What is a Provisional Unlawful Presence Waiver?

 

In the complex landscape of United States immigration law, navigating the process can be daunting, especially when faced with the prospect of unlawful presence. For those seeking legal residency in the United States, the Provisional Unlawful Presence Waiver (PUPW) can offer a lifeline. In this post, we will delve into the intricacies of the provisional waiver, shedding light on its definition, historical context, eligibility criteria, filing procedures, and the importance of seeking professional legal counsel.

What is the Provisional Unlawful Presence Waiver?

The Provisional Unlawful Presence Waiver, often referred to as the provisional waiver, is a legal remedy designed to address the issue of unlawful presence for certain immigrant visa applicants. Before delving into its specifics, let us take a brief historical journey to understand its evolution.

Historical Background

The genesis of the Provisional Unlawful Presence Waiver can be traced back to 2013 when U.S. Citizenship and Immigration Services (USCIS) introduced it as a means to alleviate the hardship faced by families separated due to immigration barriers.

The Provisional Unlawful Presence Waiver has its roots in the Immigration and Nationality Act (INA) of 1996, which established stringent penalties for individuals who accrued unlawful presence in the United States. These penalties often resulted in lengthy bars from re-entering the country, causing significant hardship for families separated by immigration barriers.

Recognizing the humanitarian concerns stemming from these harsh provisions, advocacy groups and immigration attorneys began lobbying for reforms to alleviate the suffering experienced by affected families. After years of advocacy efforts and legal battles, the Provisional Unlawful Presence Waiver was introduced by USCIS in 2013 as a measure to provide relief to eligible individuals.

Scenarios for Appropriate Use of the Waiver

Understanding when the Provisional Unlawful Presence Waiver is appropriate is crucial for prospective applicants. Generally, the waiver is suitable for individuals who are immediate relatives of United States citizens and legal permanent residents (spouses, parents, and unmarried children under 21 years old) and can demonstrate extreme hardship to their qualifying relatives (a U.S. Citizen or legal permanent resident spouse or parent) if they are not granted lawful status in the United States. The provisional waiver is available to those applicants whose only ground of inadmissibility is unlawful presence, no other ground of inadmissibility.

These individuals must demonstrate extreme hardship to their qualifying relatives, which may include emotional, financial, familial, social and medical hardship. For example, a spouse suffering from a serious medical condition that requires ongoing treatment may qualify as an instance of extreme hardship, especially if adequate medical care is unavailable in the applicant’s home country.

Scenarios Where the Waiver May Not Be Appropriate

Conversely, there are scenarios where the Provisional Unlawful Presence Waiver is not applicable to certain applicants. For instance, individuals with certain criminal convictions that will require a criminal waiver and individuals who have been found to have committed fraud are not eligible to file the provisional waiver.

It is crucial for prospective applicants to thoroughly assess their eligibility and consult with an experienced immigration attorney to evaluate any potential obstacles they may encounter.

The Waiver Form and Filing Procedure:

Applying for the Provisional Unlawful Presence Waiver involves completing Form I-601A, Application for Provisional Unlawful Presence Waiver, along with documentation to support the claim of extreme hardship. The process entails several steps, including:

  • Eligibility Determination: Applicants must meet specific eligibility criteria, including being physically present in the United States and having an approved immigrant visa petition.
  • Filing the Form: Submission of Form I-601A to USCIS, along with the requisite filing fee and supporting documents, such as evidence of familial ties and extreme emotional, medical, financial and social hardship.
  • Biometric Appointment: Upon acceptance of the application, applicants are typically scheduled for a biometric appointment to capture fingerprints and photographs.
  • Adjudication: USCIS reviews the application, taking into account the evidence provided and assessing the merit of the extreme hardship claim.
  • Decision and Next Steps: Applicants receive a decision on their waiver application. If approved, they may proceed with consular processing for their immigrant visa.

Conclusion:

Navigating the complexities of immigration law, especially concerning unlawful presence, demands careful consideration and expert guidance. While the Provisional Unlawful Presence Waiver can offer a pathway to legal residency for eligible individuals, the process is intricate and requires attention to detail.

Therefore, it is highly advisable to seek the assistance of a qualified immigration attorney who can provide personalized guidance and support throughout the application process. If you have questions about your eligibility for a waiver, reach out to me today to discuss your case!