Expansion of Provisional Waiver (I-601A)

Effective AUGUST 29, 2016, U.S. Citizenship and Immigration Services (“USCIS”) will expand the reach of the provisional waiver initially implemented in 2013.

On January 3, 2013, DHS promulgated a final rule, Provisional Unlawful Presence Waivers of Inadmissibility for Certain Immediate Relatives, in the Federal Register. See 78 FR 536 (Jan. 3, 2013) (“2013 Rule”).  To improve administrative efficiency and reduce the amount of time that a U.S. citizen spouse or parent is separated from his or her relative while the relative completes the immigrant visa process, the 2013 Rule provided a process by which certain statutorily eligible individuals—specifically, certain parents, spouses and children of U.S. citizens—may apply for provisional waivers of the 3- and 10-year unlawful presence bars (“provisional waivers”) before leaving the United States for their immigrant visa interviews. The final rule also limited eligibility for provisional waivers to those immediate relatives of U.S. citizens who could show extreme hardship to a U.S. citizen spouse or parent.

On July 22, 2015, DHS proposed to expand the class of individuals who may be eligible for provisional waivers beyond certain immediate relatives of U.S. citizens to all statutorily eligible individuals regardless of their immigrant visa classification. DHS also proposed to expand the class of individuals who could obtain provisional waivers, consistent with the statutory waiver authority, by permitting consideration of extreme hardship not only to U.S. citizen spouses or parents, but also to lawful permanent resident (LPR) spouses or parents.

In a Federal Register notice that will be published on July 29, 2016, DHS will implement the final rule on the expanded provisional waivers.

Significant changes include:

1) Clarifying that all individuals seeking provisional waivers, including those in removal 8 proceedings before the Executive Office for Immigration Review (EOIR), must file applications for provisional waivers with USCIS.

2) Allowing individuals to apply for provisional waivers even if USCIS has a reason to believe that they may be subject to other grounds of inadmissibility.

3) Eliminating the proposed temporal limitations that would have restricted eligibility for provisional waivers based on DOS visa interview scheduling.

4) Allowing individuals with final orders of removal, exclusion, or deportation to be eligible for provisional waivers provided that they have already applied for, and USCIS has approved, an Application for Permission to Reapply for Admission into the United States After Deportation or Removal, Form I-212.

5) Clarifying that DHS must have actually reinstated a removal, deportation, or exclusion order in order for an individual who has returned to the United States unlawfully after removal to be ineligible for a provisional waiver on that basis.

Stay tuned for further updates.

Source: Federal Register

 

Ruchi Thaker

Ruchi Thaker is New York City-based immigration attorney with extensive experience and excellent reputation for effective legal representation in simple and difficult immigration cases. I have experience in areas of deportation defense (criminal and non-criminal), federal court litigation, representation on appeals and motions with the immigration courts and the Board of Immigration Appeals, family-based immigration, asylum, naturalization, and consular processing.
Ruchi Thaker
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