Who Is Eligible for Provisional Waiver of Three- or Ten-Year Time Bar

Applicants for U.S. green cards who are afraid to leave the U.S. for their consular visa interview because they might be blocked from return based on their past time spent in the U.S. unlawfully have an exciting new procedural option: Starting on March 4, 2013, they can apply for a “provisional waiver” (also known as a "stateside waiver") of this unlawful presence ground of inadmissibility.

(For a full discussion of the underlying problem, see “Consequences of Unlawful Presence in the U.S. -- Three- and Ten-Year Time Bars.”)

By applying for a stateside waiver applicants can get a “yes” or “no” answer from U.S. Citizenship and Immigration Services (USCIS) before departing the U.S. for their visa interview. With a “yes” answer, they can leave the U.S., feeling fairly comfortable that the consular officer will approve the immigrant visa and allow them to return to the U.S. as permanent residents.

If the answer from USCIS is “no,” applicants will at least find out while they’re still with their family in the U.S., not trapped outside for three or ten years. They can potentially reapply. (And, the enforcement authorities have said they do not intend to use this process as a way to identify people for removal – unless they’re criminals or public safety risks.)

Not everyone who is eligible for a green card is eligible to for this provisional waiver, however. This article discusses the scope of and limitations on eligibility.

Eligibility to Apply for the Provisional Waiver

In order to be eligible to apply for or receive a provisional unlawful presence waiver, applicants must be:

• immediate relatives of U.S. citizens – that is, a spouse, parent, or unmarried child under age 21. Note this this leaves out various other categories of family-based green card applicants, such as spouses and children of permanent residents, siblings of U.S. citizens, and adult or married children of U.S. citizens; but DHS has promised to consider expanding the stateside waiver to them in the future, so stay tuned.
• at least 17 years of age (which doesn’t really exclude anyone, because you can’t accrue unlawful presence in the U.S., and therefore don’t need a waiver, until you’re at least 18)
• physically present in the United States at the time of applying, and
• otherwise admissible to the United States. In other words, you cannot separately ask for a waiver of any criminal, fraud, or other grounds of inadmissibility – and in fact if USCIS has reason to believe that you are inadmissible on some other ground, it will deny the provisional waiver and you’ll have to deal directly with the consulate after all. Furthermore, if the consular officer at your visa interview decides that you are otherwise inadmissible or are ineligible for the visa on some basis other than unlawful presence, the USCIS-approved provisional waiver will be automatically revoked.
• still awaiting a consular interview date as of the date the new regulations were published (January 3, 2013). Applicants who were already (before January 3, 2013) assigned an interview date are not eligible. (The interview date itself doesn’t matter, so don’t even try rescheduling if you're right on the wire here. It’s whether the Department of State took action and set that date that determines whether you’re eligible to apply for the provisional waiver.)
• able to prove that, if not granted the waiver, their qualifying U.S. relatives will suffer extreme hardship as a result -- and the list of qualifying relatives is shorter than for the regular waiver, in that it does NOT include permanent resident relatives – only a U.S. citizen spouses or parents.

The agency in charge of deciding on provisional stateside waiver applications is U.S. Citizenship and Immigration Services (USCIS) – even if the applicant has been in removal proceedings. Only applicants whose removal proceedings were administratively closed (for example, after a DACA application) and have not been recalendared will, however, be eligible to apply. After the USCIS approval of the waiver, they will need to obtain termination or dismissal of their cases by the immigration court before leaving the U.S. for their consular interview.

What's Next: Submitting an Application

For guidance to the application process, see "How to Apply for Provisional Waiver of Three- or Ten-Year Time Bar."