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Immigration Resources

What is a stateside waiver?

Posted by Kripa Upadhyay | Mar 01, 2019

If you entered the United States without inspection or you have been unlawfully present in the U.S., you may experience additional hurdles in obtaining a visa in the future. In this article, we will explore what a stateside waiver is, why you might need one, and how to apply for a waiver.

What is a stateside waiver?

Typically, if you are unlawfully present in the U.S. without having been “admitted” or “inspected” by a U.S. immigration officer, you may not obtain a green card. Even if you are a beneficiary of an immigrant visa petition, you cannot gain permanent residency if you have not been lawfully admitted.

To obtain a green card if you entered without inspection, you must leave the U.S. and reenter through consular processing. In this process, you will be inspected and admitted, fulfilling that legal requirement for lawful presence. The only problem is, if you entered the U.S. without inspection, you are barred from reentering the U.S. for a period of three years. This is called an unlawful presence bar.

However, U.S. immigration law provides a work-around for this predicament. Qualifying individuals can apply for a “provisional unlawful presence waiver” that allows them to depart the U.S. for consular processing with a pre-approved waiver for the unlawful presence bar, so that they will not be banned from re-entering the U.S. when they try to re-enter.

The goal of the process is to minimize the amount of time that U.S. citizens and lawful permanent residents are separated from their family members. Provisional unlawful presence waivers used to only be available to beneficiaries of immigrant visas through an immediate U.S. citizen relative. However, in August 2016, the Obama Administration expanded the availability of provisional unlawful presence waivers to all individuals who are eligible for an immigrant visa.

It is important to note that if you are eligible for an immigrant visa and entered the U.S. without inspection, you must still leave the U.S. and have your immigrant visa processed abroad at a U.S. consulate or U.S. Embassy.

The provisional unlawful presence waiver simply allows you to overcome the statutory unlawful presence bar and reenter the U.S. if you receive an immigrant visa and have a pre-approved provisional unlawful presence waiver.

Why might I need a stateside waiver?

If you are the beneficiary of an immigrant visa like an employment-based immigrant visa or family-sponsored visa petition, or you were selected to participate in the Diversity Visa Program, but you were unlawfully present in the U.S. for more than 180 days, you will need to depart the U.S. to process your immigrant visa through consular processing abroad.

Unless you obtain a provisional unlawful presence waiver, once you depart, your previous period of unlawful presence in the U.S. will trigger the unlawful presence bar and you will be banned from re-entering the U.S. for three years.

To avoid this ban, you must apply for and receive a provisional unlawful presence waiver before departing the U.S.

What are the eligibility restrictions?

Even though eligibility for provisional unlawful presence waivers was significantly expanded in 2016, there are a few limitations to eligibility. You may not obtain a provisional waiver if:

  • You are in open removal proceedings. If your removal proceedings have been administratively closed by an immigration judge, you may still be eligible for a provisional waiver.
  • You are statutorily ineligible because you do not meet the criteria described in the above section.
  • You do not meet one or more of the requirements listed on the I-601A application form.
  • You have a final order of removal, exclusion, deportation, or in absentia order of removal.

How do I apply for a stateside waiver?

To apply for a waiver, you must complete a Form I-601A, Application for Provisional Unlawful Presence Waiver and submit it to the USCIS Chicago Lockbox.

For U.S. Postal Service deliveries:

USCIS P.O. Bos 4599 Chicago, IL 60680

For UPS, FedEx, and DHL:

USCIS Attn: I-601A 131 S. Dearborn, 3rd Floor Chicago, IL 60603-5517

After submitting an application, you will receive an appointment notice to provide biometrics (fingerprints) at an Application Support Center (ASC).

Contact Orbit Law Today

While you are not required to have a lawyer to apply for a provisional unlawful presence waiver, hiring an experienced immigration lawyer can help you to be successful in your application and save you significant time and stress.

Immigration law can be extremely complex to navigate. At Orbit Law, our immigration lawyers have helped countless clients to successfully obtain a provisional unlawful presence waiver. If you believe you are eligible for an immigrant visa but have been unlawfully present in the U.S., call our law office today for a confidential consultation of your case. Call Orbit Law at 206-623-3352 today!

The information available on this website are for informational purposes only and not for the purpose of providing legal advice. You should contact an attorney to obtain a more detailed advice with respect to any particular issue or problem. Use of and access to this website or any of the e-mail links contained within the site do not create an attorney-client relationship between Orbit Law PLLC and the user or browser. The opinions expressed at or through this site are the opinions of the individual author and may not reflect the opinions of the firm or any individual attorney.

About the Author

Kripa Upadhyay

Kripa Upadhyay Founder/Attorney [email protected] EDUCATION Seattle University School of Law, Seattle, WA, Juris Doctor (JD)  May 2007 ADMISSIONS Washington State Bar Association: Admitted May 2008 U.S District Court for the Eastern District of Washington: Admitted 2009 U.S...