USCIS Has Proposed an Expansion of Eligibility for I-601A Provisional Unlawful Presence Waivers

At this time, CIS is asking the public for comments on a proposed rule that would expand eligibility for provisional waivers of inadmissibility based on unlawful presence in the US.  The proposed rule would expand eligibility to many more foreign nationals who are eligible for an immigrant visa.

If the proposed rule is approved, the expansion of eligibility would probably take effect before the end of this year.

Until now, aliens in the US with unlawful presence, and with an approved immigrant visa petition, could only apply for an I-601A waiver if they were the spouse or parent of a US citizen.  The expansion rule would also allow parents and spouses of Permanent Residents to apply for an I-601A.

Why is the I-601A so important?    An alien who cannot be approved for adjustment of status in the US because of unlawful presence can only remain in the US illegally, or go abroad for consular processing.  However, if the alien was in the US unlawfully for a long time, he or she might be subject to a 3 or 10 year bar of re-entry.    But, with an approved I-601A, the alien can apply for a visa at the Consulate, without worrying about the 3 or 10 year re-entry bar.

Under the new rule, if you have a current visa petition, and if you are in the US unlawfully, you will be able to apply for a Provisional Waiver.  This will benefit parents, children, and spouses of both US citizens and Permanent Residents.

This proposed expansion will permit any alien seeking an immigrant visa to now apply for a provisional waiver before leaving the United States to attend his or her immigrant visa interview abroad.

Benefits of the Proposed Changes:     By making the provisional waiver process available to the parents and spouse of both US citizens and Permanent Residents, DHS would be expanding the number of aliens who could benefit from a streamlined immigrant visa process. DHS believes that expanding availability of the provisional waiver process would likely reduce the overall immigrant visa processing time for eligible immigrant visa applicants.  

DHS also believes that the proposed expansion would reduce the hardship that U.S. citizen and Permanent Resident families experience as a result of separation from their alien relatives.

Under the proposed rule, you may be eligible for a provisional unlawful presence waiver if :

• You are physically present in the United States;
  
• You have are the beneficiary of an approved immigrant visa petition classifying you as the immediate relative of a U.S. citizen or Permanent Resident; 
• You have an immigrant visa case pending with the U.S. Department of State, for which you have already paid the immigrant visa processing fee; 
• You have not had your immigrant visa interview scheduled before the start dateof the approved rule and you have not applied for adjustment of status in the US.
• You are inadmissible based on having a certain period of unlawful presence in the United States. 
  

I-601A applicants must be able to demonstrate that the denial of the waiver would result in extreme hardship to their U.S. citizen or Permanent Resident spouse or parent.  This is sometimes very difficult to do.  Obama’s Executive Action last November mentioned making the Hardship requirements less demanding, but Proposed Rule does not mention anything about it.

Extreme hardship is defined as hardship going beyond that normally suffered by a family when there is prolonged separation.  Extreme hardship can be the result of health issues, emotional and psychological issues, financial issues, country conditions abroad, family ties in the U.S. and abroad.  There is no magic formula and each case must be evaluated on its own individual merits.  

Finally, please keep in mind that no one should submit applications based on the proposed rule until CIS announces a start date, probably at the end of this year.

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Q.1. If I have a pending or approved request for a provisional unlawful presence waiver can I receive interim benefits?

A.1. The filing or approval of a provisional unlawful presence waiver will not affect an individual’s current immigration status in the United States. A pending or approved provisional waiver 

Will NOT provide interim benefits such as employment authorization or advance parole;

Will NOT remove the requirement to depart the UnitedStates to seek an immigrant visa at a US consulate; 

Will NOT guarantee immigrant visa issuance or admission to the United States.

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Q.2. What should if I get approval of my provisional unlawful presence waiver?

 A.2.  USCIS will notify the National Visa Center (NVC).  After NVC is notified, DOS will resume processing your immigrant visa case.  The immigrant visa interview is scheduled at the U.S. consulate, and you are notified of your interview appointment date. You will need to depart the United States and attend your immigrant visa interview at the US consulate.

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Q.3.  If USCIS denies my request for a provisional unlawful presence waiver, can I file an appeal or a motion to reopen or reconsider?

A.3.  No. If USCIS denies your request for a provisional unlawful presence waiver, you cannot file an appeal or a motion to reopen or reconsider the denial.   You will have to file a new I-601A.