The details of the DHS Final Rule on Provisional Unlawful Presence Waivers of Inadmissibility for Certain Immediate Relatives, which was published on January 3, 2013 and which take effect on March 4, 2013, are by now familiar. Immediate relatives of US Citizens (USC) applying for immigrant visas abroad but are inadmissible based on their unlawful presence in the US may now apply for an I-601A waiver in the US before they leave for their visa interviews abroad. If USCIS approves the I-601A, it issues a provisional waiver to the alien, which takes effect only if the alien leaves the US and appears at the consular interview abroad.
You may apply for a provisional waiver if you: (1) are physically present in the US; (2) are at least 17 years of age at the time of filing; (3) are the beneficiary of an approved immediate relative (i.e. spouses, parents and children of USCs) immigrant visa petition; (4) have a pending immigrant visa case with the Department of State (DOS) and have paid the immigrant visa processing fee; (5) will be inadmissible for unlawful presence in the US at the time of the immigrant visa interview; and (6) refusal of your admission to the US would result in extreme hardship on your USC spouse or parent.
You cannot apply for a provisional waiver if you do not meet the preceding requirements or you: (1) have a pending adjustment of status application; (2) are in removal proceedings unless your proceedings are administratively closed and have not been re-calendared as of the date of filing of the I-601A; (3) have been ordered removed, excluded, or deported; (4) are subject to reinstatement of a prior removal order; (5) DOS acted to schedule your immigrant visa interview prior to January 3, 2013; or (6) USCIS has reason to believe that DOS may find you inadmissible at the time of your immigrant visa interview for grounds other than unlawful presence.
To these often discussed requirements, I wish to add and emphasize some not too familiar aspects of the rule on provisional waivers.
First, if you are in removal proceedings, you must persuade the Immigration Judge (IJ) to administratively close your case before you can apply for an I-601A. An IJ administratively closes a case to temporarily remove it from the court’s active calendar. It’s usually done to await an action or event that is relevant to the proceedings but is outside the control of the parties or the IJ and may not occur soon. Recently, IJs would administratively close cases if DHS counsels agree to exercise prosecutorial discretion for low priority removal cases, often involving aliens with no criminal convictions.
Thus, the new provisional waiver rule requires aliens in proceedings to first obtain administrative closure before applying for an I-601A on the assumption that if you meet the requirements for an I-601A you should be able to obtain administrative closure. However, not everyone who wants administrative closure would get it. You have to show you deserve it. After you’re granted administrative closure and a provisional waiver, you must go back to the IJ and request a dismissal of your proceedings before you leave for your visa interview abroad. Otherwise, you might risk becoming inadmissible on other grounds if you fail to permanently terminate your proceedings.
Second, if you have criminal convictions, you cannot apply for a provisional waiver. Convictions often give rise to criminal grounds of inadmissibility but some convictions do not or they fall under recognized exceptions. However, the provisional waiver rule does not allow aliens with any type of conviction to apply because determining the effects of such convictions could create backlogs in the adjudication of provisional waivers. Prompt adjudication is important because DHS wants to finish the waivers before DOS schedules the visa interviews.
Third, the Child Status Protection Act (CSPA) applies to children seeking provisional waivers. A child is an unmarried person under 21 years of age. If we recall, under CSPA, if an alien was under 21 when an I-130 petition was filed on his behalf, this alien will not age out and will continue to be considered a child even if he turns 21 after the filing of the I-130. Thus, aliens who were children when their USC parents petitioned them but who are now over 21 and who have not pursued lawful permanent residence after the approval of their petitions years before may apply for provisional waivers if they meet the other requirements.
There’s a palpable excitement among potential beneficiaries whenever a new rule takes effect. However, excitement should be tempered by caution because the new provisional waiver rule has limited application. Potential beneficiaries should also remember that the standard for establishing extreme hardship in waivers has not changed and it’s a tough standard. Apart from examining your eligibility under the new rule you must evaluate the hardship in the case before you file any waiver.
