Provisional Unlawful Presence Waiver
Under the Immigration Laws, when a person is unlawfully in the United States for more than 180 days but less than one year, upon departing the United States, a 3-year bar is triggered (i.e., they cannot return to the United States for 3 years). When a person is unlawfully present in the United States for one year or more and then departs, it triggers a 10-year bar.
Since departing the U.S. to apply for the immigrant visa almost always triggers a 3 or 10-year bar, applying for the waiver while abroad results in the separation of family members for sometimes very long periods of time. To alleviate the separation of families, on January 2, 2013, the Department of Homeland Security published a regulation that will allow applicants for immigrant visas who will be barred for 3 or 10 years upon departing the U.S., to apply for a provisional unlawful presence waiver while in the United States. Upon receiving an approval of the waiver, the applicant can safely return to his or her home country for a brief amount of time to obtain an immigrant visa at the U.S. Consulate and then return to the U.S. as a permanent resident.