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

If you've lived in the United States after entering or staying illegally but become eligible for a family-based green card, you might have realized that you face a major legal barrier to actually immigrating: When the date comes for your green card interview, you'll need to leave the U.S. for a U.S. consulate in your home country (because your illegal entry probably makes you ineligible to use the U.S.-based "adjustment of status" application procedure). But the officer you meet at the U.S. consulate might deny your immigrant visa and block your return based on your past unlawful time spent in the United States.

One solution to this trap is what's called a "provisional waiver" (or "stateside waiver") of the unlawful presence ground of inadmissibility (as found in 8 C.F.R. § 212.7). Here, we'll discuss:

• benefits of the provisional waiver of unlawful presence, and
• who can apply for one, based on the type of visa they seek, their age, the hardship their U.S. family would experience if the waiver were denied, and so on.

(For a full discussion of the underlying problem for people who have lived in the United States without immigration papers or permission, see Consequences of Unlawful Presence in the U.S.—Three- and Ten-Year Time Bars.)

How the Provisional Waiver Protects Applicants for U.S. Residence

The possibility of requesting a waiver of unlawful presence existed before the "provisional waiver" was created. But it couldn't be requested ahead of time, for those people needing to visit a U.S. consulate as part of their application process. 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 United States, instead of at or after 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. (The consular officer can still override the USCIS decision and deny the waiver, but it's rare.)

If the answer from USCIS regarding your waiver request is "no," you will at least find this news out while still in the United States, not trapped outside facing a bar of three or ten years on your return. You might even be able to reapply for the waiver. Or, you could take a chance and leave the United States for your consular interview and present the waiver application there (but should speak to an attorney before taking this risk).

Eligibility to Apply for the Provisional Waiver of Unlawful Presence

When the provisional waiver first became available in 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 it.

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, and if the consular officer at your visa interview decides that you are otherwise inadmissible or ineligible for the visa on some basis other than unlawful presence, will revoke your USCIS-approved provisional waiver, and
• able to prove that, if not granted the waiver, their U.S. citizen or lawful permanent resident spouse or parent (if the applicant is unmarried) will suffer extreme hardship as a result (regardless of whether this qualifying relative who will suffer the extreme hardship is or is not the one filing the immigrant visa petition).

The agency in charge of deciding on provisional waiver applications is USCIS even if the applicant is in removal (deportation) proceedings. Only applicants whose removal proceedings have been administratively closed and have not been re-calendared, however, will be eligible to apply. After USCIS approves 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. And because of the complexities of preparing such an application, consider hiring an experienced immigration attorney to help.