Tag Archive for: Provisional Waiver

David Isaacson

Expansion of the Provisional Waiver: Good News, But Could Be Better

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On July 29, 2016, USCIS published in the Federal Register the final version of a previously-proposed rule expanding the provisional waiver program.  The new rule, Expansion of Provisional Unlawful Presence Waivers of Inadmissibility, 81 Fed. Reg. 50,244, was effective August 29, 2016, so the newly expanded program is now available.

The provisional waiver program, which first began in 2013 as discussed in a previous post by this author, pertains to certain applicants for an immigrant visa who will be inadmissible under INA §212(a)(9)(B) for three or ten years following their departure from the United States due to their previous unlawful presence in the United States of more than 180 days or at least one year—who face the so-called three-year bar or ten-year bar.  These applicants, under the provisional waiver program, can use Form I-601A to apply for and (provisionally) receive a waiver of inadmissibility under INA §212(a)(9)(B)(v), based on a showing of extreme hardship to a qualifying relative, before departing the United States to apply for an immigrant visa.  This is in contrast to the usual system of applying for a waiver on Form I-601, which in the immigrant-visa context is only possible after already leaving the United States and having one’s immigrant visa interview.

The most notable change effected by the new provisional waiver rule is a significant expansion of the set of those eligible to use the provisional waiver process.  Previously, the provisional waiver was only available to beneficiaries of a visa petition filed by an immediate relative, that is, a petition filed by a U.S. citizen spouse, son or daughter over age 21, or parent in the case of a beneficiary under 21.  It was also only available if the qualifying relative for the §212(a)(9)(B)(v) waiver was a U.S. citizen, even though the statute allows a §212(a)(9)(B)(v) waiver to be granted based on a showing of extreme hardship to a spouse or parent who is either a U.S. citizen or a Lawful Permanent Resident.

Under the new rule, on the other hand, the provisional waiver can be sought be anyone with a U.S. citizen or Lawful Permanent Resident spouse or parent to whom extreme hardship is sought to be shown, and this is so independent of the basis that qualifies the applicant to apply for an immigrant visa in the first place.  For applicants who meet the other requirements for a provisional waiver, the new rule only requires that the applicant

Has a case pending with the Department of State, based on:

(A) An approved immigrant visa petition, for which the Department of State immigrant visa processing fee has been paid; or

(B) Selection by the Department of State to participate in the Diversity Visa Program under section 203(c) of the Act for the fiscal year for which the alien registered.

8 C.F.R. §212.7(e)(3)(iv) (2016).  It no longer matters whether the petition is an immediate-relative petition, a family-based preference petition, or an employment-based preference petition, and even winners of the diversity-visa lottery can make use of the provisional waiver program if they have a qualifying relative.

While the main text of the new rule arguably does not make clear whether this expansion includes derivative beneficiaries of preference petitions (who have a case based on accompanying or following-to-join a petition beneficiary rather than based on their own petition), several clues in the preamble to the rule strongly imply that it does.  The preamble to the new rule describes the proposed rule as having “proposed to expand the class of individuals who may be eligible for provisional waivers beyond certain immediate relatives of U.S. citizens to all statutorily eligible individuals regardless of their immigrant visa classification.”  81 Fed. Reg. at 50,245.  The preamble also describes “inclusion of derivative spouses and children” as a topic on which DHS received no comments.  Id. at 50,248.  Finally, and most clearly, the preamble says of a redesign of the Form I-601A that “DHS agrees with the need to collect additional information, as suggested by the commenters, in light of this final rule’s extension of eligibility for the provisional waiver to spouses and children who accompany or follow to join principal immigrants.”  Id. at 50,272.  Thus, it strongly appears that the rule’s reference to having a “case pending with the Department of State, based on . . . An approved immigrant visa petition,” 8 C.F.R. §212.7(e)(3)(iv)(A), is not restricted to instances in which the case pending with the Department of State is based on an approved immigrant visa petition for the applicant him- or herself.  The pending case may, rather, be based on an approved immigrant visa petition for the applicant’s spouse or parent, as well.  (Children will relatively rarely need to make use of a provisional waiver, since they are exempt from accruing unlawful presence for §212(a)(9)(B) purposes until age 18 pursuant to INA §212(a)(9)(B)(iii)(I), but there will be some cases of unmarried derivative beneficiaries over the age of 18-and-a-half whose actual age or adjusted age under the Child Status Protection Act is under 21 and who therefore still qualify as children for purposes of accompanying or following-to-join their parent.)

Another expansion of the program relates to applicants who might conceivably face some other ground of inadmissibility.  The “reason to believe” standard regarding other potential grounds of inadmissibility, which had caused much confusion in the past, has been eliminated. 81 Fed. Reg. at 50,253-50,254, 50,262.  DHS will no longer deny a provisional waiver based on mere “reason to believe” that some other ground of inadmissibility besides INA §212(a)(9)(B) might apply.  However, 8 C.F.R. §212.7(e)(14)(i) will continue to provide that if some other ground of inadmissibility is found by DOS to exist at the time of the visa interview, the provisional waiver will automatically be revoked, and the applicant will need to seek a regular waiver of the unlawful-presence inadmissibility along a waiver of the other ground of inadmissibility (if a waiver of the other ground of inadmissibility is even available).  Thus, it will be crucial for applicants and their attorneys to ensure as best they can, before a provisional waiver applicant departs the United States for a visa interview, that no other grounds of inadmissibility will be found to exist.

Another expansion of the program relates to removal orders.  The bar on applications for provisional waiver by individuals in active removal proceedings that have not been administratively closed remains, but the bar on applications for those facing final removal, deportation, or exclusion orders has been modified.  81 Fed Reg. at 50,262.  Pursuant to new 8 C.F.R. §212.7(e)(4)(iv), such individuals with a final order can seek a provisional waiver if they have previously obtained permission to reapply for admission through an approved Form I-212 under 8 C.F.R. §212.2(j).  They cannot file the I-601A and I-212 concurrently, as DHS believes this would introduce procedural complications, related principally to the appealability of a denied I-212, that would undermine the efficiency gains sought from the provisional waiver.  Rather, individuals subject to a final order can only proceed with the I-601A application for provisional waiver after the Form I-212 has already been approved.  81 Fed. Reg. at 50,256, 50,259, 50,262.

Individuals subject to a voluntary departure period, however, still cannot apply for a provisional waiver while that voluntary departure period is in effect.  81 Fed Reg. at 50,256-50,257.  These individuals are considered by DHS as analogous to those still in removal proceedings, and then become ineligible at the conclusion of their voluntary departure period based on the alternative removal order which has taken effect.  However, it appears that one who overstays a voluntary departure period (and thus activates the alternative removal order) could theoretically apply for advance permission to reapply for admission under 8 C.F.R. §212.2(j), and then seek a provisional waiver if advance permission to reapply were granted—although there would be a significant risk that either or both of these applications would be denied in the exercise of discretion.  Strictly speaking, neither permission to reapply under INA §212(a)(9)(A)(iii) nor a waiver of inadmissibility under INA §212(a)(9)(B)(v) are covered by the ten-year bar on many discretionary benefits that results pursuant to INA §240B(d)(1)(B) when one fails to timely depart in compliance with a voluntary departure order, but it is unlikely that DHS would look favorably upon an overstay of voluntary departure followed soon thereafter by such applications.

The new rule also clarifies the circumstances under which reinstatement of a removal order will prevent application for a provisional waiver.  Mere eligibility for reinstatement is not sufficient.  Rather, a provisional waiver will be barred only if “CBP or ICE, after service of notice under 8 CFR 241.8, has reinstated a prior order of removal under section 241(a)(5) of the [INA], either before the filing of the provisional unlawful presence waiver application or while the provisional unlawful presence waiver application is pending.”  8 C.F.R. §212.7(e)(4)(v) (2016).  Of course, the fact that the bar extends to reinstatement while a provisional waiver application is pending does make it quite risky for one subject to reinstatement to file such an application.

Another way in which the new rule expands the pool of those eligible for a provisional waiver is by eliminating the previous prohibition on grants of provisional waivers to anyone for whom DOS had acted before January 2013 to schedule a visa interview.  81 Fed. Reg. at 50,254.  A pending immigrant visa case can qualify for a provisional waiver application regardless of when it commenced, so long as registration under the approved petition has not been terminated under INA 203(g).

DHS has not, however, expanded the provisional-waiver program in all of the ways that one might have hoped.  One notable omission is the refusal to expand the program to encompass other grounds of inadmissibility for which a waiver can be sought on Form I-601, such as inadmissibility due to past fraud under INA §212(a)(6)(C)(i) that can be waived under INA §212(i), or inadmissibility due to past smuggling under INA §212(a)(6)(E) that can be waived under INA §212(d)(11) when only one’s spouse, parent, son or daughter was smuggled.  No matter how sympathetic the case, a visa applicant who smuggled his or her own child across the border, or came to the United States years ago on a false passport, will not be eligible for a provisional waiver.  The provisional waiver remains available only to one who “Upon departure, would be inadmissible only under section 212(a)(9)(B)(i) of the Act at the time of the immigrant visa interview.”  8 C.F.R. §212.7(e)(3)(iii) (2016).

The preamble to the final rule explains DHS’s reasons for refusing this sort of expansion with the following cryptic language:

Expanding the provisional waiver process to other grounds of inadmissibility would introduce additional complexity and inefficiencies into the immigrant visa process, create potential backlogs, and likely delay and adversely affect the processing of immigrant visas by DOS. Furthermore, USCIS generally assesses waiver applications for inadmissibility due to fraud, misrepresentation, or criminal history through an in-person interview at a USCIS field office. Because DOS already conducts a thorough in-person interview as part of the immigrant visa process, DHS believes that this type of review would be unnecessarily duplicative of DOS’s efforts.

81 Fed Reg. at 50,253.  At least in cases where inadmissibility is conceded and is straightforwardly subject to waiver – say, where a past entry had been with a photo-substituted foreign passport, or where one’s own child had been smuggled into the United States – it is not clear why waiving such inadmissibility would necessarily be more complex or duplicative than waiving inadmissibility due to past unlawful presence.

The genius of the provisional waiver, in its original form and its expanded form, is that it helps ensure family unity and avoid the perverse scenario in which U.S. citizens and LPRs must be separated from their relatives for an extended period of time and suffer the precise extreme hardship that an ultimately-granted waiver is designed to prevent.  This scenario is just as perverse when the inadmissibility being waived results from having smuggled one’s own spouse or child into the United States, or previously entered by fraud (but not in a provable way enabling adjustment of status as an immediate relative), as when it results from prior unlawful presence.

Unnecessary separation leading to extreme hardship could be reduced even further if consular officials of the Department of State, in connection with an approved provisional waiver, were willing to provide an indication of their views on any other potential grounds of inadmissibility before an applicant departed from the United States.  This is not consistent with current Department of State practice, but there seems no statutory bar to it if the governing regulations were amended appropriately.  Under the “pre-examination” procedure that was in place prior to the creation of adjustment of status, pursuant for example to 8 C.F.R. §142.9(b) (1943), consuls did provide written assurances regarding the sufficiency of an applicant’s documents, though a personal interview was still ultimately required.  The same sort of procedure could be put into place for provisional waivers: an applicant could submit a written record of conviction for a crime or written account of past actions thought to potentially constitute fraud or smuggling, and be advised in advance whether, if found to be credible, he or she would be denied a visa due to inadmissibility based on such a ground.  Any legal argument regarding the applicant’s potential inadmissibility on these bases could thus take place while the applicant was still in the United States, again avoiding the necessity of prolonged separation from qualifying relatives.

While the recent expansion of the provisional waiver is to be commended, including other waiveable grounds of inadmissibility, and allowing for definitive determinations regarding other grounds of inadmissibility before an applicant’s departure from the United States, would have made the program still better.  Perhaps these issues can be revisited in a future round of rulemaking.

David Isaacson

USCIS Issues Provisional Waiver Final Rule: Beginning in March, Some Waivers of the 3- or 10-Year Bars May Be Sought Before Departing the United States

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One year ago, a previous post on this blog by Cyrus Mehta and this author discussed the issuance by USCIS of a proposed rule allowing certain applicants for a waiver of the 3- or 10-year bars to obtain such a waiver on a provisional basis before departing from the United States.  It has been a long wait for the final rule, as USCIS needed to allow time to receive public comments (one of which was submitted by our firm) and then took a substantial amount of time to analyze the comments and determine what changes to make to the proposal, but the wait is finally over.USCIS first announced the final ruleand made an advance copy available on January 2, 2013, and the final rule was officially published in the Federal Registeron January 3.  The rule will take effect on March 4, 2013, and sometime before then USCIS will publish the Form I-601A that is to be used to apply for a provisional waiver.

The provisional waiver rule does not change the substantive standard that one must satisfy in order to obtain a waiver of the 3- or 10-year bar that one incurs upon accruing more than 180 days or a year of unlawful presence respectively.  In order to obtain a waiver of the 3- or 10-year bars under section 212(a)(9)(B)(v) of the Immigration and Nationality Act (INA), it is always necessary to show that the waiver applicant’s spouse or parent, who is a U.S. citizen or Lawful Permanent Resident (LPR) of the United States, will suffer extreme hardship if the applicant is not permitted to remain in the United States.  However, under the new rule, certain applicants will be able to make this showing before they depart the United States to apply for a visa, which should dramatically shorten the amount of time that they need to spend abroad.  If an applicant is seeking a waiver of the 3- or 10-year bars based extreme hardship to a U.S. citizen qualifying relative (rather than an LPR), and has an approved petition as an “immediate relative” of a U.S. citizen – that is, as the U.S. citizen’s spouse, parent, or unmarried child (under the age of 21 while taking into account the Child Status Protection Act, although only applicants age 17 or older may seek provisional waivers and younger applicants would not need them because unlawful presence for these purposes does not accrue until age 18)– then the applicant may seek a provisional waiver before departing from the United States, and only go abroad to apply for an immigrant visa after the provisional waiver has already been issued.  This process is subject to various restrictions, some of which are discussed further below, but that is the basic idea.

By allowing some waiver applications to be adjudicated while the applicant remains within the United States, the provisional waiver process should significantly reduce the period of time when the U.S. citizen relative of a successful waiver applicant is subject to the cruel irony that inheres in the current process.  Under the current system, where the waiver application is filed while the applicant is abroad after an immigrant visa interview, and the applicant then remains abroad during the months it takes to adjudicate the waiver application, the qualifying relative must undergo months of the very same extreme hardship that the waiver is intended to avoid!  At least with regard to U.S. citizen qualifying relatives of applicants who are immediate relatives of U.S. citizens, and who face no other ground of inadmissibility besides unlawful presence, this new provisional waiver process should remove much of that cruel irony.  It should also encourage applications by some waiver applicants who were unwilling to travel outside the United States to apply for a waiver because of the risk of long-term separation if the waiver were denied.

One detail to keep in mind is that the U.S. citizen relative to whom extreme hardship is shown in a provisional waiver application need not necessarily be the same U.S. citizen relative who has petitioned for an applicant.  Indeed, the U.S. citizen petitioner need not even be a possible qualifying relative for the 212(a)(9)(B)(v) waiver.  A child is not a qualifying relative for purposes of obtaining a waiver of the 3- or 10-year bars, but an applicant who is sponsored by a U.S. citizen son or daughter over twenty-one years of age, and thus qualifies as an immediate relative, would be able to qualify for a provisional waiver if he or she could show extreme hardship to a U.S. citizen parent in the event that the applicant were not allowed to return to the United States– even though a U.S. citizen parent cannot sponsor an adult son or daughter as an immediate relative.  Or, an applicant with a U.S. citizen spouse, who cannot show that his or her spouse will suffer extreme hardship if the applicant is not allowed to return to the United States, could instead obtain a provisional waiver by showing that a U.S. citizen parent will suffer extreme hardship in the applicant’s absence.

Another important detail, which has been changed from the proposed rule, is that applicants in removal proceedings will be able to seek a provisional waiver iftheir proceedings are administratively closed and have not been recalendered.  Administrative closure, most recently addressed by the Board of Immigration Appeals (BIA) in Matter of Avetisyan, is a process in which a case is taken off the active calendar of an Immigration Court or the BIA without actually being terminated; one might compare it to an indefinite continuance of the case.  Traditionally, it has occurred with the consent of the Department of Homeland Security (DHS), although Avetisyan allows for it to be sought without DHS consent, a possibility which might prove useful in the provisional-waiver context.  Administrative closure has often occurred recently in the contextof the DHS exercise of prosecutorial discretion in favor of those who are lower priorities for removal so that DHS can focus its efforts on removing those who are its higher priorities for removal, such as those with serious criminal convictions—the process discussed in a June 17, 2011 memorandum from U.S. Immigration and Customs Enforcement (ICE) Director John Morton.It is admirable that USCIS realized, upon reviewing comments on the proposed rule, that no purpose would be served by denying the opportunity to apply for a provisional waiver to those whom ICE is not actively seeking to remove in any event.

One interesting consequence of this new eligibility for those with administratively closed removal cases relates to the process created by the Court of Appeals for the Second Circuit in its October 16, 2012 opinion entitled In the Matter of Immigration Petitions for Review Pending in the United States Court of Appeals for the Second Circuit.  The Court of Appeals for the Second Circuit, in order to avoid having to spend court time unnecessarily reviewing a removal order in cases where ICE would anyway not seek to execute the order, has created an automatic 90-day waiting period during the processing of petitions for review (although one which can be ended early by either side) to allow for discussion of whether the exercise of prosecutorial discretion is appropriate.  In cases where the Office of Immigration Litigation that is representing the government on the petition for review determines in consultation with ICE that a case is low-priority and suitable for the exercise of prosecutorial discretion, the case will be remanded to the BIA for administrative closure.  Thus, at least in the Second Circuit, and perhaps in other Circuits which may come to follow the lead of the Second Circuit, some who have already received final orders of removal, but who would be eligible for a provisional waiver absent such final order and have petitioned for review of the order, should be able to return their case to an administratively closed state under the new process and then apply for a provisional waiver.

In another positive development, the final rule has retreated somewhat from the initial USCIS position that the provisional waiver process would only allow for what one might call a single bite at the apple, permitting neither appeal nor re-filing, so that an applicant who was denied a provisional waiver could only proceed with the process by departing from the United States and re-applying for a conventional waiver from abroad.  Although an administrative appeal is still not available, an applicant whose application for a provisional waiver is denied will be permitted under the final rule to file a new application (with the appropriate filing fee).

Not all the news from the final rule is good news, however.  Unfortunately, despite the urging of many commenters, the provisional waiver process will not be available to those who are currently in removal proceedings, unless their proceedings have been administratively closed and not recalendared.  It will also not be available to those who are currently subject to a final removal or deportation or exclusion order—even though those subject to such orders have long been able to file a stand-alone I-212 application for advance permission to reapply for admission prior to departure from the United States, under 8 C.F.R. § 212.2(j).  Unless those subject to a final order can get the case reopened and administratively closed (as for example could be possible on remand from a Court of Appeals), it appears they will need to follow the conventional waiver process from abroad, despite the resulting hardship to qualifying relatives.

The provisional waiver process also will not apply to those who are inadmissible for reasons other than the 3- or 10-year bar resulting from previous unlawful presence.  Although the above-mentioned previous post on this blog, and our official comment submitted to USCISalong the same lines, advocated that provisional waivers should be available in contexts such as alleged fraud for which a waiver is needed under INA section 212(i), USCIS chose not to accept that suggestion.  However, USCIS has held out the possibility of perhaps extending the provisional waiver process to other contexts once it has had a chance to observe how the initial, narrower version of the provisional waiver process works in practice.

Another restriction worth noting is that the provisional waiver will not be available to those who have already been scheduled for an immigrant visa interview as of January 3, 2013.  The key question is not when the interview was scheduled to take place, or whether the applicant attended the interview, but whether the Department of State’s National Visa Center (NVC) had already acted to schedule a consular interview by January 3.  If the NVC had scheduled a visa interview by January 3, the provisional waiver process will not be available.  If the NVC had not acted to schedule an interview by January 3, then the subsequent scheduling of an interview will not remove one’s eligibility for the provisional waiver, although in the interest of efficiency prospective waiver applicants with a case before the NVC are advised to notify the NVC of their intent to seek a provisional waiver before an interview is scheduled.  The NVC has already begun sending emails to some prospective visa applicants advising them that they must inform the NVC of their intent to seek a provisional waiver, by sending an email to NVCI601A@state.gov, and that failure to do so would delay the visa application.

For additional background on the final provisional waiver rule, interested readers may wish to review posts about it on the “AILA Leadership Blog” of the  American Immigration Lawyers’ Associationand the “Lifted Lamp” blog of Benach Ragland LLP.  The New York Times has also reported on the new provisional waiver rules.  Despite all of its imperfections, the final provisional waiver rule is a very positive development, an important step along the road of reducing unnecessary hardship to the qualifying relatives of waiver applicants.