Visa Lawyer Blog
Our readers have asked for a comprehensive FAQ on this topic so we have provided the following summary for you.
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On January 3, 2013, The Department of Homeland Security (DHS) published a new unlawful presence waiver’s rule, which allows certain immediate relatives of the 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 immigration visa applications.
For your better understanding, we will present the new rule in a set of straightforward Frequently Asked Questions (FAQs), which explains many of the complications involved in the new provisional waiver process:
1. What is the traditional waiver process?
Under current law, immediate relatives of U.S. citizens who are not eligible to adjust status in the United States to become lawful permanent residents (e.g. individuals who have entered the U.S. illegally) must leave the U.S. and obtain an immigrant visa abroad. However, departing the U.S. even to complete immigrant visa process will automatically make the intending immigrant subject to the unlawful presence bar for up to ten years if the intending immigrant has been unlawfully present in the U.S. for than 180 days. Unlawful presence bar means that depending on the length of time the alien spent in the U.S. in unlawful status, the alien may be barred from coming back to the U.S. for up to ten years.
Individuals who have accrued more than six months of unlawful presence while in the United States must obtain a waiver before they can obtain an immigrant visa and return to the United States.
Under the existing waiver process, which remains available to those who do not qualify for the new provisional waiver process, immediate relatives cannot file a waiver application until after they have appeared for an immigrant visa interview abroad and the consular office has determined that they are inadmissible. Under the existing process, immediate relatives of U.S. citizens must remain outside of the United States while their waiver application is adjudicated. Individuals have to spend months or even years waiting for adjudication of their waiver cases separated from their families in the U.S. Current process imposes so much hardships on families of U.S. citizens that many are reluctant to undergo the process, thus leaving their alien family members without any lawful status in the U.S.
2. What is the Provisional Unlawful Presence Waiver and how can it affect me and my family?
The new rule is designed to reduce the length of time U.S. citizens are separated from their immediate relatives who engage in consular processing abroad. The new rule means that many immigrants will leave the United States, knowing in advance that their case will most likely be approved, and they could be reunited with their families in the U.S. in a matter of days as opposed to years.
Under the new provisional waiver process, immediate relatives must still depart the United States for the consular immigrant visa process. However, under the new process, eligible immediate relatives can obtain their waivers while they are still in the United States before they leave to attend their immigrant visa interview abroad reducing the time in separation from their families from several months or even years to only a few days.
3. Do I have to depart the U.S. under the new process?
Yes, you would still need to depart the U.S. and appear for your immigrant visa interview after your provisional unlawful presence waiver is approved.
4. Why does USCIS refer to the waiver as “provisional?”
USCIS refers to the waiver as “provisional” because it will not take effect until the alien departs the U.S., appears for his or her immigrant visa interview, and is determined by the DOS consular officer to be otherwise admissible to the United States.
As a practical matter, this means that the waiver is granted based on the facts available to USCIS at the time of waiver adjudication, but there is no guarantee that a case will be successful if the consular officer determines at the time of immigrant visa interview that the facts have changed or new information have come to light, or if other grounds of inadmissibility apply (e.g. criminal grounds, medical grounds, if an applicant had previous immigration violations, etc). If new issues arise, the alien may need to re-apply for a waiver using the traditional process while outside the U.S.
5. Is the new process effective immediately? Can I file my provisional waiver application right now?
No, the new waiver application process is not yet in effect. Eligible individuals will be able to apply for a Provisional Unlawful Presence Waiver starting March 4, 2013. USCIS will provide instructions on the application process in the coming weeks. We will provide further updates on the process once they become available.
6. Who is eligible to apply for a provisional waiver in the United States?
In order to be able to apply for a Provisional Unlawful Presence Waiver, the applicant must be:
(1) at least 17 years old;
(2) an immediate relative of a U.S. citizen (NOTE: the term “immediate relatives” includes spouse, parents and children);
(3) present in the United States at the time of filing the application for a provisional presence waiver and for biometrics collection;
(4) upon departure, would be inadmissible only under section 212(a)(9)(B)(i) of the Act (i.e. would subject only to the 3- or 10-year bars of inadmissibility for unlawful presence in excess of 180 days);
(5) is the beneficiary of an approved immediate relative petition (Form I-130 or I-360);
(6) has a case pending with the Department of State based on the approved immediate
relative petition and has paid the immigrant visa processing fee as evidenced by a State Department Visa Processing Fee Receipt;
(7) will depart from the United States to obtain the immediate relative immigrant visa; and
(8) must be able to demonstrate “extreme hardship” to his or her U.S. citizen spouse or parent.
7. Can parents of U.S. citizens apply for the waiver and prove extreme hardship to their U.S. citizen children?
No. The regulation states that immediate relatives of U.S. citizens may apply for a provisional waiver. Since immediate relatives include spouses, parents and children, the regulation has created a lot of confusion as many think that parents of U.S. citizens who entered the U.S. illegally and overstayed over 6 months may apply for a provisional waiver proving hardship to their U.S. citizen children. Unfortunately, this is not the case. Under the new rule, you have to show extreme hardship to either your U.S. citizen spouse or parent.
8. Does the provisional waiver apply to any grounds of inadmissibility other than unlawful presence (e.g. criminal grounds of inadmissibility, medical, fraud or misrepresentation, false claims to U.S. citizenship, permanent bar, etc.)?
No, the new process is available if your only ground of inadmissibility is unlawful presence. During the immigrant visa interview, the consular officer will make the finding of inadmissibility based on unlawful presence and apply the provisional waiver.
However, if the consular officer determines at your immigrant visa interview that you have other ineligibilities (grounds of inadmissibility or are otherwise not eligible for the visa) beyond unlawful presence, the USCIS approved provisional waiver is automatically revoked.
If the consular officer determines that other grounds of inadmissibility are found (e.g. criminal grounds of inadmissibility, medical grounds, fraud or misrepresentation bars, permanent bar, etc.), then the individual would need to submit another waiver application, if eligible, while abroad and wait for its adjudication while outside of the U.S.
If you unsure what grounds of inadmissibility may apply to you, consult with an experienced immigration attorney before applying.
9. Under the new provisional waiver rules, do I still need to prove “extreme hardship”?
Yes, “extreme hardship” standard has not changed. Thus, you will still need to prove that your inadmissibility would cause your U.S. citizen spouse or parent extreme hardship.
Those individuals who cannot establish extreme hardship to a U.S. citizen spouse or parent but can establish extreme hardship to a lawful permanent resident spouse or parent can still obtain a waiver through the current I-601 process, after their immigrant visa interview with a Department of State consular officer abroad.
10. Is it sufficient to prove “extreme hardship” to my lawful permanent resident (LPR) spouse or parent?
No, the final rule on provisional waivers only allows individuals to prove hardship to their U.S. citizen spouse or parent, but not to LPRs.
USCIS has acknowledged that after implementation of the initial process, USCIS will assess its operational constraints and resources and will consider expanding the program to other categories, including immediate relatives of Lawful Permanent Residents (LPR). We will provide further updates once more information becomes available.
11. Who is not eligible to apply for a provisional waiver in the United States?
According to the new rule, the following persons are not eligible to apply for a provisional unlawful presence waiver:
(1) the applicant is under 17 years old;
(2) the applicant is in removal proceedings, unless the removal proceedings are
administratively closed and have not been recalendared at the time of filing the Form I-601A, Provisional Unlawful Presence Waiver;
(3) USCIS has reason to believe that the applicant may be subject to any other grounds of inadmissibility other than unlawful presence;
(4) the applicant is subject to a final removal order or a final order of exclusion or deportation;
(5) the applicant is subject to reinstatement of a prior removal order;
(6) the applicant does not have a case pending with the Department of State, based on the approved immediate relative petition, or has not paid the immigrant visa processing fee;
(7) the Department of State initially acted to schedule the immigrant visa interview prior to January 3, 2013 for the approved immediate relative petition on which the provisional unlawful presence waiver is based, even if the interview has since been cancelled or rescheduled after January 3, 2013;
(NOTE: The actual date and time that the alien is scheduled to appear for the interview is not relevant for the eligibility determination. This rule applies even if the alien failed to appear for his or her interview, cancelled the interview, or requested that the interview be rescheduled.)
(8) the applicant has a pending Form I-485, Application to Register Permanent Residence or Adjust Status with USCIS.
(NOTE: Individuals who are eligible to obtain LPR status while inside the United States through the adjustment of status process do not need the provisional unlawful presence waiver. The provisional unlawful presence waiver is only valid for the purpose of seeking an immigrant visa outside the United States.)
12. May I apply for a provisional waiver if I am in removal proceedings?
No, unless your proceedings have been administratively closed and have not been recalendared at the time of filing I-601A.
13. Can I apply for a provisional wavier if my removal proceedings have been terminated or dismissed or if my Notice to Appear (NTA) has been canceled?
Yes, aliens whose removal proceedings are terminated or dismissed are eligible to apply for a provisional waiver. Aliens who have had their NTAs cancelled by ICE are also covered in the general population of aliens who are eligible to apply for a provisional waiver, since their removal proceedings were never initiated through filing of an NTA with EOIR.
14. What does it mean that USCIS has “reason to believe” that the applicant may be subject to any other grounds of inadmissibility other than unlawful presence?
USCIS will conduct a limited review of the waiver application to determine if: (1) The individual has self-reported a ground of inadmissibility that would render him or her ineligible for the provisional unlawful presence waiver; (2) the results of the background checks reveal conduct or actions that potentially would make an individual ineligible for an immigrant visa; or (3) the individual has engaged in activities that could impact the discretionary determination regarding whether he or she warrants a favorable exercise of discretion.
If USCIS determines that there is reason to believe that the alien may be inadmissible to the United States at the time of his or her immigrant visa interview based on another ground of inadmissibility other than unlawful presence, USCIS will deny the request for the provisional unlawful presence waiver. USCIS’s determination on the provisional unlawful presence waiver is not a conclusive finding of inadmissibility. It also is not an assessment of whether a particular crime or pattern of conduct would ultimately bar an individual from obtaining a legal status under the immigration laws.
15. What is the procedure for applying for a provisional waiver under the new process?
After filing the waiver application, the alien will receive a notice for fingerprints processing. The alien has to be physically present in the U.S. at the time of filing of the waiver application and has to appear for biometrics processing. In the coming weeks, USCIS will provide instructions and further information on how to apply using the new provisional waiver process. We will provide updates once they become available.
16. Do I need to notify National Visa Center or Consular Post that I would like to apply for Provisional Waiver? What is the process?
Yes, before applying for the I-601A, you must notify National Visa Center or Consular Post if you choose to seek a provisional unlawful presence waiver and have a pending immigrant visa case at NVC. If you do not notify NVC, your case may be scheduled for interview at a U.S. embassy or consulate abroad. If NVC has scheduled your immigrant visa appointment, you must notify the immigrant visa processing post where your appointment has been scheduled before applying for the provisional waiver.
Notify NVC immediately after you have paid the immigrant visa processing fee and
before you apply for the provisional unlawful presence waiver. NVC will schedule your immigrant visa interview after USCIS has finished processing your provisional waiver.
17. How do I notify the NVC?
If you need to contact the National Visa Center, please email NVCi601a@state.gov
Enter your NVC Case Number or USCIS Receipt Number in the Subject Line of the
email. Provide the applicant’s name and date of birth and the petitioner’s name and date of birth. Provide the attorney of record’s name, law firm, and address (if applicable). Include a statement that the applicant is applying for the provisional unlawful presence waiver with USCIS.
18. What happens if I forget to notify the NVC?
If you do not notify NVC, your case may be scheduled for interview at an overseas post, which will delay processing of your immigrant visa application once USCIS has finished processing your provisional unlawful presence waiver application.
19. If an immigrant visa appointment has been scheduled, may I apply for the provisional waiver?
Applicants with an interview appointment letter from the National Visa Center dated
before January 3rd, 2013 are not eligible to file the I-601A. Only applicants scheduled by the National Visa Center on or after January 3rd, 2013 for an upcoming initial immigrant visa interview are eligible to apply for the I-601A. “Scheduled” means the date on which NVC took the action to schedule the case – not the date of the visa interview appointment. NVC dates interview appointment letters on the day it schedules a case, so refer to the appointment notification letter to see when NVC took the scheduling action.
If the date that the NVC initially acted to schedule the immigration visa interview is on or after Jan 3, 2013, applicants are eligible to apply for a provisional unlawful presence waiver.
20. Are there circumstances when you can apply for a provisional waiver if your immigrant visa appointment was scheduled before January 3, 2013?
In limited circumstances, an alien who is ineligible to apply for a provisional waiver because of a previously scheduled immigrant visa interview may still qualify for a provisional waiver if he or she has a new DOS immigrant visa case because
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.
21. Where should I file my I-601A provisional waiver application?
The Application for Provisional Unlawful Presence Waiver, Form I-601A, should be filed only with USCIS. The filing fees will be $670 (including $585 for the waiver’s filing fee and $85 for biometrics processing).
22. Is it possible to waive the biometrics or filing fees for an I-601A waiver application?
No. You need to pay for the biometric ($85) and filling fees ($585) for your I-601A provisional waiver application. In the case of a withdrawn Form I-601A, USCIS will not refund the filling fees because USCIS has already undertaken steps to adjudicate the case.
DHS has made it clear that a Form I-601A waiver will only be rejected for a failure to pay the required or correct filing fee, not the biometric fee. Individuals who have failed to pay the required or correct biometric fee will be notified of that failure. USCIS will not process applications filed by individuals who do not pay the required or correct biometric fee.
23. How long it takes to process an I-601 waiver?
In terms of processing times, USCIS and DOS are coordinating closely to make sure that the timing of the approval of a provisional unlawful presence waiver application is close to the time of the scheduled immigrant visa interview abroad. Generally, it takes 4 to 6 months to process an I-601A waiver application.
In addition, DOS estimates that it will schedule the applicant for an immigrant visa interview within 2 to 3 months after approval of the provisional unlawful presence waiver and the applicant’s submission of the required immigrant visa processing documents to DOS.
24. Is premium process available for an I-601A waiver?
No, but applicants can request expedited adjudication of a provisional unlawful presence waiver in accordance with current USCIS expedite guidance.
25. When will this new rule takes effect?
March 4th, 2013.
26. Will the termination of my conditional Lawful Permanent Resident (LPR) status affect my I-601A waiver validity?
DHS has clarified that termination of an alien’s conditional LPR status would result in automatic revocation of an approved waiver of inadmissibility only if the approved waiver is based on: 1) certain criminal offenses, or 2) fraud or willful misrepresentation of a material fact.
27. If the I-601A waiver is approved, does that mean I have a legal status to stay in the United States?
No. DHS has made it clear that the approval of a provisional unlawful presence waiver does not: constitute a grant of any lawful immigration status, extend any authorized period of stay, allow an alien to enter the United States without obtaining a visa, protect aliens from removal or law enforcement action, or grant any other immigration benefits, including temporary work authorization and advance parole.
28. If my provisional waiver application is approved, does it mean that I will get my immigrant visa once I depart the U.S.?
Not necessarily. Once provisional waiver is granted, an individual must depart the U.S. and visit a U.S. consulate abroad for an immigrant visa interview. During the immigrant visa interview, the consular officer will make the finding of inadmissibility based on unlawful presence and apply the provisional waiver. However, if the consular officer determines that other grounds of inadmissibility are found (e.g. criminal grounds of inadmissibility, medical grounds, fraud or misrepresentation bars, permanent bar, etc.), then the individual would need to submit another waiver application, if eligible, while abroad and wait for its adjudication while outside of the U.S.
29. What should I do if my I-601A waiver application is approved during removal proceeding?
If granted the provisional unlawful presence waiver, you should seek termination or dismissal of your removal proceedings. The request for termination or dismissal will be determined before you depart for your immigration visa interview to avoid delay in your later visa processing.
30. What if my I-601A waiver is denied?
Once the I-601A is ultimately denied, you are not allowed to appeal or file a motion to reopen.
Alternatively to provisional waiver process, an individual who withdraws his or her provisional waiver application prior to final adjudication, or whose provisional waiver is denied, can apply for a traditional waiver and wait for the waiver’s adjudication while outside of the U.S. For a traditional waiver process, you may file a Form I-601, Application for Waiver of Grounds of Inadmissibility with the USCIS Lockbox, after you attend the immigrant visa interview and after DOS conclusively determines that you are inadmissible. The Form I-601 is appealable to the AAO.
31. Can I file another new I-601A waiver application, if my prior I-601A waiver request is denied?
Yes. If your provisional unlawful presence waiver request is denied or withdrawn, you may file a new Form I-601A, in accordance with the form instruction, with the required fees and any additional documentation that you believe might establish your eligibility for the waiver. Your case must still be pending with DOS and you must notify DOS that you intend on filing a new I-601A.
32. What will happen to me if my provisional waiver application is denied or withdrawn? Will I be placed in removal proceedings?
The major question of the public that has not been addressed by USCIS in the final rule is what will happen to those aliens whose provisional waiver applications are denied. Final rule does not contain any confidentiality provisions that would protect the aliens from being placed in removal proceedings if their waiver application is denied.
USCIS has confirmed during the public engagement earlier today that the agency will use its current guidance in deciding whether to refer the case to ICE for removal proceedings if the waiver application request is denied. Consistent with Department of Homeland Security enforcement priorities, DHS does not envision initiating removal proceedings against aliens or referring aliens to ICE whose provisional unlawful presence waiver applications have been approved.
Consistent with its civil enforcement priorities, DHS has stated that an individual whose request for a provisional unlawful presence waiver is denied or who withdraws the waiver request prior to final adjudication will typically be referred to ICE only if he or she is considered a DHS enforcement priority – that is, if the individual has a criminal history, has committed fraud, or otherwise poses a threat to national security or public safety.
33. Can I leave the United States before biometrics collection?
No. DHS will not permit capture of biometrics abroad, because the Form I-601A process is a domestic process that applies only to aliens who are present in the United States at the time of filing. Therefore, you have to be physically present in the U.S. at the time of filing of the waiver application and have to appear for biometrics processing.
34. Can I reenter the U.S. before or after the provisional waiver is granted but before the immigrant visa is issued?
No, in accordance with the new rule, a provisional unlawful presence waiver is automatically revoked if the alien, at any time before or after the approval of the provisional unlawful presence waiver, or before the immigrant visa is issued, reenters or attempts to reentered the United States without being admitted or paroled.
35. Do I need an attorney to apply for a provisional unlawful presence waiver?
We recommend that you consult with an immigration attorney experienced in inadmissibility waiver process before you apply. Careful review of your case will help determine whether you qualify for the new process or whether any additional grounds of inadmissibility apply.
Our office has extensive experience focused on various waivers of inadmissibility. Our attorneys will help you determine whether provisional waiver processing is the best solution for your immigration case. Feel free to contact our office for your initial consultation and waiver eligibility assessment.
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