Provisional Waivers of Inadmissibility For Certain Immediate Relatives of U.S. Citizens – Stateside I-601 Waiver Proposal

On January 6, 2012, the U.S. Citizenship and Immigration Services (“USCIS”) announced its intent to change the process for filing and adjudication of certain applications for waivers of inadmissibility (Form I-601) filed in connection with an immediate relative immigrant visa application.  Specifically, the USCIS is considering regulatory changes that will allow certain immediate relatives of U.S. citizens to request provisional waivers under section 212(a)(9)(B)(v) of the Immigration and Nationality Act of 1952, as amended (INA or Act), prior to departing the United States for consular processing of their immigrant visa applications.

The USCIS’ notice of intent to change this process was issued in the Federal Register on January 9, 2012.  A full copy of the USCIS’ proposed change can be found in the Federal Register Notice (FR Doc. 2012-140 filed on 1/6/12, Publication Date: 1/9/12).

What is the Proposed Change?

The proposed change would create a more streamlined and efficient process for waiver applicants whose sole inadmissibility ground is unlawful presence, while simultaneously minimizing family separation.  If the waiver determination, with respect to unlawful presence, were made in advance of the immigrant visa interview and the applicant otherwise were eligible for the immigrant visa, the consular officer could simply issue the immigrant visa at the time of the visa interview. The new process thus will reduce the movement of the case back and forth between the Department of State and USCIS, which significantly prolongs the overall process and increases the time that U.S. citizens are separated from their immediate family members.  Additionally, the new process would reduce U.S. Government costs associated with the movement of cases, and provide a more efficient visa process overall.

What is the Purpose for the Proposed Change in the Current Regulation?

The proposed process is intended to reduce the time that U.S. citizens are separated from immediate relatives who are required to remain outside the United States for immigrant visa application processing and during the adjudication of waivers of inadmissibility.

Who Would Benefit from the Proposed Change?

USCIS intends to limit consideration for the provisional waiver to aliens who qualify for classification as immediate relatives of U.S. citizens, who have a U.S. citizen spouse or parent who would suffer extreme hardship if the waiver were denied, and for whom the sole basis for inadmissibility is the three- or ten-year unlawful presence bar under section 212(a)(9)(B)(i)(I) or (II) of the INA.  Aliens who require waivers for one or more additional grounds of inadmissibility, such as fraud or willful misrepresentation (section 212(i) waiver) or certain criminal offenses (section 212(h) waiver), in conjunction with their immigrant visa applications must continue to file a Form I-601 while outside of the United States in accordance with the existing process.

Would the Alien Need to Depart the United States Even if the Waiver Is Granted?

Yes.  This process would not alter the requirement that an alien depart from the United States to apply for an immigrant visa.  An alien who receives a provisional waiver under section 212(a)(9)(B)(v) of the INA for the three- or ten-year bar under section 212(a)(9)(B)(i)(I) or (II) of the INA would not gain the benefit of such waiver unless he or she departs from the United States.  The departure from the United States would have to take place to activate the provisional waiver under section 212(a)(9)(B)(v) of the Act.

Which Aliens Would Not Benefit from the Proposed Change?

Aliens who would not be eligible for this provisional waiver adjudication process and aliens who are denied provisional approval of their waiver requests would continue to follow current agency processes for filing and adjudication of waiver requests.  Aliens who fall under any other family- or employment-based or other visa category or whose section 212(a)(9)(B)(v) waiver eligibility would be based on extreme hardship to a lawful permanent resident alien relative would not be considered for provisional waivers.  Aliens who are subject to other grounds of inadmissibility or removal also would not be considered for provisional waivers.  Further, aliens with waiver applications under section 212(a)(9)(B)(v) of the Act currently pending in either administrative or judicial proceedings would not qualify for this new process.

When Will the Proposed Change be Effective?

USCIS plans to effectuate this proposal through the regulatory process.  USCIS will issue a proposed rulemaking that will explain the proposal in further detail and that will invite comment from all interested parties.

As of the date of this post, THERE IS NO CHANGE in the current law.

For full text of the USCIS’ notice of intent to change the process, click here to read the Federal Register notice.

Source: FR Doc. 2012-140

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
Posted in I-601, USCIS.