Immigrating to America is a dream for many, especially those who have family already living in the country. Joining your loved ones may be at the top of your wish list. However, it’s no secret that immigration procedures can be long and complicated. If you’ve ever felt tempted to test the system—to try to get away with overstaying a temporary visa, for example, the provisional unlawful presence waiver could be the key to getting your immigration journey back on the straight and narrow.

What is a provisional unlawful presence waiver?

Most non-citizens enter the U.S. on visas, which include a set date by which they must leave the country. If you enter the country on a visa and stay beyond that end date or, alternatively, enter the country illegally, your “unlawful presence” clock begins. If you accrue 180 days of unlawful presence, you will be barred from the United States for three years. If you accrue one year of unlawful presence, you will not be able to enter the country for ten years. This means you will not be eligible for a visa or green card during this time without a provisional waiver, which you may or may not be eligible for.

A provisional unlawful presence waiver, once approved, forgives the bar, allowing you to re-enter the country after returning to your country of origin for an immigrant visa. Some people are nervous about applying for an unlawful presence waiver because it will require them to leave the country, and they are afraid they will not be able to return. However, as of 2013, you can apply for the waiver on the grounds of unlawful presence alone and wait to see if the state approves it before leaving the country. While it’s true there are risks, you alone can judge whether the long-term benefits make applying worth it in the end.

Are you eligible?

  • You must be at least 17 years of age
  • You must be living in the United States
  • You must be the “immediate relative” of a U.S. citizen (meaning a spouse, parent, or unmarried child under the age of 21)
  • You must have an approved I-130 petition filed by that immediate relative
  • You must have an immigrant visa case pending with the Department of State and have paid the $230 fee
  • You must demonstrate that your immediate relative (the U.S.) would suffer extreme hardship without you
  • You must prove you are not subject to any other grounds of inadmissibility

What else do you need to know?

Although the main factors are listed above, there are other considerations in granting or denying an application, including your own ties to the United States. Also, there is a filing fee of $670 for the provisional unlawful presence waiver.