The United States Citizenship and Immigration Services (USCIS) has published a new final rule that will expand the class of individuals who are eligible to apply for a ‘provisional’ waiver of certain grounds of inadmissibility (Form I-601A) based on their accrual of unlawful presence in the United States.
The provisional unlawful presence waiver allows certain individuals, unlawfully present in the United States, to request a provisional waiver before departing the United States for consular processing of their immigrant visas.
Previously, only immediate relatives of U.S. Citizens were eligible for this waiver. The provisional waiver is beneficial because it does not require the applicant to wait until the consular interview, to apply for a waiver, as in the case of the I-601 waiver. Provisional waivers also substantially reduce the time of separation between the applicant and his or her U.S. Citizen or legal permanent resident (LPR) relatives.
The rule was published in order to improve efficiency and reduce the amount of time that a U.S. Citizen/LPR spouse or parent is separated from his or her relatives while the relative completes the immigrant visa process. According to the 2013 rule, parents, spouses and children of U.S. Citizens were eligible to apply for provisional waivers of the 3- and 10-year unlawful presence bars before departing the United States for their immigrant visa interviews. The new rule expands upon the 2013 rule extending that benefit to family members of LPRs.
The rule will expand the provisional waiver process to certain individuals who are family members of U.S. Citizens and lawful permanent residents (LPRs) who meet the statutory requirements to be eligible for an immigrant visa. The rule will expand eligibility to all individuals statutorily eligible for the waiver. In order to qualify, applicants must be able to establish that their U.S. Citizen or LPR spouse or parent would experience an “extreme hardship” if the applicant was not allowed to remain in the United States. The final rule will take effect on August 29, 2016.
What is the purpose of the provisional waiver?
Individuals who have entered the United States without proper inspection by a U.S. Customs official, or who have not been admitted or paroled into the United States, are not eligible to adjust their status in the United States or obtain an immigrant visa abroad, based on the fact that they entered the country illegally (without inspection). Individuals who depart the United States after having been unlawfully present in the United States, are subject to certain grounds of inadmissibility based on the accrual of unlawful presence in the United States under INA section 212(a)(9)(B)(i), thereby triggering the 3- and 10-year ‘bars’ depending on the length of the individual’s unlawful presence in the United States. In order to provide relief for these 3- and 10-year bars, and legalize their status such individuals must seek a waiver based on their unlawful presence in the United States. Aliens who are subject to multiple ‘bars’ must seek a separate waiver for each ground of inadmissibility.
The provisional waiver process is intended to encourage individuals unlawfully present in the United States to legalize their status in the United States by departing the United States to attend their consular immigrant visa interviews, and return to the United States legally. Once the applicant has received an approved provisional waiver, issuance of an immigrant visa is much more streamlined at the consular level, thereby reducing the time that applicants and immediate family members are separated from one another. It is important to understand that even with the final rule, applicants must still depart the United States to complete the immigrant visa process abroad and attend the consular interview. Approval of the I-601A waiver allows the immigrant visa process to be expedited for the purpose of family reunification.
What is the 3-year bar?
An individual who has been unlawfully present in the United States for more than 180 days but less than one year, who then departs voluntarily from the United States before commencement of removal proceedings, is inadmissible to the United States for 3 years from the date of the alien’s departure INA section 212(a)(9)(B)(i)(I).
What is the 10-year bar?
An individual who has been unlawfully present in the United States for one year or more and then departs the United States (before, during, or after removal proceedings) is inadmissible for 10 years from the date of the departure INA section 212(a)(9)(B)(i)(II).
The provisional waiver in effect functions to ‘waive’ the 3- and 10-year bars:
“The Secretary of Homeland Security (Secretary) may waive this ground of inadmissibility for an individual who can demonstrate that the refusal of his or her admission to the United States would result in extreme hardship to his or her U.S. citizen or LPR spouse or parent. See INA section 212(a)(9)(B)(v), 8 U.S.C. 1182(a)(9)(B)(v). Prior to the creation of the provisional waiver process in 2013, any individual who was seeking an immigrant visa and became inadmissible under the 3- or 10-year unlawful presence bar upon departure from the United States, could apply for a waiver of such inadmissibility from DHS by filing an Application for Waiver of Grounds of Inadmissibility, Form I-601, with USCIS, but only after having attended the consular immigrant visa interview abroad. Those who applied for waivers under this “Form I-601 waiver process”  were effectively required to remain abroad for at least several months while USCIS adjudicated their waiver applications. ”
What the new rule does not do
If you have been deported, removed, or excluded from the United States you must first file the I-212 waiver and receive conditional approval before proceeding with the I-601A application. Approval of the I-601A waiver does not eliminate any other grounds of inadmissibility the applicant may have accrued as a result of returning to the United States without inspection after having been deported, removed, or excluded from the United States, or as a result of having acquired unlawful presence in the past. The I-601A may only provide relief for bars of 3/10 years as a result of the accrual of unlawful presence in the United States.