If you are applying to become a permanent resident but have to return to your home country for a visa interview and need a waiver, the traditional rule was that you had to go back to your home country, attend the visa interview, and then apply for the waiver. While your waiver was being reviewed, you had to stay in your home country, separated from your family in the U.S. for an extended period of time.
However, starting March 4, if you meet certain requirements, you can apply for the waiver before the visa interview and while staying in the U.S. with your family. This is called a “Provisional Waiver (aka Stateside Waiver).” Once your provisional waiver is approved, you still have to go back to your home country for a visa interview; but the length of time you are separated from your family will be significantly shorter compared to the traditional waiver process.
In order to apply for a provisional waiver, you must meet ALL of the following:
- You are 17 or older.
- You are the spouse, parent, or child (under 21 and unmarried) of a U.S. citizen.
- You are currently in the U.S.
- You have an approved I-130 (Petition for Alien Relative) or I-360 (Petition for Amerasian, Widow/er, or Special Immigrant).
- Based on that approved I-130 or I-360, you have a pending visa case with DOS (Department of State), and you paid the visa processing fee.
- Before 01-03-2013, DOS did not mail out any interview notice based on that approved I-130 or I-360 (look at the date of the interview notice, not the interview date). If DOS mailed out any such interview notice before 01-03-2013, you are not eligible for a provisional waiver, even if the interview was later canceled or rescheduled.
- Your only inadmissibility ground is your unlawful presence in the U.S.
- You can show that denial of your visa would cause extreme hardship to your U.S. citizen spouse or parent.
- You do not have a final removal order, and you are not currently in removal proceeding. However, at the time you are applying for a provisional waiver, if your removal proceeding is administratively closed and has not been put back on EOIR’s (Executive Office for Immigration Review) calendar to continue, then you can apply for a provisional waiver.
- The fee is $670 (if you are 79 or older, it is $585). This fee cannot be waived.
If my Provisional Waiver is approved, do I have any other benefits?
No. Having a pending or approved provisional waiver:
- Does not give you any legal status.
- Does not make you eligible for a work permit or travel permit.
- Does not protect you from being removed from the U.S.
What if my Provisional Waiver is denied?
- Can I appeal?:
No. Once your provisional waiver is denied, you cannot file an appeal or a motion to reopen/reconsider.
However, you can file a new provisional waiver application, or you can apply for a traditional waiver under the traditional process (i.e., return to your home country, attend a visa interview, and then apply for a waiver).
- Will USCIS put me in removal proceedings?:
USCIS will not place you in removal proceedings just because your provisional waiver has been denied. However, if you have other issues (e.g., criminal history, being a threat to public safety, etc.), USCIS may do so.
Can my approved Provisional Waiver be revoked later?
An approved provisional waiver will be automatically revoked, if:
- DOS ends your immigrant visa process;
- USCIS revokes the approved I-130 or I-360;
- You have any inadmissibility ground other than unlawful presence; or
- After applying for a provisional wavier, you reenter or attempt to reenter the U.S. illegally.
What if I apply for a provisional waiver, and then removal proceedings began or resumed, and then my provisional waiver gets approved?
- You have to immediately contact ICE and EOIR, in order to have your removal proceedings terminated or dismissed. You should not leave the U.S. until your removal proceedings are officially terminated or dismissed.