On July 29, 2016, USCIS announced the long-awaited for new rules regarding the Provisional Waiver Program (I-601A). The changes aren’t in effect yet – that will happen on August 29, 2016. So, what changes can we expect at the end of the month? You can read through the 119-page notice, but I have broken out some of the highlights below.
As a reminder, the provisional waiver was created to allow immigrants whose only immigration violation was an unlawful presence to apply for a waiver prior to departing the United States for their immigrant visa interviews. This significantly reduced the time families had to be apart and added a degree of comfort in knowing that the immigrant would be returning to the United States.
- The provisional waiver program was originally only available to immediate relatives – defined as spouses, or minor children – of U.S. citizens and that the denial of the immigrant visa would result in extreme hardship to a U.S. citizen parent or spouse. Under the new rule, if a visa is available to an applicant and the extreme hardship can be shown to a U.S. citizen or Lawful Permanent Resident parent or spouse, then the applicant can file an I-601A provisional waiver. This will allow many more individuals the opportunity to apply.
- The “reason to believe” standard is gone. The provisional waiver is only designed to waive the unlawful presence ground of inadmissibility, although there are dozens of grounds of inadmissibility. Under the old rules, if USCIS thought that an I-601A applicant had another ground of inadmissibility, they would deny the I-601A based on a “reason to believe” that the other issue, perhaps a conviction for a crime or immigration fraud, was another ground of inadmissibility in the applicant’s past. With the denial, the applicant had to decide whether to continue with consular processing and file an I-601 once they were outside of the United States or to stop their case entirely. If they went through with consular processing and filed an I-601, they took the risk that the I-601 could be denied and that even with approval that it could take five to ten months before they could return to the United States.
The “reason to believe” standard was frustrating because you often did not know what information USCIS was used to deny a provisional waiver, but at least it alerted you to the fact that there was something that may be a problem. Now, the burden now shifts entirely to the client at the consular post to ensure that they have an otherwise spotless record. Just because a provisional waiver may be granted does not mean that there are no other grounds of inadmissibility lurking in the background. As an attorney, my worst fear is that a client will have an approved I-601A, leave the U.S., and then in the immigrant visa interview be found inadmissible for an issue that I was unaware of. There may or may not be a waiver available. If there is, we can file an I-601 and hopefully, the client will return to the U.S. within six months. But if there isn’t waiver available, the client may be stuck outside the U.S. for 3, 10, or 20 years – or even permanently.
- If you had an interview scheduled at a U.S. Consulate or Embassy before January 3, 2013, you were not eligible to take advantage of the provisional waiver process. This timing restriction will be removed and anyone, regardless of when an immigrant visa was originally scheduled, can apply for a provisional waiver.
- The last significant change is that individuals with removal, deportation, and exclusion orders will be allowed to file a provisional waiver, so long as they have an approved I-212, Application for Permission to Reapply for Admission into the United States After Deportation or Removal. However, if someone has entered the U.S. illegally after an order of removal, they will not be eligible for the provisional waiver program.
While it’s exciting that USCIS finally expanded the provisional waiver program to encompass LPR family members, it’s also a bit scary with the “reason to believe” safety net gone. I’ve had a few provisional waiver cases denied based on a “reason to believe” and the families opted not to proceed and they are still together here in the U.S., though lacking legal status. But they are together. If the reasons alluded to in the denial letters were true and they would have only been discovered at the immigrant visa interview abroad, some of these families would not be together today because there would be no waiver available for them to even try – even if they were willing to wait six months for its adjudication.
If you think you may be eligible for a provisional waiver and want to learn more, please consult with an experienced immigration attorney about your case. Every case is different and one small fact can completely change how your case may need to be processed differently than your friend’s or your cousin’s. If something goes wrong in the provisional waiver and immigrant visa processing process, it could keep your family apart for decades – make sure that you get solid, accurate advice before beginning.