Courtesy of Diana Tafur
On January 6th of 2012, the U.S. Citizenship and Immigration Services (USCIS) proposed a change to the current waiver filing requirements for waivers of unlawful presence. After a period of comments, the USCIS announced on November 9th that the new rule is expected to be published in the Federal Register by the end of this calendar year.
The typical case: A foreign national enters the United States either with a valid visa or illegally. Deciding to stay in the United States either to be with their family, i.e. stay and live with their parents, or to create a family of their own, the foreign national seeks to obtain legal status. However, under current immigration procedures, the foreign national must leave the United States in order to apply for admission into the United States. Because the foreign national overstayed their visa or entered illegally, the USCIS will deny their application due to their “unlawful presence” in the United States. His or her only option is to wait the three or ten year bar on their reentry or apply for a waiver of their “unlawful presence.”
Now, before leaving his or her family, the foreign national may apply for a waiver of the unlawful presence in the United States while in the United States.
The purpose of this rule is to reduce the amount of time U.S. citizens have to remain separated from their immediate family members as they navigate through the immigration system in an effort to obtain their immigrant visas.
In order to be eligible for these “Stateside Waivers,” the foreign national must show “extreme hardship” to US citizen or legal permanent resident spouses or immediate relatives: that if the foreign national were barred re-entry into the United States for three or ten years, this would cause extreme hardship for the U.S. citizen or legal permanent resident spouse or relative. It is only after receiving an answer on their waiver that the foreign national will have to return to their country of origin to receive their visa interview at the United States Embassy instead of having to leave the United States, apply for their visa in their country of origin, be denied on the grounds of “unlawful presence”, and then apply for the waiver. The USCIS has stated that the “extreme hardship” standard will be the same standard used in I-160 forms.
An individual may seek a provisional unlawful presence waiver if he or she:
- Is physically present in the United States;
- Is at least 17 years of age;
- Is the beneficiary of an approved immigrant visa petition (I-130) classifying him or her as an immediate relative of a U.S. citizen;
- Is actively pursuing the immigrant visa process and has already paid the Department of State immigrant visa processing fee;
- Is not subject to any other grounds of inadmissibility other than unlawful presence; and
- Can demonstrate that the refusal of admission would result in extreme hardship to a U.S. citizen spouse or parent.
An immediate relative would not be eligible for the proposed process if he or she:
- Has an application already pending with USCIS for adjustment of status to lawful permanent resident;
- Is subject to a final order of removal or reinstatement of a prior removal order;
- May be found inadmissible at the time of the consular interview for reasons other than unlawful presence; or
- Has already been scheduled for an immigrant visa interview at a U.S. Embassy or Consulate abroad
Logistically the USCIS is developing a new form, form I-601A, Application for Provisional Unlawful Presence Waiver, which should be used in lieu of form I-160. This will involve the same filing fees, including the biometrics fee, and there will be no waiver. Although the USCIS has not finalized which documents it will require, the USCIS is requiring the foreign national to have proof that he or she has an approved Form I-130, Petition for Alien Relative, or an approved Form I-360, Petition for Amerasian, Widow(er), or Special Immigrant, if he or she is a self-petitioning widow/widower, and an immigrant visa application fee receipt from the Department of State.
It is crucial to note that if the stateside waiver is rejected, the foreign national will not be permitted to file a motion to reopen or motion to reconsider or to appeal. The only other option is for the foreign national to return to their country of origin, apply for a visa, and once denied apply for a form I-160 waiver.
It is important to note that the Provisional Unlawful Presence Waiver will NOT:
- Provide interim benefits such as employment authorization or advance parole;
- Provide lawful status;
- Stop the accrual of unlawful presence;
- Provide protection from removal;
- Remove the requirement to depart the United States to seek an immigrant visa; or
- Guarantee visa issuance or admission to the United States.
During the November 9th engagement the USICIS stated that the new waiver filing requirements will parallel the standards being used for Form I-601 waivers. To obtain the “Question and Answers” from the Oct 9, 2012 USCIS-AILA Meeting please follow the link: http://www.uscis.gov/USCIS/Outreach/Notes%20from%20Previous%20Engagements/2012/October%202012/AILA-Liaison-Committee-meetingQA.pdf
THE PROVISIONAL WAIVER IS NOT YET IN EFFECT; DO NOT SEND AN APPLCIATION REQUESTING A PROVISIONAL WAIVER.