Is a Provisional Waiver of a Three- or Ten-Year Time Bar Available to Me?

Here’s what you need to know about eligibility criteria if you need a waiver of illegal presence in the United States to proceed with the green card application process.

If you’ve been living in the United States illegally but have now become eligible for a family-based green card, you’ve undoubtedly encountered a problem: When your green card interview date arrives, you’ll need to leave the United States for a U.S. embassy in your home country—but the consular officer may deny your return based on your previous time spent in the United States illegally. A “provisional waiver” (or “stateside waiver”) of the illegal presence basis of inadmissibility is one way out of this bind.

(For a more in-depth explanation of the underlying issue, see Consequences of Illegal Presence in the United States—Three- and Ten-Year Time Bars.)

You may obtain a “yes” or “no” response from US Citizenship and Immigration Services (USCIS) before leaving the country for the visa interview if you request for a temporary waiver. With a “yes” response, you may leave the United States quite certain that the consular officer would approve the immigrant visa and enable you to return to the United States as a permanent resident with an immigrant visa.

If USCIS says “no,” you’ll find out while still in the country, rather than being stuck outside for three or 10 years. You may even be able to apply for the waiver again. You may also take a risk and leave the country for a consular interview, where you will present the waiver application. This article examines the breadth of eligibility and its constraints.

Qualification to Apply for a Provisional Waiver

On March 4, 2013, the interim waiver became accessible to applicants who were immediate relatives of U.S. citizens—that is, a spouse, parent, or unmarried child under the age of 21.

However, the waiver was considerably broadened in 2016. Anyone who is qualified for an immigrant visa (whether via family, job, the diversity visa lottery, or a special immigration category) may now apply for a provisional illegal presence waiver.

Other qualifying conditions include the candidate being:

At least 17 years of age (which doesn’t actually exclude anybody, since someone can’t accumulate illegal presence in the US, and therefore don’t require a waiver, until at least age 18) physically present in the US at the time of application otherwise allowed to the US. In other words, you cannot request a waiver of any criminal, fraud, or other grounds of inadmissibility individually. Furthermore, if the consular officer during your visa interview determines that you are otherwise inadmissible or ineligible for the visa for reasons other than illegal presence, the USCIS-approved temporary waiver will be canceled immediately.
capable of demonstrating that if the waiver is not granted, his or her U.S. citizen or legal permanent resident spouse or parent (if unmarried) would experience great hardship as a consequence. In certain cases, the qualifying relative (the one who would experience the great hardship) may not be the petitioner.

Even if the applicant is in removal proceedings, the agency in responsibility of ruling on temporary stateside waiver petitions is U.S. Citizenship and Immigration Services (USCIS). However, only applicants whose removal procedures have been administratively closed and not rescheduled will be able to apply. After the waiver is approved by USCIS, they must have their cases terminated or dismissed by the immigration court before leaving the country for their consular interview.