Provisional waiver of the 3/10 year bar from inside the US

On January 2, 2013, Secretary of Homeland Security Janet Napolitano  announced the posting of a final rule in the Federal Register that reduces the time US citizens are separated from their immediate relatives (spouse, children and parents), who are in the process of obtaining visas to become lawful permanent residents of the United States commonly referred to as provisional waiver. The final rule establishes a process that allows certain individuals to apply for a provisional unlawful presence waiver before they depart the United States to attend immigrant visa interviews in their countries of origin. The process will be effective on March 4, 2013.  The regulations will allow certain immediate immigrant visa beneficiaries, that are subject to the 3/10 year bar, to apply for a waiver inside the US rather than outside the US at the consulate overseas.  The benefit of this new regulation is 1) it reduces the time for which the Petitioner and beneficiary will be separated while going through the consulate process and 2) Beneficiary can get a provisional approval on the waiver of the 3/10 year bar before beneficiary departs the US therefore reducing the risk of uncertainty and being stuck outside the US for up to 10 years.
The rule allows these individuals to file for a provisional unlawful presence waiver while inside the US. If approved, they can then depart the US to undergo consulate visa processing knowing that they have a provisionally approved waiver of the 3/10 year bar.
You may be eligible for a provisional unlawful presence waiver if:
1. You are physically present in the United States;
2. You are at least 17 years of age at the time of filing;
3. You are the beneficiary of an approved immigrant visa petition classifying you as the immediate relative of a US citizen;
4. You have an immigrant visa case pending with the US Department of State (DOS), for which you have already paid the immigrant visa processing fee; and
5. You believe you are, or will be at the time of the immigrant visa interview, inadmissible based on having accrued a certain period of unlawful presence in the United States.
6. You meet all other requirements of the provisional unlawful presence waiver as listed in the regulations including a showing that a lengthy bar from the US would cause their US citizen spouse or parent“extreme hardship.”
You are not eligible for a provisional unlawful presence waiver and your application will be rejected or denied if:
1. You do not meet one or more of the requirements listed above;
2. You have a pending Form I-485, Application to Register Permanent Residence or Adjust Status, with USCIS;
3. You are in removal proceedings unless your removal proceedings are administratively closed and have not been re-calendared as of the date of filing of the I-601A;
4. You have been ordered removed, excluded, or deported from the United States;
5. You are subject to reinstatement of a prior removal order;
6. DOS acted to schedule your immigrant visa interview prior to January 3, 2013, even if you failed to appear or you or DOS cancelled or rescheduled the interview on or after January 3, 2013.
7. You do not establish that the refusal of your admission to the United States would result in extreme hardship to your US citizen spouse or parent, or that your application should be approved as a matter of discretion;
The regulations would benefit certain immigrants who are unable to adjust their status to green card holder inside the US such as immigrants that entered the US without inspection (EWI), immigrants that entered the US without a visa, immigrants that entered the US as a crew men or sea men (C-1 or D-1) and jump ship,   immigrants that entered on a K-1 fiancé visa but failed to marry their US citizen fiancé.  If these immigrants are not grandfathered by INA section 245(i), typically, they cannot get their green card inside the US.  These immigrants would have to leave the US and get their immigrant visa from the US consulate in their home country.  This situation becomes a Catch-22 situation in that when the immigrants leave the US to get their immigrant visa overseas, then the 3/10 year unlawful presence bar kicks in to bar them from returning to the US assuming they accumulated over 180 days of unlawful presence.  Once there is a determination that the unlawful presence bar applies to the immigrant at the Consulate overseas, the immigrant under current procedure would have to apply for the waiver at the consulate overseas which in turn will forward the waiver to the DHS for approval.  The entire process can take months or even years while at the meantime the immigrant is waiting outside the US.
Meanwhile, families are separated, and the spouses and children of US citizens and lawful permanent residents are forced to endure potentially dangerous situations in the home country until the waiver is granted and they can return to the US.
The provisional waiver procedure will allow certain immediate relatives of US citizens apply for waivers of the unlawful presence bars while remaining in the US. If the individual is found eligible, USCIS will grant a provisional waiver. He or she will still have to depart the US and visit a US consulate abroad to apply for an immigrant visa. During the immigrant visa interview, the consular officer will make the finding of inadmissibility based on unlawful presence and apply the provisional waiver. If other grounds of inadmissibility are found, the individual would need to submit another waiver application, if eligible, while abroad. The provisional waiver will reduce the wait period abroad and the separation from the applicant’s family by several months or years.  In addition, the applicant will know whether the waiver was granted prior to departing the US.

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Attorney Kenneth Ursua Reyes is a Certified Family Law Specialist.  He was President of the Philippine American Bar Association.  He is a member of both the Family law section and Immigration law section of the Los Angeles County Bar Association.  He is a graduate of Southwestern University Law School in Los Angeles and California State University, San Bernardino School of Business Administration.  He has extensive CPA experience prior to law practice. LAW OFFICES OF KENNETH REYES, P.C. is located at 3699 Wilshire Blvd., Suite 700, Los Angeles, CA, 90010.  Tel. (213) 388-1611 or e-mail [email protected].  Visit our website at  kenreyeslaw.com