The provisional waiver also known as the stateside waiver is a waiver authorized by law to waive the 3- or 10-year bar from seeking an immigration benefit resulting from a noncitizen living in the United States without status for a certain period of time. The 3-year bar applies when the noncitizen lives in the United Sates for more than 6 months but less than one year, while the 10-year bar applies when the noncitizen resides in the United States for more than one year. Each bar activates after departure from the United States. You can read more about unlawful presence in the United States here.
Immigration law allows for a waiver of the 3- or 10-year bar if the noncitizen seeking a green card has a qualifying relative who is a parent or spouse who is either a U.S. Citizen or Legal Permanent Resident who will suffer what is called extreme hardship if the noncitizen green card beneficiary is not allowed to return to the United States. The stateside waver allows for the green card beneficiary to apply for the wavier while present in the United States. The theory behind the stateside waiver process is to avoid the harm to U.S. Citizens or legal permanent residents caused by separation with the green card beneficiary caused by having to wait a prolonged period of time outside of the United States for adjudication of the waiver. You can read more about the stateside waiver here.
One of the limitations of the stateside waiver, is that the green card beneficiary must wait in the United States throughout the time it will take for the waiver to be processed and potentially approved. Therefore, if the green card beneficiary departs from the United States at any point prior to approval of the waiver, the waiver will be denied requiring the green card beneficiary to start a new waiver application process from outside the United States. So, if the green card beneficiary had invested several months in waiting for the stateside waiver, departing the United States will result in the denial of the waiver and requiring the green card beneficiary to process through the consular interview process and then apply for a new wavier after the interview from abroad. Since there are currently significant delays for the scheduling of the consular interview, the wait abroad can hit many months to well over a year.
Review personal circumstances to consider filing for the waiver from outside the United States
The green card beneficiary before applying for the stateside waiver should consider whether he may be required to return to his country within the next 2-3 years which is the current processing times for the stateside waiver. If such travel is likely, then the green card beneficiary, may want to consider holding off in applying for the waiver until departure. However, as indicated, the problem with departing before the stateside waiver is approved is that the green card beneficiary must wait for the scheduling of the interview which may take months to well over the year and then wait for the processing of the waiver, which may take another year. Sometimes a difficult choice of either not traveling before the stateside waiver is approved or preparing for a prolonged period of time outside the United States are the only options available to consider.
Although the choice between applying for the stateside waiver or the waiver from abroad is a personal decision dependent on personal circumstances, an experienced immigration attorney can help in making such a difficult decision, by advising of the pros and cons of both options and to also explore other potential options to applying for the green card without departing the United States.
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