Foreign nationals who have accrued unlawful presence in the U.S. are barred from re-entering the country for three years (if they were unlawfully present for at least 180 days but less than one year) or 10 years (if they were unlawfully present for one year or more). This is commonly known as the 3/10-year bar.
Moreover, foreign nationals who entered the U.S. illegally or otherwise do not quality to adjust to permanent resident status must depart for consular processing of their immigrant visa. Once they depart the country, they trigger the 3/10-year bar. To be excused from this bar, they must apply for a waiver of inadmissibility by filing a Form I-601 application with U.S. Citizenship & Immigration Services (USCIS).
The waiver is approved if they show that that their qualifying relative (spouse or parent who is a U.S. citizen or permanent resident) would “suffer extreme hardships” if they were not allowed to re-enter the U.S. Because the waiver processing can take several months to several years, USCIS is proposing changes to allow certain applicants to file for a provisional waiver while they wait in the U.S. for a decision.
On January 6, USCIS posted a notice outlining its plan to reduce the time that certain families are separated when the foreign national goes home to apply for an immigrant visa. The current process allows applicants to file for a waiver only after they have their initial interview at the U.S. Consulate, usually in their home country. Under the proposed process, the applicant may file the waiver application with USCIS while they are still in the U.S. The provisional waiver will be available only to applicants with U.S. citizen spouses or parents, but not to applicants whose qualifying relatives are permanent residents.
Although the new process will change the filing procedure for some, all applicants are still required to prove that the qualifying relative will suffer extreme hardships if they are not re-admitted to the U.S. In reviewing the waiver application, USCIS considers the totality of circumstances including factors such as: health concerns, financial considerations, education reasons, personal consideration and special factors (cultural, language, religious, and ethnic obstacles; valid fears of persecution, physical harm, or injury; social ostracism or stigma; access to social institutions or structures).
Current Process
Under the current process, a foreign national cannot file for a waiver before he departs the U.S. to apply for an immigrant visa at the U.S. Consulate. First, he must appear for a visa interview before a consular officer abroad. If the consular officer determines that he is subject to the 3/10-year bar, he next files his I-601 waiver application with USCIS through the U.S. Consulate. He may not apply for the waiver before the consular officer determines that he is inadmissible to the U.S.
USCIS reviews the waiver application while the foreign national remains outside the U.S. and waits for a decision. If USCIS approves the waiver request, it notifies the U.S. Consulate, which may then issue the immigrant visa as long as no other inadmissibility grounds apply. If USCIS denies the waiver request, the applicant may appeal the decision to the USCIS Administrative Appeals Office (AAO), which may take several months to several years to issue a decision. Finally, if the applicant does not win the appeal, he must remain outside the U.S., subject to the 3/10-year bar, before he may re-apply for an immigrant visa. A denial, however, does not preclude the applicant from filing a new I-601 waiver request.
Proposed Process
The proposed process is a simplified and more efficient way for certain applicants to file for an unlawful presence waiver while they remain in the U.S. with their family. If USCIS finds that the applicant qualifies, it will grant a provisional waiver and require the applicant to complete his biometrics (fingerprints). USCIS will deny the application for a provisional waiver if other possible grounds of inadmissibility are found or arise during its review.
To actually receive the benefit of the provisional waiver, the foreign national must depart the U.S. and apply for an immigrant visa at the U.S. Consulate. During the interview, the consular officer will issue a finding of inadmissibility and apply the provisional waiver. If there are additional grounds of inadmissibility besides unlawful presence, which can be waived, the applicant would need to file another waiver request for that bar to be excused.
The new process will reduce the movement of the case back and forth between the U.S. Consulate and USCIS, which significantly prolongs the processing time and increases the length of separation of families. In many cases, the provisional waiver will reduce the time that the visa applicant spends abroad. The new process will also reduce costs to the U.S. government and allow for speedier decisions in immigrant visa cases.
Conclusion
The proposed process has yet to take effect. The USCIS’ January 6 notice announces the government’s intent to issue a proposed regulation at a future date. Next, USCIS will issue a Notice of Proposed Rulemaking with a proposed regulation concerning the waiver process and will invite public comment. The new process will not be implemented until a final rule is issued and the change becomes effective.
Regardless of whether the new process takes effect, waiver applicants must still show that their qualifying relatives would suffer extreme hardships if they were not re-admitted to the U.S. The Service has no plans to lower this strict standard. This means that visa applicants must still consult with experienced immigration counsel to enhance the likelihood of obtaining the waiver.
Nothing in this article should be taken as legal advice for an individual case or situation. The information is intended to be general and should not be relied upon for any specific situation. For legal advice, consult an attorney experienced in immigration law.
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About Igbanugo Partners International Law Firm
Igbanugo Partners Int'l Law Firm is based in Minneapolis, Minnesota. It focuses on (1) U.S. immigration law and (2) international trade law in Sub-Saharan Africa.
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