Am I Eligible for Provisional Waiver of Three- or Ten-Year Time Bar?

If you've lived in the U.S. illegally but become eligible for a family-based green card, you have probably discovered a problem: When the date finally comes for your green card interview, you'll need to leave the U.S. for a U.S. consulate in your home country—but the consular officer might blocked your return based on your past time spent in the U.S. unlawfully. One solution to this trap is what's called a “provisional waiver” (or "stateside waiver") of the 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 provisional waiver, you can get a “yes” or “no” answer from U.S. Citizenship and Immigration Services (USCIS) before departing the U.S. for the visa interview. With a “yes” answer, you can leave the U.S., feeling fairly comfortable that the consular officer will approve the immigrant visa and allow you to return to the U.S. with an immigrant visa, as a permanent resident.

If the answer from USCIS is “no,” you will at least find out while still in the U.S., not trapped outside for three or ten years. You might even be able to reapply for the waiver. Or you can take a chance and leave the U.S. for a consular interview and present the waiver application there. This article discusses the scope of and limitations on eligibility.

Eligibility to Apply for the Provisional Waiver

When the provisional waiver first became available on March 4, 2013, applicants had to be immediate relatives of U.S. citizens—that is, a spouse, parent, or unmarried child under age 21.

In 2016, however, the waiver was greatly expanded. Now, anyone who is eligible for an immigrant visa (whether based on family, employment, the diversity visa lottery, or a special immigration classification) may apply for a provisional unlawful presence waiver.

The other eligibility requirements are that the applicant be:

• at least 17 years of age (which doesn’t really exclude anyone, because someone can’t accrue unlawful presence in the U.S., and therefore don’t need a waiver, until at least age 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. 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.
• able to prove that, if not granted the waiver, his or her U.S. citizen or lawful permanent resident spouse or parent (if you're unmarried) 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 a Provisional Waiver

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