USCIS Publishes Final Regulation Implementing the Provisional I-601A Unlawful Presence Waiver

by Buchanan Ingersoll & Rooney PC

On January 2, 2013, the U.S. Citizenship and Immigration Services (USCIS) announced the publication of the final regulation concerning the new provisional unlawful presence waiver process.  The new regulation will promote family unity by allowing certain relatives of U.S. Citizens to remain in the United States while their unlawful presence waivers are being adjudicated.  The final regulation will be published on January 3, 2013.  Please note that this new process is not yet in effect and the USCIS will not accept any applications until March 4, 2013. 

Individuals who have accrued extensive periods of unlawful presence in the U.S. are barred from returning to the U.S. for as long as 3 or 10 years if they leave the country.  Certain individuals can apply for a waiver of the unlawful presence bar if they can show that the denial of the waiver will cause a U.S. citizen or LPR spouse or parent to experience extreme hardship.  The waiver can only be granted if the case warrants a favorable exercise of discretion by the USCIS. 

Under the current process, an immigrant visa applicant who will be subject to the unlawful presence bar has to depart the U.S. and attend a consular interview, before being able to apply for a waiver.  The relative then has to wait many months until the waiver is adjudicated, before being able to attend a second interview at the consulate to complete the immigrant visa process and return to the U.S.  Thus, under the current process, U.S. Citizens have to suffer unnecessarily long periods of separation while family members go through consular processing abroad to obtain immigrant visas and await the approval of their waivers.

Under the new process, immediate relatives of U.S. Citizens who will be subject to the unlawful presence bar can apply for a waiver and await its adjudication before they have to depart the U.S.  Once the provisional waiver application is approved, the applicant must still depart the U.S. and attend a consular interview abroad, before an immigrant visa can be issued.  However, the new process lessens the length of separation and encourages family unity while the waiver application is pending.  

The USCIS will publish a new Form I-601A to be used for provisional waiver applications.  The form and supporting evidence can be filed on or after March 4, 2013, and only after the NVC immigrant visa processing fees have been paid.  The Department of State’s National Visa Center (NVC) must be advised of the applicant’s intention to pursue the provisional unlawful presence waiver.  If an individual has already been scheduled to appear at a U.S. Embassy or consulate for an immigrant visa interview, and the Department of State acted to schedule the interview before January 3, 2013, he or she cannot apply for a provisional unlawful presence waiver, but must instead depart the U.S. to attend the interview and then file the Form I-601 from abroad.

It is very important to understand that the new process is only limited to certain relatives of U.S. Citizens (spouses, children and parents), but it does not apply to other relatives.  Also, only relatives of U.S. Citizens can take advantage of the new process, but not relatives of LPRs.  Note that there is a difference between having a qualifying relative for purposes of the new process and having a qualifying relative for purposes of proving extreme hardship to be eligible for the waiver.  For example, while parents of U.S. Citizens can take advantage of the new process, they must prove extreme hardship to a U.S. Citizen spouse or parent, because a U.S. Citizen child is not a qualifying relative for purposes of unlawful presence waiver eligibility. 

Further, the new process is not applicable to individuals who are subject to any additional grounds of inadmissibility other than unlawful presence.  For example, individuals subject to a final order of removal or individuals who will need a waiver for crimes of moral turpitude will not be able to take advantage of the new waiver process.  Individuals not eligible to file a waiver under the new process can still file a waiver under the existing regulations, by departing to attend a consular interview abroad and then filing the waiver from abroad. 

Waivers of inadmissibility grounds are major undertakings and as such it is very important to consult with experienced counsel before departing the U.S. and before making any immigration filings.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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