state-side waiver

1. You are physically present in the U.S.

2. You are at least 17 years of age at the time of filing.

3. You are the beneficiary of an approved immigrant visa petition classifying you as the immediate relative of a U.S. citizen.

4. You have an immigrant visa case pending with the U.S. Department of State for which you have already paid the immigrant visa processing fee.

5. You believe you are, or will be at the time of the immigrant visa interview, inadmissible based on having accrued a certain period of unlawful presence in the United States.

6. You meet all of the requirements of the provisional unlawful presence waiver as listed in the regulations, form I-601A and its instructions.

1. You fail to meet the eligibility requirements discussed above.

2. You have a pending form I-485 with USCIS to adjust your status to that of a permanent resident

3. You are in removal proceedings unless your removal proceedings are administratively closed and have not been re-calendared as of the date of filing of the I-601A.

4. You have been ordered removed, excluded, or deported from the United States.

5. You are subject to reinstatement of a prior removal order.

6. DOS acted to schedule your immigrant visa interview prior to January 3, 2013, even if you fail to appear or you or DOS cancelled or rescheduled the interview on or after January 3, 2012. 

7. You do not establish that a refusal of your admission to the United States would result in extreme hardship to a U.S. citizen spouse or parent, or that your application should be approved as a matter of discretion.

8. USCIS has reason to believe that DOS may find you inadmissible at the time of your immigrant visa interview for grounds other than unlawful presence. 

On January 6, 2012, the Department of Homeland security published a proposed rule that would change the process for how certain undocumented relatives of United States citizens apply for a waiver of the time they were in the United States without permission. U.S. Citizenship and Immigration Services stated that they received over 4,000 comments on the proposed rule. A year later, on Wednesday January 2, 2013, the final rule was issued!

Many undocumented relatives of U.S. citizens who are applying for permanent residence must leave the United States and complete the process at a consulate in their country of birth. The Catch-22 of the process has been that once the person departs the United States, the immigration law says that the person must wait in their birth country for ten years as punishment for the time they were unlawfully in the U.S. The person can apply for a waiver of this punishment, but, prior to the change under the final rule, the application for the waiver could only be made at the consulate abroad after the interview. The processing of those waiver applications often takes a year or more. During that time the husband and wife, parent and child, etc. are often separated. The result of the waiver processing abroad has been that many families found the risks of having the undocumented family member leave the United States to complete the processing of the permanent resident application and waiver was too great and decided not to apply, adding to the numbers of undocumented people living in the U.S.