Today, U.S. Citizenship and Immigration Services (USCIS) announced a “Notice of Intent” that it is considering issuing a rule change to allow a narrow class of specified immigrant visa applicants to process their I-601 waivers of inadmissibility in the U.S. This means that they would have a provisional decision about their waiver eligibility BEFORE they leave the U.S. to complete interviews at U.S. consulates abroad. The rule itself has not been issued. There will most likely be a period for public comment before the rule is implemented. Therefore, it could be a few months before this procedural change goes into effect, and the nature of the final rule could change based on public feedback. Meanwhile, next week, USCIS will hold a teleconference with stakeholders.

The proposal would be a procedural change only. It is not a change to qualifications. It is not amnesty or another new benefit, as the anti-immigrant folks will surely claim. USCIS intends this rule to make the overall process more efficient and a cost saver for the government by reducing the back and forth of applications between the State Department (consulates) and USCIS. Most importantly, the change would reduce the amount of time some families are separated and promote family unity, something desperately needed in our immigration laws and procedures. However, the proposal is limited to a very, very narrow group of applicants. One has to ask why the government doesn’t want to save more money by broadening the group of people to whom this procedural change should apply and suffer the same family hardships. Nonetheless, for the limited group to which it will apply, the change is a welcome assist to applicants for immigrant visas abroad who are presently in the U.S. Presently, they have to decide whether or not to take the risk of leaving the U.S. to complete processing their family based green card applications at U.S. consulates not knowing if their waiver applications will be approved. This change will presumably make that decision making process for families easier.

About Unlawful Presence Waivers
Briefly, if an applicant has been unlawfully present in the U.S., whether by unlawful entry or other visa violation, for six months or more, the very act of leaving the U.S. to legalize status by obtaining an immigrant visa abroad triggers the three or ten-year bar to returning to the U.S. Once the bar is triggered, a waiver of the unlawful presence bar is required to come back earlier than three or ten years. Not everyone who has been in the U.S. unlawfully needs to consular process or is subject to the unlawful presence bar. Examples include unlawful entrants who are eligible for section 245(i) adjustment of status in the U.S., or certain immediate relatives who entered with lawful visas who may have overstayed. Whether one is or is not subject to the bar or must consular process should be determined in consultation with an experienced immigration lawyer.

Because waivers are decided by USCIS and not the consulate, applicants can be stranded abroad, separated from families and jobs while waiting for waivers to be decided. Once the waiver is approved by USCIS, the applicant returns to the consulate for issuance of the visa. If the waiver is not approved, the applicant remains outside the U.S. until the three or ten-year period ends. This separation creates huge hardships for families. Wouldn’t you want to know the likelihood of your waiver application being granted BEFORE deciding whether to leave the U.S. for the final visa interview?

The U.S. consulate in Ciuadad Juarez, Mexico is the largest consulate in the world. It has the greatest number of visa applicants waiting for waivers. Many applicants or their families have suffered from the violence in Mexico while waiting for the outcome of their visas. Similar fates await visa applicants in other countries such as Nigeria, Sudan and places where there is internal conflict. There are immigrant visa applicants all over the world currently waiting for waiver decisions while being separated for months or years from their U.S. citizen or green card holding family members.

Waiver eligibility weighs heavily into the applicant’s risk/benefit analysis for deciding whether to leave the U.S. Unpredictability in the waiver adjudications puts applicants into a Catch-22 situation and is one reason why many people in the U.S. who could regularize their status remain unlawfully in the U.S. The proposed rule change, however, will not impact waiver requirements or adjudication variables. It only affects whether one applies for the waiver before or after leaving the U.S. USCIS acknowledges this irony in its proposal, thanks to Congress, who in 1990 enacted the bars and waivers: “The action required to regularize the status of an alien, departure from the United States, therefore is the very action that triggers the section 212(a)(9)(B)(i) [unlawful presence ground of ] inadmissibility that bars that alien from obtaining the immigrant visa.” As I have mentioned in prior blog posts, eliminating the unlawful presence bars should be an essential element of immigration reform that would also save the government lots of money. The government bureaucracy devoted to waiver adjudications has mushroomed over the years as has the cottage industry of psychologists, doctors, country condition experts and others who often weigh in on the hardships an applicant will face.

Narrow requirements for stateside processing of waivers

If and when the rule becomes effective, unfortunately, it will be very limited as currently proposed. First, it would apply only to immediate relative visa applicants (spouses, minor unmarried children under 21, and parents of U.S. citizens) and some self-petitioners (widows/widowers of U.S. citizens). It would not apply to the same family members of green card holding sponsors or other family member combinations, nor to employment based visa applicants. The rule is only intended to modify the time of family separation among U.S. citizen family members during waiver processing. It does not change the extreme hardship qualifying standard or statute.

The waiver statute requires the applicant to show it would be an “extreme hardship” to a U.S. citizen or lawful permanent spouse or parent of the applicant. The procedural change, however, would only apply to applicants who can show extreme hardship to the U.S. citizen spouse or parent, not to a qualifying green card holding parent or spouse. The latter group of individuals would still have to process the waiver abroad. Why the distinction in procedure since they are part of the nuclear family and are qualifying members to suffer hardship under the statute? Who must suffer the hardship is set by Congress by statute. USCIS cannot change this, but they can develop procedures. It makes no sense to make one group of immediate relatives process I-601s stateside while another group of immediate relatives have to go abroad to process their I-601s.

Second, if the waiver is approvable, it will be approved provisionally, not fully. For the waiver grant to be effective, the applicant must leave the U.S. and pursue the immigrant visa application at the U.S. consulate abroad. Third, the rule would also limit applicability to those immigrant visa applicants whose sole ground of inadmissibility is the unlawful presence bar (any period of unauthorized stay for 180 days or longer since April 1, 1997 such as entry without inspection, visa overstay, etc. who are otherwise barred from adjustment of status in the U.S. or don’t meet one of the exceptions). Thus, if the applicant is inadmissible under other grounds, he or she must apply for the waiver abroad at the consulate. The consulate then sends the waiver to USCIS for adjudication while the applicant waits abroad. When adjudicated, the applicant is invited for the final visa interview.

Note that minor U.S. citizen children are not qualifying relatives for whom suffering extreme hardship is required to be shown. Typically, their hardships come into play after the qualifying relatives’ hardships have been proved. At that point, USCIS must balance the equities, including the children’s hardships, and any negative factors to decide the waiver one way or the other in the exercise of discretion.

For those applicants that can stateside process their I-601s, if the waiver is provisionally approved, they then will go to the consulate for the interview. If all goes well, they should be back in the U.S. within a few days of visa issuance. However, if the consular officer finds that the person is subject to another ground of inadmissibility, the applicant will need to file another waiver application and remain outside the U.S. until it is decided. Thus, the proposed procedural change will be best for people who are absolutely certain they are not subject to any other grounds of inadmissibility other than the unlawful presence bar.

Stay tuned for further developments.