Provisional I-601 Unlawful Presence Waiver Update

January 10, 2012
By Bonnie Stern Wasser on January 10, 2012 2:08 PM |

Today, I attended a USCIS Public Engagement Teleconference at which USCIS and State Department officials provided further details about the January 6, 2012 USCIS Notice of Intent to issue regulations, discussed in my earlier blog post, USCIS Proposes Stateside Processing of I-601 Waivers: Know Before You Go?. Recapping briefly the USCIS proposal, regulation will be issued for public comment describing new procedures for how and where immigrant visa applicants will file their waiver applications if they are subject to the three or ten-year unlawful presence bars to inadmissibility. The proposed regulation would change the place of waiver filings to the U.S. from the current rule of filing at the U.S. consulate while abroad. This would allow applicants to file before going to their green card visa interviews at U.S. consulates abroad. The purpose of the teleconference was both to further inform stakeholders as well as to solicit ideas for the proposed regulation.

USCIS plans an education push on the subject. Already, they say, notarios and other legal consultants are advertising a new law, a new benefit or other nonsense that simply isn't true. Anti-immigrant advocates mischaracterize this as President Obama's attempt to carry out a "back-door amnesty" or is "an abuse of his administrative authority," when in fact this is just a procedural change in the place of application. It would not be a change in the qualifications for waiver applications that already exist by Congressional statute. Others note that this is just a political ploy by the Obama administration to appeal to Hispanic voters. Nonetheless, USCIS has the regulatory authority to determine how to carry out a statute enacted by Congress.

Here are some highlights from the public engagement teleconference:

1. USCIS anticipates issuing proposed regulations "in the Spring" with a 60-day comment period and final rule "by the end of the year." The goal is to implement the regulation "this calendar year." Note, this is an election year; therefore, whether the regulation will really be implemented "by the end of the year" may depend upon the outcome of the Presidential election in November. Nonetheless, the agency will still exist and be responsible for the waiver adjudications unless Congress changes the overall structure of the bars and waivers before then.
2. Presently, there are 23,000 waiver applicants abroad around the world, which includes all waiver types, not just waivers for the unlawful presence bars. 75% of those are applicants for immigrant visas at the U.S. consulate in Ciudad Juarez. These are the people who have decided to take the risk to pursue their employment or family based green cards abroad (because they are ineligible to do so in the U.S.), knowing they may be separated from families while waiting for waiver applications or fulfillment of the three or ten years residence abroad before they can return. Meanwhile, millions of people eligible to immigrate at consulates abroad who need waivers have chosen to remain in the U.S. illegally despite being eligible for visas and potentially eligible for waivers. They are unwilling to take the risk of lengthy family or job separation under the current process.
3. USCIS wants ideas and comments now to help with rule formulation. Suggestions should be sent to: public.engagement@dhs.gov. Note that this process for input is no substitute for formal comments once the proposed rule is published. At that time, that's when public comments will really count, but suggestions submitted now can go into the initial rule formulation process.
4. USCIS reiterated that the purpose of the rule change is to reduce the separation period facing U.S. citizens and their families while immigrant visa applicants continue with the existing immigration process. This has the added benefit of saving the government money from inconsistent procedures, adjudication and constant routing of files between the State Department and USCIS. Note again, that this is strictly a procedural change, not a legislative change, amnesty or qualification change. See USCIS Q&A. Many stakeholders at the meeting commented on why USCIS was not including U.S. citizen parent beneficiaries since they are immediate relatives; permanent resident petitioners with U.S. citizen relatives who are qualifying family members for waiver hardships; and U.S. citizens with permanent resident family members suffering hardship who also qualify for waivers. All of these categories are waiver eligible and affect U.S. citizens.

5. What if the stateside provisional waiver is denied? Will Notices To Appear for removal proceedings be issued, and if so, to whom? Stakeholders commented that potential beneficiaries of this rule change are unlikely to step forward if it is unclear what the consequences will be to them if their waivers are denied. Therefore, the proposed regulation needs to specify EXACTLY what the consequences will be so that applicants can weigh the risk v. reward of applying. USCIS indicated they want suggestions now for how the rule should read. Meanwhile, there is already a recent USCIS memo out in the context of prosecutorial discretion dealing with when USCIS should and should not issue Notices to Appear to certain people whose application benefits have been denied.
6. What about waivers currently on appeal before the Board of Immigration Appeals (BIA)? (Currently BIA waiver appeals are backlogged two years and more will occur if more people come forward to apply). USCIS wants suggestions now about how to deal with this group.
7. Stakeholders suggested that provisional waiver grant notices should include specific language that the applicant can still face potential problems, including lengthy family separation if the applicant goes abroad, has the consular interview and new issues are discovered unrelated to the unlawful presence waiver. (Examples would be new grounds of inadmissibility discovered requiring other types of waivers, where no waiver is available, or there is evidence of fraud or other problems with the provisional waiver application.)
8. USCIS is considering a lockbox filing for these and other waiver types to provide better consistent timing and routing of files. Presently, many waivers are filed with the consular officer who then sends the waiver to one of the few international USCIS offices.
9. USCIS will conduct biometrics on provisional applications in the U.S. This could turn up disqualifying arrests or convictions and prior deportations that may prevent provisional approval. At least applicants would know this before proceeding abroad. Stakeholders suggested USCIS state affirmatively in the provisional grant or denial if any other grounds of inadmissibility exist to their knowledge, or if a contested issue is found not to be a ground of inadmissibility.
10. The U.S. State Department that conducts the immigrant visa interviews abroad stated that consular interviews are essential for checks and balances regarding information USCIS might not have known during the provisional waiver application process. USCIS and the State Department will plan for joint coordination, cables to the field, etc.
11. USCIS is already looking at staffing models. They are looking at two potential Service Centers to handle processing of provisional waivers with specialized training modeled after the Violence Against Women Act unit in Vermont.
12. Specifics about how to apply for the provisional waiver will be in the proposed rule. Please note: This rule is not in effect now and no one should be attempting to apply for I-601 waivers in the U.S. if processing immigrant visa applications abroad. Note further, that not everyone does consular processing of their family or employment based applications for permanent residence. Many people are eligible to file for adjustment of status in the U.S., in which case, waivers are indeed filed here.
13. USCIS says unlawful practice of law (UPL) is already an issue, with reports coming in from Los Angeles. Education is key. USCIS and bar associations will do outreach in the form of consumer advisories working in concert with states' Attorneys General and the Federal Trade Commission.
14. This proposal presently does not cover people in removal proceedings.
15. Stakeholders suggested that in the context of other waivers with similar family extreme hardship standards, where the non-unlawful presence waivers are required, applicants should not have to re-prove extreme hardship if USCIS has already granted the provisional waiver for unlawful presence. This would save both the government and applicant time and money on this issue.
16. Regarding immediate relative applicants who are already abroad who could have benefited from stateside processing of their waivers, stakeholders suggested that they be able to file their waivers before their interview dates. Presently, applicants cannot file for waivers until they have their consular interview and the consular officer determines the ground of inadmissibility. Only then is the waiver submitted. USCIS wants suggestions about how to handle this group of applicants.

USCIS is planning to hold future stakeholder calls concerning other waivers. When more details are formulated about how to implement this unlawful presence provisional waiver program, they will hold another stakeholders' meeting. In the meantime, it's going to be almost a year before this program goes into effect during which time current applicants for immigrant visas should seek counsel from experienced immigration lawyers who can help advise about the risks and benefits of continuing to process applications abroad now or wait until the rule goes into effect. One issue to take into consideration is that the National Visa Center (that organizes the documents and interviews for the consulates) or the consulates themselves, will only allow one year to provide documents for visa applications from the date of last communication. In addition, for those applicants subject to quotas (e.g., permanent resident petitioners of spouses and children), they could theoretically experience a quota retrogression and have their cases delayed further since immigrant visas cannot be issued until the quota is current. These and other issues are complex and should be discussed with immigration attorneys to determine strategy based on applicants' individual facts and concerns.