immediate relative of a U.S. citizen;
(F) Fails to include a copy of the fee receipt evidencing that the alien has paid the immigrant visa processing fee to the Department of State; or
(G) Has indicated on the provisional unlawful presence waiver application that the Department of State initially acted to schedule the immigrant visa interview prior to January 3, 2013,
Even if the interview was cancelled or rescheduled after January 3, 2013.
(6) Biometrics. (i) All aliens who apply for a provisional unlawful presence waiver under this section will be required to provide biometrics in accordance with 8 CFR 103.16 and 103.17,
As specified on the form instructions.
(ii) Failure to appear for biometrics capture. If an alien fails to appear for biometrics capture,
The provisional unlawful presence waiver application will be considered abandoned and denied pursuant to 8 CFR 103.2(b)(13). The alien may not appeal or file a motion to reopen or reconsider an abandonment denial under 8 CFR 103.5.
(7) Burden of proof. The alien has the burden to establish eligibility for the provisional unlawful presence waiver as described in this paragraph of this section,
And under section 212(a)(9)(B)(v) of the Act, including that the alien merits a favorable exercise of the Secretary’s discretion.
(8) Adjudication.
USCIS will adjudicate the provisional unlawful presence waiver application in accordance with this paragraph of this section and section 212(a)(9)(B)(v) of the Act,
Except the alien must show extreme hardship to his or her U.S.
Citizen spouse or parent. USCIS also may require the alien and the U.S.
Citizen petitioner to appear for an interview pursuant to 8 CFR 103.2(b)(9).
If USCIS finds that the alien does not meet the eligibility requirements for the provisional unlawful presence waiver as described in paragraph (e) of this section,
Or if USCIS otherwise determines in its discretion that a waiver is not warranted, USCIS will deny the waiver application. Notwithstanding 8 CFR 103.2(b)(16),
USCIS may deny an application for a provisional unlawful presence waiver without prior issuance of a request for evidence or notice of intent to deny.
(9) Notice of Decision.
USCIS will notify the alien and the alien’s attorney of record or accredited representative of the decision in accordance with 8 CFR 103.2(b)(19).
USCIS also may notify the Department of State.
Denial of an application for a provisional unlawful presence waiver is without prejudice to the alien filing another provisional unlawful presence waiver application under paragraph (e) of this section,
Provided the alien meets all of the requirements in this part,
And the alien’s case must be pending with the Department of State.
An alien also may elect to file a Form I-601, Waiver of Grounds of Inadmissibility, pursuant to paragraph (a)(1) of this section after departing the United States,
Appearing for his or her immigrant visa interview at the U.S. Embassy or consulate abroad,
And after the Department of State determines the alien’s admissibility and eligibility for an immigrant visa.
Accordingly, denial of a request for a provisional unlawful presence waiver is not a final agency action for purposes of section 10(c) of the Administrative Procedure Act, 5 U.S.C. 704.
(10) Withdrawal of waiver requests.
An alien may withdraw his or her request for a provisional unlawful presence waiver at any time before USCIS makes a final decision. Once the case is withdrawn,
USCIS will close the case and notify the alien and his or her attorney or accredited representative. The alien may file a new Form I-601A, in accordance with the form instructions and required fees.
(11) Appeals and Motions To Reopen.
There is no administrative appeal from a denial of a request for a provisional unlawful presence waiver under this section.
The alien may not file, pursuant to 8 CFR 103.5, A motion to reopen or reconsider a denial of a provisional unlawful presence waiver application under this section.
(12) Approval and Conditions.
A provisional unlawful presence waiver granted under this section:
(i) Does not take effect unless,
And until,
The alien who applied for and obtained the provisional unlawful presence waiver:
(A) Departs from the United States;
(B) Appears for an immigrant visa interview at a U.S. Embassy or consulate; and
(C) Is determined to be otherwise eligible for an immigrant visa by a Department of State consular officer in light of the approved provisional unlawful presence waiver.
(ii) Waives the alien’s inadmissibility under section 212(a)(9)(B) of the Act only for purposes of the application for an immigrant visa and admission to the United States as an immediate relative of a U.S. citizen pursuant to the approved immediate relative petition (Form I- 130 or I-360) upon which the provisional unlawful presence waiver application was based.
(iii) Does not waive any ground of inadmissibility other than the grounds of inadmissibility under section 212(a)(9)(B)(i)(I) or (II) of the Act.
(13) Validity.
Until the provisional unlawful presence waiver takes full effect as provided in paragraph (e)(12) of this section,
USCIS may reopen and reconsider its decision at any time.
Once a provisional unlawful presence waiver takes full effect as defined in paragraph (e)(12) of this section,
The period of unlawful presence for which the provisional unlawful presence waiver is granted is waived indefinitely,
In accordance with and subject to paragraph (a)(4) of this section.
(14) Automatic Revocation.
The approval of a provisional unlawful presence waiver is revoked automatically if:
(i) The consular officer determines at the time of the immigrant visa interview that the alien is ineligible to receive a visa under section 212(a) of the Act other than under section 212(a)(9)(B)(i)(I) or (II) of the Act;
(ii) The immigrant visa petition approval associated with the provisional unlawful presence waiver is at any time revoked, withdrawn,
Or rendered invalid but not otherwise reinstated for humanitarian reasons or converted to a widow or widower petition;
(iii) The immigrant visa registration is terminated in accordance with section 203(g) of the Act,
And has not been reinstated in accordance with section 203(g) of the Act; or
(iv) The alien, at any time before or after approval of the provisional unlawful presence waiver or before an immigrant visa is issued, reenters or attempts to reenter the United States without being inspected and admitted or paroled.