Recently, a comment was posted on my immigration blog titled “The Reality of USCIS Provisional Unlawful Presence Waiver.
Stating:
- I’ve heard rumors suggesting that the Provisional Waiver might take effect on December 4th.
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I was informed that, in particular, individuals who have already paid their visa fees would not qualify for the Provisional Waiver. Furthermore, this applies even if they do not have an appointment scheduled in their country of origin.
This blog post will attempt to respond and clarify certain issues relating to the proposed provisional unlawful presence waiver
Effective Date of USCIS Proposed Provisional Unlawful Presence Waiver
I have not received any information from USCIS indicating that the provisional unlawful presence waiver will take effect on December 4th, 2012.
The rumor may, however, be related to the transition to centralized filing of Form I-601, Application for Waiver of Grounds of Inadmissibility, filed by applicants outside the U.S. This is different from the proposed I-601 provisional unlawful presence waiver.
When an immigrant unlawfully present in the U.S. for 180 days or more attends their immigrant visa interview at an Embassy or Consulate, the three- or ten-year bar triggers, making them ineligible for the visa. To overcome this bar, they must file Form I-601, Application for Waiver of Grounds of Inadmissibility, from outside the U.S., and the U.S. Citizenship and Immigration Services must approve it before they can receive the immigrant visa.
On June 4th 2012, USCIS announced that all applicants required to file form, I-601 application for Waiver of Grounds of Inadmissibility from outside the US will now have to send their application to a centralized location in the US.
There is a six-month transition period from June 4th 2012.
For the proposed I-601 Provisional Unlawful Presence Waiver to take effect, it must be published in the Federal Register along with a specified effective date. The application will use Form I-601A, Application for Provisional Unlawful Presence Waiver.
USCIS will post the proposed form in the Federal Register for formal comment soon. Therefore, stakeholders will have the opportunity to provide their feedback, which will be crucial for shaping the final version.
Eligibility for the Proposed Provisional Unlawful Presence Waiver
Applicants may request a provisional waiver if:
a. Their sole ground of inadmissibility at the time of the immigrant visa interview would be Unlawful Presence for more than 180 days;
b. They are the beneficiary of an approved Form, I-130, or Form, I-360, classifying them as immediate relatives of US Citizen, and seek an immigrant visa from the Department of State based on the approved petition;
c. They are physically present in the United States when they file the application for the provisional unlawful presence waiver;
d. They appear for biometrics capture in the United States;
e. They establish that a U.S. citizen spouse or parent would experience extreme hardship if the individual is denied admission to the United States as a Lawful Permanent Resident;
f. They warrant a favorable exercise of discretion; and
g. They are 17 years or older at the time of filing an application for a provisional unlawful presence.
Ineligibility for the Proposed Provisional Unlawful Presence Waiver
Individuals are ineligible for a provisional waiver if:
a. They are outside the United States;
b. They do not have an approved Form I-130 or Form I-360 petition, classifying them as an immediate relative;
c. They have not paid the immigrant visa processing fee and are not actively pursuing the immigrant visa process based on the approved petition;
d. They have already been scheduled for an immigrant visa interview;
e. They must be under the age of 17 when someone files the provisional unlawful presence waiver.
f. They are in removal proceedings that the authorities have neither terminated nor dismissed.
g. They have not had the charging document (Notice to Appear) to initiate removal proceedings cancelled;
h.They are in removal proceedings that have been administratively closed but have not reopened for the issuance of a final voluntary departure order.
i. They are subject to a final order of removal;
j. They have a pending application for adjustment of status to that of a Lawful Permanent Resident in the United States;
k. USCIS has reason to believe they would be subject to one or more other grounds of inadmissibility;
l. They fail to establish extreme hardship or do not merit a favorable exercise of discretion; or
m. They previously filed a provisional unlawful presence waiver application.
Payment of Visa Fee before Filing the provisional Unlawful Presence waiver.
According to the proposed rule in the Federal Register, USCIS requires applicants to submit specific evidence. They must show they initiated the immigrant visa process with the NVC based on an approved petition. This includes proof of paying the required immigrant visa processing fee.
Immigrant visa applicants who already have scheduled appointments, whether they attended the interview or not, cannot file and must continue with the immigrant visa interview outside the US.
Applicants whose provisional waiver requests are denied, however, may still apply for a waiver through the current, I-601 waiver process. This is a second bite into the apple.
The proposed provisional unlawful presence waiver is not yet final.USCIS may make changes to the final rule, and as the process unfolds, they will publish more clarifications on eligibility.
