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New Immigration Policy -----Good News for some facing the 3/10 year bar

It is finally official! Many foreign nationals, who are immediate relatives of U.S. citizens, but were only unable to acquire permanent residency because of the risk of the 3 or 10 year bar, they finally have a reprieve. They can apply for a waiver of the 3/10 year bar and receive a decision, prior to having to depart the U.S.

Background: Hundreds of thousands of immigrants unlawfully in the U.S., who are otherwise eligible for permanent residency, do not apply because in order to do so they must depart the U.S. to apply for an Immigrant Visa. The problem: Departing the U.S. will subject the applicant to a 3 or 10 year bar. (If the immigrant has been unlawfully present in the U.S. for 180 days, then his departure would trigger a 3 year bar to admission to the U.S. If he or she has been unlawfully present for 10 years, then his departure would trigger a 10 year bar.) However, many of these applicants are eligible for a waiver of these bars, if they can demonstrate that the refusal of admission would result in extreme hardship to his or her U.S. citizen or lawful permanent resident spouse or parent. Given the discretionary nature of these waivers, many immigrants forego the risk of applying abroad, and choose to remain in the U.S. illegally. In addition to this problem of uncertainty, most U.S. embassies take months or even over a year to process these waivers.

New Policy: On January 2, 2013, the Department of Homeland Security announced the final rules for the Provisional Waiver process. Under the new policy, the spouses and children of U.S. citizens (not of permanent residents) would be permitted to apply for the waiver of the 3/10 year bar and receive a decision prior to leaving the U.S. Although the immigrant would still be required to depart the U.S. for their immigrant visa, by granting a provisional waiver to those who are eligible, the new rule would take away much of the uncertainty of returning to the U.S. and also reduce the lengthy time of separation among the family. It is important to note that this procedure would not lax the eligibility requirements for the waiver.

Here are some helpful Q & A’s from the USCIS’ publication which may be helpful.

  • How do I know if I am eligible for a provisional unlawful presence waiver?

You may be eligible for a provisional unlawful presence waiver if:

  1. You are physically present in the United States;
  2. You are at least 17 years of age at the time of filing;
  3. You are the beneficiary of an approved immigrant visa petition classifying you as the immediate relative of a U.S. citizen;
  4. You have an immigrant visa case pending with the U.S. Department of State (DOS), for which you have already paid the immigrant visa processing fee; and
  5. You believe you are, or will be at the time of the immigrant visa interview, inadmissible based on having accrued a certain period of unlawful presence in the United States.
  6. You meet all other requirements of the provisional unlawful presence waiver as listed in the regulations, the Form I-601A and its instructions.
  • How do I know if I am not eligible for a provisional unlawful presence waiver?

You are not eligible for a provisional unlawful presence waiver and your application will be rejected or denied if:

  1. You do not meet one or more of the requirements listed above;
  2. You have a pending Form I-485, Application to Register Permanent Residence or Adjust Status, with USCIS;
  3. You are in removal proceedings unless your removal proceedings are administratively closed and have not been re-calendared as of the date of filing of the I-601A;
  4. You have been ordered removed, excluded, or deported from the United States;
  5. You are subject to reinstatement of a prior removal order;
  6. DOS acted to schedule your immigrant visa interview prior to January 3, 2013, even if you failed to appear or you or DOS cancelled or rescheduled the interview on or after January 3, 2013.
  7. You do not establish that the refusal of your admission to the United States would result in extreme hardship to your U.S. citizen spouse or parent, or that your application should be approved as a matter of discretion
  8. USCIS has reason to believe that DOS may find you inadmissible at the time of your immigrant visa interview for grounds other than unlawful presence.
  • How do I apply for the provisional unlawful presence waiver if I am in removal proceedings?

Only certain individuals in removal proceedings are eligible to apply for a provisional unlawful presence waiver. Individuals who are immediate relatives of U.S. citizens may apply for a provisional unlawful presence waiver while in removal proceedings, if the removal proceedings:

  • Are administratively closed; and
  • Have not been re-calendared as of the date of filing the I-601A.

You still must meet all the requirements for the provisional unlawful presence waiver, including the requirement that you have an immigrant visa case pending with DOS and have already paid the immigrant visa processing fee. Like individuals who are not in removal proceedings, you should also notify DOS of your intention to file a provisional unlawful presence waiver.

Although you are in removal proceedings, the application for a provisional unlawful presence waiver is filed with USCIS. You should inform the Immigration Judge and the local U.S. Immigration and Customs Enforcement (ICE) counsel that you have applied for a provisional unlawful presence waiver. Promptly notifying the immigration court and ICE counsel will help with the process to have the removal proceedings terminated or dismissed before you depart for your immigrant visa interview.

NOTE: Your removal proceedings should be terminated or dismissed before you depart the United States to avoid delays in your immigrant visa processing and to avoid the risk that you may be found inadmissible on other grounds.

  • What should I do once my provisional unlawful presence waiver is approved?

After your provisional unlawful presence waiver is approved, you will need to depart the United States and attend your immigrant visa interview at the designated U.S. Embassy or consulate abroad.

If you fail to depart and attend your immigrant visa interview, the provisional unlawful presence waiver will not take effect and the approval may no longer be valid.

  • If USCIS denies my request for a provisional unlawful presence waiver, can I file an appeal or a motion to reopen or reconsider?

No. If USCIS denies your request for a provisional unlawful presence waiver, you cannot file an appeal or a motion to reopen or reconsider the denial. USCIS reserves the right to reopen and reconsider, on its own motion, an approval or a denial of a provisional unlawful presence waiver at any time. --- Important note from NeJame Law: Anyone considering departing the U.S. should first consult with an experienced immigration attorney.

Shahzad Ahmed, Esq. Partner Senior Immigration Attorney

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