USCIS Publishes Final Rule on Provisional Waivers for Unlawful Presence

On January 3, 2013, the Department of Homeland Security, U.S. Citizenship and Immigration Services (USCIS) published its final rule, amending the existing regulations, for provisional waivers for unlawful presence (so-called “Stateside waivers”) in the Federal Register.  The provisional waiver program will take effect on March 4, 2013.  The new changes will allow certain eligible spouses, children, and parents of US citizens, seeking to apply for their U.S. residency, to request provisional unlawful presence waivers prior to departing from the United States for consular processing.  These individuals must be the beneficiaries of an approved I-130 petition, be otherwise admissible to the U.S. and meet additional requirements.

What does this change mean?  Certain immediate relatives of U.S. citizens are eligible to apply for their permanent residency based on their relationship to the U.S. citizen.  According to legal requirements, some of these individuals cannot apply within the U.S. and must leave to apply for their residency from their home country at a U.S. consulate.  This process is known as consular processing.  Upon departure, however, some individuals may be subject to a law which bars them from returning to the U.S. for a period of time (three or ten years), for which they must seek a waiver (unlawful presence waiver) to allow them to reenter the U.S.  Traditionally, individuals who require a waiver have had to wait in their home country while the waiver was adjudicated. However, now certain individuals can apply in the U.S. prior to leaving for their interview at the consulate abroad, which should reduce the length of time U.S. citizens are separated from their immediate relatives who consular process abroad, as well as create a more efficient waiver process.

USCIS announced two significant changes with this final rule from its proposed rule:

1. Provisional waivers will now be available to those in removal proceedings, but only to those whose cases are administratively closed and have not been re-calendared at the time of filing the waiver on Form I-601A.
2. An individual may file a new waiver on Form I-601A if their waiver is denied or withdrawn (with new filing fee).

USCIS  retained most of the requirements it previously proposed in April 2, 2012, including:

• Provisional waivers are currently only available to certain eligible spouses, children, and parents of US citizens.
• Provisional waivers are not available to:
  • individuals scheduled for immigrant visa interviews prior to January 3, 2013, the date of publication of the federal register (regardless of whether the individual failed to appear, cancelled, or requested that the interview be rescheduled).
  • individuals with final orders of removal or those who are outside the US.
  • individuals subject to grounds of inadmissibility other than unlawful presence bars under INA 212(a)(9)(B).

The government filing fees for the provisional waiver are $585, plus $85 for biometrics.  Additionally, applicants must pay immigrant visa fees (currently $318 but will include an additional $165 starting February 1, 2013).  (See MMH’s prior blog post explaining the fee increase here).  Applicants must be at least 17 years old to apply and appear for biometrics appointment prior to adjudication of their waiver.  Although USCIS and the Department of State (DOS) have stated they cannot specify definite time frames for adjudication of the I-601As or the immigrant visa interviews, the DOS has indicated it hopes to schedule the immigrant interview two to three months after the I-601A is approved.

If you are interested in a consultation regarding your eligibility for provisional waivers, contact Minsky, McCormick & Hallagan, P.C.