Who qualifies for provisional waiver of unlawful presence?

By Atty. Crispin Caday Lozano

The USCIS provided additional guidance on the definition of “extreme hardship.” To be granted a provisional waiver, applicants must demonstrate that their absence from the United States would cause “extreme hardship” to a spouse or parent who is a U.S. citizen or lawful permanent resident. The statute does not define the term, and federal courts have not specifically defined it through case law. 

USCIS identified the factors that are considered by adjudicators in determining whether the “extreme hardship” standard has been met. Factors that should be considered for further explanation include, but are not limited to: family ties to the United States and the country of removal, conditions in the country of removal, the age of the U.S. citizen or permanent resident spouse or parent, the length of residence in the United States, relevant medical and mental health conditions, financial hardships, and educational hardships.

The Department of Homeland Security issued a memorandum on July 29, 2016, expanding eligibility for a provisional waiver of the 3 and 10 year bar for unlawful presence which takes effect on August 29, 2016.

Q.      What has been expanded?

A.       The provisional waiver of unlawful presence was expanded to cover all individuals who are eligible to apply for green card in the employment and family based preferences.  Originally, only immediate relatives of U.S. citizens are covered by the provisional waiver.  Under the new rule, all individuals are covered for as long as they have an approved immigrant petition that has a current priority date and the applicant can show extreme hardship to his or her U.S. citizen or Lawful Permanent Resident spouse or parents.

Q.      Who benefits from this provisional waiver? 

A.       The following individual may benefit from this provisional waiver rule:

  • Seaman or Crewman (jump ships), who do not have Section 245(i) eligibility;
  • Those who entered the U.S. without inspection (EWI), but do not have Section 245(i) eligibility or a close family member who is on active duty or US veteran;
  • K-1 fiancée visa entrants, but did not marry the US citizen who petitioned them.

Note:      This is not a legal advice. 


1.  For the month of August 2020, we received three renewal of green card and four naturalization approvals from USCIS.     

2.  For the month of July 2020, we received two approvals of Naturalization applications from USCIS.

3.  For the month of June 2020, we received approvals from USCIS two naturalization applications, two renewal of green card and one adjustment of status.

4.  For the month of May 2020, we received approvals from USCIS for three green card renewals, two adjustment of status, and one naturalization application.

5.  For the month of April 2020. we received approval of one adjustment of status, three removal of condition on residence and one renewal of green card.

6.  For the month of March 2020, we received six Adjustment of Status and three Naturalization approvals from USCIS.

7.  For the month of February 2020, we received approvals from USCIS of five Adjustment of Status application and  three Naturalization application.

8. For the month of January 2020, we received approvals from USCIS of five Adjustment of status applications,  three N-400 applications for naturalization and three fiancé visa application.    

9.  For the month of December 2019, we received four approvals of naturalization applications, five approvals of Adjustment of Status applications, two approvals of Petition to remove condition on residence, one renewal of green card approval and one green card application at the U.S. Embassy.    

10.          For the month of November 2019, we received approvals of one naturalization application, one renewal of green card, one Petition to remove condition on residence and one adjustment of status. 

11.          For the month of October 2019, we received five naturalization application approvals and two renewal of green card and one DACA approval.  

12.          For the month of September 2019, we received approval of two naturalization applications, one adjustment of status and one application to remove condition on residence.

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. 

Chris Caday Lozano, Esq. is an active member of the State Bar of California, the American Immigration Lawyers Association and San Francisco Trial Lawyers.  He practices immigration law, bankruptcy and personal injury law since June 1999.  His contact phone is 1-877-456-9266, email: info@CCLlaw.net  Chris Caday Lozano is currently running as Councilmember for Hayward City Council for November 3, 2020 election.  I need all the support of Filipino Community.

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