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Final Rule on Provisional Unlawful Presence Waivers Update

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On January 2, 2013, USCIS and Department of State held a public
engagement devoted to the final rule on Provisional Unlawful Presence
Waivers which was posted in Federal Register today. After several months
of reviewing public comments, USCIS has announced that the Final Rule
implements some of the public's comments to the draft of the rule.


This new Provisional Unlawful Presence Waiver process allows certain
immediate relatives of U.S. citizens who are physically present in the
United States and are seeking permanent residence to apply for and
receive provisional unlawful presence waivers before departing the U.S.
for consular processing of their immigrant visa applications abroad.
This new process will significantly reduce the time that U.S. citizens
are separated from their immediate relatives while those family members
go through the immigrant visa process to become permanent residents.


WHO IS ELIGIBLE FOR PROVISIONAL UNLAWFUL PRESENCE WAIVER


Individuals will be able to apply for a Provisional Unlawful Presence
Waiver starting March 4, 2013 if he/she meets the following eligibility
criteria:

(i) Is present in the United States at the time of filing the application for a provisional

unlawful presence waiver and for biometrics collection;


(ii) Upon departure, would be inadmissible only under section 212(a)(9)(B)(i) of the Act

at the time of the immigrant visa interview


(NOTE: this section refers to the 3- and 10-year bars of inadmissibility for unlawful presence in excess of 180 days);


(iii) Qualifies as an immediate relative under section 201(b)(2)(A)(i) of the Act;


(iv) Is the beneficiary of an approved immediate relative petition (Form I-130 or I-360);


(v) Has a case pending with the Department of State based on the approved immediate

relative petition and has paid the immigrant visa processing fee as evidenced by a State

Department Visa Processing Fee Receipt;


(vi) Will depart from the United States to obtain the immediate relative immigrant visa;

And


(vii) Meets the requirements for a waiver provided in section 212(a)(9)(B)(v) of the Act,

except the alien must show extreme hardship to his or her U.S. citizen spouse or parent.



WHO IS NOT ELIGIBLE FOR PROVISIONAL UNLAWFUL PRESENCE WAIVER


It is important to note that the following individuals will be
INELIGIBLE for the provisional unlawful presence waiver under the
process:

(i) USCIS has reason to believe that the alien may be subject to other grounds of inadmissibility other than unlawful presence;


(ii) The alien is under the age of 17;

(iii) The alien does not have a case pending with the Department of State, based on the

approved immediate relative petition, and has not paid the immigrant visa processing fee;


(iv) The Department of State initially acted to schedule the immigrant visa interview

prior to January 2, 2013 for the approved immediate relative petition on
which the provisional unlawful presence waiver is based, even if the
interview has since been cancelled or rescheduled after January 2, 2013;


(NOTE: The actual date and time that the alien is scheduled to appear
for the interview is not relevant for the eligibility determination.
This rule applies even if the alien failed to appear for his or her
interview, cancelled the interview, or requested that the interview be
rescheduled.)



(v) The alien is in removal proceedings, unless the removal proceedings are

administratively closed and have not been recalendared at the time of filing the Form I-601A;


(vi) The alien is subject to a final order of removal or a final order of exclusion or deportation;


(vii) The alien is subject to reinstatement of a prior removal order; or


(viii) The alien has a pending application with USCIS for lawful permanent resident status.




MAJOR CHANGES IN IMPLEMENTATION COMPARED TO DRAFT REGULATIONS



During the public engagement, Director of USCIS Alejandro Mayorkas has
noted that USCIS has implemented or will implement three (3) major
changes in the final rule that did not appear in the draft regulations:


1) First of all, USCIS has emphasized that aliens may be eligible to
file for a provisional unlawful presence waiver more than once if the
waiver was denied or been withdrawn provided that other eligibility
criteria are met.


Thus, if a provisional waiver is denied, the alien may refile the
case. Having said that, appeals or motions to reopen/reconsider are not
permitted.


2) After careful consideration of all comments on this issue, USCIS
has decided to limit eligibility for the provisional unlawful presence
waiver process to individuals whose removal

proceedings are administratively closed and have not been recalendared
at the time of filing of the waiver. This is a significant change
compared to the draft of the regulations that did not permit any
individuals in removal proceedings to apply for a waiver.

3) Finally, USCIS has acknowledged that after implementation of the
initial process available for only immediate relatives of U.S. citizens,
USCIS will assess its operational constraints and resources and will
consider expanding the program to other categories, including immediate
relatives of Lawful Permanent Residents (LPR).


OTHER IMPORTANT NOTES


1. Filing fees. USCIS has announced that the provisional waiver will
be requested through the Form I-601A. The filing fees will be $670
(including $585 for the waiver's filing fee and $85 for biometrics
processing). After filing the waiver application, the alien will receive
a notice for fingerprints processing. The alien has to be physically
present in the U.S. at the time of filing of the waiver application and
has to appear for biometrics processing.


2. Approval of the waiver does not confer any status.

USCIS has reminded the public that the approval of a provisional unlawful presence waiver

does not create a lawful immigration status, extend any authorized period of stay, protect aliens

from removal or law enforcement action, or grant any other immigration benefits, including

temporary work authorization and advance parole.


3. Removability if the waiver is denied/withdrawn.

The major question of the public that has not been addressed by USCIS in
the final rule is what will happen to those aliens whose provisional
waiver applications are denied. Final rule does not contain any
confidentiality provisions that would protect the aliens from being
placed in removal proceedings if their waiver application is denied.


USCIS has confirmed during the public engagement earlier today that
the agency will use its current guidance in deciding whether to refer
the case to ICE for removal proceedings if the waiver application
request is denied. Consistent with DHS enforcement priorities, DHS does
not envision initiating removal proceedings against aliens or referring
aliens to ICE whose provisional unlawful presence waiver applications
have been approved.


Consistent with its civil enforcement priorities, DHS has stated that
an individual whose request for a provisional unlawful presence waiver
is denied or who withdraws the waiver request prior to final
adjudication will typically be referred to ICE only if he or she is
considered a DHS enforcement priority - that is, if the individual has a
criminal history, has committed fraud, or otherwise poses a threat to
national security or public safety.


PLEASE NOTE that this new process is not yet in effect and USCIS will not accept any applications until March 4, 2013.



We will provide further updates once they become available.


Feel free to email us or visit our Facebook page for updates http://www.facebook.com/myimmigrationlawyer


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