As of March 4, 2013, green-card seekers who were not eligible to adjust status in the U.S. and were afraid to leave in order to use the alternate, consular processing procedure because their past unlawful presence might block their return, have the option to file a “provisional waiver” (or "stateside waiver") application before leaving.

The benefits of this new procedure are potentially huge – especially significant for people who entered the U.S. illegally, stayed for six months or more, and are the spouse, parent, or child of a U.S. citizen. Such people were, on paper, eligible for a green card, but unable to get it via the U.S.-based process called “adjustment of status.”

That left them only one procedural option in applying for the green card: leave the U.S. to attend their consular interview for an immigrant visa, await the consular officer’s discovery that they were inadmissible based on unlawful presence, apply to U.S. Citizenship and Immigration Services (USCIS) for a waiver of this ground of inadmissibility, and then hope the waiver was granted. If it wasn’t, they were looking at spending the next three or ten years outside the U.S., possibly separated from their family. But the provisional waiver offers the possibility of getting an answer on the waiver request before leaving the United States.

Timing of Filing Your Provisional Stateside Waiver Application
The first step in the immigration process for everyone is for the U.S. citizen petitioner (sponsor) to mail a visa petition to USCIS on Form I-130.

(The new procedures also allows immediate relatives of U.S. citizens who are self-petitioning under VAWA using Form I-360 to apply for a provisional waiver -- but in most cases, the law allows them to adjust status and get their green card without leaving the U.S., so they don't really need this new procedure.)

If you haven't already submitted that form, be sure to indicate in Question 22 to Form I-130 that the immigrant will apply for an immigrant visa abroad at a U.S. consulate abroad rather than adjusting status in the U.S.). (If the immigrant were allowed to adjust status in the U.S., you wouldn't have to bother with the provisional waiver in the first place.) By filling Question 22 out this way, USCIS will, upon approving the I-130, transfer the file to the National Visa Center (NVC) for further action and transfer to the consulate. If you say on the I-130 that the immigrant will apply for adjustment of status in the U.S., you will have to take extra steps to have the file transferred to the NVC. This includes filing a Form I-824 and paying a filing fee, then waiting many months for action on your request.

Only after your I-130 has been approved can you file your Provisional Waiver Application. You cannot submit the visa petition at the same time as (“concurrently” with) the waiver application.

In addition, you will need to notify the National Visa Center (NVC) of your plans, after paying your immigrant visa processing fee. This is the agency that handles your case after USCIS approves the I-130.

By doing this, the NVC will make sure to schedule your immigrant visa interview only after USCIS has made a decision on your provisional stateside waiver application. Failing to notify NVC could result in your case being scheduled for interview at a U.S. embassy or consulate abroad before you are ready. If NVC has already scheduled your visa appointment before you have a chance to contact it, you must notify the consulate at which your appointment is scheduled to let it know you’ll be applying for the provisional waiver and to ask that your interview be postponed until you get back in touch to say that USCIS has made a decision on your application.

The DOS has estimated that it will schedule applicants for their immigrant visa interview within about two or three months of USCIS approving the stateside waiver request and the applicant filing all the necessary visa forms and documents. Applicants can remain in the U.S. during this time period.

Fee for Provisional Waiver Application
DHS has set the fee for Form I-601A at $585 (the same as that for adjudicating a regular Application for Waiver of Ground of Inadmissibility on Form I-601). In addition, applicants under the age of 79 will need to pay the biometrics (fingerprinting) fee, $85 as of early 2013. No fee waiver requests will be considered.

The biometrics requirement means you will be fingerprinted, and your name and prints run through an FBI database to check for a criminal and immigration enforcement record. If there’s a chance this will turn up negative information, consult a lawyer before going any further. There’s no indication that DHS will use this as a way to find and arrest undocumented immigrants, however – they point out that their current enforcement priorities are geared toward removing people without close family members, or are national security risks or public safety threats.

What to File for a Provisional Stateside Waiver
The form for requesting a provisional stateside waiver is USCIS Form I-601A. It is available in the Forms section of the USCIS website.
In addition to the form and fee, you will need to provide proof of your eligibility, and documents showing that you merit the waiver as a matter of discretion. USCIS requires that you provide the following:

• copy of the USCIS approval notice of your Form I-130 visa petition
• EOIR Administrative Closure order (if applicable)
• proof of the U.S. citizen status of your qualifying relative IF it is not the same person who filed the immigrant visa petition for you
• proof of your relationship to your qualifying relative IF it is not the same person who filed the immigrant visa petition for you
• documents showing that your qualifying relatives would suffer extreme hardship if you were denied the U.S. visa
• receipt showing that you have paid the DOS-required immigrant visa processing fee.
•  

If you’re wondering what extreme hardship is, exactly, you might find the following DHS statement interesting, found within the provisional waiver announcement: “extreme hardship is not a definable term and elements to establish extreme hardship are dependent upon the facts and circumstances of each case.”

USCIS does not anticipate calling most applicants in for an interview on their stateside waiver request (since it would have to transfer the file from its National Benefits Center to a local office for this), but it’s a possibility.

If Your Application Is Incomplete
USCIS will not necessarily deny a stateside waiver application that’s missing some materials. It plans to send out Requests for Evidence (RFEs) for applications that lack critical information related to extreme hardship, whether the applicant merits a favorable exercise of discretion, or on some other topic that will aid in the decision-making.

But don’t use this as an excuse to submit an application that is anything less than your best, most complete effort the first time around. USCIS can also simply deny an application outright. A lawyer can help you prepare a complete and convincing application.

Also, if you don’t pay the correct fee, sign your application, or provide certain key bits of eligibility information, USCIS will return your entire application to you and you will have to refile.

Options After Denial of Provisional Waiver
Although you cannot appeal USCIS’s denial of your stateside waiver request, you have a couple of options, as described below.

You can file a new I-601A and waiver application with USCIS, during the time that your case is still pending with the DOS. Of course, there’s little point in doing this if you don’t provide new or extra information to overcome USCIS’s original reason for the denial. If you aren’t already using an attorney, this would definitely be the time to consult with one.

Another option is to go ahead with your consular interview, and then file the traditional waiver request on Form I-601 (“Application for Waiver of Grounds of Inadmissibility”). This, of course, risks your being unable to return to the U.S. for three or ten years if your waiver application is denied.

Also, you shouldn’t worry that DHS agents will come knocking on your door. According to the notice, “DHS also does not envision initiating removal proceedings against aliens whose Form I-601As are denied or withdrawn prior to final adjudication” – unless, that is, the person “has a criminal history, has committed fraud, or otherwise poses a threat to national security or public safety.”