Recently, a comment was posted on my immigration blog – The Reality of USCIS Provisional Unlawful Presence Waiver.
Stating:
- I have been listening to some rumors that suggest that the Provisional Waiver would be put, in effect, on December 4th.
- I was told that any individual that has paid their Visa fees, would not be able to qualify for the Provisional waiver, even though they do not have an appointment 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 am not aware of any information from USCIS suggesting the provisional unlawful presence waiver will be put into effect on December 4th 2012.
Until USCIS publishes a final rule and gives effect to the proposed Form I-601 provisional unlawful presence waiver, the current process of filing Form, I-601 unlawful presence waiver is to be followed by spouses, parents and minor children of US citizens who would otherwise qualify for the proposed I-601 provisional unlawful presence waiver.
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 who has remained unlawfully in the US for 180 or more days presents themselves at the Embassy/Consulate for their Immigrant Visa, the three/ten year bar will be triggered making them ineligible for the immigrant visa. In order to overcome the three /ten year unlawful presence bar penalty, form I-601 Application for Waiver of Grounds of Inadmissibility has to be filed while outside the US and approved before an Immigrant visa is issued.
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.
Effective December 4th 2012, all Form I-601 Application for Waiver of Grounds of Inadmissibility filed from outside the US must be sent to USCIS centralized filing location.
In order for the Proposed I-601 Provisional unlawful presence waiver to take effect, it has to be published in the federal register and the date it will take effect has to be specified. The form that will be used for the application will be Form, I-601A, Application for Provisional Unlawful Presence Waiver. USCIS will post the proposed form in the Federal Register for formal comment soon.
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 are under the age of 17 years when the provisional unlawful presence waiver is filed;
f. They are in removal proceedings that have not been terminated or 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 not subsequently 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 details of the proposed rule published in the federal register, the US Immigration Agency, USCIS proposes to require an applicant seeking a provisional unlawful presence waiver to submit evidence demonstrating that he or she has initiated the immigrant visa process with the Department of State National Visa Processing Center (NVC) based upon the approved Petition, by submitting evidence that he or she has paid the required immigrant visa processing fee.
Such evidence is required to ensure that the applicant is pursuing consular processing, as the provisional unlawful presence waiver would be granted to facilitate the immigrant visa interview.
An applicant, however, is not eligible to apply under the proposed process if he or she has already been scheduled for an immigrant visa interview at an American Embassy or consulate abroad.
Immigrant visa applicants who have already had their appointments scheduled, whether they actually appeared for the interview or not, are excluded from filing and should proceed 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. Changes may likely be made to the final rule and as the process unfolds, more clarifications on eligibility will be published by USCIS.
