Many of our clients ask about the new Provisional Unlawful Presence Waiver that goes into effect on March 4, 2013. This is the second part of a Q&A that 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.
Q11. Will the proposed provisional waiver process affect existing standards for unlawful presence and extreme hardship?
A11. No. The proposed provisional waiver process will not alter the criteria USCIS will use to determine if an individual qualifies for a waiver of the ground of inadmissibility or if an individual has established the requisite extreme hardship to a U.S. citizen spouse or parent.
Q12. If I get a provisional waiver, can I adjust my status without leaving the United States?
A12. No. Individuals who receive a provisional unlawful presence waiver must leave the United States to attend their immigrant visa interview with a DOS consular officer in order for the provisional waiver to take effect and for the individual to be granted an immigrant visa. However, because of the way the proposed process for adjudicating provisional waivers is designed, individuals who receive a provisional waiver will likely be separated from their U.S. citizen relatives for significantly shorter periods than is the case under the current process.
Q13. I already have an immigrant visa interview scheduled for next month in my home country. Should I cancel it so that I can apply for the provisional unlawful presence waiver when the final rule takes effect?
A13. No. If you already have an immigrant visa interview scheduled with DOS, we urge you to keep your appointment. This proposed waiver process is not in effect and USCIS will not be publishing a final rule until later this year. If you trigger the unlawful presence bars upon departure from the United States, you may still file a Form I-601, the Application for Waiver of Grounds of Inadmissibility, after you have appeared for your immigrant visa appointment and DOS has determined that you are inadmissible and need to file a waiver. If you fail to appear for your consular interview, DOS may terminate [http://www.travel.state.gov/visa/immigrants/info/info_3743.html ] your immigrant visa registration.
Q14. I am currently in removal proceedings. Will I be able to apply for a provisional waiver?
A14. As part of the rulemaking process, DHS is considering how it will address provisional waiver requests from individuals who currently are in removal proceedings.
Q15. If I have already filed a Form I-601, the Application for Waiver of Grounds of Inadmissibility, from outside the United States, will I be able to apply for a provisional waiver?
A15. No. The proposed provisional waiver process only applies to individuals who are physically present in the United States and have not yet been scheduled for their immigrant visa interview.
Q16. What happens if I am not eligible for a provisional unlawful presence waiver?
A16. When the new process goes into effect, individuals who are not eligible for the provisional waiver process can continue to follow current agency processes for filing a Form I-601, the Application for Waiver of Grounds of Inadmissibility, after the consular interview.
Q17. If I receive an approved provisional unlawful presence waiver, will I be able to work?Provide interim benefits such as employment authorization or advance parole;
Provide lawful status;
Stop the accrual of unlawful presence;
Provide protection from removal;
Remove the requirement to depart the United States to seek an immigrant visa; or
Guarantee visa issuance or admission to the United States.
A17. No. Under the proposed rule, the filing or approval of a provisional unlawful presence waiver will not affect an individual's current immigration status in the United States. A pending or approved provisional waiver also will NOT:
Q18. If I apply for a provisional unlawful presence waiver but USCIS denies my request, can I appeal the decision or file a motion with USCIS asking for the decision to be reopened or reconsidered?
A18. No. Aliens seeking a provisional unlawful presence waiver would not be able to file a motion to reopen or reconsider. Such individuals, however, may still apply for a waiver through the current I-601 waiver process. USCIS also reserves the right to reopen and reconsider on its own motion an approval or a denial at any time.
Q19. If USCIS denies my request for a provisional unlawful presence waiver will I be placed in removal proceedings?
A19. For cases where the provisional unlawful presence waiver is denied, USCIS will follow its current Notice to Appear (NTA) policy, which prioritizes the types of cases USCIS will focus on for initiation of removal proceedings.
Q20. What will happen at the consular interview if I present an approved provisional unlawful presence waiver?
A20. If the DOS consular officer determines that a provisional waiver applicant, in light of the approved waiver of unlawful presence, is otherwise admissible to the United States and eligible for the immigrant visa, DOS would issue the immigrant visa, allowing the individual to travel to the United States. The provisional unlawful presence waiver would become permanent and cover the periods of unlawful presence on which the waiver was based for any future benefit requests.
Q21. What will happen at the consular interview if I present an approved provisional unlawful presence waiver but the consular officer determines I have other grounds of inadmissibility?
A21. If the consular officer determines that you are subject to other grounds of inadmissibility beyond unlawful presence, the approved provisional waiver is automatically revoked. If a waiver is available for the other ground(s) of inadmissibility identified by the DOS consular officer, you will need to file a Form I-601, Application for Waiver of Grounds of Inadmissibility, with USCIS after the consular interview to request a waiver for all applicable grounds of inadmissibility, including any periods of unlawful presence.
Q22. How long will an approved provisional unlawful presence waiver be valid?
A22. Under the proposed rule, an approved provisional unlawful presence waiver would remain valid as long as the underlying approved immigrant visa petition (I-130 or I-360) is not revoked. If DOS terminates the immigrant visa registration process or the approved immigrant visa petition is revoked, the provisional unlawful presence waiver grant also is automatically revoked. For more information on the terms and conditions for a provisional waiver and periods of validity, see DHS NPRM section IV, Parts G and H.
Q23. What happens to an approved provisional unlawful presence waiver if I reenter the United States illegally?
A23. Illegal reentry into the United States after approval of a provisional unlawful presence waiver will automatically revoke the approval. Whether an individual has a pending or an approved immigration benefit application, reentry into the United States without being admitted or paroled by an immigration officer at the U.S. border can have severe consequences; such individuals may be permanently barred from the United States.