Provisional Waiver Process
There is a process for the spouses of United States citizens who wish to become legal permanent residents (LPR) but have been in the U.S. without valid immigration status. If a foreign national has been in the United States without valid immigration status for more than 180 days it can prevent them from becoming a LPR no matter what their relationship is to a U.S. citizen or LPR. In order to overcome this, the foreign national must file a waiver that demonstrates the extreme hardship it will place on the U.S. citizen if the relative cannot become a LPR. In the past, it required that the foreign national leave the United States and receive a determination of inadmissibility from a U.S. embassy or consulate abroad before applying for the waiver.
The current provisional waiver program allows the foreign national to file the waiver and remain in the United States. The goal is minimize the amount of time families are separated during the immigration process. If the waiver is approved, the foreign national will receive an appointment at the U.S. consulate or embassy, most likely, in their country of citizenship. If the foreign national is not determined to be inadmissible to the United States for any other reason, the consulate will approve an immediate visa for the foreign national to return to the United States and obtain LPR status.
The provisional waiver process is only available to the spouses of U.S. citizens who already have an approved I-130, have paid all visa fees and have contacted the National Visa Center with regards to filing an I-601A.