On January 2, 2013, USCIS announced its long awaited final regulation governing new “provisional” waiver processing for immigrant visa applicants. Beginning March 4, USCIS will begin accepting provisional waiver applications in the US from applicants subject to the unlawful presence ground of admissibility (INA section 212(a)(9)(B); 8 U.S.C. 1182(a)(9)(B)) that subjects them to a three or ten-year bar to admissibility. This ground of inadmissibility is triggered when applicants for immigrant visas abroad leave the US for their appointments at US consulates. The unlawful presence ground applies to people who have accrued six months or more of unlawful presence in the US. The act of leaving the US triggers the three or ten-year bar. To come back earlier than that, a waiver application is required.
The most common, but not only, group subject to this provision are people who cannot obtain their green cards in the US because they entered the US without inspection. Under the new regulation, applicants will be able to submit their waiver applications prior to leaving the US for their interviews abroad. The waiver can be provisionally granted prior to attending the visa interview abroad. This change in waiver procedures is intended to alleviate the hardships to American citizen family members and the length of family separation during the waiver and visa process. People with all other waivable grounds of inadmissibility will continue to apply for their waivers from abroad after their immigrant visa interviews. However, since June 2012, most of those waiver applications are now filed by mail to the US. None of these provisions affect people entitled to apply for adjustment of status in the US where their waivers can be filed at the centralized locations as well.
Currently, applicants for immigrant visas abroad must submit their waiver applications (form I-601 and accompanying evidence) directly to the US embassy or to a central processing facility in the US after their visa interviews if a consular officer determines that the applicant is inadmissible and requires a waiver. As a result, applicants must wait abroad for months, and sometimes years, while waiting for the waiver to be decided before they can return to the consulate to collect the immigrant visa once the waiver is approved. Many families in the US who have members out of status have not taken the risk of visa processing. They have passed up opportunities to finish their cases choosing instead to remain out of status indefinitely. The combination of the unlawful presence bars, the long delays in waiver processing, and consequent long family separations and hardships have contributed significantly to the high number of undocumented individuals in the US who otherwise are eligible to immigrate through family or work sponsors.
New Procedures, Not a New Law
The new procedure will enable applicants to file their applications (new form I601A) before they go abroad to the visa interview. I-601As can only be filed after approval of a form I-130 or self-petition I-360. If the waiver application is approvable, applicants will receive a provisional (not an absolute, final or conclusive) decision on the waiver application, giving families more time to be together and some level of predictability once the applicant leaves the US for the visa interview. USCIS expects applicants to spend a few days to a few weeks abroad under the new system.
The change is not a change in law, but rather a change in procedure, namely where, how and when waiver applications will logistically be filed and decided. The change does not affect who is subject to waivers or the requirements to have a waiver granted. It also does not permit applicants to have their green card applications decided in the US, nor is this a “fast track” to permanent residence. In fact, the entire group at issue in this regulation are those people who have lived in the US unlawfully and are not eligible to adjust status to permanent residence in the US. They continue to be deportable if caught. This is not an amnesty of any sort. Applicants must undergo the statutory dual “penalties” of visa processing abroad and make additional expensive waiver applications. Congress enacted INA 212(a)(9)(B) in the 1990s, and only Congress can change or eliminate that provision to truly alleviate the hardships to American citizens and lawful permanent resident (LPR) relatives. Furthermore, the provisional waiver process is only beneficial to those applicants who know in advance that they are subject to the unlawful ground of inadmissibility and will need a waiver.
Unfortunately, this new process is for a narrow segment of the pool of potential immigrant visa applicants who need waivers. The new procedure is only available to “immediate relative” applicants, that is, spouses, parents and unmarried children under 21 years old of US citizens. Thus, the program does not apply to spouses and children under 21 of lawful permanent resident (LPR) sponsors, the adult children of US citizens, the siblings of US citizens, diversity lottery visa applicants, or applicants immigrating through work visa categories.
In addition, the program only applies to individuals who need waivers of the three and ten-year bars to return due to a prior period of unauthorized presence in the US of six months or more. Thus, if someone is inadmissible for an immigrant visa on different grounds for which a waiver is required and available, such as for a crime involving moral turpitude, or for a prior misrepresentation or fraud, that person will still need to go to the consulate first, have an interview, and then submit the waiver while abroad, forcing that person to wait months outside the US and separated from family in the US. Furthermore, if an applicant is subject to a three or 10-year bar and another ground of inadmissibility requiring a waiver, or the person was previously deported and requires an application for permission to reapply for admission (I-212), then the individual will not be able to use the provisional waiver process.