Planning to Apply for Provisional Waiver? Make Sure to Correctly Fill Out Form I-130

Provisional waiver applicants are, by their nature, planning to get green cards via a U.S. consulate -- and their Form I-130 should say so.

According to immigration authorities, some U.S. citizens who are starting the process of petitioning for (sponsoring) an immediate relative for U.S. immigration are, in cases where that immigrant will also need a “provisional waiver” of unlawful presence, making what amounts to a mistake when filling out the Form I-130 visa petition.

On Question 22 of the form, they are saying that the immigrant will “adjust status” in the U.S. instead of going to a U.S. consulate in their home country to complete the interview and receive approval for their green card.

It’s not a surprising error. The very reason someone would need to apply for a provisional waiver of unlawful presence in conjunction with their green card application is that they have been, and probably still are, living in the U.S. without lawful immigration status. And if they’re living in the U.S., they would certainly prefer saving themselves a trip and completing the green card application process within the U.S., by adjusting status.

But there’s a huge problem with this. Only a few types of applicants are eligible to adjust status in the U.S., such as immediate relatives of U.S. citizens who entered the U.S. legally. These folks should go ahead and apply for adjustment – they don’t need to worry about unlawful presence or a provisional waiver application, because they won’t need to leave the U.S. and thus risk being barred from return (based on their unlawful U.S. presence).

By contrast, almost everyone who entered the U.S. illegally is ineligible to use the adjustment of status procedure, even though they may still be ultimately eligible for a green card. They’re the very people for whom the provisional waiver process was created, as described in Nolo’s article, “Who Is Eligible for Provisional Waiver of Three- or Ten-Year Time Bar.” In brief, the provisional waiver allows them to get the green light on requesting legal forgiveness of their unlawful presence before they leave the U.S., thus removing the risk of being barred from return for three or ten years on the basis of that unlawful presence.

So, back to filling out Form I-130. What the U.S. petitioner in a provisional waiver case is supposed to do on Question 22 is to say that the immigrant will apply for the immigrant visa and green card at a U.S. consulate in his or her home country. By doing that, it will trigger U.S. Citizenship and Immigration Services (USCIS) to transfer the person’s file, after the Form I-130 has been approved, to the National Visa Center (NVC) for further action and then transfer to the appropriate U.S. consulate. (And in the meantime, the applicant will to use this approval notice as part of the I-601A provisional waiver application.)

If the petitioner fails to answer Question 22 this way, and instead states on Form I-130 that the immigrant will apply for adjustment of status in the United States, USCIS will keep the file around after approving the I-130, thinking that, any day now, the immigrant will get around to mailing in the adjustment of status application. The immigrant will then need to file a Form I-824 with USCIS in order to have the file transferred to the U.S. consulate for further action. This can take several months, so it’s worth getting right the first time.