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Under the Immigration and Nationality Act Section 212 (a)(9)(B) certain aliens who are seeking admission to the United States maybe be inadmissible if they accumulated unlawful presence (present in the U.S. without being admitted or paroled or stayed past the authorized period of stay). An alien is inadmissible who:

(I) was unlawfully present in the United States for a period of more than 180 days but less than 1 year, voluntarily departed the United States and again seeks admission within 3 years of the date of such alien’s departure or removal, or

(II) has been unlawfully present in the United States for one year or more, and who again seeks admission within 10 years of the date of such alien’s departure or removal from the United States is inadmissible.

There are exceptions for this ground of inadmissibility, but if an individual does not qualify for one of the exceptions they are generally not inadmissible unless this ground of inadmissibility is waived.

A request can be made to have unlawful presence ground of inadmissibility provisionally waived prior to a person’s intended departure from the United States. For example, a person who has been residing unlawfully in the United States for more than one year and wants to depart the U.S. to attend an interview at a U.S. Consulate office to obtain a green card would generally be inadmissible for 10 years from the date of departure from the U.S. The Provisional Unlawful Presence Waiver allows you to request that the unlawful presence ground of inadmissibility be waived prior to your departure from the United States.

You may request a provisional unlawful presence waiver (Form I-601A) if you:

  1. Are physically present in the United States;
  2. Are at least 17 years of age at the time of filing;
  3. Have an immigrant visa case pending with U.S. Department of State and are statutorily eligible for an immigrant visa (immediate relative to U.S. citizen visa, family preference category visa, employment-based immigrants or Diversity Visa selectees);
  4. Can show that refusal of your admission to the United States will cause extreme hardship to your U.S. citizen or Legal Permanent Resident spouse or parent (U.S. citizen and LPR children are not qualifying relatives); and
  5. Are not otherwise inadmissible to the United States on other grounds (e.g. national safety, deportation, criminal).

If the provisional waiver is granted before you leave the United States for the consular interview, it does not guarantee that you will be granted admission back into the Unites States. The unlawful presence grounds of inadmissibility may have been waived, but the consular officer may determine that you are inadmissible on other grounds such as alien smuggling or prior immigration violations.

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