Bustos Law Firm

New Provisional Waiver Rule to Ensure Family Unity Goes Into Effect

In Immigration on June 4, 2013 at 3:31 PM

imagesAs of March 4, 2013, green card seekers who are not eligible to adjust status within the U.S., and face significant waits abroad due to their unlawful presence, now have another option: applying for a provisional waiver of unlawful presence, or the “stateside” waiver.

The “Provisional Unlawful Presence Waiver of Inadmissibility for Certain Immediate Relatives” rule, often referred to as the new family unity rule, allows immediate relatives  of U.S. citizens, who entered the country without permission, to apply for a waiver of their unlawful entry, while still in the United States.  DHS initially proposed the change in procedure last April, as a solution to a growing problem—families were facing months, and in some cases, years of separation because of two conflicting provisions in U.S. immigration law.

BACKGROUND – Everyone who applies for a visa or green card is first checked to see whether he or she is “admissible” to the United States if they wish to have their case decided in the U.S.  One of the grounds of inadmissibility is unlawful presence in the United States of 180 days or more, but there are several others (including medical history and criminal convictions). Thus, if someone entered the country unlawfully they are deemed inadmissible and the law requires them to go to a U.S. embassy or consulate abroad for processing of their visa application, and to get a waiver for their unlawful presence, before they can return to the United States.

People are deemed inadmissible if they are “unlawfully present” in the U.S. for six months after April 1, 1997, subsequently leave the U.S., and then seek admission by applying for an immigrant or nonimmigrant visa from abroad. Such persons are subject to a three year bar to re-entering the country, which requires the unlawful presence waiver, before they can return to the U.S. The bar to reentering the country is ten years if they were unlawfully present for one year or more after April 1, 1997.

Under past practice, an individual applied for their unlawful presence waiver with U.S. Citizenship and Immigration Services (USCIS), only after having been found inadmissible by a consular official abroad.  This process was generally time consuming, inefficient, and often costly, particularly because it lengthened the amount of time families were apart by several months, and even years, while USCIS made a decision on the waiver — and, of course, sometimes those waivers were not approved at all, and people become permanently separated from their families in the United States. As a result, many couples who need this waiver have chosen to lay low in the United States, rather than go through the waiver process abroad and risk facing the ten year ban.

NEW PROCESS – Under the new provisional waiver process, eligible immigrants will now be able to apply for their waivers in the United States (but only as to certain unlawful presence inadmissibility grounds), and if approved, they will receive their waiver before leaving the United States. Having the waiver in hand, before leaving the United States, will allow immigrants to depart the United States for the green card process, knowing they will almost certainly be allowed to return home to the United States to be with their families. And, in other good news, USCIS is also seeking to cut down on the amount of time immigrants will have to wait abroad to pick up their green card….from the current wait time of several months, to a much more manageable wait time of about two weeks.

Immigrants with multiple grounds of inadmissibility CANNOT apply for the provisional stateside waiver using Form I-601A, and must instead apply for a waiver outside the U.S. using Form I-601. If you ignore this rule and apply anyway, you risk at a minimum losing your application fee – and in a serious enough situation, might risk enforcement activities being started against you. If you think you might be found inadmissible not only because of your unlawful presence in the U.S., but also due to multiple criminal convictions, or for another reason, you should consult with an immigration attorney before submitting your visa and waiver applications.

ELIGIBILITY – In order to be eligible to apply for the new provisional waiver, the applicant must be:

  • An immediate relative of a U.S. Citizen (spouse, child, parent);
    The beneficiary of an approved immediate relative petition ( Form I-130);
    17 years of age, or older;
  • Upon departure from the U.S. – be subject to the unlawful presence ground of inadmissibility only. (If additional waivers for other grounds of inadmissibility are required, the applicant will not be eligible to use the provisional waiver process);
  • Present in the U.S. at the time of filing the application for the provisional waiver and for biometrics collection at a USCIS Application Support Center;
  • Has a case pending with the Department of State (DOS), based on an approved immediate relative petition, and has paid the immigrant visa processing fee; and
  • Show extreme hardship to their U.S. citizen spouse or parent, if the applicant cannot return to the United States, or if they have to relocate outside the U.S. to be with the applicant.“Extreme hardship” is vaguely defined as greater than the normal hardship a qualifying relative can be expected to experience if the immigrant is denied admission. It is important to prove BOTH why the qualifying relative cannot move abroad, AND why the qualifying relative cannot simply live in the US without the Alien. It is not enough to merely assert that the qualifying relative will miss the immigrant’s company, as this is considered a “normal” hardship, not extreme hardship.

Arguments for Extreme Hardship in the United States

Some of the more common arguments for extreme hardship when your relative remains in the United States include, but are not limited to:

  • Your relative has a medical condition and depends on you for care.
  • Your relative is financially dependent on you and you will not be able to provide adequate support from abroad.
  • Your relative has financial debts in the United States and cannot pay them without your support.
  • Your relative has a sick family member and will be unable to care for that person without your support.
  • You are the caregiver for your relative’s children and he or she cannot afford childcare in your absence.
  • Your relative is experiencing clinical depression as a result of your immigration situation.

 Arguments for Extreme Hardship Abroad

Some of the more common arguments for extreme hardship when your relative accompanies you to your home country include, but are not limited to:

  • Your home country is in or on the verge of war and/or political upheaval.
  • Your relative has a serious medical condition that cannot be adequately treated in your home country.
  • Your relative will be discriminated against in your home country.
  • Your relative does not know the language of your home country.
  • Your relative is a primary caretaker for a sick family member in the United States.
  • Your relative will be unable to secure gainful employment in your home country.
  • Your relative’s educational progress will come to a halt.
  • Your relative has children from a previous relationship who will not be allowed to live or visit your home country due to custody issues.
  • Your home country has a high rate of violence.
  • Your relative has financial debt in the United States that cannot be paid from your home country.

In addition to these eligibility requirements, the Department of State must also not have acted to schedule the immigrant visa interview for the applicant before January 3, 2013, the publication date of the final rule in the Federal Register. Those ineligible to file under this rule, however, may still be able to file a provisional waiver if, for example, a new I-130 relative petition is filed with USCIS by a different petitioner on their behalf.

Be Careful About Applying If You Cannot Prove “Extreme Hardship”

The provisional waiver is a great step forward in reducing the time burden that many U.S. citizens face before their qualifying relatives can receive green cards. However, it will not provide lawful status, employment authorization, protection from deportation, or the automatic approval of a green card. For that reason, you should check to make sure you meet all the requirements before you spend the time and money necessary to apply for the new stateside waiver only to possibly have it denied.

The only difference between the original application for a waiver of inadmissibility (using Form I-601), and the new provisional waiver is that you will receive a decision before you need to leave the United States for your interview at a consulate abroad. However, just like with an I-601 waiver, you will still need to submit a considerable amount of evidence to prove that a waiver should be granted due to the “extreme hardship” that your U.S. citizen spouse or parent would face if your case is denied. An immigration attorney can help you to assemble a convincing application package for USCIS, but if you doubt that you can prove extreme hardship, you may want to hold off providing personal information to USCIS until you have the necessary evidence.

How Many Waivers Does USCIS Typically Approve?

In Fiscal Year 2012, USCIS denied 34%, or about one out of every three, I-601 waivers.   Many of those denials were by applicants who prepared their applications on their own or used the services of a notario or an immigration “consultant.”  Considering the stakes at hand, this is not a very wise course of action, and you should seriously consider hiring an experienced immigration attorney to shepherd you through the provisional waiver process. Also, persons who have recently married are usually well-advised not to submit waivers. However, their chances of approval rise markedly after they have children and a house, especially if the breadwinner would be forced to remain at home to care for any children.

What Are the Risks of Applying for the Provisional Waiver?

Some immigrants have been skeptical of this rule change and many wonder whether they should provide their names and addresses to U.S. Citizenship and Immigration Services (USCIS) and admit to living in the U.S. without lawful status. However, in most cases, the potential benefit of obtaining a green card without waiting outside the U.S. for several years outweighs the risks of applying.

You may be worried that your personal information will be used by USCIS in order to place you into detention, or in removal proceedings in Immigration Court, if your application is denied. In most cases, this is improbable, but it is not impossible. If your case merely involves unlawful presence in the U.S., it is unlikely that the information you submit to USCIS will be used against you in this way.

USCIS has also stated that it will not share information submitted on Form I-601A with Immigration and Customs Enforcement (ICE), the agency tasked with apprehending violators of immigration law, unless it involves an individual with a criminal history or fraud violations, or one who poses a threat to national security or public safety. But be aware that USCIS may change this policy at any time due to an administration change, or after a significant event. For example, more cases than ever were referred to ICE after the terrorist attacks of September 11, 2001.

You  should take an honest look at your situation to determine whether your background might raise flags and eventually cause you to be detained or deported. Have you ever provided false information on a government application? Do you have multiple criminal convictions or a history of gang association? Have you been a member of a group that has been linked to terrorist activities? If so, you should consult with an experienced immigration attorney who can advise you on your best course of action before you submit your information to USCIS.

What Happens if My Wavier is Denied?

Waivers that are denied will be subject to USCIS guidance and law enforcement priorities for issuing Notices to Appear (NTA) in immigration court, anyone else who is denied an I-601 waiver will have the choice to either abandon the process (while still remaining in the United States) or appeal the denial — while staying in the United States for the two or three years that it typically takes to adjudicate the appeal.

Of course, the I-601 waiver does not guarantee admission into the United States. The U.S. Consulate, after the initial consular interview, can always discover new grounds of inadmissibility, which may, or may not,  have an applicable waiver to cure the specific ground of inadmissibility.

The bottom line is that those who abandon the waiver process, or who have their waiver appeals denied, if not priority cases for ICE, will be back to square one—undocumented and married to U.S. Citizens. But at least they will be with their families in the United States, rather than separated from them, or forced to move under duress.

FILING FEE – The filing fee is $585 for the I-601A provisional waiver form.

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