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Provisional Unlawful Presence Waiver Process: Highlights of USCIS Stakeholder Engagement on January 2, 2013

On January 2, 2013, HIAS participated in the US Citizenship and Immigration Services (USCIS) teleconference on the final rule on the provisional unlawful presence waiver process. The provisional unlawful presence waiver aims to reduce the time U.S. citizens are separated from their immediate relatives (a spouse, unmarried children under 21, and parents) who are in the process of obtaining visas to become lawful permanent residents of the United States under certain circumstances. The final rule establishes a process that allows certain individuals to apply for a provisional unlawful presence waiver before they depart the United States to attend immigrant visa interviews in their countries of origin. The waiver is called “provisional” because it is not triggered until the applicant departs the United States. This new process will be effective on March 4, 2013, and HIAS will continue to alert you when more information about the filing process becomes available.

USCIS Director Alejandro Mayorkas described the process of applying for provisional waivers and answered questions from stakeholders. Here are the highlights of this engagement:

  • The new rule allows qualified immediate relatives of U.S. citizens who are barred from adjusting their status to permanent residents in the United States by statutory 3-year or 10-year bars due to unlawful presence in the United States to apply for a provisional waiver before leaving for an immigrant visa consular interview in their home countries.
  • To qualify for this discretionary waiver, applicants must meet certain criteria:

    1. Be 17 years of age or older
    2. Be an immediate relative of a US citizen (spouse, unmarried child under 21, or parent)
    3. Have an approved I-130, Petition for Alien Relative, or I-360, Petition for Amerasian, Widow(er), or Special Immigrant
    4. Have a case pending with the Department of State (DOS) and have paid processing fees to DOS
    5. Be able to demonstrate extreme hardship to the U.S. citizen spouse or parent if the applicant is denied admission to the United States (please note that if the applicant is a beneficiary of an I-130 petition filed by an adult U.S. citizen child, the applicant would need to demonstrate extreme hardship to another U.S. citizen relative who is his/her spouse or parent; otherwise, such applicant will be ineligible for a waiver)
    6. Be inadmissible only on account of unlawful presence (e.g., cannot be inadmissible due to criminal or health issues)
    7. Be present in the U.S. to file and provide biometrics
    8. Must NOT be scheduled for an immigrant visa interview prior to the date of publication of the final rule (1/3/2013)
  • The new rule does not alter how USCIS determines “extreme hardship.” (There is no legal definition of “extreme hardship,” and the determination is discretionary; extreme hardship has been described as harm greater than the normal hardships the qualifying family member can be expected to experience if the applicant is denied admission. Each case is considered on its own merit, and the entire range of factors concerning hardship are to be considered cumulatively; factors considered by USCIS include but are not limited to family ties to the foreign country, country conditions there, significant health conditions and availability of treatment in a foreign country, financial impact, the impact of separation, etc.)
  • USCIS will publish a new form, Form I-601A, Application for a Provisional Unlawful Presence Waiver, for individuals to use when applying for a provisional unlawful presence waiver under the new process. It will become available by the implementation date of the final rule (3/4/2013).
  • USCIS will reject applications received before 3/4/13.
  • The processing time for an I-601A will depend on the volume of applications.
  • The cost of an I-601A application will be $585 for I-601A plus an $85 biometrics fee.
  • Under the new provisional waiver process, immediate relatives must still depart the United States for the consular immigrant visa process even through they can obtain a provisional waiver prior to their departure.
  • Individuals who file Form I-601A must notify the Department of State’s National Visa Center that they are or will be seeking a provisional waiver from USCIS.

USCIS received over 4,000 comments to the proposed rule. During the teleconference, Director Mayorkas highlighted the following changes to the provisional rule made based on received comments:

  • Applicants will have more than one opportunity to file an I-601A application (e.g., after denial or withdrawal), provided the person still meets all immigrant visa requirements.
  • Applicants in removal proceedings will be eligible to file an I-601A when their proceedings are administratively closed or terminated.

Additionally, USCIS in consultation with DOS will consider expanding the process to other immigrant categories.

For more information, please see the USCIS website.

USCIS to Expedite Review for Certain Cases Affected by Specific Administrative Inaccuracies

On April 4, 2012, U.S. Citizenship and Immigration Services (USCIS) announced the establishment of an expedited process for reviewing and correcting decisions resulting from certain administrative errors. Customers may request an expedited review of their case and correction of the decision where data entry and/or an administrative error resulted in a denial or rejection of their petition or application.

A customer or his or her authorized representative may contact the National Customer Service Center (NCSC) at 1-800-375-5283 to request that an expedited service request be created if he or she believes that an adverse adjudicative action fits within the criteria listed below:

  1. USCIS issued an adverse decision based solely on a customer’s failure to respond to a Request for Evidence (RFE), Notice of Intent to Deny (NOID), or Notice of Intent to Revoke (NOIR); and there is documentary evidence that the customer responded to the RFE, NOID, or NOIR, and USCIS received the response in a timely fashion.
  2. USCIS issued an adverse decision based solely on a customer’s failure to respond to an RFE, NOID, or NOIR; and USCIS determines there is evidence in a USCIS system that the RFE, NOID, or NOIR was not sent to the petitioner/applicant or, if there is a valid Form G-28 on file, to the attorney or representative of record.
  3. USCIS issued an adverse decision based solely on a customer’s failure to appear at a biometrics appointment or failure to respond to an RFE, NOID, or NOIR, and USCIS determines there is evidence that the customer properly submitted a change of address prior to the issuance of the RFE, NOID, NOIR, or biometric appointment notice; however, USCIS sent the RFE, NOID, NOIR, or biometric appointment notice to a previous or improper address.
  4. USCIS issued an adverse decision based solely on a customer’s failure to appear at a biometrics appointment, and there is documentary evidence that the customer attended the appointment or made a valid, timely request that it be rescheduled.

Once USCIS has received an expedited review request from an applicant or petitioner, the agency will make every effort to take action on the request within 5 business days. The applicant should receive a notification within 5 business days if there is a delay in the review process. This process and any customer submissions relating to this expedited case review process does not replace, change, circumvent, or affect any rights of USCIS customers or USCIS in the administrative appeals process. This process also will not impact time frames for appeals or motions, fix errors made by a petitioner or his or her authorized representative, create an independent right of action, or address errors not included in the specific administrative errors listed above.

USCIS will review each request on a case-by-case basis. Evidence will be requested to prove that the applicant/petitioner provided the requested documentation in a timely manner. The clock for the Motion to Consider is not affected by this process. If the USCIS records indicate that RFE, NOID, or other requests have been mailed to the applicant’s correct address, USCIS considers their obligations met.

To view the Administrative Errors Memo, please click here.
To view the USCIS Update, please click here.

Extension of Temporary Protected Status for Hondurans and Nicaraguans and Re-registration

Secretary of Homeland Security Janet Napolitano has extended Temporary Protected Status (TPS) for eligible nationals of Honduras and Nicaragua for an additional 18 months, beginning January 6, 2012 and ending July 5, 2013.

Temporary Protected Status is an immigration status that allows people from certain countries to remain in the United States for a limited period of time. TPS is granted to people from countries where conditions are so unsafe or difficult that it might be dangerous for them to return. TPS for Honduras and Nicaragua was granted on January 5, 1999 by the U.S. Attorney General because of the environmental disaster that resulted from Hurricane Mitch. The Secretary of Homeland Security has determined that an 18-month extension is warranted because there continues to be a substantial, but temporary, disruption of living conditions in Honduras and Nicaragua resulting from Hurricane Mitch, and Honduras and Nicaragua remain unable, temporarily, to adequately handle the return of their nationals.

Current Honduran and Nicaraguan beneficiaries seeking to extend their TPS status must re-register during the 60-day re-registration period that runs from November 4, 2011 through January 5, 2012. U.S. Citizenship and Immigration Services (USCIS) encourages beneficiaries to register as soon as possible when the 60-day re-registration period begins. Applications were not accepted before November 4, 2011.

To re-register, current TPS beneficiaries must submit an Application for Temporary Protected Status, Form I-821. TPS re-registrants must also submit an Application for Employment Authorization, Form I-765, regardless of whether they are applying for an EAD. Re-registrants do not need to pay the Form I-821 application fee, but they must submit the biometric services fee or a fee waiver request if they are age 14 or older.

TPS re-registrants applying for an EAD must submit the Form I-765 application fee or a fee waiver request.

TPS applicants may request that USCIS waive any or all fees by filing a Request for Fee Waiver, Form I-912, or by submitting a personal letter.

Failure to submit the required filing fees or a properly documented fee waiver request will result in the rejection of the TPS application.

To read a detailed update about TPS for Honduras click here.
To read a detailed update about TPS for Nicaragua click here.