Highlights from from the Provisional Waiver Teleconference

By: The Chander Law Firm, P.C.

On January 2, 2013, USCIS held a stakeholder teleconference regarding the Provisional Unlawful Presence Waiver process.  The teleconference was presented by  Mary Herrmann of the USCIS Public Engagement office and was attended by USCIS Director Alejandro Mayorkas and Ed Romakowski from the Department of State.  Some of the highlights of the teleconference are below.

Director Mayorkas provided an introduction to the Provisional Unlawful Presence Waiver program.  He described the April 2, 2012 proposed rule and commentary period initially intended to reduce the time United States citizens were separated from immediate relatives during consular processing due to review of waiver applications.  He announced publication of the final rule on January 3, 2013 and implementation of the rule effective March 4, 2013.

Director Mayorkas emphasized the following criteria for eligibility in the program:

• you must be 17 years or older

• you must be an "immediate relative"

• you must be the beneficiary of an approved I-130 or I-360

• you must have an immigrant visa case pending with the Department of State and you must have paid the Immigrant Visa processing fee

• you must be able to demonstrate that your separation will cause extreme hardship to a United States citizen spouse or parent

• you must be available for a biometrics (fingerprinting) appointment in the United States

• your immigrant visa interview must not be in process or scheduled prior to publication of the final rule (January 3, 2013)

Director Mayorkas emphasized the goal of the program is to facilitate the immigration process and reduce periods of separation.  He added that the new rule does not change the standard for determination of eligibility or extreme hardship.

Director Mayorkas emphasized that those who are already scheduled for an immigrant visa interview before publication of the rule are not eligible for the program.  This would exclude any person whose Immigrant Visa Package has been sent to the consulate and previously been scheduled for an interview before January 3, 2013. 

 

Director Mayorkas also emphasized that he program is open only to those that can show extreme hardship to a United States citizen spouse or parent.  This means that waiver applications based on extreme hardship to a lawful permanent resident spouse or parent are not eligible under new rule.

 

Those approved under the Provisional Unlawful Presence Waiver program would still have to depart the United States to attend an immigrant interview abroad.

 

March 4, 2013 is the first date a person can file for waiver under the program.  USCIS will reject any package received before that date.

 

Director Mayorkas stated that a considerable number of comments were received - around 4,000.  The comments resulted in significant changes.  First, many comments focused on expanding the categories to include lawful permanent residents.  USCIS will consider expanding the process to other categories after assessing the impact of the provisional waiver process.  Next, a person may file multiple applications under the provisional waiver process provided the requirements of the rule are met in the event an application is withdrawn or denied.  Third, comments were considered regarding eligibility under the program if the person is in removal proceedings and proceeding are administratively closed and the person is not removed at the time of filing.

 

During the question and answer session, USCIS made the following clarifications:

• Individuals in proceedings may apply for the provisional waiver program only if their cases are administratively closed or terminated

• In the event that the provisional waiver is denied, USCIS will issue NTAs according to their NTA policy (available here)

• Individuals who are subject to any grounds of inadmissibility other than unlawful presence are not eligible for the program

• ICE continues to retain discretion as to whether to administratively close or terminate cases

• Consular officers may continue to look for other ineligibilities despite the fact that a person has a provisional waiver.

• There is no estimated approval timeline.  A timeline may be set after analyzing the volume of cases

The decision to preclude individuals from filing while in removal proceedings was for operational feasibility for the process to go smoothly. 

 

The fee for the application will be a total of $670 ($585 for Form I-601A + $85 for biometrics).

 

Changes will be made to NVC processing in light of the new program.  The Immigrant Visa Fee form will contain information regarding the provisional waiver program, as will the Department of State website.  The NVC will need to be notified of intent to apply for the I-601A waiver.

 

In the question portion of the teleconference, USCIS reiterated that if the Department of State has initiated process to have an appointment before the date of rule publication, there is no in country filing.

 

The remaining questions and answers reiterated what was already stated.

 

If you have any questions regarding the Provisional Unlawful Presence Waiver process, contact The Chander Law Firm.

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