On January 2, 2013, USCIS announced its long awaited final regulation governing new “provisional” waiver processing for immigrant visa applicants. Beginning March 4, USCIS will begin accepting provisional waiver applications in the US from applicants subject to the unlawful presence ground of admissibility (INA section 212(a)(9)(B); 8 U.S.C. 1182(a)(9)(B)) that subjects them to a three or ten-year bar to admissibility. This ground of inadmissibility is triggered when applicants for immigrant visas abroad leave the US for their appointments at US consulates. The unlawful presence ground applies to people who have accrued six months or more of unlawful presence in the US. The act of leaving the US triggers the three or ten-year bar. To come back earlier than that, a waiver application is required.

The most common, but not only, group subject to this provision are people who cannot obtain their green cards in the US because they entered the US without inspection. Under the new regulation, applicants will be able to submit their waiver applications prior to leaving the US for their interviews abroad. The waiver can be provisionally granted prior to attending the visa interview abroad. This change in waiver procedures is intended to alleviate the hardships to American citizen family members and the length of family separation during the waiver and visa process. People with all other waivable grounds of inadmissibility will continue to apply for their waivers from abroad after their immigrant visa interviews. However, since June 2012, most of those waiver applications are now filed by mail to the US. None of these provisions affect people entitled to apply for adjustment of status in the US where their waivers can be filed at the centralized locations as well.

Currently, applicants for immigrant visas abroad must submit their waiver applications (form I-601 and accompanying evidence) directly to the US embassy or to a central processing facility in the US after their visa interviews if a consular officer determines that the applicant is inadmissible and requires a waiver. As a result, applicants must wait abroad for months, and sometimes years, while waiting for the waiver to be decided before they can return to the consulate to collect the immigrant visa once the waiver is approved. Many families in the US who have members out of status have not taken the risk of visa processing. They have passed up opportunities to finish their cases choosing instead to remain out of status indefinitely. The combination of the unlawful presence bars, the long delays in waiver processing, and consequent long family separations and hardships have contributed significantly to the high number of undocumented individuals in the US who otherwise are eligible to immigrate through family or work sponsors.

New Procedures, Not a New Law
The new procedure will enable applicants to file their applications (new form I601A) before they go abroad to the visa interview. I-601As can only be filed after approval of a form I-130 or self-petition I-360. If the waiver application is approvable, applicants will receive a provisional (not an absolute, final or conclusive) decision on the waiver application, giving families more time to be together and some level of predictability once the applicant leaves the US for the visa interview. USCIS expects applicants to spend a few days to a few weeks abroad under the new system.

The change is not a change in law, but rather a change in procedure, namely where, how and when waiver applications will logistically be filed and decided. The change does not affect who is subject to waivers or the requirements to have a waiver granted. It also does not permit applicants to have their green card applications decided in the US, nor is this a “fast track” to permanent residence. In fact, the entire group at issue in this regulation are those people who have lived in the US unlawfully and are not eligible to adjust status to permanent residence in the US. They continue to be deportable if caught. This is not an amnesty of any sort. Applicants must undergo the statutory dual “penalties” of visa processing abroad and make additional expensive waiver applications. Congress enacted INA 212(a)(9)(B) in the 1990s, and only Congress can change or eliminate that provision to truly alleviate the hardships to American citizens and lawful permanent resident (LPR) relatives. Furthermore, the provisional waiver process is only beneficial to those applicants who know in advance that they are subject to the unlawful ground of inadmissibility and will need a waiver.

Program Limitations
Unfortunately, this new process is for a narrow segment of the pool of potential immigrant visa applicants who need waivers. The new procedure is only available to “immediate relative” applicants, that is, spouses, parents and unmarried children under 21 years old of US citizens. Thus, the program does not apply to spouses and children under 21 of lawful permanent resident (LPR) sponsors, the adult children of US citizens, the siblings of US citizens, diversity lottery visa applicants, or applicants immigrating through work visa categories.

In addition, the program only applies to individuals who need waivers of the three and ten-year bars to return due to a prior period of unauthorized presence in the US of six months or more. Thus, if someone is inadmissible for an immigrant visa on different grounds for which a waiver is required and available, such as for a crime involving moral turpitude, or for a prior misrepresentation or fraud, that person will still need to go to the consulate first, have an interview, and then submit the waiver while abroad, forcing that person to wait months outside the US and separated from family in the US. Furthermore, if an applicant is subject to a three or 10-year bar and another ground of inadmissibility requiring a waiver, or the person was previously deported and requires an application for permission to reapply for admission (I-212), then the individual will not be able to use the provisional waiver process.

No Change to Extreme Hardship Standard, But Qualifying Relatives Limited
The standard for unlawful presence waivers does not change either. Such a waiver requires proof of “extreme hardship” to a US citizen or LPR spouse or parent, known as the qualifying relatives. The extreme hardship standard is set by Congress but is subject to interpretation by USCIS. (Note that US citizen children are not qualifying extreme hardship relatives, but the hardships they face can be a factor to consider as they relate to the hardships to the qualifying relative.) The provisional waiver process will only be available to those unlawful presence waiver applicants relying upon hardships to US citizen relatives only, even though LPR relatives are qualifying relatives in the waiver statute. USCIS states that it will consider expanding the program to the other qualifying relatives later on once they see how the program works with respect to US citizen relatives.

Waiver applications are often very expensive to put together as they are very document intensive and time consuming. Many require expert opinions from doctors, psychologists and/or country conditions or other experts plus a mountain of affidavits and supporting documents. Applicants must show the hardships to the qualifying relative from two points of view: if the qualifying relative stayed in the US if the waiver was not approved and the applicant lived abroad, and if the qualifying relative moved to the applicant’s country. Although Mexicans make up the largest number of waiver applicants, people from around the world also need extreme hardship waivers for different reasons. USCIS will look at a range of factors in each case and the totality of circumstances.

State Department v. Homeland Security Roles
The consular officer, who works for the US State Department, does not decide waivers. Rather, USCIS has jurisdiction over waivers and is a branch of the US Department of Homeland Security. Historically, the consular officers collected the waivers and sent them to the various foreign based USCIS offices or to USCIS offices in the US. Just moving the paperwork between agencies and offices caused much of the delays in processing. Now, USCIS has more centralized processing of waivers in the US. Last year, USCIS changed the processing location for all waivers so that they are sent by mail to processing centers in the US. Only time will tell about whether this new process will result in more consistent adjudications. For those that qualify for provisional waivers, they will at least get some pre-interview temporary assurance about their waivers before departing the US so that the visa interview will ultimately be routine and will take just a few days or a few weeks at most. However, the consular officer makes the final decision about admissibility and visa issuance. Thus, if another ground of inadmissibility comes up as a result of the interview, the applicant could still be stuck abroad while a waiver is sought on the new ground, if one is even available. Furthermore, not all grounds of inadmissibility are waivable. Questions about whether evidence submitted for the provisional waiver was authentic or true can also come up at the consular interview stage that could create delays. The State Department has issued procedures for cases that get scheduled after January 3, 2013 for visa interviews between January 3 and March 4 when the provisional waiver program goes into effect, where applicants for waivers may want to use the provisional waiver process. In addition, USCIS and the State Department will be working closely in terms of I-601A processing and visa appointments. USCIS anticipates that once a provisional grant of the waiver issues, the consulate will be able to set an appointment within three to four months.

Proposed v. Final Rule
DHS previously issued proposed regulations for comment. DHS received over 4000 comments including group petitions, many of which misinterpreted the law, suggesting for example, that this was a “fast track” to permanent residence or a “back door amnesty” or other nonsense.

The new final regulations made a few tweaks that are more helpful to people in some situations. For example, while individuals with final orders of removal are not eligible for provisional waivers, individuals currently in removal proceedings who have had their cases administratively closed and not re-calendared or have had them terminated may apply for provisional waivers as can individuals who receive Deferred Action for Childhood Arrivals (DACA). However, they must have their removal proceedings terminated by the Immigration Judge before leaving the US for the visa interview. In addition, individuals who previously filed for the traditional waiver, may withdraw them and refile under the provisional waiver program. Also, individuals who are denied provisional waivers, may refile under the traditional approach after the visa interview and will have to remain abroad during adjudication.

On the downside, there are no waivers of the $585 filing fee or biometrics fee. The grant of a provisional waiver does not grant the individual any right to stay in the US, nor any right to employment authorization and does not stop the accumulation of unauthorized presence. Furthermore, if an individual leaves the US and reenters without admission or parole anytime before or after grant of a provisional unlawful residence waiver and before an immigrant visa is issued, the provisional waiver will be revoked. There are a number of other rules concerning refilings and status of I130s and immigrant visa applications at the National Visa Center or consulates abroad.

More I-130 Filings on the Horizon?
USCIS estimates there will be a substantial increase in I130 filings by families who have been eligible but were waiting for better circumstances involving waiver processing or a change in law. More filings means it could take longer to have I130s decided.

What Provisional Unlawful Presence Waivers Are and Are Not
DHS reminds the public that:

the filing or approval of a provisional unlawful presence waiver application will not: Confer any legal status, protect against the accrual of additional periods of unlawful presence, authorize an alien to enter the United States without securing a visa or other appropriate entry document, convey any interim benefits (e.g., employment authorization, parole, or advance parole), or protect an alien from being placed in removal proceedings or removed from the United States in accordance with current DHS policies governing initiation of removal proceedings and the use of prosecutorial discretion.

Although DHS chose not to include in the provisional waiver process those people who are already abroad waiting for decisions on pending waivers, it did note that since June 2012, waiver applications have been centralized in the US, USCIS has staffed up and is working on current waiver backlogs. They hope to be current on those within the next six months. It will be months before we know whether the provisional waivers will see any faster processing times.

Get Advice Before Applying Before jumping onto the provisional waiver bandwagon, applicants should consult with qualified immigration counsel to determine eligibility for the waiver, and to make sure that the individual is not subject to any other grounds of inadmissibility that are not waivable or, if waivable, would require filing of the waiver after the immigrant visa interview. Furthermore, the interplay with the National Visa Center and the US consulates abroad can be complicated concerning the new waiver program as it pertains to keeping visa applications alive and pending so as to avoid them being closed and returned. For pending immigrant visa cases, it is very important to stay in touch with the National Visa Center and the consulate or embassy during this process so that applications do not lapse while waiting for a waiver decision.

In addition, waivers are discretionary, meaning that even if USCIS finds that the applicant show extreme hardship to the qualifying relative(s), it must also balance the bad facts with the equities in the case. Thus, proving extreme hardship alone does not guarantee the waiver will be granted. Finally, whether one is even subject to INA 212(a)(9)(B) can be difficult to assess since there are many rules about how one accumulates or does not accumulate unlawful presence in the US. Careful advice and planning is essential in these types of complex matters.