After a long wait, what a great way to start 2013!  Tomorrow, the Department of Homeland Security will publish the final rule about provisional (stateside) waivers, a new procedure that will begin on March 4, 2013 – and a change to what is often known as “la ley del castigo” – the law of punishment.

What does this mean?

We blogged about this rule when the rule was first published in April 2012 and even before than in January when it was first announced.  Basically, it allows for foreign nationals to get their green cards without having to wait a long time outside the US and be separated from their US citizen families.  They still have to leave the US to pick up their visas (once approved), but they will know before they leave whether they will be allowed back in.  That process of knowing before you leave is called a “provisional waiver” and it’s filed in the United States on a new immigration form which will be Form I-601A.  While it’s pending, the applicant gets to stay in the US and does not have to wait outside the United States.

The final rule is definitely good news.

Who Can Apply?

• You have to be legally married
• Your spouse must be a US citizen (not just a green card holder)
• You can’t have any other problem with your immigration besides 1) entering the US illegally (EWI or “entry without inspection”) or 2) being out of status (or having no status) for more than 6 months. 
• You have to be able to show that if you don’t get a green card, it will be extremely difficult for your family.  (This is the “extreme hardship” standard – which is not the same as “exceptional and extremely unusual hardship” which is the standard for another type of case, but can be difficult to prove anyway)
• If you are in removal proceedings, you have to get your proceedings administratively closed before filing for the provisional waiver on Form I-601A.

What Is The Process?

• You have to already have an approved I-130 (petition for alien relative).  You CANNOT file your I-130 together with the I-601A provisional waiver.
• If you’re not in removal proceedings, the I-601A is filed with USCIS.  Do NOT file Form I-485 (adjustment of status): it will be denied and you’ll be out over $1000 in filing fees.
• You will have to collect a lot of evidence to prove your eligibility for the provisional waiver.  You should not attempt to file a provisional waiver case without the assistance of an experienced immigration lawyer.
• You also have to file your immigrant visa forms (DS-230 forms) with the National Visa Center (NVC) and notify them that you intend to apply for a provisional waiver on Form I-601A.
• If your provisional waiver is approved, you will have to leave the United States and go back to your home country with the approved waiver for your immigrant visa appointment.
• If all goes well at the interview, you will get your immigrant visa, re-enter the United States, and your green card will be mailed to you a few weeks later.
• If you are in removal proceedings, you have to get your proceedings administratively closed before filing the I-601A, and then get them terminated before you leave the United States for your visa interview at your home consulate.

The greatest things about the final rule are:

• People who are in removal (deportation) proceedings can benefit from this new law.  Under the proposed rule back in April, they couldn’t.
• If the provisional waiver is denied, you get a chance to file again.  Under the proposed rule back in April, you only got one shot.  

The worst things about the final rule are:

• If you have a weak case that is likely to be denied, there is no guarantee that you won’t end up in removal proceedings (if you aren’t already).
• If you have any other immigration problem besides being in the US illegally and/or entering illegally (EWI) then this provisional waiver will not help you. 
• While you can file another I-601A if your first one was denied, you can’t file an appeal.
• If you have an order of deportation, you cannot file for a provisional waiver.

It’s complicated – but it might help you.  There’s a lot more to this rule that we’re still working on so that our readers can understand it.  Whether you qualify is a complicated question.  If you do qualify, how to prove it is an even more complicated question.  But if you need to know now –  fill out the form below and we will contact you within 1 business day with some advice: