By Leah L. Tuisavalalo, Pasifika Immigration Law Group
(Fresno, CALIF.)--On March 4, 2013, United States Citizenship and Immigration Services (USCIS or "Immigration") began accepting applications under a program that reduces the time U.S. citizens are separated from their immediate relatives (spouse, children and parents), who are in the process of obtaining visas to become lawful permanent residents of the United States under certain circumstances.
The new policy allows qualifying applicants to apply for a provisional unlawful presence waiver (I-601A) before they leave the United States for their immigrant visa interviews in their home countries.
This is for people who have a US Citizen immediate relative to petition for them, but who are not eligible to apply for residency within the U.S. For people in this situation, they have to Consular Process, which involves returning to their country of origin and applying for an immigrant visa to re-enter the United States as a lawful permanent resident - i.e. green card holder. The problem that most people have in this situation, is that they have been in the US without permission for over 180 days, so when they exit the US they trigger a bar to their return. Most commonly, people trigger what is called the 10-year bar because they have been in the US without permission for over one year.
Once an applicant triggers a bar, in addition to applying for their visa to return to the US, they also need to file a waiver for the time they present in the US without permission. This is basically asking immigration to waive or "pardon" the time they were here when they shouldn't have been. BEFORE the March 4, 2013 policy change, people would file the waiver in their home country and wait for a decision.
Decisions could take months or even years, and the applicant would be required to wait outside the country for that entire time. The new policy, allows certain individuals to file their waivers HERE in the US and wait for the decision HERE. That way, before they go to attend their visa interview in their home country, their waiver will have already been approved (hopefully) and instead of waiting months/years for a decision, they are merely out of the country for the amount of time it takes to obtain their visa -- usually a matter of weeks.
Please note: this only applies to people who have ONE entry into the US, and when they leave for their visa appointment it will be their FIRST exit. If you have more than one entry or exit, depending on how long you were in the country on each visit, you are likely NOT eligible to consular process.
In order to be eligible for the waiver under the new rule the applicant must:
(1) be an IMMEDIATE RELATIVE of a US Citizen (this means Spouse, Parent or Child - sorry, siblings don't count)
(2) be the beneficiary of an approve immediate relative petition (Form I-130 filed by one of the above listed relatives
(3) be 17years of age or older
(4) be present in the US at the time of filing the application for a provisional waiver and for biometrics (fingerprints) their local application support center
(5) have a case pending with the Department of State based on the approved I-130 petition and have paid the immigrant visa processing fee
(6) show extreme hardship to US citizen spouse or parent
PLEASE NOTE #6 - this is where it gets a little tricky: while your US Citizen over 21 CHILD can petition for you as your immediate relative, you cannot base the waiver on them -- i.e. the hardship your adult child will face if you are not allowed to return to the United States does not count. The only people that the waiver can be based on are US Citizen Spouse or Parent. This requirement is complicated and often escapes people, so please make sure you seek competent counsel before filing.
Additionally, there are clear factors that render you ineligible for a provisional waiver. Those are:
(1) You are subject to another ground of inadmissibility, other than the fact that you were present in the US without permission. This can range from criminal grounds that render you ineligible, to multiple entries and exits as I mentioned above.
(2) You filed prior to the enactment of this policy, and the Department of State scheduled your Immigration Visa (IV) appointment on or before January 3, 2013. USCIS has said that the scheduling of the interview is a hard and fast rule and even if your interview was rescheduled, or you simply did not appear for it, as long as it was scheduled for January 3, 2013 or earlier, you are not eligible for this new policy. This rule can be worked around, but would like require a re-filing of all of the paperwork, including new filing fees, which can be costly.
(3) You are in removal proceedings that have not been administratively closed, or proceedings were previously closed but have since been placed back on the Immigration Court calendar.
The grounds of ineligibility are complex and require legal analysis. If you even think that one of the above grounds applies to you, seek legal counsel before filing.
There are a couple of this regarding timing that every applicant should know: (1) if Immigration needs more information to process your waiver, they will issue you a Request for Evidence (RFE). You will have 30 days to respond to that request (33 if it is mailed to you). That means that you MUST respond within 30 days or your waiver will be denied for lack of response. (2) There is currently no timeline regarding processing times for provisional waiver. Immigration estimated approximately six months for those who filed on the first day of eligibility -- March 4, 2013. Nothing official has been released regarding the current processing times.
As always, immigration law is difficult to navigate and every case is unique.
This blog is meant to provide general information, and cannot address every avenue of relief that may be available. Additionally, immigration law is always changing and that can change options available to you. You should always consult with an immigration lawyer before filing for anything.
See more in our immigration section, "Ta'iala: Navigating U.S. immigration law with Leah L. Tuisavalalo."