On March 4, 2013, USCIS began a new provisional unlawful presence waiver program for certain relatives of U.S. citizens whose only ground of inadmissibility is unlawful presence in the United States under section 212(a)(9)(B)(i)(I) and (II) of the Immigration and Nationality Act (INA). See 78 FR 536-01 (January 3, 2013). The provisional unlawful presence waiver process allows immediate relatives of U.S. citizens (spouses, children, or parents) who are currently residing in the United States to apply for a provisional waiver while in the United States, provided they meet all eligibility requirements outlined in 8 CFR 212.7(e) and warrant a favorable exercise of discretion.
There are several circumstances that may render an individual ineligible for a provisional unlawful presence waiver. For example, individuals with final orders of exclusion, deportation, or removal; individuals who are currently in removal proceedings that are not administratively closed at the time of filing; and individuals who have a pending application with USCIS for lawful permanent resident status are not eligible to apply for the provisional unlawful presence waiver. Individuals for whom there is a reason to believe that they may be subject to grounds of inadmissibility other than unlawful presence at the time of the immigrant visa interview with a Department of State (DOS) consular officer also are ineligible for the provisional unlawful presence waiver. See 8 CFR 212.7(e) (2013).
If a USCIS officer determines, based on the record, that there is a reason to believe that the applicant may be subject to a ground of inadmissibility other than unlawful presence at the time of his or her immigrant visa interview with a DOS consular officer, USCIS will deny the request for a provisional unlawful presence waiver. See 8 CFR 212.7(e)(4)(i) (2013). Field Guidance: Guidance Pertaining to Applicants for Provisional Unlawful Presence Waivers. In some cases, USCIS has denied a Form I-601A if an applicant has any criminal history. In these cases, if the record contains evidence that an applicant was charged with an offense or convicted of any crime (other than minor traffic citations such as parking violations, red light/stop sign violations, expired license or registration, or similar offenses), regardless of the sentence imposed or whether the offense is a crime involving moral turpitude (CIMT), USCIS has denied the Form I-601A. 212(a)(2)(A)(i)(I). After further consideration, USCIS issues this field guidance.
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