Visa Lawyer Blog
On January 6, USCIS posted a notice outlining its plan to reduce the time that certain families are separated when the foreign national goes home to apply for an immigrant visa. The current process allows applicants to file for a waiver only after they have their initial interview at the U.S. Consulate, usually in their home country. Under the proposed process, the applicant may file the waiver application with USCIS while they are still in the U.S. The provisional waiver will be available only to applicants with U.S. citizen spouses or parents, but not to applicants whose qualifying relatives are permanent residents.
Although the new process will change the filing procedure for some, all applicants are still required to prove that the qualifying relative will suffer extreme hardships if they are not re-admitted to the U.S.
The following post will explain a few of the misconceptions about the new proposals and address a few of the questions clients have been asking.
Key Points to Remember
– Goal of changes is to reduce time that immediate relative waiver applicants are separated from their U.S. citizen family members.
‐ The only ground of inadmissibility that the waiver process will cover is unlawful
presence – the 3‐10 year bar.
‐ Those that are inadmissible for other reasons, e.g. criminal grounds, will not be eligible for this process.
‐ The standards for the waiver remain unchanged.
What happens when the provisional waiver is denied? What will the policy be on issuance of a Notice to Appear? What if the person has no criminal record or history of fraud?
USCIS Answer:
According to USCIS, no answer yet – just a request for public comment on what the policy should be.
Will there be sufficient coordination or “synergy” between USCIS and the Department of State? What about consular officers denying cases, even when a provisional waiver has been granted?
USCIS Answer:
‐ USCIS is coordinating closely with the State Department – collaboration has been terrific.
‐ Provisional waiver covers only unlawful presence. We will not be adjudicating other grounds of inadmissibility. Other grounds of inadmissibility may arise during the consular interview, and these grounds will need to be addressed by the consular officer. The interview may yield information that the USCIS adjudicator cannot determine from the application.
‐ USCIS will work to ensure that the guidance that goes out to the State Department is as clear as possible.
**** Side comment, I feel that many Consular Officers will applying harsher approaches to waiver applicants coming to seek visas, even after the waiver approval in the US. This remains to be seen.
What will happen to provisional waiver applicants who unknowingly have other grounds of inadmissibility?
USCIS Answer:
‐ The waiver will be denied.
If clients have interviews right now, can they possibly get the interview rescheduled so they can benefit from the new regulation at the end of the year?
USCIS Answer:
‐ Goal is to implement program within calendar year, but USCIS cannot provide legal advice.
What will the process be for submitting the waiver – will the applicant submit it along with the I‐130, or after the I‐130 is adjudicated?
USCIS Answer:
‐ Process for how to apply and timing will be spelled out as the rule takes shape.
‐ Also, do not submit a request for a provisional waiver until the new regulation is
implemented.
What if a U.S. citizen over the age of 21 petitions for their parent – and then that beneficiary parent has U.S. citizen parents who would suffer extreme hardship were the beneficiary denied an immigrant visa? Would the beneficiary parent be eligible for a provisional waiver?
USCIS Answer:
‐ Yes. Waiver will apply to those who are classified as immediate relatives by virtue of the I‐130. A U.S. citizen spouse or parent must be the qualifying relative for extreme hardship.
What about legal permanent residents?
USCIS Answer:
‐ The Notice of Intent states that the provisional waiver process only applies to USC immediate relatives.
Would the provisional waiver apply to those who have entered without inspection (EWI) and have Temporary Protected Status (TPS)? Is it possible for these things to be waived like they are for VAWA applicants?
USCIS Answer:
‐ This waiver process applies to approved immediate relative petition beneficiaries who are not eligible to adjust in the U.S. and will trigger the 3‐10 unlawful presence bar if they leave to attend the visa interview.
‐ Individuals do not accrue unlawful presence in certain immigration statuses ‐ like people in TPS status – but if they accrued unlawful presence prior to being in TPS status and they are an approved immediate relative, then they could be eligible for the provisional waiver.
‐ The Notice of Intent states that it does not cover people who are in proceedings.
Is there a possibility that work authorization be granted to applicants while their provisional waivers are being adjudicated?
USCIS Answer:
‐ This is not included in the Notice of Intent – we are just focusing on the waiver process.
What percentage of waivers are filed in Mexico?
USCIS Answer:
‐ 75% of waivers are filed in Ciudad Juarez.
Is it possible that these changes will not go into effect – especially if there is a change in administration?
USCIS Answer:
‐ Our goal is to implement the process this calendar year.
We hope, given that the underlying basis of the waiver is to show extreme hardship, it would be great if DOS and USCIS could work together to expedite the process.
USCIS Response: USCIS recognizes that the period of separation causes extreme hardship – reducing this separation is the objective of the new process. USCIS and DOS are working hard to improve efficiency – new process will shave off the time it takes to transfer the file between agencies (DOS to USCIS).The applicant will still have to leave the US for visa processing, but the 6 months to 1 year that they would otherwise need to wait for adjudication of the waiver for unlawful presence will now take place while the family is still together.
Regardless of whether the new process takes effect (we hope and pray it will), waiver applicants must still show that their qualifying relatives would suffer extreme hardships if they were not re-admitted to the U.S. The Service has no plans to lower this strict standard. This means that visa applicants must still consult with experienced immigration counsel to enhance the likelihood of obtaining the waiver.