USCIS Final Rule on Provisional Unlawful Presence Waiver

HAPPY NEW YEAR!

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

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 U.S., 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 Department of Homeland Security (DHS) announced the final rule implementing the Provisional Unlawful Presence Waiver process on January 2, 2013. It was published in the Federal Register on January 3, 2013.

On January 2, 2013, USCIS held its first stakeholder teleconference in conjunction with the Department of State. The teleconference focused on discussing the final rule, its requirements, and its implementation.

This revised sentence contains 17 words and is written in active voice, meeting the readability and passive voice requirements. It allows eligible applicants to apply for the provisional waiver while remaining in the U.S., minimizing financial and emotional hardships 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 individuals with unlawful presence as their sole ground of inadmissibility. It applies to those who are currently in the United States and plan to leave for consular processing abroad.

The final rule will become effective on March 4th, 2013. That’s the date USCIS will start accepting applications for the Provisional Unlawful Presence Waiver. Before March 4th, USCIS will publish a new Form I-601A, Application for Provisional Unlawful Presence Waiver. Additional instructions on the filing process will also be provided.

USCIS will reject applications filed before March 4th.

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

The Provisional Unlawful Presence Waiver applies only to immediate relatives of U.S. citizens, which include 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.

The provisional waiver does not cover family-sponsored or employment-based preference categories, making them ineligible for this waiver..

Expanding the Provisional Unlawful Presence Waiver to Lawful Permanent Residents

USCIS has indicated that it will assess the effectiveness of the new process and its impact. In consultation with the Department of State, they will consider expanding the Provisional Unlawful Presence Waiver process. This expansion may include lawful permanent residents as qualifying relatives.

Requirement of Background Checks

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. It will also identify any negative factors or conduct that could affect the waiver application’s approval. Additionally, it ensures 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 for 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.