Immigrant Visa Interview & Provisional Unlawful Presence Waiver

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).

The date of scheduling by DOS is the relevant and controlling date. It is not the date and time the applicant must appear for the interview.

The rule still applies even if the applicant fails to appear for the interview. It also applies if they cancel or request to reschedule the interview.

Terminating the Immigrant Visa Registration

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 they have a new Immigrant Visa case. This is because DOS, through the National Visa Processing Center, terminated the Immigrant Visa registration associated with the previously scheduled interview, and they have a new immediate relative petition filed by the same petitioner or a different petitioner, which has been approved by USCIS.

Multiple Filings of Provisional Unlawful Presence Waiver

If an applicant’s Provisional Unlawful Presence Waiver request is denied or withdrawn, the applicant may file another Form I-601A, Provisional Unlawful Presence Waiver based on the original approved immediate relative petition.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 they intend 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 In the case of a withdrawn Form I-601A, USCIS will not refund the filing fees because USCIS has already taken steps to adjudicate the case.

Denial of Provisional Unlawful Presence Waiver.

If USCIS denies an applicant’s application for a provisional waiver, the applicant has two alternate options. These options can help obtain a waiver for 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 they believe might establish their 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. This filing occurs after the consular officer determines their inadmissibility following the Immigrant Visa interview.

Appeals, Motions to Reopen, or Reconsider a Denied Provisional Waiver Application

There is no provision in the unlawful presence waiver process for appeal. It also does not allow a motion to reopen or reconsider 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 review and deny an approved Provisional Unlawful Presence Waiver at any time. This occurs if USCIS finds it issued the decision in error or the approval is no longer warranted.

Revocation of Approved Waiver

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.