Many people are aware that DAPA and Expanded DACA are currently on hold due to pending litigation. What people may not know is that DAPA and the expansion of DACA are only parts of President Obama’s 2014 Executive Action on immigration. The Executive Order is actually comprised of a series of initiatives to reform the immigration system. Not all of the initiatives have been blocked or put on hold. One of the more prominent pieces of the package that received less attention but remains very important to a lot of people-the expansion of the provisional waiver-remains intact. In fact, USCIS just recently released a copy of the proposed rules and is requesting comments.
What is the Provisional Waiver?
The provisional waiver, filed on Form I-601A, allows certain immediate relatives (namely, certain parents, spouses, and children of US Citizens) who are currently in the US to file for a waiver of the unlawful presence bar here before leaving the country to complete the consular process. It is different from the traditional waiver, filed on Form I-601, because the applicant will file and receive a provisional answer while still here in America. In contrast, an individual who has to file a traditional unlawful presence waiver is normally required to file the application from outside the US. This can be extremely risky because if the waiver is denied, that individual must remain outside, subject to the bar.
Current Provisional Waiver Rule
Under the current practice, the Provisional Waiver is only available to certain immediate relatives of US Citizens who can prove extreme hardship to a qualifying relative, which is a US Citizen Spouse or Parent. Importantly, children-whether they are US Citizens or not-are not qualifying relatives. This is a very hard concept for a lot of people to get their heads around, and understandably so. It is disheartening, to say the least, that the US government does not officially recognize hardship to children as a humanitarian basis to waive immigration violations. This is not to say that hardship to children can’t be used, but the lens through which the hardship is delineated must be different (and this is the difference between a lawyer who knows what he/she is doing from one who is just dabbling in immigration). Another thing to note is that the hardship must be extreme. USCIS is looking for more than just sadness over separation, even if it is a hardship. The degree must be extreme and beyond what is normal (which begs the question, how does one fairly and reasonably quantify hardship?).
If these changes are implemented, thousands of hopeful immigrants will benefit. For one thing, the provisional waiver will be expanded from immediate relatives of US Citizens to aliens in all statutorily eligible visa categories. This means family-sponsored immigrants, employment-based immigrants, certain special immigrants, and Diversity Visa program selectees, as well as derivative spouses and children. For example, if an individual has an approved I-140 but is ineligible to adjust and subject to the unlawful presence bar, he or she may consider the provisional waiver, assuming all other eligibility requirements are met. A person under the current rules would not be eligible to file the provisional waiver.
The second major change, which is also significant, is that the Qualifying Relative category-to whom extreme hardship must be shown-will be broadened to include lawful resident (LPR) spouses and parents. For example, the rules provide this type of scenario: “For example, an alien who is the beneficiary of an immediate relative petition filed by his or her US citizen son or daughter-who is not a qualifying relative for purposes of the waiver-could seek a provisional waiver based on extreme hardship that would be suffered by the alien’s LPR spouse.” Unfortunately, children are still not included or considered as Qualifying Relatives.
People should be aware that these are only proposed changes, and that they are not yet in effect. They will not become effective unless and until a final rule is published, and since further revisions may be possible, we will have to wait and see what the final version looks like.
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