Hope for Immediate Relative Beneficiaries of I-130 Petitions Subject to the Unlawful Presence Bar Found in INA § 212(a)
As of January 09, 2012, USCIS delivered promising news via a Proposed Rule in Volume 77, Issue No.55 of the Federal Register. If you are currently an Alien Beneficiary of an I-130 Petition, and are subject to the three (3) or ten (10) year unlawful presence bar(s) for being in the U.S. for more than 180 days under INA § 212(a), this newly announced Proposed Rule may greatly reduce the amount of time that you and your immediate relative(s) will be separated from one another. In the Proposed Rule, USCIS has stated that this is a “notice of intent” to grant “Provisional Waivers of Inadmissibility for Certain Immediate Relatives of U.S. Citizens.” Below, is a summary of the essential parts of this newly Proposed Rule.
Framework for USCIS’s Newly Proposed Rule Regarding Provisional Waivers of Inadmissibility
This Proposed Rule is aimed at modifying the filing and adjudication of certain waivers of inadmissibility. The only ground of inadmissibility that this new Proposed Rule affects, is those alien’s present in the U.S., who are subject to the unlawful presence bars of three (3) or ten (10) years in INA § 212(a). This new Proposed Rule, as it now stands will not affect or be applicable to alien’s facing any other ground of inadmissibility.
However, for those alien’s who may benefit from the new Proposed Rule, it will allow them to apply for provisional waivers under INA § 212(a)(9)(B)(v). Only aliens who are the beneficiaries of an I-130 Immediate Relative Petition, and who unequivocally demonstrate that extreme hardship will be suffered by their immediate relative in the U.S., such as their spouse, or parent, and other qualifying U.S. citizen relative, not necessarily the petitioner, are eligible to apply for a provisional waiver pursuant to the Proposed Rule.
Extreme hardship to the “immediate relative and/or qualifying U.S. citizen relative” must be satisfied in order for USCIS to grant the alien the provisional waiver. Basically, USCIS must be satisfied that denial of the waiver will cause the immediate relative of the alien to suffer extreme hardship. Should the provisional waiver be granted by USCIS, it will only become effective once the alien departs the U.S. to embark upon Consular Processing.
As long as there is no other ground of inadmissibility, the Consular Officer at the designated embassy abroad, will grant the alien his/her visa to return to the U.S. for permanent residence.
The Proposed Process under the New Proposed Rule for Provisional Waivers of Inadmissibility
Per the new Proposed Rule, the alien will file the I-601 Waiver Form only with USCIS. Upon approval of the I-601 Waiver by USCIS, the Department of State will be notified of the approval by USCIS. Once the Department of State receives the approval, the alien must depart the U.S., making the waiver effective, and then the Consular Officer abroad will make the formal decision regarding inadmissibility. However, should another ground of inadmissibility exist, the waiver will be denied.
What will be the Overall Effect of this Newly Proposed Rule by USCIS?
Essentially, USCIS’s underlying purposes regarding this newly Proposed Rule includes reducing the period of separation for immediate relatives from the alien beneficiary of an I-130. Should this Proposed Rule become effective, it will also limit the role of the Department of State (DOS) in granting/denying waivers. Cases will not be shuffled back and forth between USCIS and DOS, as USCIS will solely be making the decision regarding the provisional waiver. DOS will only be involved in issuing the visa, so long as no other inadmissibility ground is present. Additionally, this process will reduce the costs the U.S. government expends in transferring cases between agencies.
This new Proposed Rule regarding provisional waivers of inadmissibility may essentially affect numerous alien beneficiaries of I-130 petitions, and their immediate relatives, who must undergo Consular processing abroad. We hope that this Proposed Rule will be made effective in an equitable fashion, so that we may provide assistance to aliens and their immediate family members who are affected by it.
