Theodore Huang, Immigration & SSD Lawyer

The USCIS will begin accepting provisional waiver application starting March 4, 2013. A number of potential applicants are very interested in this new immigration process which will significantly cut down the time a loved one is separated from his/her family while awaiting an immigrant visa outside the USA.

But who is eligible? What steps must be done to qualify?  What if I’m in removal proceedings? Does your situation qualify you to apply?

The criteria to apply for the provisional waiver process requires an examination of the specific facts affecting an applicant. As such, interested applicants should consult with an immigration attorney. I am providing free consultations for individual interested in the provisional waiver. To set up a consultation, please call me at 626-244-7357.

Theodore Huang, Esq. has been practicing business immigration, EB-5 investor, and family immigration law since 1997. Highly recommended on LinkedIn, Attorney Huang has written numerous articles on visa matters affecting foreign new hires, start-ups, and intracompany transfers. His articles have appeared on www.EB5Planet.com, www.VisaSoup.com, www.MyVisa.com, and www.GoFianceeVisa.com For more information and a free consultation, please contact him immediately.

Secretary of Homeland Security Janet Napolitano announced yesterday the posting of a final rule that reduces the time U.S. 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 under certain circumstances.

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 and more information about the filing process will be made available in the coming weeks.

Under current law, immediate relatives of U.S. citizens who are not eligible to adjust status in the United States 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 United States must obtain a waiver to overcome the unlawful presence inadmissibility bar before they can return to the United States 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.

In order to obtain a provisional unlawful presence waiver, the applicant must be an immediate relative of a U.S. citizen, inadmissible only on account of unlawful presence, and demonstrate the denial of the waiver would result in extreme hardship to his or her U.S. citizen spouse or parent. USCIS will publish a new form, Form I-601A, Application for a Provisional Unlawful Presence Waiver, for individuals to use when applying for a provisional unlawful presence waiver under the new process.

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 the Form I-601A must notify the Department of State’s National Visa Center that they are or will be seeking a provisional waiver from USCIS. The new process will reduce the amount of time U.S. citizen are separated from their qualifying immediate relatives.

For a free consultation about your situation, please call or email me as soon as possible.

Ask yourself the following:

1. Are you physically present in the USA?
2. Are you at least 17 years old?
3. Are you the beneficiary of an APPROVED immigrant visa petition (I-130) classifying yourself as an immediate relative of a US citizen?
4. Are you actively pursuing the immigrant visa process?
5. Have you already paid the Dept. of State immigrant processing fee?
6. Are you not subject to any other grounds of inadmissibility other than unlawful presence? and
7. Can you show that the refusal of admission would result in extreme hardship either to a US citizen spouse or parent?

If you answered Yes to all of these, you may be eligible to apply for the provisional waiver. If you answered No, you may still be eligible, but it would merit taking a closer look at your situation. In either case, working with an immigration attorney would be beneficial to maximize your chances for satisfying the requirements for the provisional waiver application

For assistance, contact us via phone or email. We’d be happy to help.

Illegal reentry into the United States after approval of a provisional unlawful presence waiver will automatically revoke the approval.

Whether an individual has a pending or an approved immigration benefit application, reentry into the United States without being admitted or paroled by an immigration officer at the U.S. border can have severe consequences; such individuals may be permanently barred from the United States.

Why risk it? It’s not worth it.

Need help determining whether you qualify for the provisional waiver or deferred action? Call us or send us an email.

Under the proposed rule, an approved provisional unlawful presence waiver would remain valid as long as the underlying approved immigrant visa petition is not revoked.

If DOS terminates the immigrant visa registration process or the approved immigrant visa petition is revoked, the provisional unlawful presence waiver grant also is automatically revoked

Need help determining whether you qualify for the provisional waiver or deferred action? Call us or send us an email.

If the consular officer determines that you are subject to other grounds of inadmissibility other than unlawful presence, the approved provisional waiver is automatically revoked. Other grounds for inadmissibility could be based on health issues, criminal history, and national security reasons.

If you feel that there are other reasons why a consular officer could consider you inadmissible to the USA, it’s best to consult with an immigration attorney to examine these possible grounds to determine if it would cause the revocation of any approved provisional waiver application.

If a waiver is available for the other ground(s) of inadmissibility identified by the DOS consular officer, you will need to file a Form I-601, Application for Waiver of Grounds of Inadmissibility, with USCIS after the consular interview to request a waiver for all applicable grounds of inadmissibility, including any periods of unlawful presence.

If you have an immigrant visa application pending or approved and are thinking about applying for the provisional waiver benefit once it becomes available, examine whether other inadmissibility issues may be present in your situation. By doing so, one can better determine whether it would be helpful to apply for a provisional waiver or to submit the I-601 and go through the regular waiver application process.

A strategic approach is necessary to maximize the possibility of success on the applications and to minimize the length of time the immediate relative is apart from his/her family members.

Need help determining whether you qualify for the provisional waiver or deferred action? Call us or send us an email.

The applicant presents the approval notice for the provisional waiver at the consular interview in the applicant’s home country.

If the DOS consular officer determines that a provisional waiver applicant, in light of the approved waiver of the unlawful presence bar, is otherwise admissible to the United States and eligible for the immigrant visa, DOS would issue the immigrant visa, allowing the individual to travel to the United States.

The provisional unlawful presence waiver would become permanent and cover the periods of unlawful presence on which the waiver was based for any future benefit requests.

Need help determining whether you qualify for the provisional waiver or deferred action? Call us or send us an email.

No. Under the proposed rule, the filing or approval of a provisional unlawful presence waiver will not affect an individual’s current immigration status in the United States.

A pending or approved provisional waiver also will NOT:

1. Provide work authorization or advance parole;
2. Legalize one’s status;
3. Stop the accrual of unlawful presence;
4. Keep a person from being subject to removal proceedings;
5. Remove the requirement to leave the USA to obtain an immigrant visa; or
6. Guarantee visa issuance or admission to the United States.

Need help determining whether you qualify for the provisional waiver or deferred action? Call us or send us an email.

No. If you already have an immigrant visa interview scheduled with DOS, USCIS recommends keeping your appointment. This proposed waiver process is not in effect and USCIS will not be publishing a final rule until later this year (2012).

If you trigger the unlawful presence bars by leaving the United States, you may still file a Form I-601, Application for Waiver, after you have appeared for your immigrant visa appointment and DOS has determined that you are inadmissible and need to file a waiver. Unfortunately, whether you would be able to take advantage of faster processing times remains to be determined.

USCIS does not recommend cancelling the immigrant visa interview. Failure to appear for your consular interview, could result in the DOS terminating your immigrant visa registration.

Need help determining whether you qualify for the provisional waiver or deferred action? Call us or send us an email.

No. To be eligible for the provisional waiver process, applicants must already have an approved I-130 or I-360.

The approved petition is what starts the immigrant visa process with DOS. After receiving notice of the approved petition, the DOS will schedule an immigrant interview with the applicant at a DOS office abroad. The applicant must leave the USA to attend the immigrant visa interview and for the provisional waiver to take effect.

Because of the way the proposed process for adjudicating provisional waivers is designed, individuals who receive a provisional waiver will likely be separated from their U.S. citizen relatives for significantly shorter periods than is the case under the current process. This promotes Congress’s goal of reunifying families.

Need help determining whether you qualify for the provisional waiver or deferred action? Call us or send us an email.

USCIS will include instructions with the new provisional waiver application that will describe the types of documents you will need to submit with your provisional waiver application.

At a minimum, USCIS will require proof that you have an

1. Approved Form I-130, Petition for Alien Relative, or an approved Form I-360, Petition for Amerasian, Widow(er), or Special Immigrant, if you are a self-petitioning widow/widower, and

2. An immigrant visa application fee receipt from the Department of State (DOS).

3. Extreme hardship to U.S. citizen spouse or parent

Failure to follow the instructions on the form or submit required documentation may result in your application being rejected or denied.

Stay tuned for more information on what evidence should be included. Once the USCIS provides more details about the form and relevant supporting documents, we’ll pass along the information.

If you want to know whether you are qualified for a provisional waiver, please contact our law office at 626-771-1078 or email us.

Unfortunately, no. The filing fee for the provisional waiver will be $585.00, and it will not be waivable as is the case for certain types of immigration applications.

Fee waivers generally are available only if the fees for the underlying application are waivable. Currently, fee waivers are not allowed for the Form I-130, Petition for Alien Relative, which is the basis for the provisional unlawful presence waiver. USCIS, therefore, will not accept fee waiver requests for the Application for Provisional Unlawful Presence Waiver.

Note that for applications under age 79, there is also a biometrics fee of $85.00. Be sure to factor in that fee in addition to the $585.00.

Need help determining whether you qualify for the provisional waiver or deferred action? Call us or send us an email.

Can I use the I-601 Application for Waiver to apply for a provisional waiver?

No. USCIS is developing a new form for the proposed provisional unlawful presence waiver process. While the new form hasn’t been posted yet, USCIS has stated that the application fee is $585.00. Payment must be made in personal check or money order. Cash is not accepted.

Applicants should note that there is an additional biometric fee of $85.00 for applicants who are under 79 years of age.

USCIS will post the proposed form in the Federal Register for formal comment in the near future. When the form becomes available, we’ll post the details here.

Need help determining whether you qualify for the provisional waiver or deferred action? Call us or send us an email.

USCIS refers to the waiver as “provisional” because it will not take effect until after

1. the applicant departs the United States,
2. appears for his or her immigrant visa interview,
3. and is determined by the DOS consular officer to be otherwise admissible to the United States.

In the proposed process, USCIS would

1. determine eligibility for the provisional waiver and,
2. if the application is approvable, approve the provisional waiver before the applicant leaves the United States for the immigrant visa interview abroad.

Need help determining whether you qualify for the provisional waiver or deferred action? Call us or send us an email.

Important points

1. The provisional waiver is NOT in effect.
2. USCIS will reject any application requesting a provisional waiver at this time
3. USCIS will return the application
4. USCIS will return any fees filed

The provisional waiver process will only take effect after a final rule is published in the Federal Register with an effective date.

Stay tuned to this website for more information on the provisional waiver and deferred action as things develop.

Need help determining whether you qualify for the provisional waiver or deferred action? Call us or send us an email.