On January 6, 2012, the U.S. Citizenship & Immigration Service (USCIS) announced a proposed change to the waiver of inadmissiblity, Form I-601, which is normally filed after an immigrant has departed the United States. The proposed change will instead allow the immigrant to apply for this waiver before departing the United States. The proposed change is aimed to help immediate relatives (spouses and children of U.S. citizens) avoid long processing delays in their home countries, thereby reuniting families sooner. The proposal must still go through a formal rule making process and will not go into effect for several months. Our firm is well versed in handling these types of family based cases. Please call (612) 338-5007 if you would like us to review your case.
More Information on the Proposed Changes
This proposed “in-country processing” would permit USCIS to grant a provisional waiver, eliminating the long wait many applicants face when seeking a waiver outside the U.S. Although applicants would still be required to depart from the U.S. before receiving final approval on their application, pre-processing of the family unity waiver will encourage applicants to come forward and create a faster and safer means for processing applications.
The emphasis on safety is particularly important, given the large number of applications processed in Ciudad Juarez, Mexico, a city that has been wracked with violence in recent years. Numerous cases of violence against persons waiting for their waivers have been reported, increasing the urgency of implementing the new rule quickly. For other applicants, the streamlined process will minimize the time away from family members, reducing the possibility of economic and other hardships caused by long separations.
Questions and Answers about the Proposed Changes
Q. Why is USCIS proposing the change?
The change will cut down the time U.S. citizens are separated from their families while those family members are in process of obtaining visas to become legal U.S. immigrants. Currently, people applying for a “waiver of inadmissibility” must leave the U.S. and apply for their waiver at a U.S. consular office abroad. The process can take a long time and deters people from applying for a waiver, which then stops them from legally re-entering the U.S. Under the new rules, families will be separated for a shorter period of time while applying for a waiver.
Q. How is the proposed process different from the current process?
Currently, U.S. citizens petitioning for their families to become legal immigrants must petition for a visa, and in some circumstances, if the spouse or child has accrued more than 180 days of unlawful presence in the U.S., that spouse or child must also petition for a waiver of a ground of inadmissibility in order to have his or her visa application processed.
The only change is that the spouse or child would be able to apply for a waiver with USCIS in the U.S. and receive a provisional decision on that waiver before departing the U.S. for consular processing of their immigrant visa applications. The proposed process does not change the visa or waiver requirements and procedures. Nor does it change the requirement that the spouse or child of a U.S. citizen depart the U.S. to have his or her visa application processed at a consulate abroad. Currently, applicants can only file for a waiver after having been determined inadmissible by the U.S. consular officer and must wait abroad for a decision, which significantly adds to the processing time for their case.
Q. When will the new process start?
The USCIS must make a final rule before the proposed process takes effect. In the coming months, USCIS plans to publish a notice of proposed rulemaking and will consider the comments received as part of that process before publishing a final rule. Because this is just a proposal right now, the current process remains. Therefore nobody should file an application with USCIS based on this proposed change. Any applications filed with USCIS based on this notice will be rejected and the application package returned to the applicant, including any fees until the final rule is issued and the change becomes effective.
Q. Who would be eligible for a provisional waiver?
Spouses and children of a U.S. citizen (1) who are seeking lawful permanent residence through an immigrant visa, (2) who are found inadmissible based on unlawful presence in the United States for more than 180 days, and (3) who meet the existing extreme hardship standard. Children under the age of 18 do not accrue unlawful presence and, as a result, are not required to obtain a waiver.
Q. Why is this proposal limited to the spouses and children of U.S. citizens?
The policy objective of this proposed process change is to alleviate extreme hardship suffered by U.S. citizens. USCIS has thus identified immediate relatives of U.S. citizens as the class of aliens to consider for this procedural change. In addition, their immigrant visas, which are not subject to annual limitations, are always immediately available. The focus on U.S. citizens and their immediate relatives is consistent with Congress’ prioritization in the immigration laws of family unification. This proposal meets the goals of both improving efficiency and reducing the length of time that American families are unnecessarily separated.
Q. How would the proposed process affect existing standards related to unlawful presence and the extreme hardship standard?
It would not. The proposed process retains all of the legal standards and policies related to unlawful presence determinations and establishing extreme hardship. It would simply provide for the processing of these waivers in the United States instead of abroad.
Q. Will individuals who recieve the waiver be able to adjust their status without leaving the United States?
No. The visa process itself is not changing. Individuals who receive a provisional wavier would still be required to depart the United States to apply for their immigrant visa.
Q. Is everyone who has accrued more than 180 days of unlawful presence subject to a three- or 10-year bar from entering the U.S.?
Yes; however, some aliens do not accrue unlawful presence if they fall into certain categories. For example, children under the age of 18 do not accrue unlawful presence for any period of time before their 18th birthday. Similarly, under current law, certain victims of crime and aliens with pending asylum applications do not accrue unlawful presence while their application is pending.
Q. If an individual already filed a Form I-601 from outside the U.S., would the proposed process affect him or her?
No. It would only affect individuals who have not yet filed a Form I-601 and who will file a waiver request after a final rule is published.
Q. Would USCIS collect biometrics as part of the streamlined process?
Yes. It is contemplated that applicants in the United States would be scheduled for biometrics collection at a USCIS Application Support Center.
Q. Why does USCIS refer to the waiver as “provisional?”
In the proposed process, USCIS would grant the provisional waiver before the applicant departs the U.S. for consular processing of their immigrant visa applications. The provisional waiver, however, would not take effect until the individual departs from the United States and triggers the covered ground of inadmissibility. Moreover, the provisional waiver covers only the unlawful presence grounds of inadmissibility. If the consular officer finds during the immigrant visa interview that the individual is subject to another ground of inadmissibility, the individual would need to file another waiver application with USCIS.
Q. What would happen at the consular interview?
If DOS found the individual otherwise eligible for the immigrant visa, the consular officer would then issue the visa, allowing the individual to immigrate to the U.S.
Q. What happens to people who are NOT eligible to file a waiver under the proposed process?
They would continue to follow current agency processes for filing waiver requests after a determination of inadmissibility is made by a U.S. consular officer overseas.
Q. What happens if an applicant is denied?
Denied applicants would be subject to USCIS guidance and law enforcement priorities for issuing Notices to Appear (NTA). For example, convicted criminals, public safety threats, and those suspected of fraud will receive NTAs. They will then be placed into removal/deportation proceedings.
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