Unlawful Presence Waivers
 

Hey yall! Can anyone clarify the Provisional Unlawful Presences waiver process through USCIS.

It says on the USCIS website:
"Since March 4, 2013, certain immigrant visa applicants who are immediate relatives (spouses, children and parents) of U.S. citizens can apply for provisional unlawful presence waivers before they leave the United States for their consular interview. On August 29, 2016, the provisional unlawful presence waiver process was expanded to all individuals statutorily eligible for an immigrant visa and a waiver of inadmissibility for unlawful presence in the United States."

I'm assuming that means as of August 2016, all family-based petitions, and not just immediate relatives can apply for the waiver.

But then in the requirements, it says you must:
"Be able to demonstrate that refusal of your admission to the United States will cause extreme hardship to your U.S. citizen or Legal Permanent Resident spouse or parent."

Which is a bit contradictory, because only immediate relatives can show that. I know someone that was petitioned by a sibling and has a current visa number, so they are now eligible to submit I-485, but they overstayed their visa for over 1 year. I'm wondering if there is any waiver they can apply for.

Thanks in advanced for the help!

Re: Unlawful Presence Waivers
 

I believe only immediate family members can petition that. they would need a usc/lpr parent, spouse or kids over 21 that would suffer from them not being here essentially.

Re: Unlawful Presence Waivers
 

Ok thanks

Re: Unlawful Presence Waivers
 

You're conflating two different things: Who can petition for you vs who you can use as a qualifying relative for a waiver. The petitioner and qualifying relative DO NOT have to be the same person.

The hardship waiver can be used for any category:
IR, F1, F2A, F2B, F3, F4, DV, EB1, EB2, EB3, EB4, EB5.

Then for the waiver you need a qualifying relative who is your spouse or parent and who is an LPR or a USC.

So for instance:
You can get petitioned in EB-3 by an employer and use your USC spouse as a qualifying relative.
You can win the DV lottery and use your LPR father as a qualifying relative.
You can get petitioned in F2A by an LPR spouse and use the same spouse as a qualifying relative.

In the case you are listing, they're being petitioned as an F4, if they have a parent or spouse who's a USC - yes they can use the I-601A waiver. If they don't, can they make one? Have the sibling petition for mutual parent, have the parent immigrate to US, then do the I-601A?

Note that I-601A cannot be used for AOS. There's no jumping over the bar to adjustment without 245(i) which would've required them or a parent to get sponsored on or before April 30, 2001. Since they cannot adjust they'd have to leave and do consular processing, but leaving would trigger the 10 year bar which is where the I-601A comes into play - you get the ban waived, leave, do a consular interview, and come back.

So what do, assuming that your friend has a USC/LPR parent?
0. Check the I-130 approval notice if it says that they will apply for AOS or do consular processing. If it says AOS they will need to file I-824 to transfer the case to the NVC, and wait for that to get approved.
1. Pay DS-260 filing fee.
2. File I-601A with any and all evidence that their absence would cause extreme hardship to their qualifying relative.
3. Once I-601A is approved, fill out DS-260 and submit it.
4. Get interview date.
5. Leave US and attend the interview.
6. Get the F41 immigrant visa and come back to US.