The provisional waiver procedure starts this week on March 4, 2013. Note the word “procedure.” It is not a new law, a new requirement, nor amnesty. It is a change in the location of where to file for a specific type of waiver and when it will be decided. A new form I-601A has been developed for this limited waiver procedure.
New Waiver Procedure Just for Unlawful Presence Bar
The new provisional or family unity waiver process will allow applicants for immigrant visas abroad to apply for unlawful presence waivers in the US before their visa appointments at US consulates abroad. Normally, the unlawful presence bar is “triggered” when the applicant leaves the US to attend the consular interview. Until March 4, these waivers have been filed only after a visa interview at the consulate. At the time of the interview, the consular officer makes an official finding that the person is subject to the unlawful presence bar to admissibility. Then the applicant submits the waiver to the consular office and waits, often for long periods of time or indefinitely for a decision on the waiver by USCIS and a re-interview at the consulate.
Under the new regulation, applicants who know in advance that they are subject to this ground of inadmissibility will be able to file their waiver application in the US or stateside with USCIS before going to the visa interview. This should not be confused with the fact that all waiver types are now being filed stateside in the US. The difference is that the provisional I-601A waivers will be decided before the applicant has to leave the US for the consular interview while the other waiver types are filed in the US (sent to a US lockbox) after the consular interview. If the I-601A application is approvable, USCIS will issue a “provisional” (not a definitive) grant of the waiver. Then, the applicant will have the consular appointment abroad a few months later. If all goes well, the applicant should be abroad for a short period of time. However, the consular officer may develop further information at the interview that may result in additional grounds of inadmissibility or could find that the information provided for the provisional waiver was not true. In that case, the applicant may need to submit another waiver application or could be permanently barred and will have to wait outside the US until it is resolved.
As described in an earlier post, this waiver is only available for:
-applicants who are immediate relatives: parents, spouses, unmarried minor children under 21 years old of US citizens with approved I130s;
-applicants who are at least 17 years old;
-applicants who can show “extreme hardship” to a waiver “qualifying relative” (QR), i.e., US citizen parents or spouses;
-applicants who seek to waive ONLY the ground of inadmissibility based on the three or 10-year bar to readmission due to a period of unlawful presence.
Preference based applicants (usually subject to the quota) cannot use this particular program; nor can visa applicants whose qualifying relatives are permanent residents; nor can applicants who have other grounds of inadmissibility that are waivable.
Preparing for provisional waivers requires some preliminary steps. First, there must be an approved I130 visa petition. One cannot file for the waiver before there is an approved I130 proving the immediate relative relationship. Second, certain notifications are required to be made and fees paid to the National Visa Center (NVC). NVC coordinates the interviews and documentation for the consulates after the I130 visa petition is approved. There are other requirements mentioned in an earlier blog post for pending applications for immigrant visas with interviews scheduled before January 3, 2013, and for those in removal proceedings.
Initial Eligibility Issues
1. Is the applicant even subject to the three or 10-year unauthorized presence bar?
2. Does the person qualify for any of the exceptions to these bars?
3. Has the person already been outside the US for the three or ten years?
Determination of who is and is not subject to the unauthorized presence bar can be difficult and should be discussed with counsel. The government has a 51-page memo on the subject. People who are not subject to the three or 10-year bar a) may not need to leave the US to process their case or b) may not need a waiver at all.
4. Is the applicant subject to any other grounds of inadmissibility? Many people try to handle their family based cases on their own not realizing that they may be subject to one or more grounds of inadmissibility such as fraud or misrepresentation, crimes involving moral turpitude, or the bars due to a prior removal or illegal reentry after a prior period of unauthorized stay, among others. Again, legal advice is recommended to determine admissibility for permanent residence and whether a waiver must be filed from abroad instead.
5. If the applicant has been in removal proceedings, is the case in a posture that would allow for seeking of the waiver or is additional follow up with the court required?
6. Can the applicant make a good enough case of “extreme hardship” to the qualifying relative(s)? This is the crux of the provisional waiver as well as for other waivers with “extreme hardship” standards, such as for fraud and misrepresentation, and crimes involving moral turpitude. Is the argument and supporting documentation good enough that it is worth making the application and taking a chance, or is the case barely qualified such that it would still be a big risk to proceed with the possibility of being stuck abroad, or is there a risk of a waiver denial and placement in removal proceedings? Or is there a chance of qualifying for something else?
7. Are there aggravating circumstances that would cause the case to be decided negatively in the exercise of discretion? e.g., prior criminal behavior, fishy documentation or immigration history, if the qualifying relative contributed to the applicant’s unlawful stay or entry; history of other problems.
The rest of this post focuses on the extreme hardship standard.
Proving Extreme Hardship
Congress chose to penalize immigrants harshly who came to the US illegally or built up extended periods of unlawful presence. Thus, there is a price to pay for violating US immigration laws. There are a couple of exceptions for people who entered unlawfully who may still complete their cases in the US without leaving. For the vast majority of illegal entrants, however, going back to the consulate for a visa is required. The “penalties” for illegal entry are the requirements of consular processing, and waivers of inadmissability for only the most deserving who will be able to come back earlier than the three or 10-year bars, i.e., those with specific family ties who would be harmed if the immigrant relative could not immigrate sooner. Thus, the government looks at the “extreme hardships” to the qualifying relative – NOT the hardships to the applicant, or hardships to minor US citizen children. (However, the US citizen children’s hardships may be relevant to the hardships faced by the qualifying relatives and can be woven into the narrative of the situation.)
Note the word “extreme.” The hardships must be above and beyond those that any mixed status family would face where a family member faces deportation or inability to stay in or return to the US. While “extreme hardship” has never been defined by regulation, the most common factors based on case law that the government has considered include:
- Family ties
- Economic ties/hardships
- Social ties/hardships
- Length of residence
- Professional/educational ties/hardships
- Cultural, religious, language issues
- Medical hardships
- Psycho-emotional hardships
- Country conditions
- Other unique circumstances
The government will look at the unique and individual hardships the qualifying relative(s) will face in two circumstances: a) if the qualifying relative stays in the US if the applicant cannot immigrate and b) if the qualifying relative chooses to accompany the applicant to his or her country if the applicant cannot immigrate. Thus, the above factors must be evaluated in both circumstances and in relation to the immigrant applicant’s role in the life of the qualifying relative(s). Not every factor must be met, but the more the better. There could be other unusual factors or issues not listed above such as military service, entrepreneurship or job creation. The factors that can be met must be evaluated based on the evidence provided and in terms of their cumulative effect if individually they would not be sufficient hardship. Every case will turn on the individual facts and circumstances of a family. Because of the lack of regulation defining extreme hardship and the discretionary nature of the application, there is no “one size fits all” or cookie cutter approach.
The government will only grant the case, even if the factors can be met, in the exercise of discretion. This means that even if extreme hardship is proved, the waiver will only be granted if the good facts outweigh the bad facts in the case, such as how recent the immigrant arrived in the US, immigration history, contributions to the community, and other factors.
Getting Ready and Managing Expectations
Proving extreme hardship and why the case should be granted in the favorable exercise of discretion can be very time consuming and document intensive. For that reason, it can be very expensive, distracting, and emotionally draining because of the US citizen’s focus on the possibility of separation or moving abroad. Lawyers and advocates often recommend using experts for medical, psychological and/or country conditions factors, depending upon the facts, which can further add to the costs and time commitment. For our cases, we usually prepare a brief weaving all of the documentary evidence together to prove how the hardship factors have been met and meet current case law on the subject. It can take 30-100 hours of attorney or staff time to prepare a case, depending upon the number of family members involved, the complexity of issues, time dealing with third party friends and relatives helping with letters or affidavits, exploring country conditions, use of medical or psychological experts, ability of the client to help us prepare the case, drafting a brief, and other factors. Applicants need to rally and manage their supporters.
We frequently hear from people who were told they “just need a letter.” That isn’t really true. All of the waivers we have had successfully approved have included numerous affidavits or declarations and letters, supporting documents (e.g., financial or tax records, school, medical documents, etc.), reports from experts, and country condition information at the very least. Most of our waiver clients prepared their initial immediate relative cases themselves or used notarios or consultants only to be shocked to find out they were not admissible and needed a waiver of one type or another, and had a short time frame to prepare. By trying to save money on legal fees at the start of the case, it can end up costing more to untangle and fix it later. We recommend consulting with an immigration attorney before you even start the case, and that means even before filing the I130, if possible.
Although the government has moved to more centralized processing of waiver applications with the goal of greater consistency, waiver decisions can still be highly unpredictable especially between officers and because they are so fact specific. Two cases with similar facts could have different outcomes. In addition, there is always the chance of receiving from USCIS a “request for evidence” asking more questions or requesting more documents. Therefore, legal counsel is recommended for these more complex immigration cases to confirm eligibility. It can take more than one consultation session to pin down the hardship details and to make a plan for developing the waiver application. An attorney with experience can discuss the likelihood of success and the pros and cons of applying to help the family make a decision about whether and how to proceed.