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Provisional Unlawful Presence Waiver FAQ

The new I-601A provisional unlawful presence waiver comes as good news to immediate relatives of U.S. citizens who are required under the current rule to leave the United States before they can be issued their immigrant visas. They will no longer have to deal with the uncertainties of the existing rule and the hardship of being separated from their families for a long period of time. Here are some frequently asked questions regarding the new provisional waiver:

(1) What is the “I-601A provisional unlawful presence waiver”?

This will allow certain individuals who are unable to adjust status in the United States to apply for waiver of unlawful presence in the U.S. before leaving abroad to obtain their immigrant visa. Individuals who have overstayed their visas or who entered the United States as crewmen or without inspection are ineligible to adjust status in the U.S. These individuals must leave the U.S. and obtain their immigrant visas abroad.

(2) How does this rule differ from the existing regulation?

Under existing rules, qualified individuals must wait for the denial of their visa application abroad and apply for waiver of unlawful presence using form I-601. Adjudication of the waiver is a long process and may take several months or even years.

This new regulation, on the other hand, will allow qualified individuals to apply for the waiver while in the United States before leaving abroad for their immigrant visa interview. An approved waiver of unlawful presence, absent other grounds of inadmissibility, will allow the consular officer abroad to issue an immigrant visa right away. The new regulation will allow U.S. citizens to be reunited with their immediate relatives without having to wait for a long time.

(3) Who are eligible for the new provisional waiver?

Only immediate relatives, namely, the spouse, parents and children, of U.S. citizens who are physically present in the U.S. and are at least 17 years of age at the time of filing are eligible to apply under the new regulation.

The applicant must be a beneficiary of an approved I-130 immediate relative petition.

In order to qualify, the applicant’s inadmissibility must be based on having accrued unlawful presence. Also, the applicant must demonstrate that the qualifying U.S. citizen relative (spouse or parent) will suffer “extreme hardship” if the waiver is denied.

An alien in removal proceedings may still qualify if his proceedings have been administratively closed and have not been re-calendared as of the time of filing of the I-601A. Before the alien departs the U.S. for immigrant visa interview, his removal proceedings should be dismissed or terminated. Aliens ordered removed or deported from the U.S. are not eligible under this rule. They may apply for waiver under the existing procedures using form I-601.

(4) When will the new regulation take effect?

The new regulation on provisional waiver takes effect on March 4, 2013. Only then will the USCIS accept Provisional Unlawful Presence Waiver applications on Form I-601A.

(5) What will an approved provisional waiver of unlawful presence mean?

The approval of the provisional waiver of unlawful presence will not create a lawful status for the alien. It will not grant the alien any benefits such as employment authorization and will not guarantee issuance of an immigrant visa. Absent any other grounds for inadmissibility and subject to other visa requirements, the approved waiver will allow the consular officer abroad to issue the immigrant visa without delay.

(6) What are the available remedies in case of a denial?

If the application is denied, the applicant cannot file an appeal nor can he file a motion to reopen or reconsider the denial. The applicant may, however, file a new Form I-601A showing additional evidence of the applicant’s eligibility for the provisional waiver so long as his immigrant visa case is still pending with the Department of State.

(7) Will the applicant for provisional waiver be deported if the USCIS denies the waiver?

The USCIS has stated that it does not envision the initiation of removal proceedings if the waiver request is denied or withdrawn. Referral to the ICE will be done only if the individual has a criminal history or has committed fraud or is a threat to national security.

New Waiver Rule Shortens Family Separation

Beginning March 4, 2013, certain individuals will be allowed to apply for a provisional waiver of unlawful presence before departing the United States to attend their immigrant visa interview abroad.

The Department of Homeland Security (DHS) made the announcement regarding the provisional waiver of unlawful presence on January 2, 2013 as it posted the final rule in the Federal Register.

Under the new procedure, immediate relatives (i.e., spouses, children and parents) of U.S. citizens who are present in the U.S. may request a provisional waiver of their unlawful presence prior to departing the U.S. for consular processing of their immigrant visa application.

Existing regulations would require them to leave the U.S. to apply for an immigrant visa abroad, appear at the visa interview, wait for the denial of their visa application because of their inadmissibility due to unlawful presence – which was itself triggered by their very departure – and then file the unlawful presence waiver application from outside the U.S. and wait for its approval there.

This existing process could take anywhere from a several months to well over one year. Because of the risks, costs and hardships involved, many individuals chose to remain undocumented in the U.S.

The new provisional waiver process was designed to alleviate the hardships caused by the lengthy separation of U.S. citizens from their immediate relatives by reducing the amount of time that they are separated.

The provisional waiver applicant must be an immediate relative of a U.S. citizen, inadmissible solely because of unlawful presence, and demonstrate that the denial of the waiver would result in extreme hardship to the qualifying U.S. citizen relative.

Those who do not qualify for the provisional waiver, perhaps because the required showing of extreme hardship was not made or because they were inadmissible for other or additional grounds such as fraud or misrepresentation or prior removal, may still avail of the existing process which requires departure from the U.S. and filing of the waiver application abroad.

The application will be made on a form yet to be released, I-601A Application for a Provisional Unlawful Presence Waiver, along with a filing fee of $585 and a biometrics fee of $85. More information about the filing process will come out in the coming weeks.

Before publishing the final rule, the DHS considered more than 4,000 comments received in response to the proposed rule released in April last year, a large majority of which were in support of the new process.

To address the concern of those who commented that the process provides a “backdoor amnesty”, the DHS reiterated that the provisional waiver is discretionary and does not guarantee admission into the U.S., and that it does not grant any lawful immigration status, create a period of authorized stay or authorize any interim benefits like employment authorization or advance parole.

One of the important changes in the final rule pertained to the ability of applicants to apply again in case of a denial. Unlike the proposed rule which provided that aliens denied the provisional waiver must go through the existing process, the final rule now allows them to file another Form I-601A based on the original approved immigrant visa petition and if their cases are still pending with the Department of State (DOS). They would need to notify the DOS of their intent to file a new Form I-601A.

Under the final rule, an alien in removal proceedings may apply for the provisional waiver if his proceedings have been administratively closed and not recalendared at the time of filing the I-601A; if the proceedings were terminated or dismissed; or if the Notice to Appear was cancelled by the Immigration and Customs Enforcement.

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.

Proposed Waiver Rule Expected to Benefit Thousands

The Department of Homeland Security on January 6, 2012 announced that it is proposing a rule that will allow spouses and children of U.S. citizens, who are ineligible to adjust status, to apply for a provisional waiver in the U.S. before leaving to process their immigrant visa application abroad. Under the current law, waivers are filed outside the United States.

This was in response to recommendations made by advocacy groups, including the American Immigration Lawyers Association.

Under the law, those who were unlawfully present in the U.S. for more than 180 days but less than one year face a 3 year bar to reentry. If the unlawful presence reached 1 year or more, the bar is 10 years. This bar takes effect when the alien departs from the U.S. If the inadmissibility due to unlawful presence is waived, the bar will not apply.

Adjudication of waivers could take anywhere from three months to several years. If the alien applies for the waiver abroad, he/she will be separated from his/her family in the United States. If the waiver is denied, unless an appeal is successful the alien may have to spend the rest of the 3 or 10 year period overseas and away from his/her family.

This proposal will benefit thousands of families. Stateside processing will bring undocumented immigrants out of the shadows by encouraging them to apply for a green card and file for a waiver while they remain in the United States. It will also streamline the waiver process.

To qualify for the waiver, the alien must establish that he/she is the immediate relative of a U.S. citizen and that the denial of the waiver would result in extreme hardship to a qualifying relative. The qualifying relative must be a U.S. citizen spouse or parent.

Note that only immediate relatives are covered, so sons and daughters over 21 years of age of U.S. citizens, as well as siblings of U.S. citizens, are not affected by this rule change. The rule also will not apply to family members of lawful permanent residents.

The proposal is also limited to waiver of unlawful presence. It does not include waiver of other inadmissibility grounds such as fraud or misrepresentation and criminal conviction. Aliens subject to these inadmissibility bars must obtain a waiver under the normal procedure, i.e. depart the United States and file a waiver application after a finding of inadmissibility at the U.S. consulate.

Since the proposed rule is quite narrow, it is important to seek the guidance of competent counsel before applying for the provisional waiver and leaving the United States.

While this new procedure will keep families together and reduce the time that they are separated, there is no reason why the DHS should not cover adult children of U.S. citizens, and spouses and children of LPRs under the proposal. Hopefully they will be included in the final rule expected to be released this year.

Waiving Inadmissibility for Nonimmigrants

An alien may be barred from reentering the U.S. if he or she had been unlawfully present, committed a misrepresentation on a visa application, or has a criminal conviction.

One way to overcome these and other grounds of inadmissibility is the general waiver found under section 212(d)(3) of the Immigration and Nationality Act.

This type of waiver is available to nonimmigrants or those seeking to enter the U.S. for a temporary period. Examples are visitors for business or pleasure, students, H-1B workers and other temporary workers.

Unlike most waivers for immigrant visa applications, the 212(d)(3) waiver may be used for many inadmissibility grounds, including health reasons, drug offenses, public charge grounds, immigration violations, and even certain types of involvement in terrorist activities.

This waiver is not available to those who are inadmissible due to terrorism or national security-related grounds or foreign policy grounds. It may also be denied to K-visa applicants who are ineligible for an immigrant visa waiver, and those who are not qualified for admission under the category applied for. For example, an applicant for a visitor (B1/B2) visa may not use this waiver to overcome a negative finding of immigrant intent.

An application for this waiver may be made at a U.S. consulate at the same time that the visa application is submitted. If applied for at the consulate, there is no separate fee for the waiver. The consular officer reviews the waiver application and forwards it to the Admissibility Review Officer of the Customs and Border Protection (CBP) if the waiver is granted. In case of a denial by the ARO, the applicant may request an advisory opinion from the Department of State.

An alien may also apply for the waiver at the port of entry by presenting the CBP officer with a Form I-192 (Application for Advance Permission to Enter as Nonimmigrant) and the filing fee.

Consular officers have wide discretion when recommending the grant of this type of waiver. The criteria to be followed were laid down in the leading case of Matter of Hranka, decided by the Board of Immigration Appeals in 1978. Under the Hranka standard, three factors must be balanced: the risk of harm in admitting the applicant, the seriousness of the acts that caused the inadmissibility, and the importance of the applicant’s reason for seeking entry.

The Foreign Affairs Manual instructs consular officers to consider the following factors, which mirror those in Hranka: the recency and seriousness of the activity or condition causing the ineligibility, the reasons for the proposed travel to the United States, and the positive or negative effect, if any, of the planned travel on the public interests of the United States.

Consular officers are reminded in the FAM that they may recommend waivers for any legitimate purpose such as family visit, medical treatment, business conferences, tourism and other purposes. The applicant need not have a qualifying family relationship nor show humanitarian or exceptional circumstances.

The 212(d)(3) waiver, while it could be the broadest type of waiver available, remains discretionary. Aliens interested in applying for this waiver in conjunction with their nonimmigrant visa application must ensure that their waiver packet meets the standard of eligibility.

Accrual of Unlawful Presence

Unlawful presence in the U.S. may have horrible consequences to an alien who is applying for a green card. If he/she is required to go abroad to process his/her visa, he/she may not be able to return for years.

What constitutes unlawful presence and when does it accrue? Are all aliens who are out of status considered to be unlawfully present?

A comprehensive guidance memo released by the United States Citizenship and Immigration Services (USCIS) provides some answers to the above questions.

Unlawful presence generally starts accruing when a person overstays his/her authorized stay in the U.S. as indicated on the date stamped on the I-94 card. The I-94 is the arrival/departure record issued to the individual at the port of entry based on the underlying non-immigrant visa. But there are instances when unlawful presence does not begin to accrue until a determination is made by the USCIS.

An F-1 student whose I-94 card is marked D/S or duration of status does not begin to accrue unlawful presence even if the student failed to maintain F-1 status, either by dropping out of school or enrolling in less than the required credits, until the USCIS makes an adverse determination on his/her status. This may happen if the F-1 holder later applies for a change of status or for an employment authorization but is denied. An overstaying Canadian TN visa holder will also not start accruing unlawful presence until there is an adverse determination on his/her status by the government.

Also, unlawful presence does not accrue while a timely and non-frivolous application for change of nonimmigrant status or extension of status is still pending, provided that the applicant did not engage in unauthorized employment.

An H-1B holder who was terminated from the job but remains in the U.S. within the date stamped on the I-94 while considered out of status still has not accrued unlawful presence until after the expiration date on the I-94.

There are persons who are in unlawful status but do not accrue unlawful presence. They include minors under 18; asylees with a bona fide application for asylum unless they are employed without authorization; certain battered spouses, parents and children and victims of severe trafficking.

If a person is unlawfully present for more than 180 days but less than one year, he/she would be barred from re-entering the U.S. for three (3) years. If the unlawful presence is for one year or more, he/she would be barred for ten (10) years.

If a person is unlawfully present for an aggregate period of more than one (1) year and he/she re-enters or attempts to re-enter without being admitted, he/she would be barred permanently.

For the three-year bar to take effect, a person must have voluntarily left the U.S. prior to the commencement of removal proceedings and sought admission within three years from such departure. If his/her departure from the U.S. occurs after removal proceedings are commenced, he/she would not be subject to the bar.

The three-year period could refer to stays outside or inside the U.S. In one case, an applicant for adjustment of status who departed the U.S. and then came back with an advanced parole was no longer inadmissible at the time of the adjudication of his/her adjustment of status application because three years had already passed since his last departure.

In the case of the ten-year bar due to unlawful presence of one year or more, the inadmissibility requirements are different. The bar applies even if the person leaves the U.S. after the commencement of removal proceedings. His/her departure from the U.S. does not have to be voluntary and it could be the result of a removal order.

Both the 3-year and 10-year bars to inadmissibility may be waived. A person who is permanently barred may also seek consent to reapply for admission after having been outside the U.S. for at least ten years.

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