Some great news for certain applicants seeking immigrant visas (permanent residence) at US consulates abroad who need waivers of inadmissibility for unlawful presence in the USA! Beginning August 29, 2016, more potential applicants will become eligible to file family unity provisional waivers (Form I-601A) for unlawful presence.  It is important to note that provisional waivers are merely a procedural remedy as to time and place for filing the waiver application and is not a statutory change that only Congress can make. Updated forms and instructions will be available on or before August 29, 2016 on the USCIS website.

The waiver is required for people who entered the USA illegally, or who overstayed visas, and who are not eligible to file for adjustment of status (Form I-485) in the USA. Applicants file for immigrant visas at US consulates abroad, but the act of leaving the USA to go to the interview can trigger the 3- or 10-year bar to re-entry. Since 2013, USCIS has allowed certain immigrant visa applicants to file their waiver applications (Form I-601A) prior to going to their consular interviews. Before the “provisional I-601A waiver” program, applicants would file waiver applications (using Form I-601) after their consular interview, only to find themselves separated from family for 6-12 months waiting for decisions on their waiver applications. The I-601A process allows applicants to file their waivers after their visa petitions are approved and prior to getting their consular interviews, thereby keeping families together for as long as possible. Once the waiver is “provisionally” granted by USCIS, then the applicant attends the consular interview. In theory, applicants should only be abroad for a couple of weeks.

The provisional stateside I-601A waiver only waives the ground of inadmissibility for unlawful presence found at the Immigration and Nationality Act sections 212(a)(9)(B)(i)(I) or (II) (the 3- and 10-year bars). If the consular officer finds other waivable grounds of inadmissibility besides unlawful presence, then another application must be filed on Form I-601 while abroad after the consular interview. Until August 29, 2016, only “immediate relatives” (parents, spouses and unmarried children under 21 of US citizens) could file for provisional waivers if they also have “qualifying relatives” who were US citizen parents or spouses.

Here are some FAQs about the key changes.  Please be sure to read the last one, which has my political commentary about what US citizen family members should do to get these nasty bars (and thus the need for waivers) removed during the next Congressional session.

Who can file for provisional waivers after August 29, 2016?

Applicants for immigrant visas based on family, employment, investment or diversity visa petition approvals may file for provisional waivers after August 29, 2016, provided they also have “qualifying relatives.”   This means both “immediate relatives” (parents, spouses and unmarried children under 21 of US citizens) AND family preference applicants  (spouses and married or unmarried children over or under 21 of US citizens, permanent residents, and siblings of US citizens) may file for provisional waivers.  Minors who are applicants for immigrant visas but are under 17 are not eligible for provisional waivers (and are usually not subject to the unlawful presence bar anyway).

Since USCIS has now made the provisional waiver available to anyone who qualifies by statute, beginning August 29, 2016 applicants may also include beneficiaries of employment based petitions, self-petitioners, investors, special immigrant petitions (I-140, I-360, I-526), and diversity visa applicants who would otherwise be ineligible for adjustment of status due to unlawful status and presence, and who must consular process immigrant visa applications.

Who are qualifying relatives (QRs)?

In addition to being an immigrant visa applicant, by statute to get a waiver of the unlawful presence bar, the applicant must also have one or more “qualifying relatives” (QR).  QRs include US citizen and permanent resident spouses and parents of the applicant, NOT the children of the immigrant visa applicant. Prior to August 29, 2016, immediate relatives could file for provisional waivers only if they had US citizen QRs, not permanent resident QRs. Only Congress can change the definition of QR. Therefore, the provisional waiver regulations have not changed the meaning of QR, but for procedural purposes will now include both US citizen AND permanent resident QRs. Essentially, as of August 29, 2016, anyone who by statute is eligible for an unlawful presence waiver can file for a provisional waiver.

What is the waiver requirement?

By statute, the waiver/immigrant visa applicant must show it will be an “extreme hardship” to the qualifying relative if the waiver is not granted. The applicant’s own hardship or children’s hardships are not part of the waiver requirement, although their situations can be discussed as it relates to the QR’s hardships. The applicant should show the qualifying relative’s hardships from two perspectives: the hardships faced by the QR if he/she stays in the US and the applicant is forced to live abroad (“separation”), and the hardships faced by the QR if he/she joins the applicant living abroad (“together”). Only Congress can change the extreme hardship requirement. Therefore, the regulations haven’t changed anything here. USCIS is working on a separate guidance memo that would more carefully define “extreme hardship,” but that has not been issued yet. In general, extreme hardship is a look at all the hardships the QR will face: family, social, economic, medical, psychological, cultural and country conditions hardships.  In addition to meeting the extreme hardship standard, the waiver application will be reviewed in the “exercise of discretion”, meaning it will only be approved if the good facts outweigh the bad facts.

What about people in removal proceedings or with final orders of removal?

Prior to the August 29, 2016 rule going into effect, individuals in removal proceedings or with final orders of removal, exclusion or deportation, or orders in absentia, or other similar orders were not eligible for provisional I-601A waivers.

Beginning August 29, 2016, some individuals in removal proceedings may also pursue provisional waivers. The waiver application is filed with USCIS, not with the court. However, applicants will need to have their removal proceedings terminated or administratively closed (and not re-calendared) prior to filing the waiver application.

Individuals who already have removal, exclusion or deportation orders will need to first file and have a conditionally approved (Form I-212) Application For Permission to Reapply for Admission to the United States After Deportation BEFORE leaving the USA and before they can file a I-601A family unity provisional waiver ,assuming there are no other grounds of inadmissibility.

Individuals with orders of voluntary departure cannot file for provisional waivers because USCIS will not know at the time of filing or adjudication whether the immigrant left the USA on time or if the order turned into an order of deportation for failure to leave by the expiration of voluntary departure. As noted above, an order of deportation will require a conditionally approved Form I-212 first before filing for the I-601A stateside waiver. Of course, if the immigrant left the USA on time per the voluntary departure order, then the person is abroad and can no longer file a stateside I-601A but may need to file a Form I-601 waiver after the consular interview.

Prior to August 29, individuals “subject to” reinstatement of a prior order of removal could not file for provisional waivers. After August 29, individuals with prior orders of removal who have had their orders in fact reinstated by ICE or CBP will not be able to file for I-601A waivers. Even if a prior order has not yet been reinstated, the applicant will most likely have the I-601A denied in the exercise of discretion, or it can be automatically revoked if the consular officer finds another ground of inadmissibility such as under section 212(a)(9)(C), which is a permanent bar without any waiver for illegal reentry after deportation or illegal reentry after a prior period of unlawful presence.

Of course, anyone with a history of encounters with CBP, ICE or the Immigration Courts should seek advice from an experienced immigration attorney because these cases can be very complex.

What about other potential grounds of inadmissibility?

Prior to August 29, 2016, USCIS would deny provisional waiver applications if the agency “had reason to believe” there may be other grounds of inadmissibility in addition to unlawful presence (e.g., for crimes, fraud/misrepresentation, etc.). The consular officer has the final authority to decide grounds of inadmissibility after interviewing the applicant about the immigrant visa application. If there are other grounds of inadmissibility, then a provisional waiver is revoked and the applicant will need to file for a I-601 waiver abroad and wait there until it is approved. The new rule effective August 29 does away with the “reason to believe” standard for denying provisional waivers because of past confusion about it, but applicants with known or potential other grounds of inadmissibility should be aware that they may need to file I-601s abroad instead of or in addition to provisional I-601A waivers. In other words, if there are known inadmissibilities in addition to unlawful presence, skip the I-601A process and proceed to interview and file the I-601 right after the interview. If applicants are not sure whether they have other inadmissibilities or know they only have unlawful presence inadmissibility, then file the I-601A, with the proviso that the I-601 could be required after interview.

What are the timing requirements?

The I-601A is filed after the approval of a visa petition (I-130, I-140, I-526, I-360, Diversity Selection), and after the immigrant visa fees are paid to the National Visa Center but before attending a consular interview date. There were some timing restrictions around interview scheduling in the prior rule, but as of August 29, those timing restrictions are eliminated. HOWEVER, it is imperative that applicants stay in touch with either NVC or the consulate within one year of first communication to make sure either is aware of the applicant’s intent to continue the process. The waiver applications can take at least six months for a decision.  Any lack of communication of one year or more with the US  State Department (NVC or consulate) can result in termination of the registration. If that happens, applicants may need to request reinstatement or re-file a new visa petition. These communication requirements are also important when the quota or waiver processing times are bogged down. Always stay in touch with NVC or the consulate about intent to proceed on the applications. If sending written correspondence by mail, send it by a method that assures delivery and keep a copy!

While the waiver application is pending, what benefits if any, does applicant have?

A pending or approved provisional unlawful presence waiver does not constitute a grant of a lawful immigration status or a period of stay. Applicants without valid immigration status are always subject to arrest by CBP or ICE and can be put into removal proceedings, although one may want to ask for “prosecutorial discretion.” A pending or an approved provisional unlawful presence waiver does not allow one to file for a work permit or travel document (advance parole). Do not submit these with the waiver application. In addition, adjustment of status applicants (I-485) may not file for I-601A provisional waivers, but they may be permitted or directed to file I-601 waiver applications.

What about applicants already living abroad?

Applicants for immigrant visas living abroad who are inadmissible for a prior unlawful presence must file form I-601 after their consular interviews. The I-601A is for applicants currently in the USA who are out of status and who have not gone abroad yet for their consular interviews abroad.

Can the provisional waiver be revoked?

Yes – for these reasons:

1. The consular officer finds other grounds of inadmissibility in addition to unlawful presence;
2. The I-130 family petition is revoked due to fraud or death of the petitioner unless reinstated or if any petition is revoked for fraud;
3. The immigrant visa registration is revoked because the applicant hasn’t stayed in touch with the US State Department (NVC or consulate)
4. The applicant has entered the USA without inspection, admission or parole after filing or before the provisional waiver taking effect. (The provisional waiver takes affect after the applicant leaves the US and attends the consular interview.)

Can I-601A denials be appealed or reconsidered or reopened?

No.  But a new I-601A can be filed or a I-601 can be filed after the consular interview.  USCIS does not believe appeals and motions are required as they view the I-601A not to be a complete process since it is only provisional in nature.  (Maybe someone will sue on due process grounds?)

Do you just hate the idea of the hassle, expense and time needed for waivers? So do I!

Here comes my political commentary.  First, if you are reading this before coming to the USA or before your current nonimmigrant visa expires, do not violate status and get in this predicament in the first place!!! Second, seek quality legal advice from an experienced immigration attorney to determine all of your future immigration options and/or likelihood of success on a waiver.  If you are the US citizen of a family member needing a waiver, PLEASE VOTE in November!  The 3- and 10-year and permanent bars were enacted by Congress during the 1990s – yes, ironically during the President Clinton years.  In my decades of immigration law practice, I can tell you that these bars are one of the primary reasons we have millions of people living in the US unlawfully – because the bars keep families trapped here given the uncertainties of waiver results and potential for family separation.

Know this: Congress creates the law and only then does the President sign it.  This year, the Congressional elections are even more important than the Presidential elections! The makeup of Congress will determine if there will be bipartisanship or not.  If Congress cannot work together, we will have four more years of inaction on immigration reform as we have seen for the last decade.  If they can work together, we may get something helpful for your family member if there is also a President willing to sign the bill. The devil is in the details, though.  If the majority of Congress is made up of the anti-immigrant crowd chances are slim for reforming the bars and waivers.  However, if the majority of Congress favors immigration reform and helping the 11+ million people here unlawfully, then please write your Congressperson after the election and demand that they eliminate the 3- and 10-year and permanent bars and/or at least loosen up the requirements for waivers. Proving extreme hardship is time consuming and expensive and very emotional when you have to think about the prospects of separation or moving abroad and what those hardships would be.  Please, please help change this miserable law by taking action. Let your Congressperson know the impact on you and your family and ask him or her to change the law! Thank you!