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USCIS- Moves Forward, Proposing a Change in the Process for Certain Inadmissibility Waivers

Just few days ago, on March 30, 2012, USCIS posted the Notice of Proposed Rulemaking (NPRM) changing the process for certain inadmissibility waivers in the Federal Register.

If you’re interested in reading the entire rule and all the other attachments …here’s the link, enjoy the 60 + pages…

So in a nutshell who qualifies and what does the proposed rule say?

First of all, the rule applies to certain immediate relatives of U.S. citizens who are eligible for a provisional waiver of the unlawful presence grounds of inadmissibility while they are still residing in the US. The immediate relative must show that being separated from their U.S. citizen spouse or parent would cause that U.S. citizen relative extreme hardship. This proposed rule doesn’t mean that USCIS has lowered or modified their standard of “extreme hardship”? The “extreme hardship” standard remains the same.

Ideally, the proposed rule would have created a “one-step” process. Whereby, the I-130, I-601 waiver, I-212 etc., would all be filed simultaneously and in the interim some form of work authorization would be issued. But that’s not the case. The new proposed rule provides that the underlying I-130 or I-360 must be approved before the I-601 provisional waiver is filed, processed and approved. If the provisional waiver is granted the foreign national MUST leave the US and attend their immigrant visa appointment at a US Embassy/Consulate.

Having a provisional waiver is not a guarantee that the foreign national will return to the US with his or her immigrant visa. If at the consular interview, the DOS consular officer determines that there are other grounds for inadmissibility the provisional waiver granted by USCIS will be automatically revoked. Only if a waiver is available for the other grounds of inadmissibility will the foreign national eligible to refile the I-601 waiver.

So what happens if the foreign national is ahead of the game already…in other words, he or she already have an approved I-130 and they even have an immigrant visa appointment abroad? This proposed rule is not in effect and will likely not be in effect until much later this year when the final rule is published; therefore, all those who have an immigrant visa appointment must still attend their interview abroad. They must continue with the process by filing their I-601 waiver as they had previously planned and wait to hear back from the consulate on the approval or denial of their waiver petition.

For those who choose to re-enter the US unlawfully after a provisional I-601 waiver has been granted, think again, re-entering unlawfully will automatically revoke the provisional approval and the individual may be permanently barred from the US.

As for those who are in removal proceedings who qualify for the I-601 waiver, well their future is still up in the air as USCIS is considering how this proposed rule will apply.

FYI- USCIS will be accepting public comments on the proposed rule from April 2, 2012 until June 1, 2012. Here’s where to go to submit your public comment on the proposed rule

Be cautious out there are is often case whenever there is a proposed rule or the mention of a possible change in the immigration laws that could somehow help the immigrant community …

There are always those, who like sharks smell blood and start to create their own version of how the rule applies. This is a proposed rule and no one should be submitting a I-601 waiver with USCIS for a provisional unlawful presence waiver at this time.

Here is the link to USCIS’ Q&A on the proposed rule change HERE.

We’ll keep you posted!