Analysis of the Proposed Rule on Unlawful Presence Provisional Waiver

On April 2, 2012, the Department of Homeland Security (DHS) published a proposed rule to change the current application process for unlawful presence waivers in connection with an immediate relative immigrant petition.   An immediate relative petition is one filed by a U.S. citizen on behalf of his parent, spouse or children under the age of 21.  A waiver is required if the foreign relative departs the U.S. after having been unlawfully present in the U.S. for more than 180 days.  Without an approved waiver, the foreign relative will be barred from returning for 3 years (or 10 years for unlawful presence of 365 days or longer).

The current application process requires these foreign relatives of U.S. citizens to apply for a waiver of inadmissibility at an overseas U.S. consulate office.   Further, the processing times for these waivers are usually very long, thus forcing U.S. citizens to be separated from their close family members for extensive periods of time. The new proposal attempts to address these issues by allowing foreign nationals who are already in the U.S. to file a provisional waiver application with the USCIS without leaving the United States.  Although the proposed rule is not yet been made final, it is important to understand exactly what it entails.

Who are covered by the provisional waiver proposal?

Only immediate relatives of U.S. citizens are covered.  Immediate relatives are parents, spouses and children who are under the age 21.

What grounds of inadmissibility are covered?    

The proposal only covers the unlawful presence waivers of the 3-year bar or 10-year-bar.  A person subject to other grounds of inadmissibility would not be eligible to file a provisional waiver under the proposal.

What are grounds of inadmissibility?

They are legal bars which make intending immigrants ineligible to apply for permanent resident status.  Examples include prior unlawful presence, criminal convictions and contagious deceases.

How does the proposed rule change the application and processing of unlawful presence waivers?

The current process requires an applicant first depart the U.S., thus triggering the unlawful presence bar, and then apply for a waiver at a U.S. consulate office in overseas countries.  The proposal allows the foreigner to first request for provisional waivers from the USCIS prior to their departure for overseas consular visa processing.  If approved, the applicant will be granted a provisional waiver which would become fully effective upon her departure from the United States and upon approval of an immigrant visa by U.S. consular officer. 

When can an applicant apply for a provisional wavier?

An applicant may only apply for a provisional waiver if he is the beneficiary of an approved Form I-130 relative visa petition or Form I-360 special immigrant petition (Amerasian, Widow, etc.)  They must also have paid the visa fees to the Department of State. 

Who are not covered by the proposal?

Individuals who are outside the United States, who are in deportation proceedings, who have a final order of removal, who are subject to other grounds of inadmissibility, who already have an immigrant visa interview scheduled, who have a pending adjustment of status application, who do not have an approved I-130 or I-360 petition, or who are under the age of 17 are not eligible for provisional waivers.

If my removal proceedings were administratively closed, would I still be eligible to file a provisional waiver?

If your case was administratively closed but was subsequently reopened for the issuance of a final voluntary departure order, then you would still be eligible.

How does an applicant qualify for a provisional waiver?

In addition to having an approved visa petition, an applicant must demonstrate that her U.S. citizen spouse or parent will suffer extreme hardship if the waiver is not granted.  To prove that one’s citizen spouse or parent will suffer extreme hardship, documentary evidence and witness testimonies may be used.  Factors such as health conditions, financial conditions, social problems, etc., are considered by the USCIS.

Will hardship to other relatives be considered?

No, the proposal only covers hardship to one’s USC spouse or parent.  The DHS so far has decided that it will not extend the provisional waiver’s coverage to other relatives including USC children or LPR spouses or parents.  Waivers based on hardship to other relatives must continue to be filed in overseas U.S. consulate offices.

If my immigrant visa petition is not filed by my USC spouse or parent, can I still use their hardship to support the waiver?

Yes, the petitioner and the qualifying relative can be different persons.

What rights would a pending or approved provisional unlawful presence waiver confer upon the applicant?

A pending or approved provisional unlawful presence waiver does not confer any rights to the applicant until an immigrant visa is issued by a U.S. consulate officer after an interview.  It does not give the right for the applicant to apply for advance parole travel document, to enter the U.S., to work legally in the U.S., or to apply for other immigration benefits.

How does one lose the rights to an approved provisional waiver?

Generally, after one is granted a provisional waiver, it is valid indefinitely.  However, if the applicant becomes a conditional legal resident through the waiver (e.g., based on a short-term marriage to a USC), but subsequently his conditional status is terminated, then the waiver will no longer be valid.  If the person later on successfully reverses the termination of his conditional status in removal proceedings, then the provisional will become valid again.  Similarly, a fiancé visa holder’s approved provisional waiver is only effective upon her marriage to the USC petitioner within 90 days of her arrival in the U.S.

When will the proposal rule become effective?

There is no effective date set for the new unlawful presence provisional waiver rule.  Before it becomes effective, a final rule must be published by the government first. 

If the provisional waiver is not approved, will the applicant be placed in removal proceedings?

If the provisional waiver is granted, the applicant will not be placed in removal proceedings unless the government “discovers acts, omissions, or post-approval activity” that would meet the criteria to start removal proceedings.  The proposal is silent about treatment of unapproved waiver applications, but it is unlikely to be a case-by-case decision.

Would there be any changes to the proposal to make its terms more favorable?

The DHS has received many comments and feedbacks from the public including the American Immigration Lawyers Association (AILA) to further expand the coverage of the provisional waiver.  For examples, adding other relatives for consideration of hardship such as a LPR spouse and parent; preference relatives (e.g., spouses and children of LPRs) should be allowed to file provisional waivers; individuals in removal proceedings should be allowed to file; individuals subject to other grounds of inadmissibility should be allowed to file; etc.  It is possible that DHS may incorporate some of these suggestions in the final rule.