Undocumented immigrants who meet certain criteria can apply for waivers allowing them to proceed with an immigrant visa petition. One type of waiver is known as a “provisional unlawful presence waiver” (PUPW). Individuals with six months to one year of accrued unlawful presence in the U.S. who voluntarily depart the U.S. are deemed inadmissible for a period of three years. A PUPW allows a person who meets these criteria to request a waiver of the three-year inadmissibility period, provided they leave the U.S. and apply to reenter at a U.S. consulate abroad. A new rule that took effect at the end of August 2016 streamlines the application process and expands eligibility for PUPWs. 81 Fed. Reg. 50243 (Jul. 29, 2016). Previously, PUPWs were only available to people seeking family-based immigrant visas. The new rule makes them available for employment-based and other visa petitions.
To qualify for a PUPW, an individual must be inadmissible under § 212(a)(9)(B)(i)(I) of the Immigration and Nationality Act (INA), 8 U.S.C. § 1182(a)(9)(B)(i)(I). This provision applies to people (1) who have been unlawfully present in the U.S. for more than 180 days but less than one year, (2) who voluntarily depart the country, either on their own or with the government’s permission under 8 U.S.C. § 1229c, (3) prior to the beginning of removal proceedings under 8 U.S.C. §§ 1225(b)(1) or 1229a.
People covered by this provision of the INA are ineligible for readmission for three years, beginning on the date they leave or are removed from the U.S. The PUPW waives the six- to 12-month period of unlawful presence, making them eligible for an immigrant visa without the three-year bar.