Provisional Unlawful Presence Waivers
The purpose of the provisional waiver program is to reduce the amount of time U. S. citizens are separated from their immediate relatives (spouse, children and parents) who are in the process of applying for lawful permanent residence. The process allows applicants to apply for the provisional unlawful presence waiver while they are still in the United States and before they leave to attend an immigrant visa interview abroad in their countries of origin. Individuals who have accrued more than six months (180 days) of unlawful presence while in the United States are subject to the unlawful presence bar for three years whereas those who have unlawful presence of more than a year are barred from re-admission for ten years. Previously, immediate relatives could not file a waiver until after they have appeared for an immigrant visa interview abroad. In other words, the applicant had to obtain a waiver while outside the United States in order to overcome the unlawful presence inadmissibility bar before they can return to the United States. However, under the provisional waiver process the applicant is able to have the majority of the process completed while still present in the United States.
Who is eligible to apply for the provisional Unlawful presence Waiver?
Eligible applicants for the new process must be inadmissible only on account of unlawful permanent presence and demonstrate that denial of the waiver would result in extreme hardship to his or her U.S. citizen or lawful permanent resident (LPR) spouse or parent. It is important to understand that parents of U.S. citizens are not eligible to apply for the new waiver program, since extreme hardship must be established to either the applicant’s U.S. citizen or LPR spouse or parent. Applicants who were previously subject to removal, but whose proceedings have been terminated or dismissed are eligible to apply for the new waiver. Additionally, if ICE has cancelled the applicant’s Notice to Appear (NTA) he or she is eligible to apply for the provisional unlawful presence waiver. In order to apply for the new provisional unlawful presence waiver, the applicant must be:
- Physically present in the United States at the time of filing the waiver application;
- At least 17 years old;
- The beneficiary of an approved immediate relative petition (form I-130 or I-360), and has already paid the immigrant visa processing fee;
- An immediate relative of a U.S. citizen or LPR (spouse, son or daughter of a U.S. citizen or LPR);
- Inadmissible only on grounds of unlawful presence in the United States;
- Able to demonstrate extreme hardship to a qualifying relative; and,
- Able to warrant a favorable exercise of discretion by USCIS upon review of the waiver application.
Who is not eligible to apply for the provisional unlawful presence Waiver?
The provisional waiver program does not apply to any other relatives aside from those noted above. Moreover, applicants who are inadmissible under any other ground other than unlawful presence cannot apply for the new waiver. Other grounds of inadmissibility not subject to the new waiver include: criminal grounds of inadmissibility, medical, fraud, misrepresentation, false claims of U.S. citizenship, individuals subject to a final order of removal. Notwithstanding such limitations, individuals subject to other grounds of inadmissibility can still benefit from the waiver existing under current law by departing the United States to attend a consular interview abroad and then filing the waiver while outside the United States.
Why is the waiver called a “provisional” unlawful presence waiver?
The waiver is called a provisional unlawful presence waiver because even though the applicant can apply for the waiver while in the United States and remain in the United States while awaiting its adjudication, the applicant must still depart upon approval of the waiver. If the waiver application is approved, the applicant must then leave the United States in order to attend a consular interview abroad, before an immigrant visa can be issued. Thus, the waiver essentially becomes effective upon the applicant’s departure from the United States. The waiver application is approved in the United States based on the facts available to USCIS at the time of adjudication. There is no guarantee that a case will be subsequently approved after the consular interview as new facts and information may be available or the consular officer may discover that additional grounds of inadmissibility apply. In the event that new issues arise or there are additional grounds of inadmissibility, the applicant will be allowed to re-apply for a new waiver using the traditional process while outside the United States.
What is “extreme hardship” and how can I satisfy that requirement?
The applicant must demonstrate that denial of the waiver will result in extreme hardship to the immediate relative of the applicant. Hardship to the applicant or his or her child is only considered if it results in extreme hardship to the U.S. citizen or LPR spouse or parent of the applicant. The burden to establish extreme hardship is on the applicant and the goal is to demonstrate that the hardship suffered by his or her U.S. citizen spouse or parent rises beyond the normal hardship expected from mere family separation or financial inconvenience resulting from the applicant not being allowed to remain or enter the United States. The applicant should provide enough information to demonstrate that his or her immediate relative (U.S. citizen or LPR spouse or parent) will suffer extreme hardship if he or her is forced to reside abroad or is forced to remain in the United States separated from the applicant. The applicant should demonstrate extreme hardship to his or her U.S. citizen or LPR spouse or parent under both possible scenarios. A number of factors will be considered in order to determine if the applicant can demonstrate extreme hardship to his her immediate relative (U.S. citizen or LPR spouse or parent). The following factors are among the ones considered by USCIS in determining if an applicant satisfies the extreme hardship requirement:
- The health of the immediate relative, including need for ongoing or specialized treatment, or the immediate relative suffering from a major medical condition making him or her unable to travel abroad and requiring applicant’s presence in the United States;
- The applicant’s country is currently experiencing active war or a major political uproar;
- Financial considerations other than simple financial inconvenience, including future employability, loss due to sale of a loss or business, cost of care of family members;
- Loss of opportunity for higher education, lower quality education, inability to speak foreign language
- Presence of additional U.S. citizens or LPRs family members in the United States in addition of the immediate relatives; or presence of close relatives in the foreign country; and,
- Community ties in the United States.
What would be the procedure for applying for the new provisional unlawful presence waiver?
An applicant that has an approved I-130 or I-360 application pending with the National Visa Center must notify the National Visa Center or Consular Post if he or she chooses to file a provisional unlawful presence waiver. After filing the waiver application, the alien will received a notice for fingerprints processing. The alien has to be physically present in the United States when filing the waiver application and has to appear for biometrics processing. Upon approval of the provisional unlawful presence waiver the applicant will need to depart the United States for consular processing of their immigration visa application. This will significantly reduced the amount of time the applicant will be separated from his or her U.S. citizen spouse or parent.
Is there an appeal process if my provisional unlawful presence waiver is denied?
If an individual’s provisional unlawful presence waiver request is ultimately denied, the individual may file a new Form I-601A, in accordance with the form instructions, with the required fees and any additional documentation that he or she believes might establish his or her eligibility for the waiver. The applicant’s case must still be pending with DOS and the applicant must notify DOS that he or she intends on filing a new I-601A. There is no administrative appeal available for a denial the new provisional unlawful presence waiver.
Should I retain an attorney to file my provisional unlawful presence waiver?
Our firm recommends that you consult with an experience attorney before filing a provisional unlawful presence waiver. It is important that your case is carefully reviewed by an attorney experienced in filing waivers request to USCIS. Please feel free to contact our office for a consultation and allow our experienced Immigration attorneys to assist you with the filing of your application.