The final rule expanding the I-601A Provisional Unlawful Presence Waiver to all statutorily eligible applicants went into effect on August 29, 2016. It allows more immigrant visa applicants, who are in the U.S., to seek the unlawful presence waiver before they depart for their visa interview abroad.
Published on July 29, 2016, the final rule is meant to encourage unlawfully present persons (who are ineligible for adjustment of status) to leave the U.S., attend their immigrant visa interviews, and return legally to the U.S. as permanent residents.
What Changed Under the 2016 Final Rule?
The final rule expanding the I-601 Provisional Unlawful Presence Waiver resulted in several changes that promote family unity and streamline the immigrant visa and waiver application process.
1. The I-601A Provisional Unlawful Presence Waiver is Available to All Statutorily Eligible Immigrant Visa Applicants
The 2013 regulation extended the Provisional Unlawful Presence Waiver only to spouses, minor children (under age 21 or CSPA-eligible ), and parents of U.S. citizens. Under the 2016 regulation at 8 CFR 212.7(e), the pool of eligible applicants is no longer limited to immediate relatives of U.S. citizens.
Under the 2016 final rule, all beneficiaries of family-sponsored and employment-based immigrant visa petitions, as well as Diversity Visa Lottery selectees, who are eligible for an immigrant visa may seek the I-601A waiver – as long as they meet the statutory requirements under INA section 212(a)(9)(B)(v). The statute requires you (a) have a qualifying relative (i.e. U.S. citizen or permanent resident spouse or parent) who will suffer extreme hardship if you are not admitted to the U.S., and (b) deserve the waiver in the favorable exercise of discretion.
2.There is No Time Restriction Based on the Date the Department of State’s Acted to Schedule the Immigrant Visa Interview
In the proposed rule, the Department of Homeland Security (DHS) sought to keep the time restrictions preventing immediate relatives of U.S. citizens from applying for the I-601A waiver if the DOS acted before January 3, 2013 to schedule their immigrant visa interview – even if they failed to appear for the interview, the interview was cancelled, or the interview was rescheduled on or after January 3, 2013.
The proposed 2016 rule would have made other applicants ineligible if DOS initially acted before the effective date of the final rule to schedule their immigrant visa interviews. I-601A waiver applications subject to the time bar would have been rejected or denied.
In the final rule, the DHS removed the restrictions based on the date that DOS acted to schedule the immigrant visa interview. There is no more visa interview scheduling cut-off dates.
Immigrant visa applicants who were previously subject to the January 3, 2013 cut-off date may now apply for the I-601A waiver, as long as they did not depart the U.S. If their visa case was terminated due to inaction of one year or more, they may ask the DOS to reinstate their visa application or the petitioner may file a new immigrant visa petition for them.
3. Reason-to-Believe Standard, as a Basis for Ineligibility, No Longer Exists
Under the 2013 rule, you were ineligible for the I-601A waiver if USCIS determined, based on the record, there is reason to believe you are inadmissible on grounds other than unlawful presence, such as immigration fraud, illegal re-entries, and criminal convictions. DHS had initially applied the reason-to-believe standard because it would be of little benefit to grant provisional waivers to applicants who would eventually be denied immigrant visas based on other grounds of inadmissibility.
Based on comments received during the notice-and-comment rulemaking process, DHS determined the reason-to-believe standard created confusion among applicants.
It is DOS, and not USCIS, that generally determines whether the immigrant visa applicant is admissible, which includes an in-depth, in-person interview conducted by DOS consular officers. It is U.S. Customs and Border Protection (CBP), and not USCIS, that determines admissibility at the time the person seeks admission at a port of entry.
In the 2016 rule, DHS noted, “Any assessment by USCIS with respect to other grounds of inadmissibility would be, at best, advisory in nature and would likely cause even greater confusion for applicants.” Therefore, to avoid further confusion, the 2016 rule removes the reason-to-believe standard as a basis for denying provisional waiver applications.
When adjudicating I-601A waiver applications, USCIS will only consider whether you have shown extreme hardship to the qualifying relative if you are not admitted to the U.S., and whether you deserve the waiver as a matter of discretion. USCIS will no longer deny provisional waivers because it has a reason to believe you are subject to inadmissibility grounds other than the 3/10 year unlawful presence bar.
4. Individuals Subject to Final Orders of Removal, Deportation, or Exclusion May Apply for the Provisional Waiver if Certain Conditions are Met
The 2013 rule prohibited persons subject to final orders of removal, deportation or exclusion to apply for the I-601A waiver. Persons who depart the U.S. due to a removal, deportation or exclusion order are barred from re-entry for a period of 5 to 20 years under INA section 212(a)(9)(A). These include persons with an expedited removal order by CBP at the port of entry (5-year bar) and a final removal order by an Immigration Judge in removal proceedings (10-year bar).
Certain persons, however, may seek consent to reapply for admission to the United States before the 5 to 20-year period expires, by filing a Form I-212, Application for Permission to Reapply for Admission into the United States After Deportation or Removal. If you were ordered removed and are inadmissible under INA 212(a)(9)(A), but have yet to leave the U.S. and will apply for an immigrant visa abroad, you may file the Form I-212 before your departure.
The 2016 rule allows individuals with final orders of removal, deportation or exclusion to apply for the I-601A waiver, provided they already filed the Form I-212 and USCIS conditionally approved it.
If you obtain a conditional I-212 approval while in the U.S. and thereafter depart to attend your immigrant visa interview abroad, you are generally no longer inadmissible under INA section 212(a)(9)(A) and can be issued an immigrant visa. The I-212 approval is conditioned on your actually departing the U.S.
In this situation, consent to reapply for admission refers only to inadmissibility under INA section 212(a)(9)(A). You cannot file an I-212 application while you are in the U.S. if you are inadmissible under INA section 212(a)(9)(C), i.e. illegal re-entry or attempted illegal re-entry after you accrued more than one year of unlawful presence in the U.S. and left, or after you were ordered removed from the U.S.
The I-601A addresses the unlawful presence bar, while the I-212 deals with the removal order. Each waiver covers separate grounds of inadmissibility and has different eligibility requirements. USCIS will deny a provisional waiver request if your Form I-212 application has not yet been conditionally approved at the time the Form I-601A is filed.
In the final rule, DHS further clarified that USCIS has exclusive jurisdiction to adjudicate I-601A waiver applications, regardless of whether the applicant is or was in removal, deportation, or exclusion proceedings.
The DHS also clarified which persons are ineligible for provisional waivers because they are subject to a reinstatement of a prior removal, deportation or exclusion order. The CBP or Immigration & Customs Enforcement (ICE) must first serve notice and actually reinstate the order, prior to the filing of the I-601A application or while the application is pending, for the person to be ineligible for the provisional waiver under the 2016 rule.
5. Individuals Who Violated a Voluntary Departure Order Might Be Eligible for the Provisional Waiver
The 2016 regulations do not specifically mention voluntary departure as a bar to a provisional waiver. The Supplementary Information to the final rule discusses this issue, but creates more questions than provides answers.
If a person is granted voluntary departure while in removal proceedings, the immigration judge is required to enter an alternate removal order. DHS may not carry out the alternate removal order while the voluntary departure period is in effect. But if the person fails to voluntarily depart on time, the alternate removal order automatically kicks in. Under current law, removal proceedings for such persons are considered to have ended when the grant of voluntary departure, with an alternate removal order, becomes administratively final.
The regulation at 8 CFR §212.7(e)(4)(iii) bars individuals who are “in removal proceedings, in which no final order has been entered, unless the removal proceedings are administratively closed and have not been recalendared at the time of filing the application….” No doubt, a person who is granted voluntary departure is ineligible for an I-601A waiver while the voluntary departure period is still in effect.
The Supplementary Information to the final rule states, “DHS has determined that individuals granted voluntary departure will not be eligible for provisional waivers.” The DHS reasoned that allowing a person whose voluntary departure period has not expired to apply for a provisional waiver would suggest the person is excused from leaving the U.S. within the voluntary departure period. The Supplementary Information also states, “an individual who fails to leave as required under a grant of voluntary departure will have an administratively final order of removal, and will thus be ineligible for a provisional waiver.”
The Supplementary Information, however, cites to the new regulation at 8 CFR §212.7(e)(4)(iv), which took effect on August 29, 2016. This regulation reads:
… an alien is ineligible for a provisional unlawful presence waiver … if: (iv) [t]he alien is subject to an administratively final order of removal, deportation, or exclusion under any provision of law … unless the alien has already filed and USCIS has already granted … an application for consent to reapply for admission under section 212(a)(9)(A)(iii) of the Act and 8 CFR 212.2(j).
The 2016 regulation shows an exception to the final order bar if you first obtain an approved I-212.
Until there is further clarity on this issue, persons who have overstayed a voluntary departure period, and are subject to a final order, must exercise caution in applying for an I-601A waiver based on a conditionally approved I-212. If you are still in removal proceedings, the better course it to request administrative closure to pursue a provisional waiver. Assuming the I-601A waiver is granted, you may then file a motion to recalendar and request termination of proceedings so you may apply for an immigrant visa abroad.
More Key Things to Know
What stayed the same under the 2016 final rule?
Although the 2016 rule expands the provisional unlawful presence waiver, it kept many of the provisions under the 2013 regulation.
For more information, read Expansion of I-601A Provisional Unlawful Presence Waiver: What Stayed the Same?
When is the 3/10 year bar triggered?
As of April 1, 1997, if you accrue unlawful presence in the U.S. of more than 180 days to less than 1 year, after age 18, you are barred from re-entering the U.S. for 3 years. The bar to re-entry is 10 years if the unlawful presence lasted 1 year or more. When you do not qualify for adjustment to permanent resident status, and must leave the U.S. for consular processing, you trigger the 3/10-year unlawful presence bar under INA section 212(a)(9)(B)(i), upon departure.
The 3/10 year bar is triggered only if you leave the U.S. You do not need an unlawful presence waiver if you are in the U.S. and applying for adjustment to permanent resident status. If you are in the U.S. and are eligible for adjustment, you should avoid leaving the U.S. for consular processing of the immigrant visa, which will trigger the 3/10 year unlawful presence bar.
For more information, read When do you need an I-601 waiver due to unlawful presence (and how do you get it)?
Why apply for the I-601A provisional unlawful presence waiver instead of the regular I-601 waiver?
An I-601A waiver grant gives some assurance the U.S. Consulate will excuse you from the 3/10 year bar and issue the immigrant visa. Prior to March 2013, when the I-601A waiver was first introduced under the Obama Administration, every immigrant visa applicant who was subject to the 3/10 year bar had to wait outside the U.S. to get the regular I-601 waiver, after they attended the visa interview. When the I-601 process is delayed or the application is denied, long-term family separation, job loss, and other hardships result.
If you are subject to the 3/10 year bar only, and no other grounds of inadmissibility, and you are still in the U.S., the I-601A waiver is all you need. The I-601A process allows you to apply for the unlawful presence waiver before you leave the U.S. Your immigrant visa interview will be scheduled at the U.S. Consulate only after USCIS adjudicates the I-601A waiver application. In contrast, you may file for the regular I-601 waiver only after you have left the U.S. and attended your visa interview.
The regular I-601 waiver process requires you to wait several months or even years outside the U.S. for a decision. On the other hand, an approved I-601A waiver application facilitates the grant of the immigrant visa and shortens the time you are separated from your U.S. citizen or permanent resident family members. With an I-601A waiver granted, you normally wait about 2 weeks for the immigrant visa to be processed.
For more information, read I-601 waiver or I-601A waiver for unlawful presence?
Seek Help from an Experienced Immigration Attorney
Seek advice from an experienced immigration attorney to confirm whether you are inadmissible due to unlawful presence and/or other grounds, verify your eligibility for the I-601A waiver, guide you on the forms and documents to submit, and help you prepare a strong waiver application for approval.
Even when you have an I-601A waiver, the U.S. Consulate may still your immigrant visa if it finds you are inadmissible on multiple grounds. But if the 3/10 year unlawful presence bar is your only inadmissibility ground, the I-601A approval means you can expect an immigrant visa grant.
This article provides general information only. It is based on law, regulations and policy that are subject to change. Do not consider it as legal advice for any individual case or situation. Each legal case is different and case examples do not constitute a prediction or guarantee of success or failure in any other case. The sharing or receipt of this information does not create an attorney-client relationship.
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