More details on new provisional waiver to the law of punishment

This morning reported that the U.S. Citizenship and Immigration Services (USCIS) has finally released the final regulation to implement the modification of the process for obtaining a waiver under the "punishment law". Tomorrow it will be officially published in the Federal Register (Federal Register) and the new procedures will come into effect on March 4, 2013.

In the afternoon, I participated in a phone call with senior government officials, including USCIS Director Alejandro Mayorkas, who further explained how the new regulations will be implemented. According to what they indicated, the process will be difficult and not everyone will be eligible to apply for this immigration benefit.

The new regulations will help thousands of U.S. citizens who have undocumented immediate family members - parents, spouses and unmarried children under the age of 21 - when they apply for permanent residency.

The new regulations will allow undocumented immediate family members of citizens applying for permanent residency to file an application for a waiver of the penalty law and find out if they will be approved before they leave the United States. This would reduce the time of family separation while the process is underway.

The process will work as follows: USCIS will examine the case. If it deems it valid, it will grant a provisional waiver. The undocumented family member will then be required to travel to his or her home country and be interviewed by a consular officer. If no problems are detected, the permit will be confirmed and the person will be able to return to the U.S. on an immigrant visa.

Under current law, parents, spouses or unmarried children under the age of 21 of alien U.S. citizens who entered the country legally or illegally and are currently undocumented and not covered by 245(i) are eligible to apply for permanent residence, but must leave the country to seek a visa in their home country. The problem is that if they were in the country illegally for more than 180 consecutive days after April 1, 1997, they are subject to the "penalty law" which prohibits them from re-entering the United States for a period of 3 to 10 years. There are exceptions.

The government may grant a waiver if the citizen demonstrates that separation from his or her family member would cause "extreme hardship," including economic, health, or humanitarian hardship.

The new regulation allows for a provisional waiver of undocumented presence if the person:

1. Is physically present in the United States.

2. You are at least 17 years of age.

3. Is the beneficiary of an approved immigrant visa petition (I-130) which classifies the person as an immediate relative of a U.S. citizen.

4. You are actively working on the process of applying for an immigrant visa and have already paid the U.S. Department of State (USDOS) the fee for processing the immigrant visa.

5. You have no other misdemeanors that would make you inadmissible to immigrate to the United States.

6. You can show that denying permanent residence would result in extreme hardship to a spouse or parent who is a U.S. citizen.

An immediate relative of a citizen will NOT be eligible to apply for a provisional waiver if the person:

1. You have an application pending with USCIS for adjustment of status to lawful permanent resident.

2. You are in removal proceedings unless the case is administratively closed by an immigration judge and you do not have any pending hearings before applying for a provisional waiver of the penalty law.

3. Is subject to a final order of deportation or reinstatement of a previous removal order.

4. May be declared inadmissible at the time of the consular interview for reasons other than undocumented presence.

5. You have already been scheduled before January 3, 2013 for an immigrant visa interview at the U.S. Embassy or Consulate abroad.

Other important facts about the new regulations:

1. It will only benefit immediate family members of citizens, not permanent residents.

2. People who are abroad and who have already applied for pardon from the punishment law will not be able to take advantage of the new proposal.

All applicants for provisional waivers must demonstrate "extreme hardship" to a U.S. citizen spouse or parent, whether economic, health or humanitarian, among others.

4. All applicants will be required to provide fingerprints for a criminal background check. Generally, USCIS will not interview the provisional waiver applicant unless necessary.

5. Form I-601A, Application for Provisional Unlawful Presence Waiver, will be used. There will be a fee of $585 plus $85 for fingerprints. There will be no fee waiver for this process.

6. Persons who must apply for permission to re-enter the U.S. after having been deported from the country are not eligible to apply for a provisional waiver.

7. Persons who have been granted a provisional pardon may not apply for permanent residence in the U.S.

8. USCIS recommends that anyone who already has an interview for an immigrant visa abroad keep their appointment. If they do not show up for their appointment, their case may be cancelled. Consult with an immigration attorney before proceeding.

9. The filing or approval of a provisional waiver does not permit the following:

  • Provide interim benefits, such as a work permit or the ability to travel outside the country (Advance Parole).
  • Provide legal status.
  • Stop the accumulation of illegal presence.
  • Provide protection against deportation.
  • Eliminate the requirement to leave the United States in search of an immigrant visa.
  • To ensure the issuance of visas or admission to the United States.

10. Approval or denial of an application for a provisional waiver is within the sole discretion of USCIS. If USCIS denies an application for a provisional waiver, the applicant may NOT appeal USCIS' decision. However, USCIS reserves the right to reconsider and reopen a case on its own if circumstances warrant.

11. If your application for a provisional waiver is denied, you may be placed in removal proceedings if USCIS deems it appropriate. Generally, people who have criminal records and are considered a danger to the national security of the country, and people who have prior deportations are a high priority for deportation.

12. Under the proposal, a provisional waiver that is approved will remain valid as long as the immigrant visa petition (I-130 or I-360) is not revoked. If the USDOS cancels the visa registration process or denies the visa petition, the waiver is revoked.

13. Illegally re-entering the United States after the provisional waiver has been approved automatically revokes the waiver approval.

14. All persons who do NOT qualify for a provisional waiver must travel out of the country to apply for permanent residency and apply for a waiver to re-enter the U.S.

It is of utmost importance to consult with an immigration attorney before beginning the process for permanent residency to be sure that you meet all the requirements. Do not go to notarios, immigration consultants, paper fillers or multi-services. If you have questions, call my office at 213-537-8472 to schedule a private consultation. The consultation is not free.