Provisional Waivers of Unlawful Presence11 Mar 2013
As of March 4, 2013, the U.S. Citizenship and Immigration Services (USCIS) implemented a new procedure for requesting a provisional waiver of the three- and ten-year unlawful presence inadmissibility bars. The new procedure is available only to the spouses, child/ren or parents U.S. citizens. As explained here for MurthyDotCom readers, while significant, the change is procedural, and it continues to be necessary to meet the standards for the waiver of unlawful presence.
Background on 3-Year and 10-Year Bars
As explained in our NewsBrief, Changes in Immigrant Waiver Procedures See Progress (20.Apr.2012), available on MurthyDotCom, individuals who accrue more than 180 days of unlawful presence in the United States face a three-year inadmissibility bar, which prevents them from returning to the U.S. after departure. This bar increases to ten years for individuals who are unlawfully present for more than one year prior to departure.
[The term unlawful presence is a legal term related to status violations, but not the same as being out of status. The counting of unlawful presence can be complex, and is beyond the scope of this article.]
Restrictions on Immigration Benefits
In most cases, individuals who are subject to the three- and ten-year bars are not eligible to obtain either temporary or permanent immigration benefits from within the United States. (There are exceptions, so it is very important to seek proper legal advice prior to departing the U.S. for any reason.) For many of these foreign nationals, therefore, any immigration option for which they may qualify would require departure from the U.S. to make a visa application at a U.S. consulate abroad. Of course, it is this very departure from the United States that triggers the three- or ten-year bar.
For many years, individuals who were unlawfully present would have to depart the U.S. prior to being eligible to request a waiver to allow for their return. The reason for this is that the three- and ten-year bars are not triggered until departure. So, prior to such departure, there was no bar and, thus, no mechanism for requesting a waiver. As of March 4, 2013, that dilemma was resolved for a limited group of qualified individuals.
Criteria for Eligibility of Provisional Waiver
The qualifications for the provisional waiver are more restrictive than the requirements for an immigrant waiver of the three- and ten-year inadmissibility bars. In addition to being an immediate relative (spouse, child, or parent) of a U.S. citizen, it is necessary to qualify for the requested waiver. In the immigrant context, such waivers must be based upon extreme hardship to a qualifying relative.
For provisional waivers, the qualifying relative/s must be a U.S. citizen spouse or a U.S. citizen parent. (Unlawful presence can also be waived based upon extreme hardship to a U.S. permanent resident spouse or parent, but these cases are not eligible for the provisional procedures.) Additionally, only those applicants who are immigrating based upon an approved petition for alien relative or petition for Amerasian, widow/er or special immigrant (USCIS form I-130) can qualify for a provisional waiver. Only those scheduled for visa interviews after January 3, 2013 can qualify for this procedure. Additional requirements and details are set forth in the USCIS guidance.
Provision Waiver Application Process
Applying for these waivers requires that USCIS form I-601A be filed with the USCIS at the Chicago lockbox address (at the time of this writing). Decisions regarding the provisional waivers are made by the USCIS National Benefits Center (NBC).
Simply filing this application does not grant status or any legal privileges in the U.S. Even approval, by itself, does not grant any immigration status or benefit. It remains necessary to depart the U.S. and undergo the visa application process at an appropriate consulate. In addition to qualifying for the waiver, one must separately qualify for an immigrant visa.
There are a variety of risks in this process, and various procedural considerations. Some of these, including instructions for those in removal (formerly deportation) proceedings, are set forth in the USCIS guidance.
The provisional approval procedure is an improvement over the earlier process for applying for an immigrant waiver of unlawful status while within the United States. It should help one avoid being stuck abroad for years while awaiting waiver approval. It is intended to allow qualified individuals to reduce the time they must spend outside of the U.S. It also should serve the purpose of reassuring such individuals that they will likely be able to return to the U.S. following their departure. Since the procedure is new, there are not yet any real world applicants who have completed the process. Those who may need this type of waiver should seek qualified immigration advice, as such waivers can be rather complex and the impact on the foreign national, and affected family members, can be severe.
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