Today, DHS created a new process allowing the spouses, children and parents of US citizens (immediate relatives) to apply for a provisional waiver of unlawful presence while they remain in the United States. The new process does NOT change the immigration law itself, but simply allows those who apply to remain in the United States (rather than abroad) while their waiver requests are being processed.
When a US citizen sponsors a spouse, child or parent who had entered the country illegally, the law requires that the intending immigrant return to his or her own country to obtain the green card, unless that person is grandfathered under Section 245(i) of the INA. Grandfathered immigrants who filed certain petitions prior to April 30, 2001, may pay a $1000 fine and adjust status in the United States. All others, to complete the process, must return abroad to do so. However, a different immigration law then subjects that person to a 3- or 10- year bar upon re-entering the US once they leave the country. A waiver of the 3- or 10- year bar could previously only be requested once the intending immigrant had departed the United States, and often took many months to adjudicate. During this time, the intending immigrant was separated from loved ones and waiting abroad for the waiver to be approved, and did not know whether or not the waiver would be approved.
The changes put in place today, will allow those seeking a waiver to apply for the waiver while still physically present in the United States. Once approved, the immigrant must still travel abroad to obtain the green card after a consular interview in their home country. The waiver is still necessary and the travel outside the country is still necessary for those who apply.
There are many benefits of these changes in the law. For example, the provisional waiver may reduce the time that US citizens are separated from their relatives who apply. In addition, those traveling abroad to apply for their residency would know ahead of time that they have, at least, a provisional approval of their cases.
To be eligible for the provisional unlawful presence waiver:
1. The applicant must be physically present in the United States;
2. The applicant must be at least 17 years old at the time of filing;
3. The applicant must be the beneficiary of an approved immigrant visa petition(Form I-130)as an immediate relative;
4. The applicant must have an immigrant visa pending with the US Department of State for which s/he has already paid;
5. The applicant must believe they are, or will be at the time of the interview, inadmissible to the US due to unlawful
6. The applicant must meet all other requirements as listed in the Regulations and Form I-601A.
The filing fee for the waiver will be $585.00. The Form I-601A is expected to be released on March 1, 2013.
The approval of the waiver will still require that the applicant demonstrate that if he or she is refused admission to the United States, this refusal would result in extreme hardship to his or her US citizen spouse or parent. Extreme hardship that would be suffered by a US citizen child DOES NOT COUNT and, therefore, would not alone qualify an applicant for the waiver.
What are the risks or pitfalls of filing the waiver?
The first problem with the waiver is that applicants still have to travel abroad to obtain the final waiver and issuance of the immigrant visa. This can be a costly and risky proposition. Although the applicant will be traveling abroad with an approved provisional waiver in hand, the waiver is just that: provisional. This means that the Consulate can still choose to deny the waiver and/or visa issuance. Reasons for denial may include past exclusions, deportations or removals from the United States; criminal history; and, other inadmissibility grounds including past fraud entering the US. If the Consulate denies the case, the applicant will then be required to remain out of the country for the applicable period of three or ten years.
The second issue raised is whether those who apply will be opening themselves up to removal proceedings here in the United States. The DHS states in the initial instructions that USCIS does not “envision” initiating removal proceedings or referring applicants to ICE. Yet, this is far from a guarantee. In addition, DHS states that it will continue to follow the existing policy governing issuance of Notices to Appear (NTAs) and referrals to ICE, when said person is considered to be a DHS “enforcement priority,” which means that the individual has a criminal history, has committed fraud, or otherwise poses a threat to the national security. However, we wish to note that this is simply a current DHS “policy” which, like all policies, is subject to change depending on the administration in power at any given time, or any changes made thereto. DHS even goes on to warn that “[I}f USCIS discovers acts, omissions, or post-approval activity that would meet the criteria for NTA issuance or determines that the provisional waiver was granted in error, USCIS may issue an NTA . . . “
Another issue with the new process which is still unclear at this time is the fact that an applicant must have an immigrant visa “pending” with the US Department of State to apply for the waiver. There are thousands of people present in this country who have received approvals of I-130 Immediate Relative Petitions years ago from USCIS. Those people were scared to travel abroad to apply for the waiver for fear of denial and were waiting for a change in the law such as this one. Yet, once those persons did not travel abroad to pick up their immigrant visas, their cases would normally be cancelled with the Department of State after a time (usually one year). As such, it appears that many of these persons may have to re-file (and re-pay for and wait again) for approvals of new I-130 petitions unless DOS allows or permits some way to reopen these cases to continue with the process. We are currently waiting on more guidance on this issue and it remains to be seen how or if this problem will be remedied.
Other more minor issues with the new waiver procedures include: the fact that the applicant has to appear for biometrics collection; applicants currently in removal proceedings are not eligible for the waiver; applicants awaiting decisions on their waivers are not granted any interim status or benefits; and the fact that there is no appeal from a denial of the waiver.
We will keep you updated as we learn more about the process.