Many of our clients ask about the new Provisional Unlawful Presence Waiver that goes into effect on March 4, 2013. The following Q&A, to be published in two parts, explains how applicants who are eligible to obtain green cards except for accumulated unlawful presence in the U.S can obtain a waiver. Here you’ll learn how to make sure the waiver is approved before you leave the country for consular processing
On March 30, 2012, U.S. Citizenship and Immigration Services (USCIS) posted a notice of proposed rulemaking (NPRM) in the Federal Register [http://www.gpo.gov/fdsys/pkg/FR-2012-04-02/html/2012-7698.htm] requesting public comment on its plan to create an improved process for certain immediate relatives of U.S. citizens. The rule would allow foreign-born spouses or parents of U.S. citizens still in the U.S. to apply for and receive a provisional waiver of the unlawful presence ground of inadmissibility if they can demonstrate that separation would cause extreme hardship. The goal would be to reduce the time that U.S. citizens are separated from their immediate relatives while those family members go through the consular process overseas to obtain an immigrant visa.
You can also visit USCIS for more details.
Q1. How do I apply for the provisional unlawful presence waiver?
A1. The provisional waiver process will take effect March 4, 2013. USCIS will reject any application requesting a provisional waiver if filed before March 4, 2013 and return the application and any fees filed.
Q2. Why is this proposed waiver process limited to immediate relatives of U.S. citizens?
A2. The goal of the provisional unlawful presence waiver process is to alleviate the extreme hardship certain U.S. citizens experience when they are separated for extended periods of time from their spouses, children, and parents (“immediate relatives”). To further this goal, USCIS will make the proposed unlawful presence waiver process available only to immediate relatives (IRs) because there are currently no restrictions on visa availability for IRs. USCIS also is limiting the process to U.S. citizens who can establish extreme hardship to a U.S. citizen spouse or parent. (The waiver can still be established for extreme hardship to a lawful permanent resident spouse or parent through the current I-601 process after the immigrant visa interview with a Department of State consular officer abroad.) USCIS expects that this will streamline the waiver process and reduce the length of time immediate relatives must remain abroad to obtain an immigrant visa. For additional information, see DHS Notice of Proposed Rulemaking (NPRM), section IV, Part B, Rationale for Proposed Change.
Q3. Will USCIS consider expanding this new process to other relatives of lawful permanent residents who have visas?
A3. The agency decided as a matter of policy and operations to make this process available only to immediate relatives of U.S. citizens.
Q4. Why does USCIS refer to the waiver as “provisional?”
A4. USCIS refers to the waiver as “provisional” because it will not take effect until after the applicant departs the United States, appears for his or her immigrant visa interview, and is determined by the DOS consular officer to be otherwise admissible to the United States. In the proposed process, USCIS would determine eligibility for the provisional waiver and approve the provisional waiver before the applicant leaves the United States for the immigrant visa interview abroad.
Q5. Will I have to be fingerprinted or appear for an interview as part of the provisional waiver process?
A5. All provisional unlawful presence waiver applicants will be required to appear at a USCIS Application Support Center for biometrics collection. Generally, USCIS will not require provisional waiver applicants to appear for an interview but may schedule an interview if the facts in a particular case warrant further inquiry and review.
Q6. Will I use the current Form I-601, Application for Waiver of Grounds of Admissibility, to apply for a provisional waiver?
A6. No. USCIS is developing a new form for the proposed provisional unlawful presence waiver process, Form I-601A, or the Application for Provisional Unlawful Presence Waiver. The application filing fee is $585.00, the same fee required for the Form I-601. There is an additional biometric fee of $85.00 for applicants who are under 79 years of age. USCIS will post the proposed form in the Federal Register for formal comment in the near future.
Q7. Will USCIS waive the filing fees for provisional unlawful presence waiver applications?
A7. No. Fee waivers generally are available only if the fees for the underlying application are waivable. Currently, fee waivers are not allowed for Form I-130, the Petition for Alien Relative, which is the basis for the provisional unlawful presence waiver. USCIS, therefore, will not accept fee waiver requests for Form I-601A.
Q8. What documents will I be required to file with my application for a provisional unlawful presence waiver?
A8. USCIS will include instructions with the new Form I-601A that will describe the types of documents you will need to submit with your provisional waiver application. At a minimum, USCIS will require proof that you have an approved Form I-130, Petition for Alien Relative, or an approved Form I-360, Petition for Amerasian, Widow(er), or Special Immigrant, if you are a self-petitioning widow/widower, and an immigrant visa application fee receipt from the Department of State (DOS). Failure to follow the instructions on the form or submit required documentation may result in your application being rejected or denied.
Q9. Will I be able to file the provisional waiver application concurrently with my Form I-130?
A9. No. To be eligible for the provisional waiver process, applicants must already have an approved I-130 or I-360. The approved petition is what starts the immigrant visa process with DOS.
Q10. Will I be able to file the provisional waiver application concurrently with my Form I-212, Application for Permission to Reapply for Admission Into the United States After Removal?
A10. No. Aliens who must request permission to reenter the United States after removal are not eligible for the provisional unlawful presence waiver. In addition, USCIS will not accept concurrent filings of Form I-601A and Form I-212 or Form I-130.