In March 2013, President Obama issued a directive for a program called the “provisional unlawful presence waiver”. This waiver is for noncitizens who are spouses, parents, or children of U.S. citizens who are not eligible to adjust their status to that of a permanent resident in the U.S. because they entered the U.S. without permission. This program allows for these individuals to apply for a waiver of their unlawful presence if the noncitizen has a “qualifying relative who would suffer extreme hardship if the noncitizen is denied the waiver. The “qualifying relative” for the waiver can only be a U.S. citizen spouse or parent.
The waiver does not waive any other ground of inadmissibility except for the 3 or 10 year bars for unlawful presence. For example, if a noncitizen has exited and reentered the U.S. multiple times over the period of several years without permission, he or she may not be eligible for the waiver. Some criminal convictions could also prevent eligibility for this waiver.
If the waiver is granted, the noncitizen will have to apply for his/her immigrant visa by departing the U.S. and applying for the visa at a U.S. Consulate or Embassy. Therefore, it is absolutely essential that a noncitizen discuss his or her case with an experienced immigration attorney before applying for this waiver.