Starting on March 4, immediate relatives of U.S.citizens who meet specific requirements may apply for a waiver of unlawful presence while they are in the U.S. before they depart to process their immigrant visa at a U.S. Consulate abroad.
The new “stateside waiver” or “provisional waiver” program will reduce the amount of time that qualified applicants are separated from their loved ones while waiting abroad to receive their visa. It will also relieve the stress and anxiety that come with departing the U.S. before the waiver is granted.
Persons who entered the U.S. illegally may not apply for adjustment to lawful permanent resident status, but must travel abroad to a U.S. Consulate to apply for an immigrant visa. Departure from the U.S. triggers a 3-year bar from the county if the person was unlawfully present in the U.S. for more than 180 days. The bar increases to 10 years if the person was unlawfully present for one year or longer.
Many undocumented immigrants are unwilling to take the risk of departing the U.S.to legalize their status, especially when they do not know whether a waiver of the 3/10 year bar will be granted.
Under the current process, which is still available to those who do not qualify for the new process, immediate relatives may not apply for the waiver until after they have appeared for their immigrant visa interview at a U.S Consulate abroad and the U.S. Department of State has determined that they are inadmissible.
But once U.S. Citizenship & Immigration Services (USCIS) begins permitting stateside processing of unlawful presence waivers, the applicant will get a better sense, prior to departing the U.S., of whether he may return in a matter of days, instead of years. After the applicant receives a waiver approval, he can travel to the U.S. Consulate abroad and apply for an immigrant visa to return to his life and family in the U.S.
To qualify for the stateside waiver of unlawful presence, the applicant must meet all of the following criteria at the time of filing:
- Be physically present in the U.S.
- Be at least 17 years old
- Be an “immediate relative” of a U.S.citizen (i.e. the spouse of a U.S.citizen, the parent of a U.S.citizen age 21 or older, or the unmarried child under 21 of a U.S. citizen). NOTE: Some persons over age 21 may still be classified as a “child” under the Child Status Protection Act (CSPA).
- Prove that a qualifying relative (U.S.citizen spouse or U.S. citizen parent) will suffer extreme hardship if the waiver is denied.
- Be the beneficiary of an approved Form I-130 or approved Form I-360 petition.
- Have an immigrant visa case pending with U.S. Department of State based on the approved petition.
- Pay the immigrant visa processing fee.
- Be inadmissible only on account of unlawful presence in the U.S. and no other grounds, such as fraud or criminal convictions.
Who Does Not Qualify?
Applicants who meet all of the above criteria still do not qualify for the stateside waiver if any of the following apply:
- They have a Form I-485, Adjustment of Status application pending with USCIS.
- They are in removal proceedings that have not been administratively closed.
- They have been ordered removed, excluded, or deported from the U.S.
- They are subject to reinstatement of a prior order of removal.
- Their immigrant visa interview appointment notice was issued before January 3rd, 2013. NOTE: There is one exception, however. According to the U.S Department of Homeland Security, “An alien who is ineligible to apply for a provisional unlawful presence waiver because of a previously scheduled immigrant visa interview may still qualify for a provisional unlawful presence waiver if he or she has a new [U.S. Department of State] immigrant visa case because 1) [U.S. Department of State] terminated the immigrant visa registration associated with the previously scheduled interview, and they have a new immediate relative petition; or 2) the alien has a new immediate relative petition filed on his or her behalf by a different petitioner.”
The Application Process
As of March 4, USCIS will begin accepting the new Form I-601A application for provisional unlawful presence waiver. Applicants must submit a $585 filing fee for the waiver plus an additional $85 biometrics (fingerprinting) fee. The fees cannot be waived.
The stateside waiver is not limited to first-time filers. Therefore, a qualified applicant who previously filed a waiver application that was denied or withdrawn can re-file under the new program.
If the stateside waiver is denied, there is no appeals process. But the applicant may file a motion to reopen or reconsider or file the waiver anew with additional evidence and pay the fees again. The applicant may also apply for the waiver abroad after attending his immigrant visa interview.
The Stateside Waiver and Removal Proceedings
If the provisional waiver is denied or is withdrawn prior to adjudication, the applicant will be referred to U.S. Immigration and Customs Enforcement (ICE) for removal proceedings only if he is deemed to be a high priority for removal, such as having a criminal history, engaging in fraud, or otherwise posing a threat to national security or public safety.
Qualified applicants who are already in removal proceedings should request an administrative closure of these proceedings while they await a decision on their provisional waiver application.
If the provisional waiver is granted, the applicant must move to terminate or dismiss removal proceedings before leaving the U.S. to obtain the immigrant visa. If he fails to make such a motion or if the motion is denied before he departs the U.S., he could be barred from obtaining the immigrant visa and returning to the U.S.
Limits to the Stateside Waiver
The filing or the approval of a provisional unlawful presence waiver does NOT:
- Entitle the applicant to employment authorization, advanced parole or other interim benefits.
- Provide any lawful status in the U.S.
- Stop the accrual of additional unlawful presence in the U.S.
- Authorize the applicant to enter the U.S. without a visa or other appropriate entry document.
- Protect the applicant from being placed in removal proceedings or from being removed from the U.S., in accordance with current DHS policies.
- Remove the requirement to depart the U.S. to apply for an immigrant visa.
- Guarantee the issuance of the immigrant visa or re-admission to the U.S.
The stateside waiver of unlawful presence is only one step in the process of obtaining lawful permanent residence in the U.S. Even if USCIS approves the Form I-601A provisional waiver request, the U.S. Consulate may still deny the immigrant visa if it finds other grounds of inadmissibility.
Furthermore, Form I-601A waiver applicants are not spared from proving, with ample documentary evidence, that their qualifying relatives will suffer “extreme hardship” if they are denied the waiver.
Due to the high risks involved, applicants should consult with an experienced immigration attorney for assistance with preparing their waiver application prior to departing the U.S. for their immigrant visa interview or for any other reason.
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.