The Good & the Bad of the New Provisional Waiver Program Rule for Unlawful Presence Waivers

The Federal Register will publish a final rule tomorrow announcing CIS's new regulation regarding the provisional waiver program. Since January 2012, many US citizens and their family members have been waiting for this to happen. Although the process is not expected to be available for applying for waivers until March 2013, this is a big step towards its implementation. Although this is a positive step, many of the changes immigration attorneys such as myself hoped would be in the final rule, have been left out.

In my review of the rule (and this is not legal advice that you should rely on! always consult a lawyer about your particular case) . . .

The negatives:

• No appeal of waiver denials. Options: Sua sponte appeal (CIS appeals it of its own volition - yeah, right - not likely), Refile the case, or proceed to your Immigrant Visa interview abroad and once the determination that you need a waiver is made by the consular officer, have your relative file the case with the Lockbox as all waiver filings are now done for those abroad.

• No concurrent filings of the I-212 and I-130. You have to wait until the I-130 is approved before a waiver case can be filed under this program. If you also require an I-212 due to a prior removal order, you cannot use the provisional waiver process and must file the waiver from abroad after the consulate officer makes a determination that you are eligible for the waiver. You file the I-212 at this point, too, and must wait abroad until both are approved and the consulate allows you to return.

• Active removal cases: If you are currently in removal proceedings, this must be administratively closed or case taken off of the calendar before you are eligible to file under the provisional waiver program.

• Only applies to hardship to US citizen parents or spouses. You cannot argue hardship to a permanent resident (LPR) spouse or parent even if your underlying I-130 is based on marriage to a US citizen (but have a weak hardship argument to the US citizen).

• Filing for a provisional waiver does not guarantee you from being picked up, detained, or deported. It does not provide any type of legal status, temporary work permit, or right to stay in the US.

• No notices of intent to deny are issued in cases when CIS is going to make a determination that you have another ground of inadmissability (i.e., misrepresentation) besides unlawful presence and are ineligible for the provisional waiver process. You basically get no warning except for an RFE (request for further evidence) which CIS expects to issue mostly on cases lacking evidence of extreme hardship.

• Those awaiting rescheduled or scheduled Immigrant Visa interviews at consulates abroad who have delayed are waiting for the provisional waiver process are not eligible to file a provisional waiver. If NVC already set up your interview appointment, you are not eligible to file for the provisional waiver and must wait for the consular officer to make the determination that you are eligible for a waiver and you must remain outside of the US until the waiver is approved and the consulate allows you to return. The only way around this if you are still in the US and have delayed your interview is if you have a new Immigrant Visa case filed and are seeking to file the provisional waiver based on that new case.

• Only unlawful presence can be waived through the provisional waiver process. If you also have to file a misrepresentation, smuggling, or criminal waiver, you cannot file a provisional waiver.

The good news:

• There is no limit on how many times you can file for a waiver under the provisional program. Realistically, though, a refile needs to have different or more persuasive arguments to avoid a different result and the refile, itself, does not guarantee that you won't be deported during that time as the filing does not guarantee any kind of legal status.

• A denial of a waiver case will not necessarily result in the issuance of a Notice to Appear (NTA), the charging document that lands you in removal proceedings, unless you are a person that falls within ICE's enforcement priorities who ICE would not grant prosecutorial discretion.

• DACA (Deferred action for childhood arrival) cases are eligible who are in removal proceedings or ICE has granted prosecutorial discretion to as long as you can convince ICE to administrative closure of your case.

It's important to remember that this program does not change how difficult it can be to establish extreme hardship and in no way lessens the standard of proof required. It does not change the law, itself, only the filing procedure. It would be extremely dangerous to your future to approach this process without mounds of proof and strong arguments, exposing yourself to immigration without a strong case.  Always, always consult with a competent attorney before going forward with any immigration case, especially one that outs you to ICE and CIS, to determine what options are best for you.

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