Bloggings on Immigration Law

by Jacob Sapochnick

Final Rule on Provisional Unlawful Presence Waivers Update

On January 2, 2013, USCIS and Department of State held a public engagement devoted to the final rule on Provisional Unlawful Presence Waivers which was posted in Federal Register today. After several months of reviewing public comments, USCIS has announced that the Final Rule implements some of the public’s comments to the draft of the rule.

This new Provisional Unlawful Presence Waiver process allows certain immediate relatives of U.S. citizens who are physically present in the United States and are seeking permanent residence to apply for and receive provisional unlawful presence waivers before departing the U.S. for consular processing of their immigrant visa applications abroad. This new process will significantly reduce the time that U.S. citizens are separated from their immediate relatives while those family members go through the immigrant visa process to become permanent residents.

WHO IS ELIGIBLE FOR PROVISIONAL UNLAWFUL PRESENCE WAIVER

Individuals will be able to apply for a Provisional Unlawful Presence Waiver starting March 4, 2013 if he/she meets the following eligibility criteria:
(i) Is present in the United States at the time of filing the application for a provisional
unlawful presence waiver and for biometrics collection;

(ii) Upon departure, would be inadmissible only under section 212(a)(9)(B)(i) of the Act
at the time of the immigrant visa interview

(NOTE: this section refers to the 3- and 10-year bars of inadmissibility for unlawful presence in excess of 180 days);

(iii) Qualifies as an immediate relative under section 201(b)(2)(A)(i) of the Act;

(iv) Is the beneficiary of an approved immediate relative petition (Form I-130 or I-360);

(v) Has a case pending with the Department of State based on the approved immediate
relative petition and has paid the immigrant visa processing fee as evidenced by a State
Department Visa Processing Fee Receipt;

(vi) Will depart from the United States to obtain the immediate relative immigrant visa;
And

(vii) Meets the requirements for a waiver provided in section 212(a)(9)(B)(v) of the Act,
except the alien must show extreme hardship to his or her U.S. citizen spouse or parent.

WHO IS NOT ELIGIBLE FOR PROVISIONAL UNLAWFUL PRESENCE WAIVER

It is important to note that the following individuals will be INELIGIBLE for the provisional unlawful presence waiver under the process:
(i) USCIS has reason to believe that the alien may be subject to other grounds of inadmissibility other than unlawful presence;

(ii) The alien is under the age of 17;
(iii) The alien does not have a case pending with the Department of State, based on the
approved immediate relative petition, and has not paid the immigrant visa processing fee;

(iv) The Department of State initially acted to schedule the immigrant visa interview
prior to January 2, 2013 for the approved immediate relative petition on which the provisional unlawful presence waiver is based, even if the interview has since been cancelled or rescheduled after January 2, 2013;

(NOTE: The actual date and time that the alien is scheduled to appear for the interview is not relevant for the eligibility determination. This rule applies even if the alien failed to appear for his or her interview, cancelled the interview, or requested that the interview be rescheduled.)

(v) The alien is in removal proceedings, unless the removal proceedings are
administratively closed and have not been recalendared at the time of filing the Form I-601A;

(vi) The alien is subject to a final order of removal or a final order of exclusion or deportation;

(vii) The alien is subject to reinstatement of a prior removal order; or

(viii) The alien has a pending application with USCIS for lawful permanent resident status.


MAJOR CHANGES IN IMPLEMENTATION COMPARED TO DRAFT REGULATIONS

During the public engagement, Director of USCIS Alejandro Mayorkas has noted that USCIS has implemented or will implement three (3) major changes in the final rule that did not appear in the draft regulations:

1) First of all, USCIS has emphasized that aliens may be eligible to file for a provisional unlawful presence waiver more than once if the waiver was denied or been withdrawn provided that other eligibility criteria are met.

Thus, if a provisional waiver is denied, the alien may refile the case. Having said that, appeals or motions to reopen/reconsider are not permitted.

2) After careful consideration of all comments on this issue, USCIS has decided to limit eligibility for the provisional unlawful presence waiver process to individuals whose removal
proceedings are administratively closed and have not been recalendared at the time of filing of the waiver. This is a significant change compared to the draft of the regulations that did not permit any individuals in removal proceedings to apply for a waiver.
3) Finally, USCIS has acknowledged that after implementation of the initial process available for only immediate relatives of U.S. citizens, USCIS will assess its operational constraints and resources and will consider expanding the program to other categories, including immediate relatives of Lawful Permanent Residents (LPR).

OTHER IMPORTANT NOTES

1. Filing fees. USCIS has announced that the provisional waiver will be requested through the Form I-601A. The filing fees will be $670 (including $585 for the waiver’s filing fee and $85 for biometrics processing). After filing the waiver application, the alien will receive a notice for fingerprints processing. The alien has to be physically present in the U.S. at the time of filing of the waiver application and has to appear for biometrics processing.

2. Approval of the waiver does not confer any status.
USCIS has reminded the public that the approval of a provisional unlawful presence waiver
does not create a lawful immigration status, extend any authorized period of stay, protect aliens
from removal or law enforcement action, or grant any other immigration benefits, including
temporary work authorization and advance parole.

3. Removability if the waiver is denied/withdrawn.
The major question of the public that has not been addressed by USCIS in the final rule is what will happen to those aliens whose provisional waiver applications are denied. Final rule does not contain any confidentiality provisions that would protect the aliens from being placed in removal proceedings if their waiver application is denied.

USCIS has confirmed during the public engagement earlier today that the agency will use its current guidance in deciding whether to refer the case to ICE for removal proceedings if the waiver application request is denied. Consistent with DHS enforcement priorities, DHS does not envision initiating removal proceedings against aliens or referring aliens to ICE whose provisional unlawful presence waiver applications have been approved.

Consistent with its civil enforcement priorities, DHS has stated that an individual whose request for a provisional unlawful presence waiver is denied or who withdraws the waiver request prior to final adjudication will typically be referred to ICE only if he or she is considered a DHS enforcement priority – that is, if the individual has a criminal history, has committed fraud, or otherwise poses a threat to national security or public safety.

PLEASE NOTE that this new process is not yet in effect and USCIS will not accept any applications until March 4, 2013.

We will provide further updates once they become available.


About The Author

Jacob Sapochnick is the managing attorney of The Law Offices of Jacob J. Sapochnick and is an active member of the American Immigration Lawyers Association; he has been invited to lecture on immigration law topics at various conferences in the United States and abroad. He has also published several articles on issues related to the field. Mr. Sapochnick, Esq. provides immigration law support to US Immigration clients worldwide. This includes assisting individuals and companies applying for Visas to work and live in the United States, Canada and Mexico. Mr. Sapochnick graduated from Manchester Metropolitan University, School of Law with a Bachelor of Law (Hons.) Degree. He also attended California Western School of Law in San Diego, CA and obtained his LL.M (Masters) degree in international and comparative law. Thereafter, he pursued his career, focusing on US business immigration law. Mr. Sapochnick assists foreign workers to live and work in the United States by understanding their situation, goals and objectives he obtains the appropriate work and investment visas. His clients range from multi-national companies to mid-sized and small companies, as well as individuals undergoing the U.S. immigration process.


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