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 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.) Or they can take a chance and leave the U.S. for a consular interview and present their waiver application there.
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
When the provisional waiver first became available as of March 4, 2013, applicants had to be immediate relatives of U.S. citizens – that is, a spouse (opposite-sex or same-sex, if the marriage was legally valid in the state or country where it occurred), parent, or unmarried child under age 21. On November 20, 2014, President Obama announced that other relatives would become eligible as well: adult children of U.S. citizens (F-1 and F-3), spouses of lawful permanent residents (F2A), and the unmarried sons and daughters of lawful permanent residents (F2B). Procedures to accommodate these newly eligible classes of potential immigrants will go into effect in 2015.
Note that various other categories of green card applicants, such as siblings of U.S. citizens, are not eligible.
The other eligibility requirements are that the applicant be:
- 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
- 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. Unfortunately, this is a common problem, as described in "USCIS Denying Many I-601A Provisional Waiver Requests Because of Possible Other Grounds of Inadmissibility." 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.
- not scheduled for a consular interview date as of the date the regulations were first published (January 3, 2013). Applicants who were already (before January 3, 2013) assigned an interview date are not eligible.
- able to prove that, if not granted the waiver, his or her U.S. relative will suffer extreme hardship as a result. There may be instances when the qualifying relative (the one who will suffer the extreme hardship) is not the petitioner.
The agency in charge of deciding on provisional stateside waiver applications is U.S. Citizenship and Immigration Services (USCIS) – even if the applicant is in removal proceedings. Only applicants whose removal proceedings have been administratively closed and have not been recalendared, however, will 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."