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Who Benefits from the New Provisional Waiver? Fiance(é)s, Crewmen and those who EWI

This rule allows certain immediate relatives of U.S. citizens (spouses, parents of adult U.S. citizens, and minor children) who are physically present in the United States to request a provisional waiver of the unlawful presence bars to admissibility  prior to traveling abroad for consular processing of their immigrant visa applications.

For purposes of this rule, an immediate relative is the child or spouse of a U.S. citizen, or the parent of a U.S. citizen who is 21 years or older. This includes adult sons and daughters who remain classified as immediate relative “children” for immigration purposes under the Child Status Protection Act, and also includes qualified widow(er)s of U.S. citizens who self-petition on Form I-360.

Most of these immediate relatives who qualify will fall into three general categories.

  1. People who entered the U.S. without inspection (EWI) who do not have the benefit of Section 245(i); and
  2. Crewman (or jump ships) who do not have the benefit of Section 245(i); and
  3. People who entered the U.S. on a K-1 fiancé(e) visa.

Not all immigrants in the above categories will be eligible to apply for provisional waivers in the US. Eligibility will be limited only to the spouses, children, or parents of US citizens who are immigrating as an immediate relative. The provisional waiver will also be limited to those only requiring a waiver for the 3 or 10 year bar. Once a provisional waiver is granted, the immigrant is then free to travel to the home country to apply before the US Consulate for an immigrant visa and return to the US.

For more detailed on the provisional waiver, see: Provisional Waiver

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