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USCIS Provisional (“Stateside”) Waivers Become a Reality Beginning March 2013

The New Year started off with a big bang!  On January 2, 2013, USCIS announced a final rule on “Provisional Unlawful Presence Waivers of Inadmissibility for Certain Immediate Relatives” (aka Stateside Waivers).  This rule, meant to encourage family unity during the immigrating process, will be officially published tomorrow, January 3, 2013.  (Read the unpublished rule here.)  USCIS will begin accepting Provisional Waivers beginning March 4, 2013 and will publish a new form (Form I-601A, Application for a Provisional Unlawful Presence Waiver) to account for this new process.  USCIS explained the purpose of the Stateside Waiver:

Under current law, immediate relatives of U.S. citizens who are not eligible to adjust status in the U.S. to become lawful permanent residents must leave the U.S. and obtain an immigrant visa abroad. Individuals who have accrued more than six months of unlawful presence while in the U.S. must obtain a waiver to overcome the unlawful presence inadmissibility bar before they can return to the U.S. after departing to obtain an immigrant visa. Under the existing waiver process, which remains available to those who do not qualify for the new process, immediate relatives cannot file a waiver application until after they have appeared for an immigrant visa interview abroad and the Department of State has determined that they are inadmissible.

Under the new provisional waiver process, immediate relatives must still depart the United States for the consular immigrant visa process; however, they can apply for a provisional waiver before they depart for their immigrant visa interview abroad. Individuals who file [a stateside waiver] must notify the Department of State’s National Visa Center that they are or will be seeking a provisional [stateside] waiver from USCIS. The new process will reduce the amount of time U.S. citizen are separated from their qualifying immediate relatives.

In order to be eligible to apply for the stateside waiver, individuals must meet the following criteria:

  • Be 17 years or older
  • An immediate relative of a U.S. citizen
  • Have an approved Form I-130 or approved Form I-360
  • Have an immigrant visa case pending with U.S. Department of State
  • Paid the U.S. Department of State immigrant visa processing fee
  • Demonstrate that the denial of the waiver would result in extreme hardship to the U.S. citizen spouse or parent
  • Be present in the U.S. at time of filing of waiver and present to provide biometrics
  • Not be scheduled for a U.S. Department of State immigrant visa interview prior to January 3, 2013 (*)
  • Must be inadmissible only on account of unlawful presence

(*) Also worth noting in USCIS final rule was the issue of the immigrant visa interview date, which indicated the following:

If the date that the Department of State initially acted to schedule the immigrant visa interview is prior to the date of publication of this final rule, [January 3, 2013], then the alien is ineligible to apply for a provisional unlawful presence waiver. If the date that the Department of State initially acted to schedule the immigrant visa interview is on or after the publication date of this final rule, the alien is eligible to apply for a provisional unlawful presence waiver. The actual date and time that the alien is scheduled to appear for the interview is not relevant for the eligibility determination.

Although many attorneys had hoped that the stateside waiver would expand to other groups of individuals (and not just immediate relatives), USCIS indicated that it was considering expansion. However, at this time, it wanted to limit this waiver to a smaller, select group in order to ensure a smooth process, for if/when the waivers might be expanded to larger category of individuals. Moreover, by restricting this process to immediate relatives of U.S. citizens, it is also indirectly encouraging long-time Legal Permanent Residents to naturalize. Immigration attorneys and immigration legal service organizations providing assistance with family immigration are especially excited about this recent develop because USCIS had indicated a stateside waiver was in the works since January of last year.  The reality of this process coming to fruition today leaves many practitioners hopeful but also busy preparing for additional application filings. Philip Eichorn, of Philip Eichorn Co., LPACleveland, Ohio, expressed excitement over this recent development:

This process is an amazing step forward in the promotion of family unity.  Short of comprehensive immigration reform, which will be hard with all of the political capital spent on the recent avoidance of the fiscal cliff, this program and DACA are about the best we can hope for.

Camille J. Mackler of the Law Office of Camille J. Mackler in New York City tweeted, “Stateside waiver processing regulations were long overdue but a step in right direction. Nice to (finally) see a commitment to family unity, not separation.” Jesse Lloyd, of Bean + Lloyd, LLP in Oakland, California, wrote an in-depth three-part analysis of the Stateside Waiver on his blog here, here, and here.  Mr. Lloyd warned that the provisional waiver is simply that:

As the name implies, provisional waivers do not guarantee that applicants will be admitted if they leave the U.S. If there is negative information which comes up after the provisional waiver is granted, or it turns out the applicant is inadmissible on another ground in addition to the three/ten year bar, the waiver will not be valid.

During the teleconference earlier today, Director Mayorkas also mentioned the anticipated processing time for Form I-601A stateside waivers have yet to be determined.  USCIS will wait until after the waiver is implemented (after March 4, 2013) in order to assess the volume of waiver applications before deciding on an appropriate processing timeline. Stateside waivers that are denied by USCIS are not appealable and individuals may be subject to receiving Notices to Appear. More details will emerge on the issue of Stateside Waivers, rich with complexities. We encourage our foreign national readers to consult with experienced legal counsel on this matter and continue to visit the Case Management Guru Blog in the weeks to follow to stay up-to-date on these developments.