The regulations state that if someone with an approved I-130 petition has been previously scheduled for an immigration interview prior to January 3, 2013, then the person is not eligible for the provisional hardship waiver.
This particular rule badly affects individuals who cancelled or missed appointments last year in anticipation of the new waiver process. It also affects individuals who cancelled or missed appointments prior to last year.
Under regulations, if the Department of State terminates an I-130 petition, then the petitioner can file a new I-130 petition that re-qualifies the beneficiary for the provisional hardship waiver.
There are two ways to terminate an I-130:
1) The Dept. of State terminates if the petitioner & beneficiary do not make contact with the National Visa Center for two years after the approved I-130 reaches the NVC.
2) The petitioner sends a letter to USCIS or the NVC withdrawing the I-130 petition.
When the government published the new regulations in January 2013, the government specifically referred to the first termination process but not the second, leaving everyone wondering. We now have an answer.
At least one consulate (Ciudad Juarez in Mexico) is terminating I-130 petitions on written request from the petitioner or the beneficiary. Do note, that the consulate may stop honoring the requests, but for now, it is a way to re-qualify.
1) Send a fax to the consulate requesting termination of the I-130. The fax must include the case number, the petitioner's name and date of birth and the beneficiary's name and date of birth. The fax must be signed either by the petitioner or by the beneficiary.
2) File a new I-130 petition. Where the I-130 asks whether the petitioner has filed a previous I-130, indicate "Yes" and provide the filing date, case number and note the petition was terminated. Submit a copy of the fax requesting that termination with the new I-130 application.
Obviously this delays the case for about 6 months while the new I-130 petition is processed and the government filing fees have to be paid again (both the $420 for the I-130 and the $318 for the NVC), but for most people, those are costs they are willing to bear in return for eligibility to file the provisional hardship waiver.
Once the I-130 petition is approved, then you can begin work on the hardship waiver application. Do consider using an attorney for the hardship waiver as this can improve your chances of approval.