Law Office of Irwin M. Avelino

Provisional Unlawful Presence Waivers for Certain Immediate Relatives

Provisional_stateside_waiver_Immigration_Attorney_Lawyer_Avelino_Los_AngelesOn January 3, 2013, U.S. Citizenship and Immigration Services (USCIS) published a final rule in the Federal Register, “Provisional Unlawful Presence Waivers of Inadmissibility for Certain Immediate Relatives,” with an effective date of March 4, 2013.  This rule allows certain immediate relatives of U.S. citizens (spouses, parents of adult U.S. citizens, and minor children) who are physically present in the United States to request a provisional waiver of the unlawful presence bars to admissibility under INA §212(a)(9)(B)(i) prior to traveling abroad for consular processing of their immigrant visa applications.

How Is The Rule Beneficial?

Under current law, a significant number of immediate relatives of U.S. citizens who are present in the United States are not eligible to apply for lawful permanent resident (LPR) status in the U.S. because they entered the country unlawfully. Instead, such aliens must depart the U.S. and request waivers of inadmissibility due to their prior unlawful presence during the overseas immigrant visa process, which often results in a lengthy separation from their U.S. citizen relative. Because of the heavy toll of separation and the uncertainty in the process, many immediate relatives of U.S. citizens forego the process of applying for LPR status and remain in the shadows.

USCIS expects that this new process will significantly decrease the amount of time that U.S. citizens are separated from their family members and will ultimately encourage more immediate relatives to seek an immigrant visa who are otherwise reluctant to travel abroad for an unknown period of time.

The approval of an application for a provisional waiver prior to the immediate relative’s immigrant visa interview should, in most cases, allow the Department of State (DOS) consular officer to issue the immigrant visa without delay if there are no other grounds of inadmissibility and if the immediate relative is otherwise eligible for an immigrant visa.

Who Qualifies as an Immediate Relative?

For purposes of this rule, an immediate relative is the child or spouse of a U.S. citizen, or the parent of a U.S. citizen who is 21 years or older. This includes adult sons and daughters who remain classified as immediate relative “children” for immigration purposes under the Child Status Protection Act, and also includes qualified widow(er)s of U.S. citizens who self-petition on Form I-360. Though battered spouses and children of U.S. citizens are also included in the definition of immediate relative, they are generally eligible for adjustment of status in the United States, regardless of having entered without inspection or parole, and are unlikely to be affected by this rule.

Immediate relatives DO NOT include (1) adult (21 or older) sons and daughters of U.S. citizens; (2) children and spouses of lawful permanent residents; (3) brothers and sisters of U.S. citizens; or (4) any other family relationship. USCIS has said, however, that it will consider expanding the availability of the provisional waiver process to other categories of individuals after assessing its effectiveness.

What Criteria Must the Immediate Relative Meet to Qualify for a Provisional Waiver?

To qualify for a provisional unlawful presence waiver, the immediate relative must:

  • Be present in the United States at the time of filing the provisional waiver application and for biometrics collection;
  • Be inadmissible only under INA §212(a)(9)(B)(i) (unlawful presence) upon departure and at the time of the consular interview;
  • Qualify as an immediate relative under INA §201(b)(2)(A)(i);
  • Be the beneficiary of an approved I-130 immediate relative petition;
  • Have a case pending with DOS based on the approved I-130 immediate relative petition and have paid the immigrant visa processing fee;
  • Depart the United States to obtain an immigrant visa abroad; and
  • Demonstrate that the denial of a waiver of inadmissibility would result in extreme hardship to his or her U.S. citizen spouse or parent.

What Factors Will Disqualify an Immediate Relative from a Provisional Waiver?

Notwithstanding the eligibility criteria listed in 8 CFR §212.7(e)(3), a provisional unlawful presence waiver will not be granted if:

  • USCIS has “reason to believe” that the alien may be subject to inadmissibility grounds other than unlawful presence. For example, inadmissibility due to criminal activity; fraud or misrepresentation; or entry, or attempted entry, without inspection following a prior period of unlawful presence in the U.S. in excess of one year;
  • The alien is under the age of 17;
  • The alien does not have a case pending with DOS based on the approved I-130 immediate relative petition or has not paid the immigrant visa processing fee;
  • DOS “initially acted” to schedule the immigrant visa interview prior to January 3, 2013 for the approved immediate relative petition on which the provisional waiver is based, even if the interview was cancelled or rescheduled after January 3, 2013;
  • The alien is in removal proceedings, unless such proceedings have been administratively closed and not recalendared at the time of filing the provisional waiver application;
  • The alien is subject to a final order of removal, exclusion, or deportation, or is subject to reinstatement of a prior removal order under INA §241(a)(5); or
  • The alien has a pending application with USCIS for adjustment of status.

When Can I Start Submitting Applications for Provisional Unlawful Presence Waivers?

USCIS will begin accepting applications for provisional unlawful presence waivers (Form I-601A) on March 4, 2013. Please note that the applicant must already have an approved immediate relative I-130 or I-360 petition, must have a case pending with DOS, and must have paid the DOS immigrant visa processing fee before submitting the application. Concurrent filing of a visa petition and provisional waiver is not allowed.

Before applying for the I-601A, the applicant must notify the NVC of his or her intent to seek a provisional unlawful presence waiver. If the DOS visa fee has not yet been paid, notify the NVC of your client’s intent to apply for a provisional waiver immediately after the fee is paid. If NVC has already scheduled your client’s immigrant visa appointment, notify the immigrant visa processing post where the appointment has been scheduled before applying for the provisional waiver.

How Much Is the Filing Fee for a Provisional Unlawful Presence Waiver?

The filing fee for Form I-601A is $585, plus $85 for biometrics. USCIS will not, as a matter of discretion, grant fee waivers for the provisional waiver application or for biometrics. If the I- 601A is withdrawn prior to adjudication, the filing fee will not be refunded.

Form I-601A will be automatically rejected for failure to pay the correct filing fee ($585). If the correct filing fee is paid, but the biometrics fee is not, the applicant will be notified of the error and given an opportunity to correct the deficiency. USCIS will not, however, process or adjudicate applications until the biometrics fee is paid.

Under What Circumstances Will USCIS Reject an Application for a Provisional Waiver?

A provisional waiver application will be automatically rejected by USCIS and returned to the applicant/attorney with the fees if:

  • The applicant fails to pay the correct filing fee ($585, see above);
  • The applicant fails to sign the provisional waiver application;
  • The applicant fails to provide his or her family name, domestic address, and date of birth;
  • The applicant is under the age of 17;
  • The applicant does not include evidence of an approved petition that classifies the alien as an immediate relative of a U.S. citizen;
  • The applicant fails to include a copy of the fee receipt evidencing that the alien has paid the DOS immigrant visa processing fee;
  • The applicant has indicated on the provisional unlawful presence waiver application that DOS initially acted to schedule the immigrant visa interview prior to January 3, 2013.

What Should I Do if New Evidence of Hardship or Eligibility Arises After the Application Has Been Filed?

An individual with a pending I-601A may supplement the application with additional materials at any time prior to adjudication. In addition, a provisional waiver application may be withdrawn prior to adjudication, and may be refiled, as long as the underlying case is still pending with DOS. The applicant must notify DOS that he or she intends to file a new Form I-601A.

Will Provisional Unlawful Presence Waiver Applicants be Subject to an Interview?

Most provisional waiver applications will be adjudicated by the USCIS National Benefits Center(NBC), which does not conduct onsite interviews. To schedule an interview, the NBC will be required to transfer the file to the local office for scheduling which can take several months. To require this for every provisional waiver application would undermine the goals of the initiative, therefore, interviews will not be routinely required. However, USCIS has reserved its right to
schedule provisional waiver interviews on a case-by-case basis.

Will USCIS Issue a Request for Evidence or Notice of Intent to Deny Before Denying a Provisional Waiver?

USCIS will issue a Request for Evidence (RFE) in any case where it is missing critical information related to extreme hardship or whether the alien merits a favorable exercise of discretion, or to any issue helpful to its adjudication. USCIS will not, however, issue a Notice of Intent to Deny (NOID) a provisional waiver application.

My Provisional Waiver Application Was Denied. What’s Next?

There is no administrative appeal of a denied I-601A. An individual whose provisional waiver application is denied may file a new Form I-601A with additional evidence to overcome the reasons for the denial. If you elect to refile, the case must still be pending with DOS, and you must notify DOS of your intent to file a new Form I-601A. Alternatively, you may follow the regular waiver process by filing Form I-601 after attending a visa interview abroad and being found inadmissible.

Motions to reopen or reconsider a denied provisional waiver application are not permitted. USCIS, however, has reserved the authority to reopen and reconsider, on its own motion, an approved or denied provisional waiver at any time, including when new factors come to light after the applicant’s immigrant visa interview abroad. Before reopening an approved provisional waiver for revocation, USCIS will notify the applicant of its intent, provide the applicant with the derogatory information, and give the applicant an opportunity to respond. There is no right to appeal the revocation of a provisional waiver approval.

Waivers denied on discretionary grounds are not subject to review in federal court.

Once a Provisional Waiver Application Is Approved, What Are the Next Steps?

As long as you notified NVC  your intent to apply for a provisional waiver, NVC will schedule the immigrant visa interview after USCIS has approved the provisional waiver application. DOS estimates that it will schedule the interview within two to three months after approval of the provisional waiver and the applicant’s submission of the required documents to DOS. If NVC already scheduled your client for an immigrant visa appointment at the consular post and you notified the post of your client’s intent to apply for a provisional waiver, you should contact the post to reschedule the interview after USCIS has approved the provisional waiver.

Does the Approval of a Provisional Waiver Confer Legal Status on the Applicant or Provide any Other Immigration Benefits?

A provisional unlawful presence waiver approval does not:

  • Confer legal status;
  • Stop or retroactively eliminate the accumulation of unlawful presence;
  • Allow entry into the U.S. without an appropriate visa or entry document;
  • Allow an alien to apply for work authorization or advance parole;
  • Protect an alien from being placed in removal proceedings or removed from the United States;
  • Allow an alien to receive a Social Security card or driver’s license;
  • Guarantee return to the U.S.; or
  • Waive any ground of inadmissibility other than INA §212(a)(9)(B)(i)(I) or (II).

Will Applying for a Provisional Waiver Put An Applicant at Risk for Immigration Enforcement or Removal?

USCIS does not anticipate that it will issue charging documents against those aliens with approved provisional waiver applications, but reserves the right to do so if it discovers acts, omissions, or post-approval activity that would meet the criteria for NTA issuance, or if it determines that the waiver was approved in error.

Similarly, consistent with its civil enforcement priorities, USCIS does not envision initiating removal proceedings against aliens whose provisional waivers are denied or withdrawn prior to final adjudication. Such individuals will typically be referred to ICE only if they are considered a DHS enforcement priority – that is, if they have a criminal history, have committed fraud, or otherwise pose a threat to national security or public safety.

Under What Circumstances Can a Provisional Waiver be Revoked?

An approved provisional unlawful presence waiver is automatically revoked if:

  • The consular officer determines at the interview that the alien is inadmissible for reasons other than INA §212(a)(9)(B)(i)(I) or (II);
  • The underlying immigrant visa petition associated with the provisional waiver is revoked, withdrawn, or rendered invalid (and not otherwise reinstated for humanitarian reasons or converted to a widow(er) petition);
  • The immigrant visa registration is terminated and not reinstated in accordance with INA §203(g). The alien, at any time before or after approval of the provisional waiver or before the immigrant visa is issued, reenters or attempts to reenter the United States without inspection or parole.

Source: American Immigration Lawyers Association (AILA)