One of the requirements of eligibility for the Provisional Unlawful Presence Waiver is the approval of an Immediate Relative Petition (Form I-130 or I-360) and the payment of the Immigrant Visa and Affidavit of Support fee to the Department of State (DOS).
Non-US Citizens who were already scheduled for their Immigrant Visa interviews before January 3rd 2013 (the date of the publication of the final rule for provisional unlawful presence waiver) are disqualified from the Provisional Unlawful Presence Waiver process.
The date of scheduling by DOS, and not the date and time the applicant must appear for the interview, is the relevant and controlling date.
This rule applies even if the applicant failed to appear for his or her interview, cancelled the interview, or requested that the interview be rescheduled.
However, if the date that the DOS initially acted to schedule the Immigrant Visa interview is on or after January 3rd, 2013 (the publication date of the final rule) the non-US citizen will be eligible to apply for a Provisional Unlawful Presence Waiver.
The actual date and time that an applicant is scheduled to appear for the Immigrant Visa interview is irrelevant in determining eligibility for the Provisional Unlawful Presence Waiver.
An applicant who is ineligible to apply for a Provisional Unlawful Presence Waiver, because of a previously scheduled Immigrant Visa interview, may still qualify for a Provisional Unlawful Presence Waiver if he or she has a new Immigrant Visa case because DOS, through the National Visa Processing center, terminated the Immigrant Visa registration associated with the previously scheduled interview, and he or she have a new immediate relative petition filed by the same petitioner or a different petitioner which has been approved by USCIS
If an applicant’s Provisional Unlawful Presence Waiver request is denied or withdrawn, the applicant may file another Form I-601A, Provisional Unlawful Presence Waiver based on the original approved immediate relative petition.
The applicant’s case must still be pending with DOS and the applicant must notify DOS that he or she intends to file a new Form I-601A. In the case of a withdrawn Form I-601A, USCIS will not refund the filing fees because USCIS has already taken steps to adjudicate the case.
If USCIS denies an applicant’s application for provisional waiver, the applicant has two alternate options for obtaining a waiver of the unlawful presence ground of inadmissibility:
1. The applicant may file a new Form I-601A, Application for Provisional Unlawful Presence Waiver in the U.S., with the required fees and any additional documentation that he or she believes might establish his or her eligibility for the waiver. OR
2. The applicant may file a Form I-601, Application for Waiver of Grounds of Inadmissibility with the USCIS Lockbox, after he or she attends the Immigrant Visa interview and is determined inadmissible by the consular officer.
There is no provision in the unlawful presence waiver process for appeal, motion to reopen, or request for reconsideration of a denied Provisional Unlawful Presence Waiver application.
However, USCIS retains the authority and discretion to reopen or reconsider a decision on its own motion. USCIS may reopen a case and deny an approved Provisional Unlawful Presence Waiver at any time if the decision was issued in error or approval is no longer warranted.
An approved Provisional Unlawful Presence Waiver is automatically revoked if the applicant, at any time before or after such approval or before the Immigrant Visa is issued, reenters or attempts to reenter the United States without being inspected and admitted or paroled into the US.
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