What is the new rule and how can it help my family?
Under the current law, many immigrants who entered the country illegally or overstayed their visas cannot apply for permanent residence (a "green card") in the US, and instead must finish the process abroad. Unfortunately, just leaving the country--even to go pick up a visa sponsored by a US citizen or permanent resident family member--makes the intending immigrant subject to a penalty (the "three and ten year bars"). For some, but not all, the penalty can be waived.
Before this new rule, after applying at the consulate, immigrants would wait--weeks, months or even years--for a decision on whether they could return to their life and family in the US. During that time, the immigrant was stranded outside the US, with no legal way to return. Many families endured the emotional strain, financial hardship and dangerous conditions. Others simply would not take the risk.
The new rule means some will leave the US, knowing in advance that their case will probably be approved.
Who can apply under the new rule?
Only applicants who are the immediate relative of a US citizen (spouses, parents and certain children) can apply at this time, though the rule may later be expanded to other relatives. The applicant must be in the United States, and not already have been scheduled for an interview at a US consulate. Also, the provisional waiver is only available if the sole issue holding up the visa is prior unlawful presence.
People who are in immigration court or who have an order of removal or voluntary departure may not qualify without special permission from the government and a court order resolving their case.
Applicants who have criminal issues or other immigration violations cannot use the provisional procedures.
Each applicant still must show that keeping them outside the US would be an extreme hardship to their US citizen or permanent resident spouse or parent to be granted the wavier.
What does it mean that the waiver is "provisional?"
Even if waiver is granted, the approval is "provisional." As a practical matter, this means that the government has reviewed the case and believes that the waiver should be granted, but there is no a guarantee that a case will be successful if facts change or new information comes to light.
For example, if an applicant had previous immigration violations that USCIS didn't know about, or criminal history that wasn't disclosed or discovered after a background check, the provisional waiver will not be sufficient for a visa to be issued.
If new issues arise, and the applicant is still eligible for a waiver, they will be able to apply through the existing process while they wait abroad.
When can I apply?
The new rule goes into effect on March 4, 2013. No filings will be accepted before that date.
You can only apply for a provisional waiver after an I-130 (or in some cases, an I-360) immigrant petition has been approved. If you haven't filed (or gotten a decision on) a petition, you will have to file a petition or wait for an answer on a pending petition. There is no concurrent filing.
What else do I need to know about provisional waivers?
A provisional waiver is not a legal status, and does not provide work authorization or a drivers license. Even an approved applicant is not protected from the risk of deportation or other consequences of being in the country illegally.
If you apply for a provisional waiver and are denied, there is no appeal, but you can refile (and pay a new fee) if you have more or better evidence to prove your case.
Not everyone can be sponsored or qualify for a waiver. Consult an experienced immigration lawyer BEFORE starting the process to make sure that you qualify. The family sponsorship process can take months, even years and be costly. Best to know your options, before you invest time and money.
A thorough legal consultation will look at all aspects of your immigration history to find the best solution for your family, not just evaluate waiver eligibility. Always work with an attorney--never get legal advice from an unregulated consultant or notario.
Additional resources provided by the author
Always turn to reputable sources for immigration advice and information--finding an AILA lawyer is a good place to start. Members listed on the referral site (see resources below) have met regular legal education and malpractice insurance requirements, and have been AILA members for at least two years. Additional resources below.