MARCH 2013
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Immigration

Stateside Waiver Process for Unlawful Presence — ‘Provisional Form I-601A Waiver’ — Begins March 4

Dilip Patel

By DILIP PATEL

On March 4, a new U.S. Citizenship and Immigration Services (USCIS) rule goes into effect, allowing certain immediate relatives of U.S. citizens (spouses, parents of adult U.S. citizens, and minor children) who are physically present in the United States to request a provisional unlawful presence waiver prior to traveling abroad for consular processing of their immigrant visa applications. USCIS’s approval of an applicant’s provisional unlawful presence waiver prior to departure to attend his or her immigrant visa interview at the home consulate, should, in most cases, allow a Department of State (DOS) consular officer to issue the immigrant visa without delay if there are no other grounds of inadmissibility and if the immediate relative is otherwise eligible for an immigrant visa. This new process will significantly decrease the amount of time that U.S. citizens are separated from their family members and hopefully will encourage more immediate relatives to seek an immigrant visa if they are otherwise eligible for one but had been reluctant to travel abroad for an unknown period of time.

Under current law, immediate relatives of U.S. citizens who are not eligible to adjust status in the United States to become lawful permanent residents must leave the U.S. and obtain an immigrant visa abroad. Individuals who have accrued more than six months of unlawful presence while in the U.S. must obtain a waiver to overcome the unlawful presence inadmissibility bar before they can return to the U.S. after departing to obtain an immigrant visa. Under the existing waiver process, which remains available to those who do not qualify for the new process, immediate relatives cannot file a waiver application until after they have appeared for an immigrant visa interview abroad and the DOS has determined that they are inadmissible.

Who is Eligible

A foreign national would be eligible to apply for a provisional waiver of the unlawful presence bar in the United States if he or she is a beneficiary of an approved “immediate relative” visa petition by a U.S. citizen and demonstrates that the denial of the waiver would cause extreme hardship to his or her U.S. citizen spouse or parent. (Extreme hardship to a U.S. child is insufficient.) An immediate relative is the child or spouse of a U.S. citizen, or the parent of a U.S. citizen who is 21 years or older; for purposes of this process, “immediate relatives” also include (1) adult sons and daughters who remain classified as immediate relative “children” for immigration purposes under the Child Status Protection Act; and (2) qualified widow(er)s of U.S. citizens who self-petition on Form I-360. (Battered spouses of U.S. citizens are also included in the definition of immediate relative, but they are generally eligible for adjustment of status in the U.S. and generally would not have to avail themselves of this process.)

Applicants must be 17 years or older to file a provisional unlawful presence waiver, be present in the United States to file the application, and have their biometrics taken. In addition, the applicant must have a case pending with the DOS National Visa Center and have paid the immigrant visa processing fee. USCIS will not accept concurrently filed Forms I-130 and I-601A, or allow for the filing of the Form I-601A before approval of the immediate relative petition. Moreover, DHS will not permit concurrent filing of Form I-601A and other waiver forms. 

Process and Procedures

Commencing on March 4, applicants will be able to file for the new provisional waiver on Form I-601A, which has yet to be released. The government filing fee will be $585 for the waiver application and $85 for biometrics. In addition to the form and filing fee, applicants will be required to provide proof of an approved immediate relative I-130 or I-360 petition, must have a case pending with DOS, must have paid the DOS immigrant visa processing fee, and show proof of extreme hardship to their qualifying relative. Before applying for the I-601A, the applicant must notify the NVC of his or her intent to seek a provisional unlawful presence waiver. While there are currently no estimated processing times for adjudication of a provisional unlawful presence waiver, waiver applications in general normally take months to be decided.

Who is Not Eligible

For starters, family members of lawful permanent resident (LPR) petitioners are not eligible to apply for the provisional unlawful presence waiver. Adult (21 or older) sons and daughters of U.S. citizens and brothers and sisters of U.S. citizens also are ineligible. USCIS has stated, however, that it will consider expanding the availability of the provisional waiver process to other categories of individuals after assessing its effectiveness.

Foreign nationals also are ineligible for a I-601A waiver if in removal proceedings, unless such proceedings have been administratively closed and have not been re-calendared at the time of filing the provisional waiver application. Also, ineligible foreign nationals are those whom USCIS has “reason to believe” may be subject to inadmissibility grounds such as those based on crimes, fraud, security grounds, etc. Finally, applicants are excluded from this process in cases where DOS “initially acted” to schedule the immigrant visa interview prior to Jan. 3, 2013, for the approved immediate relative petition on which the provisional waiver is based, even if the interview was cancelled or rescheduled after Jan. 3. However, such a foreign national who is ineligible because of a previously scheduled immigrant visa interview may still qualify for a provisional unlawful presence waiver under certain conditions.

Other Considerations

Establishing that an individual’s U.S. citizen parent or spouse will suffer extreme hardship from a prolonged separation is a rigorous evidentiary standard, and is not a defined term of fixed or inflexible content or meaning. Instead, it is determined based on the facts and circumstances of each case. Under immigration case law, USCIS adjudicators evaluate a myriad of factors that may establish the U.S. citizen’s extreme hardship, including physical, mental, financial, professional and educational hardship.

Moreover, a provisional unlawful presence waiver approval does not confer legal status or allow an applicant to apply for work authorization or advance parole. And, while USCIS has stated that it does not anticipate that it will issue charging documents against those foreign nationals with approved provisional waiver applications, it reserves the right to do so. Similarly, and consistent with its civil enforcement priorities, USCIS does not envision initiating removal proceedings against those whose waivers are denied or withdrawn prior to final adjudication. Such individuals normally will be referred to ICE only if they are considered a DHS enforcement priority, i.e., they have a criminal history, have committed fraud, or otherwise pose a threat to national security or public safety. In other words, a provisional waiver approval does not protect the individual from being placed in removal proceedings or removed from the United States.

Foreign nationals who believe they are eligible for a provisional unlawful presence waiver should consult with an immigration lawyer to carefully assess their case and the risks and benefits associated with an application.

How to Change Your Nonimmigrant Visa Application (DS-160) After Submission

Foreign nationals who must apply for a nonimmigrant visa must do so online by completing Form DS-160. What happens when you make a mistake and want to correct the form before your visa appointment? While it is not possible to change information on a DS-160 after it has been submitted, there are two options for creating a new DS-160 and effecting a “correction.”

If the error is discovered within 30 days from when the original application was submitted, an applicant should log into the Consular Electronic Application Center (CEAC) system and select “Retrieve an Application” using the application ID number. Next, when asked whether to go to the confirmation page or create a new application, select create a new application. The entire application will appear, except for travel plans to the U.S. Here, edit and update the information and re-submit.

Alternatively, if the “DAT” file was saved from the original application, access and amend the information at any time from the already submitted application. Once the changes have been made, save and submit the new application.

The State Department advises, however, that if the original DS-160 was used to make the visa appointment or pay the MRV (machine-readable visa) fee, the applicant must present at the interview the confirmation pages from the new and original DS-160, as each submission creates a different barcode.

Dilip Patel of Shutts & Bowen LLP, a Florida Bar board-certified expert on immigration law, can be reached at (813) 227-8178 or e-mail dpatel@shutts.com

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