If you have a U.S. citizen family member and have been unlawfully present in the U.S. for 180 days or more (approximately six months), you may be eligible for lawful permanent residency through a “provisional waiver.” This means that you may be eligible for residency (a “green card”) even if you entered the U.S. illegally, overstayed a visa, or violated the terms of a visa.

We have successfully handled many provisional waivers since they became available in March 2013. They are a significantly better alternative than following the normal procedure, which requires you to leave the U.S. to attend a consular interview, apply for the waiver, and wait abroad for a decision.

What are the requirements to apply for a provisional waiver?
You may apply for a provisional waiver if you meet all of the following requirements:

1. You are a spouse of a U.S. citizen, parent of a U.S. citizen who is over 21, or the unmarried child (under age 21) of a U.S. citizen;

2. You are at least 17 years old;*

3. You are physically present in the United States;

4. A visa petition (I-130) has been filed on your behalf;

5. Your visa petition has been approved; and

6. You have paid the required fees so that your case is ready to be scheduled for an immigrant visa interview at the U.S. consulate in your country.

* This is because you do not start to accrue unlawful presence in the U.S. until you turn 18, so children do not generally need to seek a waiver.

Will I have to leave the U.S. during the process?
If you meet these requirements, you can stay in the U.S. while your waiver petition is reviewed.

• If the waiver is approved, you will need to go to your home country, interview at the U.S. consulate there, and then return to the U.S. upon consular approval. After returning to the U.S., you will receive your green card in the mail.

• If the waiver is denied, you must remain outside the U.S. for three years (if you were unlawfully in the U.S between 180 to 364 days) or ten years (if you were unlawfully in the U.S. more than 1 year).

Can I be deported if I apply for a provisional waiver and admit my unlawful presence in the U.S.?

Applying for a provisional waiver does not place you at risk for deportation or removal unless you have a history of prior deportation, criminal activity, or fraudulent behavior, or you are found to be a threat to national security or public safety. If your provisional waiver is denied, you do not have to leave the U.S.

How does the USCIS decide whether to grant the waiver?

In order for the waiver to be granted, you must show that it would create extreme hardship to your qualifying family member – generally your U.S. citizen spouse or parent – if you had to leave the U.S. (Note that U.S. citizen children are not qualifying relatives, regardless of their age. As a result, hardship to them does not count.)

At Lazaro Salazar Law, we take great care to personalize your story and clearly explain to the immigration examiner how your absence will create hardship to your family members. We work closely with our clients to understand and accurately represent their unique circumstances.