President Obama’s November 20, 2014 announcement of Executive Action actually included 12 memos to various agencies with instruction to create or amend administrative policies or to issue new regulations.  One of those memos deals with expansion of the provisional stateside or family unity waiver for unlawful presence.  By way of background, waivers are additional applications required of nonimmigrants visa applicants or permanent resident applicants who are inadmissible to the US or removable from the US for any number of reasons.  US immigration law has numerous grounds of removal (reasons why a person could be deported) and numerous grounds of inadmissibility (reasons why a person could be denied a visa, green card or admission to the USA).  Some of those grounds have exceptions; in other words, the ground of inadmissibility might be for X reason but does not apply to a  certain group of people.  Some grounds of inadmissibility have waivers available, i.e., the waiver application, if granted, waives the ground of inadmissibility or removability so that the applicant can proceed to have the visa or green card granted. And finally, some grounds of inadmissiblity or removability have neither exceptions nor waivers and are strict liability such that no relief is available.

Unlawful presence waivers

One ground of inadmissibility for a green card or a visa that affects millions of people in the US without papers is the ground of unlawful presence due to illegal entry without a visa and inspection, or for periods of unauthorized stay, such as overstaying a tourist visa.  If the person has entered illegally or overstayed by 6 months up to a year, there is a three-year bar to reentry if the person leaves the USA.  If the person overstayed a year or more, there is a 10-year bar to reentry. Many of the millions of undocumented individuals in the USA have a way to permanently immigrate through a relative or employer, but must process their cases at a US consulate abroad.  By leaving the USA to go to the consulate, the three or 10-year bar is triggered. Thus, if the person tries to immigrate and has not been abroad yet for the required three or 10 years, a waiver is required.  To get that waiver approved, the applicant must show “extreme hardship” to a U.S. citizen spouse or parent, or to a lawful permanent resident spouse or parent.  This waiver is often referred to as the extreme hardship waiver for unlawful presence (ULP).

Historically, the waiver was applied for after the visa applicant had the consular interview abroad. And then it would take a good three -six months or more to have the waiver decided before the applicant could go back to the consulate to get the visa. This means applicants are separated from family members for months and months. And, because of inconsistent adjudications of “extreme hardship,” some people may not even have their waivers approved. Because of these lengthy separations and/or unpredictability inherent to the waiver process, many families have chosen not to leave the US, and are thus stuck in legal purgatory.

Provisional waivers for unlawful presence

In 2013, USCIS created “provisional” or “stateside” waivers, basically a change in procedure, not eligibility for waivers.  (These waivers are sometimes referred to as “I-601A” waivers after the form to be used.) The standard of extreme hardship is the same as are the qualifying relatives (QRs): US citizen or green card holding spouses and parents to whom extreme hardship must be shown.  However, the provisional waiver program was made available only to spouses and minor children of US citizens. In addition, the provisional waiver is only available to people whose sole ground of inadmissibility is unlawful presence. Thus, if an applicant also is subject to a criminal ground of inadmissibility, or a fraud ground or some other ground, they will need to process their waiver application after the consular interview in the way its always been done abroad, thus stranding applicants abroad away from their families.

For those eligible for the provisional waiver, once the I130 visa petition is approved and sent to the National Visa Center, the applicants can file their waivers in the USA and wait in the USA until the waiver is conditionally granted. (Notice of intent to do so must be sent to the National Visa Center.) Note, USCIS can only conditionally grant the waiver while the consular officer makes the final decision after the interview in case new facts come out. Therefore, provisional waivers are not guaranteed grants of the waiver. Nonetheless, the provisional waiver allows families to stay together in the USA while the waiver is processed ahead of the consular interview date, so the applicant hopefully will not be abroad longer than a couple of weeks.  Note, the provisional waiver does not grant the applicant any legal status in the USA while the waiver is pending.

Expansion of Provisional Waiver

What President Obama’s Executive Action memo does is expand the group of people who can seek provisional waivers stateside to include those immigrating as the sons and daughters of US citizens, and the spouses, sons and daughters of lawful permanent residents.  Previously, the group of those eligible for provisional waivers did not match the type of qualifying relatives for waivers or all the groups eligible to seek a ULP waiver.  The purpose of the Executive Action is to encourage more applicants to use the stateside waiver process so more undocumented individuals with a way to immigrate can regularize their status.

When will this be effective?

The additional people who will be eligible for unlawful presence waivers adjudicated stateside will be effective after USCIS issues new guidance and regulations, which could be several months from now.

USCIS to develop “extreme hardship” standard

Perhaps the most exciting thing is that President Obama directed USCIS to develop a specific policy defining “extreme hardship” to include provisions for presumptive hardship. As the law stands right now, there is no statutory or regulatory definition of extreme hardship for unlawful presence waivers. Since the waiver rule has been around, adjudication of extreme hardship waivers has been all over the place. Two cases with the same facts could have different results. Part of the provisional waiver process involved consolidating waiver adjudications in one office, whereas before that, they were decided around the world.  There is some case law on what extreme hardship may entail borrowed from other immigration benefits categories, but there never has been specific guidance or case law pertaining explicitly to these waivers, which is sorely needed.  USCIS has also been directed to develop standards that could raise a presumption of hardship (examples could be military service, having American born children or other standards). USCIS is directed to consider as hardship factors the following nonexclusive list: family ties to the United States and the country of removal, conditions in the country of removal, the age of the U.S. citizen or permanent resident spouse or parent, the length of residence in the United States, relevant medical and mental health conditions, financial hardships, and educational hardships.

Like the new expanded groups of people eligible to have stateside provisional waivers, we’ll have to wait and see what guidance or regulation comes out further defining the extreme hardship standard. Hopefully, it will apply to other types of inadmissibility grounds that also have extreme hardship standards for waivers.  As the President’s Executive Action suggests, more people would use the waiver process to finish up their immigration if the standards were clearer and more predictable. Better yet, it would be great if Congress simply repealed the three and 10-year bars or loosened up the waiver standard.  Stay tuned for more details in the coming months.