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USCIS Final Rule on Provisional Unlawful Presence Waiver

by Immigration Attorney Osas Iyamu on January 21, 2013
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HAPPY NEW YEAR!

I hope this year will be the year of the much-anticipated Immigration Reform.

USCIS Provisional Unlawful Presence Waiver

This year started off right with the publication of the final rule of the Provisional Unlawful Presence Waiver.

U.S. Citizenship and Immigration Services (USCIS) published a proposed rule on the provisional unlawful presence waiver on April 2, 2012, to allow certain immediate relatives of U.S. citizens who are seventeen years old and physically present in the United States but ineligible for lawful permanent resident status (green card) within the US, due to their unlawful presence in the US, to request provisional unlawful presence waivers before leaving the United States for consular processing of their immigrant visa applications.

The final rule implementing the provisional unlawful presence waiver process was announced by the Department of Homeland Security (DHS) on January 2nd 2013 and published in the federal register on January 3rd, 2013.

On January 2nd 2013,USCIS, in conjunction with the Department of State, held its first stakeholder teleconference to discuss the final rule, its requirements, and implementation.

The purpose of the final rule is to significantly reduce the length of time U.S. citizens are separated from their immediate relatives who engage in consular processing of their Immigrant Visa abroad, by allowing eligible applicants apply for the provisional waiver while still in the US, thus reducing the financial and emotional hardship for these families. The applicant may remain in the United States with his or her family until the time the applicant must depart from the United States to attend his or her immigrant visa interview.

The Provisional Unlawful Presence Waiver process is available only to those individuals who have no other grounds of inadmissibility other than unlawful presence in the US and are currently physically in the United States, and will be departing for consular processing abroad.

The final rule will become effective March 4th, 2013 and that’s the date USCIS will begin to accept applications for the Provisional Unlawful Presence Waiver. A new form I-601A, application for Provisional Unlawful Presence Waiver, will be published by USCIS before March 4th along with additional instruction on the filing process.

Applications filed before March 4th will be rejected by USCIS.

Jurisdiction to Adjudicate Provisional Unlawful Presence Waiver

USCIS is the only immigration agency with jurisdiction to adjudicate Provisional Unlawful Presence Waiver (Form I-601A) even when the applicant is in removal proceedings.

Qualified Individuals for Provisional Unlawful Presence Waiver.

The Provisional Unlawful Presence Waiver is limited to immediate relatives of U.S. citizens. Immediate relatives are defined as spouses, minor children, and parents of U.S. citizens.

These are the individuals who are qualified to apply for the provisional waiver upon a showing of extreme hardship to a US citizen spouse or US citizen parent.

An applicant cannot qualify for the provisional waiver upon a showing of extreme hardship to a US citizen child.

The provisional unlawful presence waiver process does not cover immediate relatives of U.S. Citizens, who could establish extreme hardship only to a Lawful Permanent Resident spouse or parent.

Family-sponsored preference categories and employment-based preference categories are not covered, and hence will not qualify for the provisional waiver.

Expanding the Provisional Unlawful Presence Waiver to Lawful Permanent Residents

USCIS has indicated that after assessing the effectiveness of the new process and its impact, it will, in consultation with the Department of State, consider expanding the Provisional Unlawful Presence Waiver process to include lawful permanent residents as qualifying relatives.

Requirement of Background Checks for Provisional Unlawful Presence Waiver

USCIS will conduct full background and security checks before making a decision on the provisional waiver.

This will help USCIS determine if an applicant is potentially subject to another ground of inadmissibility, and if there are negative factors or conduct that may affect approval of the waiver application. It will also ensure that an individual granted a provisional waiver, Form I-601A is not a national security risk or public-safety threat.

Filing Fees and Fee Waiver for Provisional Unlawful Presence Waiver

The initial filing fee that will be required for the Form I-601A is $585.00. The Biometric fee is $85.00. Applicants for a Provisional Unlawful Presence Waiver cannot seek a fee waiver for the Form I-601A filing fees, or the required biometric fees.

In the case of a withdrawn Form I-601A, USCIS will not refund the filing fees because USCIS has already taken steps to adjudicate the case. A new Form I-601A application due to denial or withdrawal will require the paying of new filing fees.

More Update on the final Rule will be posted.

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Topics: Ocala FL Immigration Blog, Illegal Immigrants, unlawful presence, USCIS Provisional Unlawful Presence Waiver, hardship waiver, three & ten Years unlawful presence bar, Final rule on Provisional Unalawful Presence waive, undocumented parents