Stateside Provisional Waiver to Begin March 4, 2013
Today’s inaugural speech was promising. Promise and hope for immigration reform. The President in his past term had administratively implemented various policy changes that worked within the current laws and regulations to help immigrants. For example, prosecutorial discretion, deferred action for childhood arrivals (DACA) and allowing self-employed H1bs. Keeping families together and united has also been on the agenda.
In January 2012, there was an announcement that USCIS will implement policy change to enable families to stay together while petitions are adjudicated for those who have unlawful presence. In April 2012 the rule was published and May 2012, the USCIS announced that from June 4, 2012, centralized filing for these waivers will be implemented. The new policy did not yet apply to those within the US who required a waiver.
2013 started with great news on this front. January 2, 2013 saw the announcement that those who are in the US and have unlawful presence, will be able to file their waivers IN the US. The Final Rule was registered on January 3rd. A waiver is necessary for people who entered the US illegally and/or have 3/10 years bars for unlawful presence. These people cannot ‘adjust’ their status in the US. Currently, to receive a green card, these people have to go back to their home countries to have an interview. At that time, they can file their waiver but generally the waiver can take a long time to be adjudicated. If the waiver is successful, then they will receive a visa to return to the US and thereafter a green card. During that time, the person must remain outside the US, thereby separating their families and loved ones.
From March 4, 2013 people in the US who have accrued unlawful presence will be able to file their waivers BEFORE going to the embassy with an adjudication in hand. The hope is that the waiting time outside the US will be reduced significantly. This is not new law, simply a policy change that will have a significant impact on the lives of people who must file waivers. No waivers will be accepted before March 4. And one must have an approved immigrant visa first to be able to file the waiver.
The waiver applies to only those who are immediate relatives of US citizens (spouse, child or parent). Those who are in immigration court or who have an order of removal or voluntary departure may not qualify unless they get special permission from the government and a court order resolving their case. Applicants must show that denying the case would be an extreme hardship to their qualifying relative(s); the impact on the immigrant doesn’t count. Hardship factors can include family separation, economic hardship, medical issues, country conditions abroad, and any other difficulty or harm faced by the qualifying relative(s), if the waiver isn’t granted.
It is a ‘provisional’ waiver because the embassy can still review the case. If the waiver is denied in the US, one can refile but there is no appeal. A person can file a waiver more than once. The form drafted for this purpose is I-601A. A draft can be seen here.
USCIS at their stakeholder meeting stated that there wasn’t a gauge on processing times because it would depend on the number of petitions they receive.
This new policy change will help many people who have been afraid of separation from their families and simply did not want to file for their legal permanent residence. While this is an important policy change, it is important to remember that the waiver is ONLY for unlawful presence. People will no longer have to be separated from their loved ones while waiting for an adjudication on their waivers but they WILL have to leave the US to a visa to return.
I sincerely hope that this is the beginning of more good news to come in the months ahead. In the interim, I will look forward to seeing the benefits of this new provisional waiver program.