11. Siskind Susser Explains USCIS' Proposed Rule for Waivers

Special guest contribution by Bruce Buchanan

In a much anticipated Notice of Proposed Rulemaking, the USCIS has proposed procedural changes in seeking Waivers of Inadmissibility, also called I-601 applications. This Notice of Proposed Rule sets forth more details than the initial January 3, 2012 Notice of Intent.

The Proposed Rule sets forth the procedure an applicant must follow after approval of their I-130 petition by the USCIS. In order to understand the proposed changes, I will briefly discuss the current procedure. Immigration law permits a U.S. citizen to petition for an immediate relative by filing an I-130 petition with the USCIS. If the immediate relative is subject to the 3/10 year bars for unlawful presence, a green card cannot be processed domestically. Rather, the immigrant must go through “consular processing” meaning the immigrant has to leave the United States and apply for re-admission at a U.S. Consulate or Embassy in their home country. Existing law permits a U.S. citizen to file for a waiver of the 3/10 year bars, which is activated after the U.S. Consulate interview and requires the U.S. citizen (USC) to demonstrate “extreme hardship” to them.

The Notice of Intent was unclear as to how the Immigrant Visa processing fit into the application for a provisional waiver as well as who was eligible and what happened if the provisional waiver was rejected.

Under the Proposed Rule, an applicant must initially pay AN Immigrant Visa Processing Fee, required by the Department of State. Then, the applicant must submit evidence of this payment with the provisional waiver application. For the individuals who have already started Immigrant Visa processing, the provisional waiver application is still available as long as the applicant has not had an Immigrant Visa interview scheduled. If the interview has already been scheduled, an applicant cannot cancel the interview in order to be eligible for a provisional waiver.

Thus, attorneys may want to inform clients who are currently undergoing Immigrant Visa process to "slow walk" the process so that it will not be completed and the consulate interview scheduled before the provisional waiver rule is approved. As practitioners know, the applicant only needs to submit payment or documentation once in a 12-month period to keep the process open. So, if an applicant has paid the Immigrant Visa processing fee and the Affidavit of Support fee, the applicant may want to wait 11 months before filing the Affidavit of Support. In that manner, the Immigrant Visa Processing is on-going but one does not have to worry about an immigrant visa interview being scheduled before a provisional waiver can be filed for and/or obtained.

Another question answered through the Proposed Rule is what happens if the applicant is rejected for a provisional waiver for unlawful presence. The Proposed Rule states if one is rejected for a provisional waiver, one cannot re-apply for a provisional waiver but can seek a waiver of inadmissibility after the consulate interview. Thus, an applicant will receive “two bites at the apple.” The procedure is much better than what many practitioners feared - rejected waivers would lead directly to a Notice to Appear (NTA) in Immigration Court seeking their removal.

There are several other important points to remember concerning the proposed procedural changes for waivers of inadmissibility. Specifically, they are:

1. The proposed rule is not available to relatives of lawful permanent residents; it is only available to immediate relatives of USCs who can demonstrate extreme hardship to a USC spouse or parent.

2. A fee waiver is not available; thus, one must be able to pay the $585 filing fee plus $85 biometrics fee;

3. One must be fingerprinted after filing the I-601A ( a form similar to the I-601);

4. The provisional waiver is not available to the individuals in removal proceedings;

5. One must be at least 17 years of age at the time of filing; and

6. The proposed rule does not change the standards which must be met to demonstrate extreme hardship to a USC spouse or parent.

The Proposed Rule has a Comment period through June 1, 2012. It's unclear when the rule may go into effect. Although some have stated it will not go into effect until the end of 2012, I believe it will be announced and/or effective by November 1, 2012, less than a week before the 2012 Presidential election.