Green-card seekers who are not eligible to adjust status in the U.S. and are 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. Who exactly is eligible to use this option is discussed in Am I Eligible for Provisional Waiver of Three- or Ten-Year Time Bar?. Read that first, before continuing with this article!
The benefits of the provisional waiver procedure are potentially huge especially significant for people who entered the U.S. illegally, stayed for six months or more, and are, on paper, eligible for a green card, but unable to get it via the U.S.-based process called “adjustment of status."
In the past, 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 is granted (which by itself could take months or years). If the waiver was denied, they were looking at spending the next three or ten years outside the U.S., possibly separated from family.
But the provisional waiver offers the possibility of getting an answer on the waiver request before leaving the United States.
The first step in the immigration process for everyone is for the U.S. citizen or lawful permanent resident petitioner (sponsor) to mail a visa petition to USCIS on Form I-130. (See articles on Family Sponsors Petitioning for Immigrants for instructions on filling out and submitting Form I-130.)
(The provisional waiver procedure 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 the provisional waiver 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 (on USCIS Form I-601A, available as a free download from the agency's website). 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. Contact it via email at [email protected].
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 Department of State (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.
The fee for Form I-601A is $630 as of October, 2020, plus $85 for biometrics. USCIS had intended that the fee go up to $960 by now (with the biometrics fee dropped to $30), but federal court injunctions have put these changes on hold until further notice.
You can pay by check, money order, or by filling out and submitting USCIS Form G-1450, Authorization for Credit Card Transactions.
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.
The form for requesting a provisional stateside waiver is USCIS Form I-601A. It is available in the Forms section of the USCIS website. See Filling Out Form I-601A to Request a Provisional Waiver for tips on answering what this form will ask of you.
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:
If you’re wondering what extreme hardship is, exactly, you might find the following DHS statement interesting, found within the original 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.” See What Are the Chances That My I-601 Waiver Will Be Granted? for tips on proving extreme hardship.
USCIS does not call 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 reserves the right to do so.
USCIS will not necessarily deny a stateside waiver application that’s missing some materials. It sends 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.
Although you cannot appeal USCIS’s denial of your provisional 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 its own announcement, “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.”