The Provisional Waiver
On January 3, 2013, U.S. Citizenship and Immigration Services (USCIS) published a final rule to amend its regulations to allow certain immediate relatives of U.S. citizens who are physically present in the United States to request provisional unlawful presence waivers prior to departing from the United States for consular processing of their immigrant visa applications. The provisional unlawful presence waiver process is not a substantive change to the immigration laws but a procedural change in the way that a specific type of waiver application can be filed with USCIS. The new regulations create a process for United States Citizenship and Immigration Services (USCIS) to adjudicate a waiver for unlawful presence before the applicant triggers the need for the waiver by leaving the United States to attend her interview. This process allows those who qualify to stay with their families in the United States while the application is pending, avoiding the lengthy separation caused by adjudicating the waiver as part of the consular process and avoiding the risk of getting denied a waiver while outside the United States, which would prevent them from rejoining their families. An eligible applicant will not need to leave the United States to attend an interview until after USCIS approves the waiver. The new process is available only to immediate relatives of United States citizens who can show hardship to a United States citizen spouse or parent. Family members in other visa categories must still apply for the traditional I-601 waiver after attending a consular interview. While the new provisional waiver creates a new process for those that qualify, it does not alter the extreme hardship standard that applies to adjudication of unlawful presence waivers.
Under our current immigration laws, family members of U.S. citizens and lawful permanent residents (LPRs) who have entered the United States without inspection are ineligible to adjust status to become LPRs while in the United States. n1 Additionally, family members of permanent residents and certain family members of United States citizens (those who are not classified as immediate relatives) might not be eligible to adjust their status in the United States if they have worked without authorization or failed to maintain a legal status.
These groups of individuals must leave the United States to consular process to obtain LPR status. However, leaving the United States to consular process (that is, to obtain a visa at a U.S. consulate or embassy) will trigger the unlawful presence bars of inadmissibility. The unlawful presence ground of inadmissibility provides that those unlawfully present in the United States for a year or more are inadmissible for ten years. Those unlawfully present in the United States more than 180 days, but less than a year, are barred from admission for three years. These grounds are triggered only upon departure from the United States. Thus, an individual who has accrued more than six months of unlawful presence then leaves the United States to consular process will be barred from re-entering the United States for at least three years unless she obtains a waiver for the unlawful presence. To be eligible for a waiver, the applicant must show that barring the applicant’s admission into the United States will result in extreme hardship to a United States citizen or LPR spouse or parent. The form used for this waiver is Form I-601, and it is often referred to as an “I-601 waiver.”
Under the current process, these individuals cannot apply for the waiver until they have left the United States, triggering the unlawful presence bar. The applicant first must attend the consular interview, at which the interviewing officer determines that a waiver is needed. The applicant may then submit an application for a waiver, and must wait outside the United States until USCIS adjudicates the waiver application. This process can take from several months to over a year. If the waiver is denied, the individual will not be able to legally re-enter the United States until she has remained outside the United States the requisite time. For instance, without a waiver, those who have been present in the United States unlawfully for a year or more must remain outside the United States for ten years. This process results in long separations for families and entails so much risk that many eligible individuals are afraid to undergo the process.
PROVISIONAL WAIVER PROCESS
The new provisional waiver process allows immediate relatives of U.S. citizens to apply for a waiver of unlawful presence from within the United States. Under the new process, immediate relatives must still depart the United States for the consular immigrant visa process; however, they will not need to leave the United States to attend their interviews until USCIS has provisionally granted the unlawful presence waiver. The new procedure avoids long separations and uncertainty for certain immigrant families.
This new process is available only to immediate relatives of U.S. citizens who will be subject to the unlawful presence ground of inadmissibility and no other grounds of inadmissibility. n5 If any other waivers are required, the applicant will not be able to use the provisional waiver process, although the traditional I-601 waiver remains an option. Likewise, family members of lawful permanent residents must still apply for a traditional I-601 waiver after attending an interview at the consulate.
The new provisional waiver process is available only to immediate relatives of United States citizens who are in the United States at the time of filing. To qualify, the applicant must be able to show extreme hardship to a U.S.citizen spouse or parent. The qualifying relative for hardship need not be the petitioner, but must be a U.S. citizen. For instance, under our immigration laws an adult U.S. citizen may petition for his or her parent as an immediate relative, but a U.S.-citizen child is not a qualifying relative for purposes of demonstrating hardship for a waiver of unlawful presence. For the provisional waiver, the beneficiary must be able to show hardship to a U.S.-citizen spouse or parent. Those who can demonstrate only hardship to an LPR spouse or parent must apply through the traditional I-601 process. Additionally, an applicant must be at least seventeen to apply. (This is not a limitation because unlawful presence does not begin to accrue until the age of eighteen.)
The individual must not be subject to other grounds of inadmissibility, and must not be subject to a final order of removal or subject to reinstatement. Although some individuals might be subject to a final order of removal without being subject to any additional grounds of inadmissibility, the new regulation makes a blanket rule that those with final orders cannot apply for a provisional waiver. This includes orders issued in removal proceedings, expedited removal, exclusion, or deportation proceedings. These individuals must use the traditional I-601 process.
At time of filing, the applicant must be the beneficiary of an approved immediate relative petition. The applicant’s case must be pending with the Department of State, and the immigrant visa processing fee must have been paid prior to the filing. While the visa processing must be underway, the Department of State must not have acted to schedule the immigrant visa interview for the applicant before the publication of date of the final rule in the Federal Register, January 3, 2013. If the interview was set before January 3, 2013, regardless of whether the date of interview is after, and regardless of whether the interview has been re-scheduled or continued, the person will not qualify under this process. (That is, the date of notice from DOS, not the date of interview, controls.)
Once visa processing fees are paid, the applicant must notify the National Visa Center (NVC) that she is applying for the provisional waiver by sending an e-mail to email@example.com.
Those in removal proceedings may apply if their proceedings are administratively closed and have not been re-calendared. Individuals with cases pending before an immigration judge, under the Executive Office for Immigration Review (EOIR), will need to advocate for administrative closure to pursue provisional waivers.
The new process became effective on March 4, 2013. The filing fee is $585 for the I-601A provisional waiver form. (This is the same fee collected for the traditional I-601.) The projected processing time for the waivers is approximately four months. New Form I-601A and instructions.
Potential Grounds of Inadmissibility.
The new provisional waiver is available only to immediate relatives who have no other grounds of inadmissibility. If USCIS has “reason to believe” that you are inadmissible on some other ground, it will deny the provisional waiver. It is unclear how USCIS will apply this “reason to believe” standard and what information will be used to form the basis of such a determination. For instance, is an arrest, without a conviction, enough for USCIS to determine that it has reason to believe that the applicant may be inadmissible for a crime involving moral turpitude? It is also unclear whether practitioners will have an opportunity to make arguments to overcome such a determination. Until the process is underway, we will not know whether practitioners will have an opportunity to rebut USCIS’s position on inadmissibility in response to a request for evidence, or whether the agency will simply issue a denial.
Additionally, if the consular officer determines that an applicant is inadmissible on another ground, the USCIS approved provisional waiver will be automatically revoked. The new regulation does not envision reinstating a provisional waiver if the consular officer’s determination is overturned. The provisional waiver applicant will have no opportunity to file a motion to reopen, reconsider, or appeal the agency’s decision.
Process for Applicants in Removal
Those applying while in proceedings must have their cases administratively closed prior to filing for a provisional waiver. The regulation does not require DHS counsel to agree to administratively close cases for those who appear eligible. Thus, this determination will remain a case-by-case decision.
Additionally, should USCIS grant a provisional waiver in such a case, the applicant must re-calendar proceedings and get the case terminated or dismissed prior to departure. This process requires the cooperation of EOIR, but there is no regulation or EOIR policy to guide this process. This requires the judges to exercise discretion to terminate on this basis, and also requires re-calendaring cases into a busy and backlogged docket. Respondents in removal proceedings can wait several months for a master calendar hearing.
The explanatory notes provided with the published regulation do not further elaborate on what dispositions might qualify as “dismissal.” Arguably, an immigration judge could choose to grant voluntary departure, and refuse to terminate a case. As voluntary departure results in a dismissed case with no final order of removal, presumably this fits within the meaning of dismissal contemplated in the regulation, however the regulations do not address voluntary departure in this context.
The final regulation limits the scope to immediate relatives of U.S. citizens who can demonstrate hardship to a qualifying U.S. citizen spouse or parent. USCIS should expand this program in the future to include family members of LPRs and other family members of U.S. citizens. After assessing the effectiveness of the new provisional unlawful presence waiver process and its operational impact, DHS, in consultation with DOS and other affected agencies, will consider expanding the provisional unlawful presence waiver process to other categories.
Look for other issues of inadmissibility that may arise at the consulate, which would bar lawful re-entry. The provisional waiver does not waive the permanent bar found at INA § 212(a)(9)(C). Thus, if the noncitizen re-entered or attempted to enter illegally after accruing a year (in the aggregate) of unlawful presence in the United States, he will not be eligible for a waiver. Should this come to light at the consular interview and not before, he will be stuck outside the United States. Persons subject to the “permanent bar” cannot submit waiver applications until they have remained outside the United States for ten years.
Those who apply while removal proceedings are administratively closed will need to re-calendar proceedings to have the case terminated or dismissed after a provisional waiver application is granted. The case must be terminated or dismissed before the person departs the United States. Failure to do so could result in a self-deportation and prevent the client’s re-entry with the provisional waiver.
Supplemental information provided in the regulation makes clear that DHS envisions EOIR agreeing to terminate proceedings in these cases, but there is no rule or official policy on EOIR’s role in this process. Applicants should advocate for and seek termination before the immigration court based on the guidance issued with the regulations. Alternatively, after the provisional waiver is granted, an applicant who applied while her case was administratively closed could accept voluntary departure to complete consular processing. The regulation, however, discusses only termination or dismissal. Arguably, the case is dismissed without a final order of removal should an applicant accept voluntary departure. The preferable conclusion is termination.
Those who have already received notice of scheduling at the consulate seemingly are not eligible. That is, noncitizens in cases where DOS initially acted to schedule the immigrant visa interview before January 3, 2013, regardless of whether the interview has subsequently been rescheduled or cancelled, are not eligible for a provisional waiver in conjunction with that visa petition. However, there is still a possibility of filing a provisional waiver application in conjunction with a new visa filing. Any applicant who received a notice of consular interview dated before January 3, 2013, but remained in the United States should discuss with counsel the possibility of terminating the prior visa case and beginning the process anew with a second visa filing. The regulations provide that a person who is ineligible because of a previously scheduled interview may qualify if “(1) DOS terminated the immigrant visa registration associated with the previously scheduled interview, and they have a new immediate relative petition; or (2) the alien has a new immediate relative petition filed on his or her behalf by a different petitioner.” Based on this guidance, practitioners are requesting termination of prior visas to pursue new filings by the same petitioners. If a new petitioner files an I-130, terminating the prior visa is not necessary. This strategy, of course, requires paying all fees again. The other option is to continue with the consular process, filing a traditional I-601 waiver after attending the consular interview.
The waiver is unavailable to applicants who have received deferred action or Temporary Protected Status, but have final orders of removal or other grounds of inadmissibility beyond unlawful presence. Individuals with final orders of removal in compelling cases should seek to have their proceedings reopened and then administratively closed, in order to apply for the waiver with USCIS.
People who have criminal records should be aware that there is a risk of referral to immigration court should USCIS deny the waiver. USCIS will follow its current policy on issuing a Notice to Appear (NTA) in immigration court. You can review the current referral policy on the USCIS website, or in Bender’s Immigration Bulletin. n11 USCIS’s NTA policy envisions referrals to ICE in cases where there are egregious public safety concerns or fraud in the immigration process. Additionally, if it appears that the alien is inadmissible or removable for a criminal offense not included on the list of offenses that amount to egregious public safety concerns, USCIS will complete the adjudication and then refer the case to ICE. USCIS will not issue an NTA if ICE declines to do so. Any applicant who has a potentially removable offense runs the risk of being referred to immigration court for removal proceedings. USCIS will not refer a case to immigration court for a simple denial where there are no security, criminal, or fraud concerns.
n1 INA §245(a), 8 U.S.C. §1255(a). There is a limited exception to this rule for those who qualify under INA § 245(i), which requires that the person be a qualified beneficiary of a visa petition filed on or before April 30, 2001. Additionally, those seeking to adjust as self-petitioners under the Violence Against Women Act do not need to show that they were inspected and admitted or paroled. See INA § 245(a).
n2 See INA §245(c).
n3 See INA §212(a)(9)(B), 8 U.S.C. § 1182(a)(9)(B).
n4 The Form I-601 is also used to waive other grounds of inadmissibility. See generally 8 C.F.R. §212.7.