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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.

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