Back in November 2014, the Obama Administration proposed an expansion of the Form I-601A, Provisional Unlawful Presence Waiver, to a larger pool of immigrant visa applicants.
If USCIS issues new regulations for this proposed change to take effect, the sons and daughters of U.S. citizens (regardless of their age) and spouses and children of lawful permanent residents will be able to apply for the Provisional Unlawful Presence Waiver (assuming they meet the other requirements).
What is the Provisional Unlawful Presence Waiver?
Unless they qualify for 245(i) benefits, persons who entered the U.S. illegally may not apply for adjustment to lawful permanent resident status, but must travel abroad to a U.S. Consulate to apply for an immigrant visa.
Persons who accumulate more than 180 days to less than one year of unlawful presence after age 18 and after April 1, 1997, and then leave the U.S., are barred from re-entering the U.S. for 3 years. Persons who accumulate one year or more of unlawful presence after age 18 and after April 1, 1997, and then leave the U.S., are barred from re-entering the U.S. for 10 years. This is commonly known as the 3/10 year bar.
To re-enter the U.S. on an immigrant visa before the 3/10 year bar expires, applicants must receive a waiver of inadmissibility for their unlawful presence.
On March 4, 2013, USCIS introduced the Form I-601A, Application for Provisional Unlawful Presence Waiver to allow certain immigrant visa applicants to obtain a waiver of inadmissibility for their unlawful presence before they depart the United States. The provisional waiver provides several advantages, but has many limitations.
Previously, such applicants could only file the Form I-601, Application for Waiver of Grounds of Inadmissibility, after they departed the U.S. and attended their visa interview at the U.S. Consulate abroad.
Like I-601 applicants, I-601A applicants must show their absence from the U.S. will cause extreme hardship to their qualifying relative, i.e. a U.S. citizen or permanent resident spouse or parent. (NOTE: U.S. citizen or permanent resident children are not qualifying relatives.)
What Does the Proposed Expansion Include?
The 2013 regulations extended the Provisional Unlawful Presence Waiver only to the spouses, minor children (under age 21), and parents of U.S. citizens.
On November 20, 2014, the Secretary of Homeland Security directed USCIS to issue new regulations expanding the waiver to all statutorily eligible applicants, i.e. the spouses and children of lawful permanent residents and the adult children of U.S. citizens (assuming they meet the other criteria to obtain the waiver).
USCIS was also directed to clarify the meaning of “extreme hardship,” which is hardship that is unusual or beyond what would normally be expected. The term is not specifically defined by statute or by case law. Additional guidance on the definition could make it easier to determine what documents and information to present with the waiver application.
What Process Will USCIS Use to Expand the Provisional Unlawful Presence Waiver Program?
Expanding the Provisional Unlawful Presence Waiver Program requires new or amended regulations. This means the agency must follow the notice-and-comment rulemaking process under the Administrative Procedures Act (APA).
Public notice is issued when a US government agency wishes to add, remove or change a rule or regulation.
On April 2, 2012 — before introducing the Form I-601A in March 2013 – USCIS published a Notice of Proposed Rule that described the provisional unlawful presence waiver process. After gathering and reviewing public comments, the Homeland Security Department published the final rule on January 3, 2013.
The agency’s discretionary authority to waive the ground of inadmissibility for unlawful presence is based on an immigration statute passed by Congress in 1996. The new regulations did not change the law or the substance of the legal standards. Rather, they changed the process for seeking the unlawful presence waiver when the applicant is in the U.S. and is the spouse, minor child, or parent of a U.S. citizen petitioner.
USCIS Expected to Take Steps to Expand Program
Compared to the expanded Deferred Action for Childhood Arrivals (DACA) and the new Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA), the expansion of the waiver program stands a better chance of being implemented because it will arise from changes in regulation, not by changes in policy.
The Obama Administration came under fire when it attempted to roll out the expanded DACA and new DAPA by new policies related to the use of deferred action. A Texas-led coalition of 26 states filed a lawsuit challenging the implementation of these programs. In response, Judge Andrew S. Hanen of the U.S. District Court for the Southern District of Texas issued a preliminary injunction stopping the expanded DACA and new DAPA from going into effect. The judge found that the agency should have used the notice-and-comment rulemaking process of the APA, but did not.
In contrast, USCIS was directed to issue new regulations that would expand the waiver program and clarify the factors it considers when determining whether the “extreme hardship” is met. This means the agency must complete the rulemaking process before it can expand the program.
Although no timeline or deadline has been set, USCIS is expected to issue public notice on the proposed changes. The agency also stated that applications under the expanded program may be filed after it completes the rulemaking process and issues new regulations and guidelines.
If USCIS adopts the proposed changes, a larger pool of immigrant visa applicants will be able to apply for the Provisional Unlawful Presence Waiver before they depart the U.S. for consular processing. Applicants will also have a better understanding of the factors USCIS considers in deciding whether they meet the extreme hardship standard.
[UPDATE: On July 29, 2016, DHS published a final rule expanding the I-601A waiver. As of August 29, 2016, the provisional waiver is available to all eligible applicants.]
The grant of a provisional waiver gives applicants some assurance they will be able to return to the United States on immigrant visas, despite being subject to the 3/10 year bar for unlawful presence.
While pre-approval of the “extreme hardship” waiver before departing the U.S. does not guarantee the applicant will receive the visa, it increases the likelihood that they will. It further reduces the uncertainty that comes with consular processing, as well as shorten the time applicants will be separated from family members living in the U.S.
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If you do not qualify for the Form I-601A waiver under the existing regulations, watch out for new regulations expanding the program. Otherwise, you might qualify for the regular Form I-601 waiver, which you can request after you depart the United States and attend your immigrant visa interview at the U.S. Consulate.
Consult an experienced immigration attorney to help you determine whether you are eligible for the Provisional Unlawful Presence Waiver and what information and documents to submit with your application.
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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