More Facts on the New Stateside Provisional Waiver Rule

by SCwpadmin

More Facts on the New Stateside Provisional Waiver Rule

by SCwpadmin

by SCwpadmin

The new stateside provisional waiver rule will result in dramatically reduced periods of separation between U.S. citizens and foreign nations in some case.  However, not all foreign nationals who have a U.S. citizen immediate relative (spouse, parent, child over 21 years of age) will benefit from this rule. It is important to understand the scope and limitations of this new rule. 

To be eligible for the new provisional unlawful presence waiver an individual must meet the following criteria:

  1. You are physically present in the U.S.

  2. You are at least 17 years of age at the time of filing.

  3. You are the beneficiary of an approved immigrant visa petition classifying you as the immediate relative of a U.S. citizen.

  4. You have an immigrant visa case pending with the U.S. Department of State for which you have already paid the immigrant visa processing fee.

  5. You believe you are, or will be at the time of the immigrant visa interview, inadmissible based on having accrued a certain period of unlawful presence in the United States.

  6. You meet all of the requirements of the provisional unlawful presence waiver as listed in the regulations, form I-601A and its instructions.
Individuals are not eligible for provisional unlawful presence waivers and their applications will be rejected or denied in the following circumstances:

  1. You fail to meet the eligibility requirements discussed above.

  2. You have a pending form I-485 with USCIS to adjust your status to that of a permanent resident

  3. You are in removal proceedings unless your removal proceedings are administratively closed and have not been re-calendared as of the date of filing of the I-601A.

  4. You have been ordered removed, excluded, or deported from the United States.

  5. You are subject to reinstatement of a prior removal order.

  6. DOS acted to schedule your immigrant visa interview prior to January 3, 2013, even if you fail to appear or you or DOS cancelled or rescheduled the interview on or after January 3, 2012. 

  7. You do not establish that a refusal of your admission to the United States would result in extreme hardship to a U.S. citizen spouse or parent, or that your application should be approved as a matter of discretion.

  8. USCIS has reason to believe that DOS may find you inadmissible at the time of your immigrant visa interview for grounds other than unlawful presence. 
These eligibility requirements and grounds for ineligibility emphasize a couple of key points.  First, the program is only available when there is hardship to a U.S. citizen spouse or parent, not a lawful permanent resident spouse or parent. The new rule also is not available for individuals who need waivers other than the waiver for unlawful presence.  For example, individuals that need fraud waivers or waivers for certain criminal offenses are not eligible for this new waiver procedure. An individual may become eligible for the program even if they are in removal proceedings if they are able to successfully petition the government to administratively close their removal proceedings. Of course, the individual must also meet the other eligibility requirements describe above.    

To learn more about this exciting new rule and determine whether or not you or a relative is eligible for the program, please contact us for a consultation. 

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