News Update - April 3, 2012

I-601A Provisional Waiver for EWI’s in U.S. Positively Moving Forward.

The best hope for green cards to a class of individuals - those entering without inspection who are immediate relatives (parents, spouses, and children under the age of 21 and unmarried) of U.S. citizens - advanced with U.S.C.I.S.'s March 30, 2012, notice of proposed rulemaking.  The March 30th proposal sets forth the proposed eligibility guidelines and procedures under which class members will be able to apply for and receive provisional waivers of the 3 or 10 year bar (for being here illegally while in the U.S.) before deciding to travel overseas to green card interviews with the U.S. consulates and embassies.  The provisional waivers would become final with approval of the immigrant visas.  U.S.C.I.S. made clear in the proposed rule that "The immediate relative would not have to wait abroad during the period when U.S.C.I.S. adjudicates his or her waiver request, but rather could remain in the United States with his or her U.S. citizen spouse or parent during that period."

The importance and appeal of the provisional waiver is the lesser amount of risk to people as the applicant stays here during the time of the adjudication, and if the waiver is approved, the probability of a trouble-free green card interview overseas.  The public will have 60 days for comment before the final rulemaking process begins.  (April 2, 2012 – June 1, 2012).

One of the more interesting items of the proposed rule is that the provisional waiver application will be essentially a one-shot affair.  U.S.C.I.S. will not allow a person who has been denied the provisional waiver to file another.  It will also not allow administrative appeals or motions to reopen or reconsider.  An applicant's first attempt should thus be the best that he/she is able to submit. 

If the application succeeds, U.S.C.I.S. will not issue a Notice To Appear (NTA) in the immigration court.  However, it reserves the right to issue the NTA upon denial of the provisional waiver application, stating that "If U.S.C.I.S. denies the provisional waiver application, U.S.C.I.S. will follow the NTA issuance policy in effect at the time of adjudication to determine if it will initiate removal proceedings against the applicant."
We note that most of these cases involving immediate relatives of U.S. citizens will have many favorable equities, and with the subject of prosecutorial discretion being such a hot item recently, the chances of an NTA being issued would appear to be low. 

Conditions for a provisional waiver application to be filed under the proposed rule are the following:

  1. The sole ground for inadmissibility is unlawful presence for more than 180 days. 
  2. The applicant is the beneficiary of an approved I-130 (petition for alien relative) or I-360 (petition for Amerasian widow(er), and special immigrant) petition classifying him or her as an immediate relative. 
  3. The applicant is physically present in the U.S. at the time of filing the provisional waiver. 
  4. The applicant appears for biometrics processing in the U.S. (fingerprints and photos). 
  5. The applicant establishes that his or her U.S. citizen spouse or parent would suffer extreme hardship if he/she is denied an admission to the U.S. as a permanent resident. 
  6. The applicant warrants a favorable exercise of discretion. 
  7. The applicant is 17 years or older at the time of filing the application (children under that age are not barred). 

Ineligibility grounds under the proposed rule are the following:

  1. The applicant is outside the United States. 
  2. The applicant does not have an approved I-130 or I-360 petition classifying him or her as an immediate relative. 
  3. The applicant has not paid the immigrant visa processing fee to the Department of State and is not actively pursuing the immigrant visa process. 
  4. The applicant has already been scheduled for an immigrant visa interview (U.S.C.I.S. believes that the waiver application should be parallel to the immigrant visa processing and where the applicant has already been scheduled for interview, the waiver application would delay and not be parallel to the immigrant visa process). 
  5. The applicant is under the age of 17 when the provisional waiver application is filed. 
  6. The applicant is in removal proceedings that have not been terminated or dismissed. 
  7. The applicant has not had a charging document (NTA) to initiate removal proceedings canceled. 
  8. The applicant is in removal proceedings that have been administratively closed and not subsequently reopened for the issuance of final voluntary departure order. 
  9. The applicant is subject to a final order of removal. 
  10. The applicant has a pending application for adjustment of status to permanent residence. 
  11. U.S.C.I.S. has reason to believe that the applicant is subject to other grounds of inadmissibility. 
  12. The applicant fails to establish extreme hardship to the qualifying relative or does not merit a favorable exercise of discretion. 
  13. The applicant previously filed a provisional unlawful presence waiver application. 

The proposed rule is not final, and changes are capable of being made during the comment period.  Areas certain to be commented upon are a desire by many to expand the classes of individuals able to apply for a provisional waiver in the States to those other than immediate relatives of U.S. citizens, and to seek eligibility for those with final orders of removal, deportation, or exclusion for a provisional waiver who can demonstrate that they have an approved I-212 application for permission to reapply for admission into the U.S. after deportation or removal. (The I-212 can be applied for in the States if the applicant is here).  Written comments can be made by one of the following methods identified by DHS Docket No. U.S.C.I.S.-2012-0003:

  • Federal eRulemaking Portal: http://www.regulations.gov. Follow the instructions for submitting comments.
  • E-mail: You may submit comments directly to USCIS by e-mail at uscisfrcomment@dhs.gov. Include DHS Docket No. USCIS-2012-0003 in the subject line of the message.
  • Mail: Sunday Aigbe, Chief, Regulatory Products Division, Office of the Executive Secretariat, U.S. Citizenship and Immigration Services, Department of Homeland Security, 20 Massachusetts Avenue, NW., Washington, DC 20529-2020. To ensure proper handling, please reference DHS Docket No. USCIS-2012-0003 on your correspondence. This mailing address may be used for paper, disk, or CD-ROM submissions.
  • Hand Delivery/Courier: Sunday Aigbe, Chief, Regulatory Products Division, Office of the Executive Secretariat, U.S. Citizenship and Immigration Services, Department of Homeland Security, 20 Massachusetts Avenue, NW., Washington, DC 20529-2020. Contact Telephone Number is (202) 272-8377.

The next few months promise much comment and excitement in this area as the provisional waiver (to be submitted on a new form I-601A Application for Provisional Unlawful Presence Waiver) appears to be the most concrete probability for significant pro-immigration change in the near future for the Obama Administration. 

 

† The author is a 30+ year practitioner of immigration law based in New York City holding an AV preeminent rating in the Martindale-Hubbell Law Directory, registered in the Bar Register of Preeminent Lawyers, and on the New York Super Lawyers list. He was awarded the Sidney A. Levine prize for best legal writing at the Cleveland-Marshall College of Law in 1977 and has written extensively on immigration over the past years for Interpreter Releases, Immigration Daily, and the ethnic newspapers, World Journal, Sing Tao, Pakistan Calling, Muhasha and OCS. He has testified as an expert on immigration in civil court proceedings and was recognized by the Taiwan government in 1985 for his work protecting human rights. His article, "The Bush Temporary Worker Proposal and Comparative Pending Legislation: an Analysis" was Interpreter Releases' cover display article at the American Immigration Lawyers Association annual conference in 2004, and his victory in the Second Circuit Court of Appeals in a case of first impression nationwide, Firstland International v. INS, successfully challenged INS' policy of over 40 years of revoking approved immigrant visa petitions under a nebulous standard of proof. Its value as precedent, however, was short-lived as it was specifically targeted by the Bush Administration in the Intelligence Reform Act of 2004.

‡ This article © 2012 Alan Lee, Esq.

 

Copyright © 2003-2012 Alan Lee, Esq.
The information provided here is of a general nature and may not apply to any particular set of facts or circumstances. It should not be construed as legal advice and does not constitute an engagement of the Law Office of Alan Lee or establish an attorney-client relationship.