Typically, a foreign national who has accrued more than one hundred eighty (180) days but less than one year of unlawful presence is subject to a three (3) year bar from returning the US after a departure. A foreign national who has accrued more than one year of unlawful presence is typically subject to a ten (10) year bar from returning to the U.S. after a departure (commonly referred to as the “3/10 year bar”). While a waiver of these bars remains available, applicants may only apply for this waiver from outside the US. This process carried a very significant risk of being trapped outside of the US for months or even years pending the adjudication of the waiver. Even worse, if the waiver application were to be denied, the applicant would be unable to return to the US for 3/10 years, depending upon the previous duration of unlawful presence.
As of March 4, 2013, immediate relatives of US citizens were eligible to apply for the provisional unlawful presence waiver (“601A waiver”) to request that USCIS grant a provisional waiver of these grounds of inadmissibility before departing the United States for consular processing of their immigrant visas— rather than applying for a waiver abroad after their immigrant visa interviews. This provided applicants with a significant degree of certainty that they would be eligible to return to the US after their interview because the Applicant would already know if their waiver had been granted prior to departing the US. If the 601A waiver were denied, most Applicants would simply remain in the US. In practice, while many Applicants were able to make use of the 601A Waiver to reenter, there remained a modicum of danger, as US Customs and Border Protection (CBP) ultimately determines admissibility at the time of entry. In addition, this iteration of the 601A left out many otherwise qualified individuals, such as immediate relatives of legal permanent residents (LPR).
On July 29, 2016, U.S. Citizenship and Immigration Services (USCIS) announced a final rule, to expand the class of individuals who may be eligible for a provisional waiver of certain grounds of inadmissibility based on the accrual of unlawful presence in the United States. The final rule is to take effect on August 29, 2016.