There has been a recent expansion of what has been called the Provisional Unlawful Presence Waiver CI-601A). The original rule was promulgated in 2013, and now this new rule which took effect on August 29, 2016, expands this “extreme hardship” waiver to all persons statutory eligible for an immigrant visa. Additionally, effective December 5, 2016 new policy guidance regarding Extreme Hardship Waivers, in general, was issued on October 21, 2016.
Before, only immediate relatives of US. citizens were eligible, that is, a parent of the person or spouse of the applicant for the waiver.
More generally, what does the waiver do?
The waiver was designed to allow individuals who had accrued what is called “unlawful presence” in the United States, to apply for a provisional waiver in the U.S., so that if they were able to visit a consulate or embassy in their home country, they could hopefully return back to the United States faster knowing that this waiver had been pre-approved.
Previously, before the original 2013 rule for Provisional Unlawful Presence Waivers was passed, an applied who was not eligible for what is called “adjustment of status,” had to depart the United States and apply at the U.S. Embassy abroad for the Immigrant Visa. During the Immigrant Visa Process, the Department of State officer at the embassy, U.S would make a determination whether he or she was eligible for a waiver application, which is usually called an “extreme hardship waiver” application.
That person would then, while they are outside of the United States, have to file the I-601 application with the embassy or A Lock box office that is controlled by the U.S. Citizenship and Immigration Services (USCIS).
The applicant would then have outside of the United States while this waiver application was being processed. Sometimes they would wait for a few months, other times, more than a year. The main point was that during that time they were separated from their U.S. family in the United States.
The 2013 provisional waiver rule was passed to allow the person who was subject only to the unlawful presence bar to apply for this waiver while they stayed in the United States with their family. A trip to the Embassy first was no longer needed. If the USCIS believed that the applicant was eligible for the waiver, they would receive a “provisional waiver”, basically saying, “Your application has been reviewed, and we believe you are, for purposes of unlawful presence eligible for the waiver”. Now the applied go back to the U.S. Embassy or consulate, and apply for the Immigrant Visa and let that officer make the final determination. But, the key difference is that during the provisional waiver process, the applicant is in the U.S. with his or her family.
As can be seen the big difference between the original waiver process and the 2013 provisional waiver rule. The applicant was stuck out of the U.S. during the whole process. In many cases, this resulted in a very long-term if not permanent separation of the family.
Now, before they return to their country of origin to apply for their Immigrant Visa, they find out whether their waiver is approved or not. They file it with the USCIS here in the U.S. and stay in America while it is pending. If it‘s approved, then they go out and pick up the waiver. If the I-6012 is not approve they don’t. They stay here, and they are with their family, and they know that they are going to need to apply again or maybe they should not try at all.
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