USCIS Issues Guidance on its New Provisional Waiver Processing

USCIS has released additional information regarding its new provisional waiver program.  The program permits certain otherwise visa ineligible immigrants to apply for a waiver while still in the U.S. and then use the approved provisional waiver when he or she appears for an immigrant visa interview abroad.  The program is to begin accepting filings on March 4, 2013.

As background, in early January, 2013, the Department of Homeland Security published a final rule providing that the spouse, parent, or child of a U.S. citizen who is in the U.S. and who is applying for an immigrant visa abroad and who has accrued unlawful presence in the U.S. (that is, has overstayed the time period authorized at the time of last admission, or who had entered without inspection) can apply for a waiver of unlawful presence while in the U.S. and before departing to conclude immigrant visa issuance at a U.S. consular post abroad.  Under current processing such an applicant would have to apply for a waiver abroad after having been found ineligible for an immigrant visa at the immigrant visa interview, and then wait for the waiver to be decided while the applicant is abroad, separated from U.S. family members.  The provisional waiver program is designed to minimize family separation time by having the waiver application decided before the immigrant visa applicant departs the U.S. for his or her interview.

USCIS clarified that the provisional waiver is available only to applicants who have a single basis of visa ineligibility: unlawful presence.  An applicant with more than 1 basis of visa ineligibility must still apply for a waiver abroad after the immigrant visa interview.  The waiver requirements remain unchanged: An applicant must still establish that refusal of his or her admission to the U.S. would result in extreme hardship to a U.S. citizen spouse or parent.  Only the location and timing of filing are affected by the new provisional waiver program.  Provisional waiver processing is also only available to an immigrant who has an immigrant visa case pending at the Department of State and who has already paid the DOS application fee.  An immigrant with an existing order of removal, or who is not the beneficiary of an approved immigrant visa petition as an immediate relative, or who is in removal proceedings, or who is an adjustment of status applicant is also not eligible to use the program.

All provisional waiver applicants will be scheduled for a biometrics appointment in the U.S., and in some cases, could be interviewed by USCIS on his or her provisional waiver application.  The provisional waiver does not provide employment authorization, nor stop unlawful presence from continuing to be counted, nor protect an applicant from the institution of removal proceedings, although USCIS advises that it does not plan to refer either an approved or a denied provisional waiver case to ICE unless the basis for the referral is a DHS enforcement priority.  A provisional waiver grants one key legal benefit: the immigrant can quickly process at a U.S. consular post abroad and not be delayed by the requirement to apply for and obtain a waiver while abroad and separated from U.S. close family members.

Notwithstanding some of its limitations, provisional waiver processing is welcome news for the spouses, children and parents of U.S. citizens.