Introduction: New Rules for Provisional Unlawful Presence Waivers

On July 29, 2016, the Department of Homeland Security (DHS) published a final rule in the Federal Register expanding provisional unlawful presence waivers [see 81 FR 50243]. The new final rule will take effect on August 29, 2016.

Certain alien beneficiaries of approved immigrant visa or family-sponsored preference petitions who are subject to the 3- or 10-year unlawful presence bars of inadmissibility are eligible for waivers. However, the unlawful presence bars are not triggered until an alien departs. Under the previous rules, the beneficiary of an approved immediate relative petition could apply for a provisional unlawful presence waiver, which, if granted, would allow him or her to have an unlawful presence waiver request pre-adjudicated before departure to apply for an immigrant visa. The new rules will allow any person who may be eligible for an unlawful presence waiver to apply for a provisional unlawful presence waiver. In this article, we will discuss the new rules, the DHS’s important comments in the Federal Register notice, and the differences between the new rules and the previous rules for provisional unlawful presence waivers.

To learn more, please see our blog about the new rules [see article]. To compare to the previous regulatory scheme for provisional unlawful presence waivers, please see our article on that subject [see article].

Understanding Unlawful Presence and Regular Unlawful Presence Waivers

To learn about unlawful presence and unlawful presence waivers in detail, please see our full article on the subjects [see article]. In this section, we will examine the relevant provisions in brief in order that the concepts are clear for purpose of understanding provisional unlawful presence waivers.

Section 212(a)(9)(B)(i) of the Immigration and Nationality Act (INA) contains the provisions for the unlawful presence bars. An alien who is unlawfully present in the United States for a period of more than 180 days, but less than one year, will be barred from reentering the United States for three years after he or she departs. An alien who is unlawfully present for one year or more who departs the United States will be subject to a ten-year bar of inadmissibility.

Under section 212(a)(9)(B)(v), certain aliens who would otherwise be subject to the 3- or 10-year bar of inadmissibility may be eligible for a waiver of the unlawful presence bar. Provided that an alien meets the following conditions, the Attorney General has the discretion to wave inadmissibility for the 3- or 10-year bars of inadmissibility:

1. The alien is the beneficiary of an approved immigrant visa petition in the family-sponsored, employment-based, or diversity visa category; and
2. The alien demonstrates that the refusal of his or her admission would result in extreme hardship to his or her U.S. citizen or LPR spouse or parent.

It is important to note that the section 212(a)(9)(B)(v) waiver does not apply to those who are subject to the permanent bar of inadmissibility for having accrued at least one year of unlawful presence in the United States, departed, and then attempted to reenter without being admitted or paroled. To learn more about the permanent bar, please see our full article [see article].

Utility of Unlawful Presence Waivers

If an alien has accrued more than 180 days of unlawful presence, a U.S. citizen or permanent resident family member may file an immigrant visa petition on his or her behalf. Furthermore, the petition may be approved by the United States Citizenship and Immigration Services (USCIS). However, an alien who is present in the United States without having been admitted or paroled is ineligible for adjustment of status. This means that, in general, an alien who would be subject to the 3- or 10-year unlawful presence bar will only be able to procure an immigrant visa through consular processing. This creates a complicated situation for aliens who have already accrued more than 180 days of unlawful presence because the 3- and 10-year bars trigger upon departure and, furthermore, adjudicating a waiver request overseas may take a long period of time. The Board of Immigration Appeals (BIA) made explicit in the Matter of Rodarte-Roman, 23 I&N Dec. 905 (BIA 2006) [PDF version], that the unlawful presence bars only come into effect when an alien departs after having accrued the requisite unlawful presence in the United States.

Accordingly, the provisional unlawful presence waiver exists both to expedite processing of waiver requests and to promote family unity. As we will discuss, being granted a provisional unlawful presence waiver does not in and of itself confer any benefits. The alien must still proceed abroad to apply for an immigrant visa, and his or her application may still be denied on unlawful presence grounds or for other reasons. However, the unlawful presence waiver helps expedite waiver adjudications for aliens who can demonstrate that they are eligible.

Regulations Regarding Provisional Unlawful Presence Waivers

The new regulations regarding provisional unlawful presence waivers are found in 8 C.F.R. 212.7. These rules will be effective as of August 29, 2016.

Jurisdiction and Applicability

Under 8 C.F.R. 212.7(e), the provisions for provisional unlawful presence waivers only apply to “certain aliens who are pursuing consular immigrant visa processing.” This makes sense in light of the fact that the provisional unlawful presence waiver would have no effect on an alien who is able to pursue adjustment of status.

Under 8 C.F.R. 212.7(e)(1), the USCIS has exclusive jurisdiction to grant a provisional unlawful presence waiver. In order to apply for a provisional unlawful presence waiver, the alien must file a Form I-601A with the required fee with the USCIS.

General Principles

Under 8 C.F.R. 212.7(e)(2)(i), the USCIS may adjudicate a provisional unlawful presence waiver under the rules for unlawful presence waivers found in section 212(a)(9)(B)(v) of the INA. The statute regarding unlawful presence waivers leave the decision whether to grant or deny a waiver to the discretion of the USCIS. 8 C.F.R. 212.7(e)(2)(i) explains that neither a pending application for a provisional unlawful presence waiver nor being granted a provisional unlawful presence waiver confers lawful immigration status or an authorized period of stay. Furthermore, 8 C.F.R. 212.7(e)(2)(ii) makes clear that an alien with either a pending or approved application for a provisional unlawful presence waiver is not eligible for any immigration benefits on the basis of such application. The regulation explicitly notes that a provisional unlawful presence waiver application will not support applications for immigration benefits such as employment authorization or advance parole.

Provisional unlawful presence waivers merely allow for an alien to provisionally have his or her inadmissibility for unlawful presence waived before proceeding abroad to apply for an immigrant visa with the DOS.

Eligibility Requirements

8 C.F.R. 212.7(e)(3) requires that in order to apply for a provisional unlawful presence waiver, the alien must be subject to the 3- or 10-year bars of inadmissibility upon his or her departure from the United States. Additionally, the alien must meet the following requirements in order to apply for a provisional unlawful presence waiver (see 8 C.F.R. 212.7(e)(3)(i)-(vi):

Must be present in the United States at the time of the filing of the application;
Must provide biometrics to USCIS at a location in the United States designated by USCIS;
Must only be inadmissible under section 212(a)(9)(B)(i) of the INA upon departure and at the time of the immigrant visa interview with DOS;
Must have a case pending with the DOS based on either an approved immigrant visa petition for which the DOS immigrant visa processing fee has been paid or selection by the DOS to participate in the Diversity Visa Program under section 203(c) of the INA for the fiscal year for which the alien registered;
Must intend to depart from the United States in order to obtain the immigrant visa; and
Meets the requirements for a waiver of the unlawful presence ground of inadmissibility found in section 212(a)(9)(B)(v) of the INA.

The statute for unlawful presence waivers includes a requirement that the alien demonstrate that his or her being refused admission would result in extreme hardship to a U.S. citizen spouse or parent or LPR spouse or parent. Accordingly, meeting the extreme hardship requirement is part of establishing eligibility for a provisional unlawful presence waiver. An alien who fails to meet this requirement will have his or her application denied. It is important to note that extreme hardship to a U.S. citizen child or LPR child cannot form the basis of an application for a provisional unlawful presence waiver. To learn more about the concept of extreme hardship, please see our articles on extreme hardship in general [see article] and the BIA’s important precedent decision in the Matter of Cervantes, 22 I&N Dec. 560 (BIA 1999) [PDF version] [see article].

8 C.F.R. 212.7(e)(4) lists cases, not withstanding 8 C.F.R. 212.7(e)(3) (discussed in the above passage), where an alien would be ineligible to apply for a provisional unlawful presence waiver (see 8 C.F.R. 212.7(e)(4)(i)-(vi)):

If the alien is under the age of 17;
If the alien does not have a pending case before the DOS based on an approved immigrant visa petition for which the DOS processing fee has been paid or based on selection by the DOS to participate in the Diversity Visa program for the fiscal year for which the alien registered;
If the alien is in removal proceedings in which no final order of removal has been entered (unless the removal proceedings are administratively closed and have not been re-calendared at the time of the filing of the application for a provisional unlawful presence waiver);
If the alien is subject to an administratively final order of removal, deportation, or exclusion under any provision of the law (including an in absentia order under section 240(b)(5) of the INA) unless the alien has already filed and had approved a Form I-212, Application for Permission to Reapply for Admission;
If the Customs and Border Protection (CBP) or Immigration and Customs Enforcement (ICE) reinstates a prior order of removal under section 241(a)(5) of the INA [see article] before the filing of an application for a provisional unlawful presence waiver or while the application is pending; or
If the alien has a pending application with the USCIS for LPR status.

Of note, applicants who are subject to administratively final orders of removal must first obtain permission to reapply for admission before applying for a provisional unlawful presence waiver. The USCIS does not permit concurrent filing of the Form I-601A and the Form I-212.

Filing and Application Process

8 C.F.R. 212.7(e)(5)(i) explains that the alien must file a Form I-601A with the USCIS in accordance with the form instructions. The Form I-601A instructions will list the requisite evidence and the required application fee. 8 C.F.R. 212.7(e)(5)(ii)(A)-(F) lists situations in which a Form I-601A will be returned:

A. If the alien fails to pay the correct filing fee;
B. If the alien fails to sign the application;
C. If the alien fails to provide his or her family name, domestic home address, and date of birth;
D. If the alien is under the age of 17;
E. If the alien does not include evidence of: An approved immigrant visa petition; Selection by the DOS to participate in the Diversity Visa Program for the fiscal year for which the alien registered; or Eligibility as a derivative beneficiary of an approved immigrant visa petition or of an alien selected for participation in the Diversity Visa Program;
F. If the alien fails to provide evidence that he or she paid the visa processing fee to DOS for the application upon which his or her approved visa petition is based, or, in the case of a diversity visa immigrant, that the alien was selected to participate in the Diversity Visa Program for the fiscal year for which he or she registered.

Under 8 C.F.R. 212.7(e)(6)(i), an applicant will be required to provide biometrics to the USCIS as specified on the instructions for the Form I-601A. Under 8 C.F.R. 212.7(e)(6)(ii), if an applicant fails to appear for biometric services, his or her application will be considered abandoned. There is no appeal from an abandonment denial for failure to appear for biometrics.

Burden of Proof and Notice of Decision

Under 8 C.F.R. 212.7(e)(8), the alien will carry the burden of proof for establishing, by a preponderance (weight) of the evidence, that he or she is eligible for an unlawful presence waiver under section 212(a)(9)(B)(v). USCIS has the discretion to approve or deny the application, and it may deny the application without issuing a request for evidence or a notice of intent to deny. Under 8 C.F.R. 212.7(e)(11), there is no administrative appeal from the denial of an application for a provisional unlawful presence waiver.

Under 8 C.F.R. 212.7(e)(9), the USCIS will notify the alien and his or her representative of its decision. The USCIS may notify the DOS of the denial of the application. The denial of an application for a provisional unlawful presence waiver will be without prejudice to a subsequent application for an unlawful presence waiver. Provided that the alien remains eligible, he or she may apply for another provisional unlawful presence waiver or for an unlawful presence waiver from overseas after the DOS determines the alien’s admissibility and eligibility for an immigrant visa.

Under 8 C.F.R. 212.7(e)(10), an applicant may withdraw his or her application at any time before the USCIS reaches a final decision. If the applicant withdraws his or her application, USCIS will notify the applicant and his or her representative when the case is formally withdrawn. The decision to withdraw the application will not prejudice asubsequent application.

After Approval of Application

Under 8 C.F.R. 212.7(e)(12)(i), an approved application for a provisional unlawful presence waiver does not take effect until:

A. The alien departs from the United States;
B. The alien appears for an immigrant visa interview at a U.S. Embassy or consulate; and
C. The alien is determined to be otherwise eligible for an immigrant visa by the DOS in light of the approved provisional unlawful presence waiver.

8 C.F.R. 212.7(e)(12)(iii) explains that the provisional unlawful presence waiver only applies to inadmissibility under section 212(a)(9)(B) for unlawful presence and only for purpose of the immigrant visa application it was based on. It is not a general waiver of inadmissibility of the 3- or 10-year bar.

Under 8 C.F.R. 212.7(e)(13), the USCIS has discretion to reopen and reconsider its decision to grant a provisional unlawful presence waiver at any time.

Under the following circumstances listed in 8 C.F.R. 212.7(e)(14), a petition will be automatically revoked:

If the DOS denies the immigrant visa application after completion of the immigrant visa based on a finding that the applicant is ineligible to receive an immigrant visa for any reason but for inadmissibility under section 212(a)(9)(B)(i)(I)(i)-(iv) of the INA that was covered by the provisional unlawful presence waiver (however, this does not prevent the alien from applying for a waiver of inadmissibility for unlawful presence overseas or for relief from inadmissibility for any other applicable ground);
If the immigrant visa petition associated with the provisional unlawful presence waiver is revoked, withdrawn, or rendered invalid (but not otherwise reinstated for humanitarian reasons or converted to a widow or widower petition);
The immigrant visa registration is terminated and has not been reinstated in accordance with section 203(g) of the INA; or
The alien enters or attempts to reenter the United States without inspection and admission or parole at any time between the filing of the provisional unlawful presence waiver application and when the provisional unlawful presence waiver takes effect.

Under the previous rules for provisional unlawful presence waivers, the USCIS could deny an application if it had a “reason to believe” that the alien was inadmissible on grounds other than unlawful presence. USCIS has abandoned the reason to believe standard in the new rule, and will now only consider whether the applicant for a waiver meets his or her burden for demonstrating extreme hardship to a qualifying relative and whether he or she merits a favorable exercise of discretion. However, the USCIS will revoke the provisional unlawful presence waiver if the DOS denies the application for a visa based on a different ground of inadmissibility. In such a case, the applicant for a visa would still be able to seek an unlawful presence waiver in conjunction with any other forms of relief while overseas.

New Rules on Administrative Closure

In Matter of Castro Tum, 27 I&N Dec. 271, 287 (A.G. 2018) [see section], Attorney General Jeff Sessions held that the portions of the DHS provisional unlawful presence waiver regulations referring to administrative closure do not confer authority on either immigration judges or the Board of Immigration Appeals (BIA) to grant administrative closure because an individual has been granted a provisional unlawful presence waiver. Here, it is important to note that immigration judges and the BIA are officers of the Department of Justice, rather than the DHS, and exercise authority delegated by the Attorney General. In Matter of S-O-G & F-D-B, 27 I&N Dec. 462, 467-68 (A.G. 2018) [see section], Attorney General Sessions vacated a BIA decision affirming the termination of removal proceedings for a respondent who had been granted a provisional unlawful presence waiver. Here, he reiterated that the only grounds for administrative closure are those explicitly specified in statute and in the Attorney General’s regulations.

Conclusion: Provisional Unlawful Presence Waivers

The new rules for provisional unlawful presence waivers dramatically expand the class of persons eligible to apply for waivers. Furthermore, the USCIS’s decision to stop using the “reason to believe” standard will make it somewhat easier to gain approval for a provisional unlawful presence waiver, although it does not change the requirements for ultimately obtaining a visa. In general, provisional unlawful presence waivers are designed to streamline waiver processing and to promote family unity by reducing the amount of time certain applicants for immigrant visas will have to spend overseas. However, it is important to remember that a provisional unlawful presence waiver does not confer immigration benefits or take effect until an immigrant visa application is ultimately approved by the DOS. Before seeking a provisional unlawful presence waiver, the alien should consult with an experienced immigration attorney for a full assessment of his or her immigration situation.