Immigration and firm news

USCIS Issues Proposed Rules Expanding I-601A Provisional Waivers

On July 22, 2015, USCIS issued proposed rules in the Federal Register that expand Provisional Unlawful Presence Waivers of Inadmissibility.  Anyone can submit comments on or  before September 21, 2015. They should be sent to uscisfrcomment@dhs.gov using “DHS Docket No. USCIS-2012-0003” in the subject line. Note, your comments will be publicly available.  The proposed rule stems from one of President Obama’s Executive Actions announced in November 2014 in which he stated that he wanted to expand this provisional waiver program to reduce family separation during consular processing when a waiver of inadmissibility is needed.  Note that the proposed rule is not yet in effect!

Provisional waivers are filed on form I-601A and are sometimes called I-601A waivers or family unity waivers or unlawful presence (ULP) waivers.  They deal with the sole ground of inadmissibility for green cards purposes where the applicant either entered the US illegally and never left, or overstayed a visa for more than six months or a year subjecting the person to either the 3- or 10-year bars to reentry.  I-601As are used when the green card applicant is ineligible for adjustment of status and must apply for an immigrant visa at a U.S. consulate abroad.  INA section 212(a)(9)(B)(i). These waivers are not available to anyone who has other grounds of inadmissibility such as illegal reentry after deportation or removal, fraud or misrepresentation, certain crimes or other reasons. See other grounds of inadmissibility in INA Section 212(a). Some are waivable and some are not. Nor are they available to immigrant visa applicants who are already living abroad.  Waivers are discretionary, meaning even if the requirements are met, the government will balance the good facts with the bad in deciding whether to grant or deny. Most, but not all waivers, require showing proof of “extreme hardship” to a qualifying relative. Waiver applications can be time consuming to prepare and are costly. Exactly who accrues ULP and how, is the subject of a 50+ page USCIS memo.

I-601A waivers differ from the traditional I-601 waivers for the same purpose only as to the procedure and manner of filing, not the requirements. The I-601A waiver process has the same eligibility requirements as does those who need to use the traditional I-601 form. I-601A waivers allow for processing of the waiver while the person is still in the USA before having to leave the USA for further consular processing to complete the green card process. If the I-601A is granted, it is granted only on a provisional basis, i.e., while approval is recommended, it is not guaranteed.  Then, at the time of the consular interview, the consular officer needs to decide if ULP is the only ground of inadmissibility and that all the facts in the waiver are true. If so, then the visa can be issued and the waiver deemed approved. This process saves the applicant from months of family separation. However, if the consular officer determines the facts were not fully known to USCIS when it decided the waiver, or there are other grounds of inadmissibility, the applicant will be stuck in the consular district while waiting for the traditional I-601 waiver to be processed in the US.  These waivers can also take months to decide and cause family separation.

The original I-601A program is available ONLY to green card applicants who are the spouses, parents and children under 21 years old of U.S. citizens (USC), otherwise known as immediate relatives.  Since the waiver requires demonstrating proof of “extreme hardship” to a “qualifying relative,” currently, the applicant can only seek an I-601A waiver if the qualifying relative for the waiver is a U.S. citizen parent or spouse. These waivers do not permit U.S. citizen children to be qualifying relatives for extreme hardship purposes.  However, this group of qualifying relatives are not the only ones listed in the statute for ULP waivers.

The new regulation would expand eligibility  or the provisional waiver process to all applicants who can file for waivers in the first instance pursuant to statute: that is, applicants whose spouses or parents are U.S. citizens or lawful permanent residents (LPRs.) The statute requires proving that the USC or LPR spouse or parent would suffer extreme hardship if the applicant is denied the waiver.  Probably the biggest news is that the I-601A waivers would also be available to beneficiaries of employment based petitions, self-petitions (e.g., VAWA, widow, certain special immigrants, other employment self-petitions, DV lottery applicants), as well as derivative spouses and children of any of the categories previously mentioned who have USC or LPR spouses or parents.

In terms of timing, the proposed rule would limit waiver eligibility to those immigrant visa applicants who have not had their interviews scheduled before the effective date of the rule. Immediate relatives could apply so long as their immigrant visa interview was not scheduled before January 3, 2013 with some other conditions.

Many people don’t realize that part of the reason the numbers of undocumented immigrants are so high in the U.S. is because many mixed-status families are trapped here.  They either do not have qualifying relatives for extreme hardship waivers, or the waiver process with its unpredictable outcomes can leave families torn apart for months or years during the consular processing and waiver application delays. Many families have chosen not to take the risk of separation when indeed they have a way to immigrate. The benefit of the provisional waiver process is that families can have a little more predictability before they proceed abroad to finalize consular processing.  Of course, those families not eligible for provisional waivers must decide whether to undergo the separation involved in the traditional visa and waiver processing abroad or remain underground.

Undoubtedly the misinformation by the anti-immigrant folks in the media will characterize this as just another amnesty program. It couldn’t be further from the truth.  The provisional waiver process is merely a procedural change. As Congress has done nothing to change the grounds of inadmissibility or the waiver statute, this rule doesn’t change the statutory requirements either because the administration lacks the power to do so.  But, it is a humanitarian move to reduce the amount and time of family separation and the hardships involved by changing the location and timing of when waivers can be applied for before leaving the U.S. to complete immigrant visa processing abroad.  Hopefully, this process will help many more families stay together.  Another of President Obama’s Executive Actions called for issuance of a  policy memo or regulations to better define “extreme hardship” for these waivers. That proposal has yet to be issued. Stay tuned.