Individuals present in the United States without having been inspected, admitted or paroled may trigger a ground of inadmissibility based on the accrual of unlawful presence. See INA section 212(a) (9)(B). Often family petition beneficiaries who are not eligible to adjust status must leave the United States and apply abroad for an unlawful presence waiver of inadmissibility. Since the 2013 creation of the provisional waiver and its recent expansion, more people are moving forward to complete the immigrant visa process notwithstanding their inadmissibility for unlawful presence in the United States However, if cases are not reviewed carefully, families will be adversely impacted.
To apply for a traditional unlawful presence waiver, an applicant must file Form I-601 with the Department of Homeland Security (DHS), which cannot be submitted until aft er the immigrant visa interview at the U.S. consular office abroad. Therefore, in order to finalize the process, applicants must wait outside of the United States for the waiver to be adjudicated. Th e wait can seem like a lifetime, especially when the immediate family is separated. Th e waiver is granted if the applicant can demonstrate that the refusal of his or her admission into the United States would result in extreme hardship to his or her U.S. citizen or lawful permanent resident (LPR) spouse or parent. It is not uncommon for the adjudication period to take about a year and if the waiver is denied, the beneficiary can face a 10-year exile. For this reason, thousands of eligible candidates have opted to not leave the United States to avoid possible significant emotional and financial hardships resulting from a lengthy separation from family.
In 2013, DHS published a rule to drastically reduce the potential time U.S. citizens are separated from their immediate relatives who are seeking to become LPRs, but must still complete the process abroad. Th e DHS rule created the new Form I-601A, the provisional unlawful presence waiver, to facilitate the process and decrease the potential family separation time by allowing the applicant to apply for the waiver in the United States and obtain a provisional grant before departing the country for the consular interview. Once the provisional waiver is granted, the applicant can depart the United States, appear at his or her interview and possibly return as a LPR in a matter of days instead of months or years. However, the provisional waiver had been limited to immediate relatives of U.S. citizens. Individuals in other immigrant visa classifications were not given the provisional waiver option.
Over 66,000 provisional waivers have been approved through fiscal year 2015, but not all cases have resulted in success. DHS has denied many cases for a failure to prove the required hardship to the qualifying relative and when it had reason to believe that the applicant was inadmissible for reasons other than unlawful presence (i.e., controlled substance trafficking or other criminal grounds). In some cases where DHS has granted the provisional waiver, many individuals were still found inadmissible by the Department of State (DOS) at their consular interview on other grounds, such as having smuggled a family member into the United States or because of security concerns arising from having a tattoo.
DHS recently published a new rule expanding the provisional waiver. First, all individuals who are statutorily eligible for an immigrant visa and who meet the legal requirements for the I-601 can seek the I- 601A. Second, the new rule allows individuals to apply for provisional waivers even if DHS has a reason to believe that they may be subject to other grounds of inadmissibility. Th e DOS will continue to render the final determination of inadmissibility as it has done all along. Th e likely consequence is that more provisional waiver grantees will find themselves barred from re-entering the United States for being inadmissible on other grounds.
In addition, the new rule allows individuals with final orders of removal, exclusion or deportation to be eligible for the provisional waiver by allowing them to first apply for a conditional application (I-212) for permission to reapply for admission after removal as long as the order has not been reinstated. Th is change will significantly increase the pool of potential applicants. It allows individuals to apply for the I-212 in the United States like the I-601A. Yet, an approval of forms I-601A and I-212 does not waive inadmissibility under INA section 212(a)(9)(C) for having returned back to the United States aft er being removed later than Apr. 1, 1997. T his inadmissible ground cannot be waived. Also, those granted voluntary departure who failed to leave the United States will not be eligible for the provisional waiver.
Individuals who are ineligible for a provisional waiver may still apply for the I-601 aft er the consular interview if they are not barred on other grounds of inadmissibility. Immigration law practitioners must carefully screen their clients for any potential inadmissible grounds because even if the provisional waiver is granted, a family can end up tragically separated. Alan Diamante