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.

A waiver of the bars is available if the applicant can prove that his or her lawful permanent resident or U.S. Citizen spouse and/or parent would suffer extreme hardship if the applicant cannot return to the U.S. prior to 3 or 10 years. For those persons who do not qualify to adjust their status to permanent residence in the United States, they are forced to return to their home countries to apply for an immigrant visa at the U.S. Consulate in their native country.

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.