Overview of Provisional Waiver Adjudication
I.Introduction
On January 3, 2013, the USCIS finalized its regulation regarding the provisional adjudication of waivers for those who will be attending a consular appointment at a U.S. embassy or consulate and would be triggering the unlawful presence ground of inadmissibility.[1] The rule became effective on March 4, 2013. It provides a process by which the agency will adjudicate waivers of unlawful presence beforeapplicants depart the United States for their immigrant visa interview abroad. Although this provisional waiver process is limited in a number of important ways, it provides a measure of relief to a specific category of immigrant visa applicants for the most common ground of inadmissibility.
After the provisional waiver is approved and the consular interview scheduled, an applicant who is eligible for an immigrant visa can travel abroad for the interview with the knowledge that there will likely be no delay in issuance of the immigrant visa. The waiver is approved on a “provisional” basis because the Department of State (DOS) will still conduct its own investigation as to potential inadmissibility based on other grounds, as well as verifying eligibility for the underlying visa. If the applicant is determined to be inadmissible based on another ground, the provisional waiver will automatically be revoked.
This new procedure of allowing “immediate relatives” to apply for the waiver of unlawful presence before they leave for the consular interview should encourage many spouses of U.S. citizens to initiate or continue with family-based immigrant visa processing. It should also encourage lawful permanent resident (LPR) spouses to naturalize so they can take advantage of the new process.
II.Purpose of the Provisional Waiver
If a family member does not qualify to apply for permanent residency in the United States through adjustment of status, he or shemust be processed for the immigrant visa at a U.S. embassy or consulate abroad. This procedure, known as consular processing, includes the taking of biometrics, undergoing a medical examination, andbeing interviewed at a U.S. consulate abroad. Normally these proceduresare completed, the interview conducted, and the immigrant visa issued within ina fewdays, and the applicant then enters the United States as an LPR. However, if the consular officer conducting the interview determines that the applicant is inadmissible under any of a number of possible grounds, the applicant will be refused the visa. If the ground is waivable, the applicantmust remain abroad until a waiver is filed, adjudicated by the Nebraska Service Center, granted, and the approval forwarded to the consulate. In most cases the waiver is adjudicated within four to six months, but in some cases it could take longer. During the time that the waiver adjudication is pending, the applicant is typically unemployed and separated from family members in the United States. If the waiver is denied, the applicant will be denied entry as an immigrant either permanently or for a designated period of time. For those found inadmissible based on unlawful presence and denied a waiver, that period is either three years or ten years, depending on how much unlawful presence was accrued before departing the United States.
The purpose of the provisional waiver process is to reduce the period of time that United States citizens are separated from family members who must travel overseas for consular appointments and apply for a waiver of the unlawful ground of inadmissibility. In addition, the provisional waiver adjudication is intended to limit the uncertainty of the waiver process by providing either a provisional approval or a denial before the applicant leaves for the consular interview. The USCIS anticipates that this process will encourage those who qualify for permanent residency and who otherwise would be reluctant to leave their family due to the long wait abroad or uncertainty will now proceed with family-based immigration.
III.Eligibility for Provisional Waiver
A.Basic Eligibility Requirements
The provisional waiver adjudication procedure is available only to “immediate relatives”who will be found inadmissible based on unlawful presence – and no other ground – and who can establish extreme hardship to a U.S. citizen spouse or parent. To be eligible, the provisional waiver applicant mustalso meet the following eligibility requirements:
- have a Form I-130 or I-360 approved in his or her behalf
- have paid the immigrant visa fee bill with the DOS National Visa Center
- not have been scheduled for a consular interview before January 3, 2013
- not be an applicant for adjustment of status
- not be inadmissible under any other ground of inadmissibility
- not be in removal proceedings, unless those proceedings have been administratively closed
- not be under a final order of deportation or removal or be subject to reinstatement of a prior order
- be at least 17 years old, and
- be present in the United States at the time of filing the waiver application and biometrics collection.[2]
B.Immediate Relatives
Family-based immigration allows certain family members of U.S. citizens and LPRs to become legal residents in the United States.One category of noncitizens who may obtain legal residency through a visa petition filed by a United States family member is "immediate relatives." The family membersincluded in the immediate relative category are: (1) spouses of U.S. citizens; (2) unmarried minor children of U.S. citizens; and (3) parents of U.S. citizens age 21 or older.[3] The Child Status Protection Act allows unmarried children of U.S. citizens who were under 21 when the U.S. citizen parent filed the petition to remain immediate relatives even if they subsequently turn 21.[4] The immediate relative classification also includes certain qualified widows and widowers of U.S. citizens and their minor children, as well as certain battered spouses and children of U.S. citizens.
Family members of U.S. citizens who are eligible to immigrate but are not classified as immediate relatives include the following: (1) unmarried adult children; (2) married children; and (3) brothers and sisters of U.S. citizens who are age 21 or older. Family members of LPRs who are eligible to immigrate but are not classified as immediate relatives include the following: (1) spouses; (2) unmarried minor children; and (3) unmarried adult children.[5] These family members are classified belonging in one of the four preference categories. Although preference category members, both family- and employment-based, are not currently eligible for the provisional waiver process, the Department of Homeland Security (DHS) stated in the preamble to the final regulation that it will consider future expansion of the program following a review of its effectiveness and impact on the agency.
C.Inadmissible Based Only on Unlawful Presence
One of the most common grounds of inadmissibility is based on having accrued a certain amount of “unlawful presence” in the United States and then having departed. Unlawful presence typically begins upon entering the United States without inspection or staying beyond an authorized period. Persons who have accrued more than 180 days of unlawful presence but less than one year and then depart the country have triggered a three-year bar to readmission. Persons who have accrued one year or more of unlawful presence and then depart the country have triggered a ten-year bar to readmission.[6] The provisional waiver process is only available to applicants seeking a waiver based on the unlawful presence ground of inadmissibility.[7]Persons who have accumulated more than one year of unlawful presence in the aggregate, depart the United States, and then reenter illegally or attempt to reenter illegally have triggered a separate ground of inadmissibility called the “permanent” bar.[8] An applicant whomthe USCIS has "reason to believe" is inadmissible under the “permanent” bar or under any ground other than unlawful presence is ineligible for the provisional waiver process.[9]
D.Hardship to United States Citizen Spouse or Parent
Applicants for the provisional waiver for unlawful presence must demonstrate extreme hardship to a U.S. citizen spouse or parent. They are considered “qualifying relatives.” Applicants for a waiver of unlawful presence that is not through the provisional waiver process must demonstrate extreme hardship to a U.S. citizen or LPR spouse or parent.[10] The group of family members to whom hardship must be shown under the provisional waiver process is therefore more limited. Bear in mind that under neither process is the U.S. citizen child considered a qualifying relative. For this reason, it will be rare for the parents of U.S. citizens to be eligible for the provisional waiver, since the parent would need to have a U.S. citizen spouse or parent.
Example: Phillip, a U.S. citizen, is petitioning for his mother and father. His father entered the United States without inspection and has been residing here for the past two years. His mother still resides in Guatemala. Both will be consular processing. His father is ineligible for the provisional waiver because he does not have a qualifying relative. He will not have one until his wife (Phillip’s mother) immigrates as an LPR and then naturalizes five years later.
The provisional waiver program does not change the existing standard governing an extreme hardship determination. However, the instructions to Form I-601A provide examples of extreme hardship factors that adjudicators will consider.
E.Present in the United States
In order to be eligible for the provisional waiver, an applicant must be present in the United States from the time of filing the waiver application through the time that the applicant attends the biometrics appointment.[11] Waiver applicants who are outside the United States cannot take advantage of the provisional waiver process. Instead, they will file their waiver after being found inadmissible by the consulate and they will file through the centralized processing system that was established in 2012.
F.Approved I-130 and Receipt of Immigrant Visa Processing Fee
To qualify for provisional waiver processing, an applicant must be the beneficiary of an approved immediate relative visa petition[12]andhave paid the immigrant visa processing fee.[13] The U.S. citizen petitioner indicates on the I-130 that the beneficiary will be consular processing, files the petition with the USCIS, which in turn approves it and forwards the file to the DOS’s National Visa Center (NVC). The NVC sends a request to the immigrant visa applicant for payment of the immigrant visa processing fee. The applicant pays the fee and the NVC issues a State Department Visa Processing Fee Receipt. The provisional waiver applicant must include this fee receipt with the Form I-601A as evidence of eligibility.
IV.Provisional Waiver Disqualifications
Provisional waiver applicants aredisqualified if they fall into any of these categories. They include age restrictions, currently being in removal proceedings or having been ordered removed, having filed for adjustment of status, or having a previously-scheduled consular appointment.[14]
A.Applicant under Age 17
Children under the age of 18 cannot accrue unlawful presence for purposes of the three- or ten-year bars. The statute provides a specific exception for them.[15] Since the earliest date it starts accruing is on their 18th birthday, those who depart the United States before they are 18 years and 180 days do not require a waiver for unlawful presence. The USCIS chose age 17 as the cut-off for filing for the provisional waiver; children under that age are not eligible to file.[16]
B.Removal Proceedings and Reinstatement of Removal
Noncitizens who have been ordered deported or removed are also ineligible for the provisional waiver.[17] If they have not left the United States after being ordered deported or removed, they will effect the order upon departing for their consular interview. That will make them inadmissible based on INA § 212(a)(9)(A); the provisional waiver is not open to those who may be found inadmissible by the consulate. If the noncitizen has already left the country and effected the deportation or removal order, then they likely returned to the United States illegally. If they returned illegally or even attempted to return illegally after April 1, 1997, they became inadmissible under INA § 212(a)(9)(C)(i)(II). If they returned illegally, either before or after April 1, 1997, they also became subject to reinstatement of the prior order of deportation or removal.[18] Those who are subject to reinstatement are ineligible for the provisional waiver.[19]
Noncitizens currently in removal proceedings must first obtain an order that administratively closes or terminates the proceedings. The Executive Office for Immigration Review (EOIR) must not have re-calendared the proceeding at the time of the filing of the waiver application.[20]
Practice Tip: You shouldconsider filing a motion for administrative closure if your client otherwise meets the eligibility criteria for a provisional waiver adjudication, but is in removal proceedings. You should confer with the assistant district counsel assigned to the case and/or the head district counsel to determine if there is an objection to the request for administrative closure. Even if the district counsel objects to the motion for administrative closure, EOIR may grant the motion pursuant to a BIA decisionthat provides that a motion for administrative closure may be granted despite opposition from one of the parties.[21] After the proceedings are administratively closed without re-calendaring, your client will be qualified to file a provisional waiver. If the provisional waiver is granted, you will need to file a motion to re-calendar the case in order to move that the proceeding be terminated or dismissed. This procedure is suggested by DHS in the Comments on Form I-601A in the final rule.[22] Should EOIR not grant the motion for termination or dismissal, in the alternative you can move for voluntary departure to ensure that your client departs the United States without the risk of an order of removal.
C.Pending Application for Adjustment of Status
The provisional waiver process is not available to those applying to immigrate through adjustment of status.[23] Persons who entered the United States illegally and accrued more than 180 days of unlawful presence will not trigger that ground of inadmissibility until and unless they depart the country. So only those who left and reentered would even need a waiver. Also, because the processing of the adjustment of status and waiver applications occurs while the applicant is in the United States, he or she is not separated from U.S. citizen family members during the processing of the applications. The stated rationale for the provisional waiver – preventing lengthy family separation – would not be applicablefor adjustment applicants.
D.Pre-January 3, 2013 Scheduled Consular Appointment
Immigrant visa applicants who had been scheduled for a consular interview before January 3, 2013 are not eligible for the provisional waiver.[24] USCIS will review the DOS database to determine the date on which the agency acted to schedule the interview; it is the date of scheduling and not the date and time of the interview that controls. A prospective provisional waiver applicant cannot cure ineligibility by canceling a previously scheduled consular interview and then re-scheduling it. But the prospective applicant who was scheduled before January 3, 2013 could still be eligible in any of three circumstances: 1) the consulate terminates the visa registration based on the visa applicant’s inaction for two years and then the same petitioner re-files a Form I-130; 2) the consulate terminates the visa registration based on the I-130 petitioner’s withdrawing of the approved petition and then the same petitioner re-files a new I-130;or 3) the visa applicant withdraws the visa application and a different petitioner files a new I-130.
1)Revocation of Visa Application and I-130 Petition Due to Inaction
The USCIS regulations list the various ways that an I-130 petition can be automatically revoked.[25] One of these is if the DOS “terminate[s] the registration of the beneficiary pursuant to the provisions of section 203(e) of the Act before October 1, 1991, or section 203(g) of the Act on or after October 1, 1994…”[26] The statute mandates that the DOS terminate the application of a consular processing applicant who does not complete processing of the application at the consulate within one year following notification of the availability of such visa.[27]
The Department of State regulations provide further instruction to the agency on how to proceed when the visa applicant has failed to appear at the consular interview, to apply for an immigrant visa after notification by the National Visa Center (NVC), or to present evidence overcoming the basis for a consular refusal.[28] The visa applicant is given one year to re-schedule the consular interview, respond to the NVC notification, or submit the additional evidence. If the applicant fails to do that, the DOS is empowered to terminate the registration and send the visa applicant notification. The notice also informs the visa applicant that the registration may be reinstated if, within one additional year, he or she establishes to the satisfaction of the agency that the failure to apply for the immigrant visa, attend the interview, or submit the necessary evidence within the first year was due to circumstances beyond his or her control. If the visa applicant fails to respond during the second one-year period or fails to satisfy the “circumstances beyond your control” test, the DOS informs the visa applicant that the record of registration, any approved petition, and all supporting documentation have been destroyed.