Provisional Waiver applies to unlawful presence waiver only

By Atty. Crispin Caday Lozano

The Provisional Waiver is the process where an applicant who is applying for a green card is granted a forgiveness or waiver of his or her unlawful presence only.  Other inadmissibility offenses are not waived.  An individual accrues unlawful presence when he or she is “present in the United States after the expiration of the period of stay authorized by the Attorney General or is present in the United States without being admitted or paroled.”  Generally, unlawful presence happens when an alien came to the United States on a visitor visa and has overstayed their visa or authorized stay as allowed in the I-94 arrival departure card.  It can also happen when an alien entered the United States without inspection like “jump ship” or crossing the border.

What are the Statutory Exceptions to Unlawful Presence?

The statute recognizes six categories of individuals who do not accrue unlawful presence:

Those under 18 years of age;

a. Applicants for asylum during the pendency of the application, provided the applicant did not work without employment authorization;

b. Those who have been granted Family Unity during the authorized period;

c. Battered spouses and children, provided there is a substantial connection between the abuse and the unlawful presence;

Victims of a severe form of trafficking in persons if the trafficking was at least one central reason for the unlawful presence; and

Nonimmigrant’s who have made a timely, non-frivolous application for an extension of stay or change of status, during the 120-day period after filing the application.

The most important exception is for children under 18 years of age. For purposes of the three and 10-year bars, unlawful presence begins accruing the day after the child turns 18.


Note:   This is not a legal advice.


  1. On October 9, 2017, we received an approval from USCIS for adjustment of status for a client who entered as a seaman but has Sec. 245 (i) eligibility.
  2. On October 16, 2017, we received from USCIS an approval for an adjustment of status for same sex marriage, after two scheduled interviews.
  3. On October 2, 2017, we received an approval of adjustment of status from USCIS for a client who entered without inspection but has Sec. 245(i).
  4. For the week ending September 15, 2017, we received three Immigrant Visa Approvals in U.S. Embassy Manila for three applicants who entered as seaman under the Provisional Waiver Program.
  5. For the week ending September 8, 2017, we received four N-400 Naturalization approvals.
  6. On August 31, 2017 we received an approval of adjustment of status for a client who problems with birth certificate which we corrected.
  7. On August 25, 2017, we received approval of I-751 removal of condition on same sex marriage/
  8. On August 18, 2017, we received two approvals for N-400 applications.
  9. On August 16, 2017, we received an approval of I-601A provisional waiver for a Mexican client.
  10. On August 10, 2017, we received a grant from the Immigration Court on a Motion to Terminate Removal Proceedings for a client whose criminal case we have dismissed in criminal court.
  11. On July 18, 2017, we received an approval of green card at the U.S. Embassy Manila for the family of a client who was granted a waiver of misrepresentation. His wife and children were approved after the court granted the waiver.
  12. On June 28, 2017, we received a withdrawal of inadmissibility and removability charges from the Customs and Border Enforcement for a client who was charged with drug case while he was entering San Francisco Airport from the Philippines. The case was withdrawn after we have expunged the drug case in Criminal Court.


If you have immigration problems the Law Offices of Crispin C. Lozano can help you find a solution before your problem gets worse which could lead to deportation and family separation.

Crispin Caday Lozano, Esq. is an active member of the State Bar of California, the American Immigration Lawyers Association and San Francisco Trial Lawyers Association.  He specializes in immigration law and personal injury.  For free consultation email or call ( / 1-877-456-9266)

Toll Free 1-877-4LOZANO for free consultation or Schedule an Appointment