–by Enoch Pei
For many immigrants, the Supreme Court’s June 2016 decision to deny Obama’s immigration reform plan was a disheartening blow. The 4-4 deadlock prevented the government from granting deportation relief and work permits to millions of immigrant parents of U.S. citizens and legal residents. The plan was anticipated to follow-up upon Obama’s 2012 amnesty program, DACA (Deferred Action for Childhood Arrivals). In short, this program allowed illegal immigrants who had entered the U.S. as children to defer deportation for up to two years. DACA was ultimately intended to expand and assist not just illegal immigrants who were childhood arrivals, but those who arrived in the U.S. as adults as well. The expanded plan, DAPA (Deferred Action for Parents of Americans and Lawful Permanent Residents), was one of Obama’s last goals while still in the presidential office.
While a discouraging result for many immigrants in the U.S., the following month of July gave hope.
Significant Update to the Provisional Waiver Process
Under section 212(a)(9)(B) of the Immigration and Nationality Act, individuals who leave the country with more than 180 days of unlawful presence in the U.S. must obtain a waiver of inadmissibility before being allowed to return under any circumstances. When foreign nationals are not qualified to adjust their status in the U.S., typically because they were not inspected and admitted or paroled, the only other option for obtaining lawful permanent resident (LPR) status is by leaving the U.S. and completing the immigrant visa processing at a U.S. Embassy or consulate abroad. But this option is discouraging when there is a consequence of up to 10 years of inadmissibility for return under the unlawful presence violation. While there is a waiver of inadmissibility available; until March 2013, individuals were not allowed to apply for the necessary waiver until after they appeared for their visa interview abroad and until after a Department of State consular office determined that they were inadmissible to the U.S. on the grounds of the unlawful presence violation. This process proved lengthy, inefficient, and difficult for not just the families involved, but for the government as well. Thus, the U.S. Citizenship and Immigration Services (USCIS) enacted in March 2013 a provision to the waiver, allowing immediate relatives of U.S. citizens to apply for the unlawful presence waiver before leaving the U.S. altogether. In order to be eligible for the provisional waiver, besides being either a spouse, child, or parent of a U.S. citizen, an applicant must be able to demonstrate that his or her refusal of admission back to the U.S. would cause extreme hardship to the relative U.S. citizen spouse or parent.
But on July 29, 2016, the USCIS decided to go further on the provision and announced a final rule expanding upon immediate relatives to include all individuals who are “statutorily” eligible. In other words, not only are immediate relatives eligible, but all persons with an approved petition regardless of visa category, such as those within other family or employment based categories. Additionally, any refusal of admission that would cause extreme hardship to relative U.S. citizen spouses or parents is extended to include hardships on LPR spouses or parents. The provisional update is served not only to promote family unity by reducing the time that family members are separated, but to also improve upon administrative efficiency.
Form I-601A, Application for Provisional Unlawful Presence Waiver, is expecting changes to go into effect on August 29, 2016.
It is recommended that applicants should not file a request for a provisional waiver under the expanded principles until the final rule takes effect on August 29, 2016.
Under the new guidelines, one is still expected to be physically present in the U.S. to file his or her application and one must still have an approved petition and a pending immigrant visa case with the Department of State.
The final rule in its entirety can be found here: https://www.gpo.gov/fdsys/pkg/FR-2016-07-29/pdf/2016-17934.pdf
The updated form with its new requirements will be posted here on August 29, 2016: https://www.uscis.gov/i-601a
