Since March 4, 2013, certain immigrant visa applicants who are immediate relatives (spouses, children and parents) of U.S. citizens can apply for provisional unlawful presence waivers before they leave the United States for their consular interview.

On August 29, 2016, the provisional unlawful presence waiver process was expanded to all individuals statutorily eligible for an immigrant visa and a waiver of inadmissibility for unlawful presence in the United States.

Aliens who are not eligible to adjust their status in the United States must travel abroad and obtain an immigrant visa. Individuals who have accrued more than 180 days of unlawful presence while in the United States must obtain a waiver of inadmissibility to overcome the unlawful presence bars under section 212(a)(9)(B) of the Immigration and Nationality Act before they can return.

Typically, these aliens cannot apply for a waiver until after they have appeared for their immigrant visa interview abroad, and a Department of State (DOS) consular officer has determined that they are inadmissible to the United States.

The provisional unlawful presence waiver process allows those individuals who are statutorily eligible for an immigrant visa—immediate relatives, family-sponsored or employment-based immigrants as well as Diversity Visa selectees—who only need a waiver of inadmissibility for unlawful presence to apply for that waiver in the United States before they depart for their immigrant visa interview.

This new process was developed to shorten the time that U.S. citizens and lawful permanent resident family members are separated from their relatives while those relatives are obtaining immigrant visas to become lawful permanent residents of the United States.

The expansion of the provisional unlawful presence waiver process does not affect the continued availability of the Form I-601 process: Individuals who do not wish to seek or do not qualify for a provisional unlawful presence waiver can still file Form I-601, Application for Waiver of Grounds of Inadmissibility, after a DOS consular officer determines that they are inadmissible to the United States.

In Kansas, as in all states, the federal regulations regarding provisional unlawful presence waivers apply. Since March 4, 2013, immediate relatives of U.S. citizens who require a waiver for unlawful presence to obtain an immigrant visa have been able to apply for this waiver before leaving the U.S. for their consular interview. This process was expanded on August 29, 2016, to include all individuals eligible for an immigrant visa and a waiver of inadmissibility for unlawful presence. The provisional waiver process allows eligible individuals to apply for the waiver while in the U.S., thereby reducing the time of separation from their family members who are U.S. citizens or lawful permanent residents. Those who accrue more than 180 days of unlawful presence and are not eligible to adjust their status in the U.S. must obtain this waiver to overcome the bars under section 212(a)(9)(B) of the Immigration and Nationality Act. If an individual does not qualify for or does not wish to seek a provisional waiver, they can still file Form I-601 after a consular officer has determined their inadmissibility during the visa interview abroad. It's important to consult with an attorney for guidance specific to individual cases and to ensure compliance with the current immigration laws and procedures.