USCIS Postpones Engagement on Provisional Unlawful Presence Waiver Process
On April 19, 2013 I was scheduled to participate in a United States Citizenship and Immigration Services (USCIS) engagement focusing on the newly implemented I-601A Provisional Waiver Process.
The rule, which was formally announced on January 2, 2013 allows certain individuals here in the U.S. to apply for a waiver of inadmissibility for unlawful presence before departing for an immigrant visa interview at a U.S. Embassy or Consulate abroad. The new process is an exciting development for many here in the U.S. who wish to obtain lawful permanent resident status.
While the engagement was postponed, with the USCIS accepting applications since March 4, 2013 it is a good time to clear up any confusion over the new process and how it works.
The new process has tremendous advantages for those already in the U.S., especially when one considers inefficiencies of the traditional approach.
Under current law, individuals in the United States who are ineligible to adjust status here in the U.S. must leave the country and obtain an immigrant visa following an interview with a U.S. Consulate or Embassy abroad. However, before a person who has spent more than 180 days in the U.S. in what is known as unlawful presence can get an immigrant visa he or she must also obtain a waiver of inadmissabability.
Traditionally, one could not apply for such a waiver until after he or she had appeared for an initial interview at a U.S. Consulate or Embassy abroad and been found inadmissible based on their unlawful presence. A person found inadmissible at his or her initial interview would then have to apply for and wait for a decision on a waiver of inadmissibility, while outside the U.S. Only once the waiver was approved could he or she then reapply for admission back into the U.S.
Under the new process certain individuals in the U.S. are eligible to get provisional approval of a waiver of the unlawful status violation which otherwise prohibits readmission into the U.S. before departing for a visa interview abroad. Applicants only need to leave the country once the waiver is reviewed, approved and they are scheduled for an interview.
This provisional waiver is only available to those individuals whose U.S. citizen or lawful permanent resident spouse, parent or child would suffer extreme hardship in the event they relocated with or were separated from their loved one seeking admission to the U.S.
By allowing immigrant visa applicants to remain in the U.S. with their U.S. citizen, or lawful permanent resident, family members the program should help shorten the time families are forced to spend apart.
Provisional Waiver Application’s FAQ’s
So who is eligible for this new process?
After announcing its intention to simplify the immigrant visa application process for qualifying individuals inside the U.S. the Department of Homeland Security received over 4,000 comments with suggestions and recommendations on the best approach to take.
According to the instructions provided with the new I-601A Provisional Waiver Application to receive a waiver while in the U.S. and prior to departing for an interview abroad you must fulfill ALL of the following conditions:
- Be 17 years of age or older.
- Be an immediate relative of a U.S. citizen (not a preference category immigrant who has a visa available). An immediate relative is an individual who is the spouse, child or parent of a U.S. citizen.
- Have an approved Form I-130, Petition for Alien Relative, or Form I-360, Petition for American, Widow(er), or Special Immigrant.
- Have a pending immigrant visa case with DOS for the approved immediate relative petition and have paid the DOS immigrant visa processing fee.
- Be able to demonstrate that refusal of your admission to the United States will cause extreme hardship to your U.S. citizen spouse or parent.
- Be physically present in the United States to file your application for a provisional unlawful presence waiver and provide biometrics.
- Not have been scheduled for an immigrant visa interview by DOS before January 3, 2013.
- Meet all other requirements for the provisional unlawful presence waiver, as detailed in 8 CFR 212.7(e) and the Form I-601A and its instructions.
The complexity of the immigration laws in place can make it difficult to determine whether or not you are eligible for this process. Public anticipation for the new program, and confusion over the immigration process, did lead to widespread reports of individuals falsely calming to file waiver applications on behalf of those in the United States. Moreover, since you can only apply for the provisional waiver once at this time it is important you consult with a trusted and experienced professional before taking any action with the federal government.
Now that the final rule has been released and even if you are not eligible at this time there may be steps you can take so you can apply under the new process in the near future. For instance, if are married to a U.S. citizen or lawful permanent resident getting an approved I-130 could be the first step towards taking advantage of the new process.
An experienced attorney can ensure you understand whether any grounds of inadmissibility apply that would prevent the USCIS from ever approving your application.
How much does this new process cost?
The filing fee for the Form I-601A Application for Provisional Unlawful Presence Waiver is the same as that for the traditional I-601, $585. There is no fee waiver available, and all applicants under 79 years of age will also be required to pay the $85 biometric services fee which is standard for applications with the USCIS.
What happens if my provisional presence waiver is approved?
When an application for a provisional waiver is approved the beneficiary still must schedule and attend an immigrant visa interview at a U.S. Consulate or Embassy abroad. The waiver itself does not become effective until after the interview when a Department of State Consular Officer finds to be otherwise admissible.
What if my application is denied?
Unfortunately, at this time you cannot appeal the denial of an I-601A Provisional Waiver application, nor can you re-file another application with additional evidence. To ensure timely decisions on Provisional Unlawful Presence Waiver Applications, requires applicants respond to any request for evidence issued by the Service within thirty days.
To successfully navigate the process, it is essential to get advice from an attorney experienced in the waiver process.
As an alternative to the new process it is important to note that the traditional I-601 process remains available, and there is no limit to the number of applications an individual can file in such cases.
What about the consular interview? I do not want to wind up stuck overseas
If it is determined at the consular interview that the interviewee is inadmissible for some reason other than his or her unlawful presence in the U.S. then his or her I-601A Provisional Waiver is automatically revoked. To be admitted back into the U.S will require the filing of an I-601 and again establishing the extreme hardship that the denial will have on the applicants U.S. citizen spouse
Consular Officers have a tremendous amount of discretion to determine whether or not an individual is inadmissible. To avoid filing costly and unnecessary applications it is important to understand both the requirements for obtaining an immigrant visa and the potential issues that can arise throughout the process.
Establishing Eligibility under the Provisional Waiver Program
Since the USCIS only began accepting applications for Provisional Unlawful Presence Waiver’s on March 4, 2013 it is unclear exactly how long exactly the Service is taking to process these petitions. Notably, at the time of writing the processing time for the I-601 Application for Waiver of Inadmissibility is approximately four months.
Prior to accepting applications under the program the USCIS did revise the instructions for government officials charged with reviewing I-601A Provisional Waiver applications.
The changes to the USCIS Field Adjudicators Manual reflect the coordinated efforts of the USCIS and the Department of State in setting up the process. The memo released March 1, 2013 explains “the new provisional unlawful presence waiver allows the agencies to act simultaneously, with USCIS adjudicating the Form I-601A at the same time DOS collects required information from the applicant to compete the immigrant visa packet.”
Thus, although applicants will not be required to attend interviews until the USCIS has approved the Form I-601A the streamlined process should minimize the time individuals are forced spend outside the U.S. and apart from family.
The expedited timeline is reflected in the shortened time frame individuals have to respond to inquiries from the USCIS.
Please note nothing in this letter is intended as legal advice and should you have any specific questions the professionals at Tidwell, Swaim and Associates, P.C. are available to help. The Provisional Waiver process is an exciting for those who qualify. Fortunately, Tidwell, Swaim & Associates, P.C. is available to help you navigate the process.