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USCIS Finalizes Regulation on Provisional Waivers for Unlawful Presence

Jan 4, 2013
Debbie Smith and Charles Wheeler

On January 3, 2013, the USCIS finalized its regulation regarding the adjudication of waivers for those who are consular processing and would be triggering the unlawful presence ground of inadmissibility.  The rule provides a process by which the agency will adjudicate these waivers before the applicants leave for their immigrant visa interview.  The procedure would be available only to immediate relatives who are inadmissible based on unlawful presence – and no other grounds – and who can establish extreme hardship to a qualifying U.S. citizen spouse or parent.  To be eligible, the applicant would need to have an approved I-130 or I-360 petition and have paid the immigrant visa fee bill. 

The USCIS will begin receiving and adjudicating the provisional waivers on March 4, 2013.  No applications will be accepted before that date. Applicants will be using a new Form I-601A, which the agency will publish sometime before that date. The filing fee for the waiver application is $585.  There is no filing fee waiver available for the provisional waiver or the biometrics that are required as part of the process.

The final regulation retains almost all of the eligibility requirements and procedures set forth in the proposed regulation.  For example, the agency chose not to expand the program beyond immediate relatives or to cover other grounds of inadmissibility.  Only extreme hardship to a U.S. citizen – not lawful permanent resident alien – spouse or parent can qualify.  In a stakeholders call held on January 2, 2013, however, USCIS Director Mayorkas indicated that the agency would consider expanding eligibility for the provisional waiver after it reviews the impact the program has had on Service operations.

Immigrant visa applicants who have been scheduled before January 3, 2013 for a consular interview would not be eligible to participate.  USCIS will review the Department of State (DOS) database to determine the date on which DOS acted to schedule the interview; it is the date of scheduling and not the date and time of the interview that controls. However, an individual previously scheduled for an immigrant visa interview may still qualify to apply for a provisional waiver if either: 1) the consulate terminated the visa registration associated with the previous scheduled interview and a new I-130 has been filed; or 2) a new I-130 petition has been filed by a different petitioner.  It is unclear at this time whether immigrant visa applicants scheduled for an interview before January 3, 2013 may cure their ineligibility for the provisional waiver by simply withdrawing the application and approved I-130 and having the same petitioner re-file a new I-130.

The USCIS may issue Requests for Evidence (RFEs) to address applications that are missing critical information related to extreme hardship or to whether the applicant merits a favorable exercise of discretion. But the agency will not be issuing Notices of Intent to Deny (NOIDs). In addition, the USCIS is retaining is authority to reopen or reconsider a decision based on its own motion if it finds that the decision was issued in error or approval is not longer warranted. While there are no appeals if the provisional waiver is denied, the agency is now allowing for the re-filing of a new waiver application.  Those who are denied, as well as those not eligible for the program, may file a waiver on Form I-601 after they are found inadmissible by the consulate.

If the applicant is currently in removal proceedings, he or she must first get the immigration court to administratively close or terminate the case before the USCIS will adjudicate the provisional waiver.  In addition, the removal proceedings may not have been re-calendared at the time of the I-601A filing.  Applicants in removal proceedings must file the application for the provisional waiver with USCIS, not EOIR.

Since unlawful presence does not begin to run for purposes of INA § 212(a)(9)(B) until an alien turns 18, applicants must be at least 17 years old to apply for the provisional waiver.  Only persons residing in the United States qualify to apply. An individual who otherwise meets the eligibility requirements for filing a provisional waiver may do so regardless of his or her current immigration status.  For example, a person having TPS status may apply for the provisional waiver.

In a separate instruction issued by the State Department, the agency explained that potential applicants should notify the NVC of their intention to apply for the provisional waiver after paying the immigrant visa fee bill but before filing the I-601A.  There is a special e-mail address designated for that purpose: nvci601a@state.gov. They should include the NVC case number or USCIS receipt number in the subject line, their name and date of birth, the petitioner’s name and date of birth, and the name and address of any representative.  The NVC will schedule the interview within an estimated two to three months after the USCIS has approved the I-601A and the applicant has submitted all other required documents.  Failure to inform the NVC before filing the I-601A might result in the agency’s scheduling the consular interview. In cases where the interview has been scheduled on or after January 3, 2013 and the applicant wishes to file for the provisional waiver, he or she should notify the U.S. consulate or Embassy and request that it be continued until after the waiver is adjudicated.

The provisional waiver program does not change the extreme hardship standard.  It only affects the timing of the adjudication.  Those who are approved will be notified that they may proceed with consular processing.  At the immigrant visa interview, the consulate will not “second guess” the waiver approval.  However, the consulate reserves the right to question the immigrant visa applicant, review current data bases, and investigate for any other possible grounds of inadmissibility that were not previously identified. If it discovers that the applicant was not eligible to apply based on a separate ground of inadmissibility, it could revoke the approved waiver.

If the waiver is denied by the USCIS Service Center, the applicant will be subject to the current USCIS policy on issuance of a Notice to Appear, which commences removal proceedings.  According to the November 7, 2011 USCIS memo titled “Revised Guidance for the Referral of Cases and Issuance of Notices to Appear (NTAs) in Cases Involving Inadmissible and Removable Aliens,” the USCIS will issue NTA’s when there is a finding of fraud or if the applicant is under investigation for, has been arrested for, or has been convicted of an “egregious public safety” crime.  These include aggravated felonies, such as murder, rape, sexual abuse of a minor, firearms trafficking, crimes of violence for which a term of imprisonment for a year or more has been imposed, ransom, child pornography, alien smuggling, or offenses relating to peonage or slavery.  In addition, NTAs will be issued to human rights violators and those where the alien reentered the United States after an order of removal subsequent to a conviction for a felony where an I-212 has not been approved.