USCIS to Issue Provisional Waiver Rule This Year

The final rule for provisional waivers of unlawful presence will be released later this year, according to the USCIS in a Question and Answer guidance that accompanied its notice of proposed rulemaking dated March 30, 2012. The agency is requesting the public to submit comments on the proposed rule.

The rule would allow certain immediate relatives of U.S. citizens to be granted a provisional waiver of unlawful presence while in the United States.

Aliens who have been unlawfully present for more than 180 days but less than 1 year are subject to the 3-year bar to reentry in the U.S., while those unlawfully present for 1 year or more are subject to the 10-year bar. Before they can become lawful permanent residents, these aliens need to obtain a waiver of their unlawful presence.

Current procedures require the unlawful presence waiver application to be filed outside of the United States. However, the act of departing the U.S. triggers the bar.

Back in January 2012, the USCIS announced its intent to allow stateside processing in order to alleviate the hardships faced by U.S. citizens and their families due to the separation caused by the waiver process.

Many individuals who would otherwise be eligible for a waiver are discouraged by the risks, costs and hardships of applying for the waiver abroad, so instead of applying for a green card, they opt to remain undocumented.

As documented recently by the American Immigration Lawyers Association, extreme dangers in their home countries have claimed the lives of several individuals waiting for their waivers. Despite these risks, in some cases the U.S. citizen spouse chose to join the waiver applicant instead of enduring the separation, which could take years.

The proposed provisional waiver covers unlawful presence and no other ground of inadmissibility. Only immediate relatives who can demonstrate extreme hardship to a U.S. citizen spouse or parent and who warrant a favorable exercise of discretion are eligible for this waiver.

The application would be made on a new form, Form I-601A Application for Provisional Unlawful Presence Waiver. There will also be a biometrics fee of $85 in addition to the $585 filing fee for the I-601.

Individuals who are not eligible for the provisional waiver would still be able to apply under the current procedure, i.e. depart the U.S. and apply for the I-601 waiver abroad.

Note that the waiver is provisional in that it would not take effect until after the applicant departs the U.S., appears at his visa interview, and is found by the consular officer as otherwise admissible to the U.S. The time that the individual would have to spend abroad is significantly less compared to that under the current procedure.

The provisional waiver does not guarantee visa issuance or admission to the United States. It is important to remember that only unlawful presence is waived under the proposed rule.

A filed or approved provisional waiver application also does not grant any interim benefits such as employment authorization or advance parole. Neither does it give lawful status, stop the accrual of unlawful presence or provide protection from removal.

If provisional unlawful presence waiver is denied, the applicant may not appeal or file a motion to reopen or reconsider the denial, although he may still apply for a waiver through the current I-601 waiver process.

Since the rule is not yet in effect, individuals who are already scheduled for immigrant visa interviews need to keep their appointments because failure to attend may result in termination of their immigrant visa registration.

Meanwhile, those who believe that they can qualify for the provisional waiver should seek legal advice at the soonest to find out, among others, if other inadmissibility grounds apply to them and whether they can meet the criteria for extreme hardship. As in other types of waivers, sufficient documentation is critical to a successful unlawful presence waiver application.