Immigration Topics

Permanent Resident:
A Permanent Resident is an alien admitted to the United States as a lawful permanent resident. Permanent residents are also commonly referred to as immigrants; however, the Immigration and Nationality Act (INA) broadly defines an immigrant as any alien in the United States, except one legally admitted under specific nonimmigrant categories (INA section 101(a) (15)). An illegal alien who entered the United States without inspection, for example, would be strictly defined as an immigrant under the INA, but is not a permanent resident alien. Lawful permanent residents are legally accorded the privilege of residing permanently in the United States. They may be issued immigrant visas by the Department of State overseas or adjusted to permanent resident status by U.S. Citizenship and Immigration Services in the United States.

Consular Processing:
If an individual is in another country, he or she may apply for a visa or green card in the U.S. embassy of his or her home country. Attorney Rhoda Domingo is able to facilitate all of the paperwork and applications and contact the consular officers to facilitate approval of the application.

Criminal Deportation/Removal Defense:
Immigrants in the United States who have been charged or convicted of a crime can be subsequently placed in deportation or removal proceedings.  Since September 30, 1996, with the passage of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, (Pub. L. No. 104-208, 110 Stat. 3009 "IIRAIRA"), the rights of aliens in the United States have been severely curtailed when past criminal conduct is a factor. Crimes that previously did not cause immigration consequences can now trigger deportation proceedings against an alien. Crimes as serious as murder, and as minor as shoplifting, can result in deportation.

There are three agencies, which may have jurisdiction or input into a deportation or removal proceeding:

  • USCIS – U.S. Citizenship and Immigration Services (for green cards and citizenship)
  • ICE – U.S. Immigration and Customs Enforcement(for deportations and investigations)
  • CBP – U.S. Customs and Border Protection(for airport and border crossing issues)

Non-Criminal Deportation/Removal Defense:
Deportation (or removal) occurs when an alien is found to have violated certain immigration or criminal laws, consequences being that the alien forfeits his or her right to remain in the U.S., and is usually barred from returning.

If the DHS believes that you should be removed or deported from the United States, or an individual is found "inadmissible" to the United States, the DHS will issue a piece of paper called a "Notice to Appear" or "NTA" which initiates court proceedings to determine if an individual is removable, deportable or inadmissible from the United States.  An Immigration Judge presides over these court proceedings which are held at US Immigration Courts across the country. These are formal court hearings and should be taken very seriously as your immigration record may be permanently affected and you can be physically deported from the United States. Only an Immigration Judge can determine if you are removable, deportable or inadmissible and whether you have relief from removal. If the Immigration Judge denies relief, you may appeal to the Board of Immigration Appeals which has jurisdiction over decisions made by Immigration Judges.

Employment Based Cases:
U.S. immigration law is consciously designed to serve the interests of both employers and workers. There are many avenues through which employers can petition for foreign-born employees. Our immigration laws protect U.S. workers by restricting employment-based immigration to persons whose skills and expertise are otherwise unavailable in the domestic workforce.

A person seeking to permanently enter the U.S. workforce through employer sponsorship is not admissible unless the Department of Labor certifies that he or she will not displace nor adversely affect the wages and working conditions of U.S. workers who are similarly employed. The employer must file an application with DOL establishing that both of these criteria have been met.

Family Based Visas/ Fiancée Visas:
Fathers, daughters, mothers, sons, fiancés and other relatives can enter the United States with either an immigrant or non-immigrant visa. There are many options that are available. Parents, spouses and unmarried children under 21 years of age of U.S. Citizens are considered immediate relatives and are not placed under a quota system. The others are placed into preference order which determines who is given priority entry into the United States:

  • First Preference: Unmarried, adult (21 years of age or older) sons and daughters of U.S. citizens.
  • Second Preference: Spouses of lawful permanent residents and the unmarried sons and daughters of lawful permanent residents.
  • Third Preference: Married sons and daughters of U.S. citizens.
  • Fourth Preference: Brothers and sisters of adult U.S. citizens.

This process can take a very long time (several years) depending upon the preference ranking. The most current online visa bulletin will give those who are waiting an idea of how long they must wait for their immigration application or green card to be granted.

Fiancée Visas:
For those seeking to bring a fiancé or fiancée to the United States, a K-1 visa application will allow the fiancé (e) to enter the United States. Both parties must be unmarried, legally divorced or annulled, or widowed.  The marriage must take place within 90 days of entry into the United States.

H, L, E, Visas:
Non-immigrant work visas (H, L, O, P, Q) require a CIS-approved petition from a U.S. sponsor. Treaty-trader or treaty-investor visas (E1/E2) can be applied for directly by the individual as long as he or she is from a country with which the United States has a treaty.

The most common work-related visas are H-1B Visas and L1 Visas. The H-1B is a way to bring foreign-born professionals to the United States for a period of up to six years. A sponsor is required and the employment may only start up when the new employee is in the United States. The L1- Visa is for people working for an employer abroad for one year in a related business entity in a manager, executive or specialized knowledge staff capacity, and who will come to the United States to continue providing services for his or her employer. Visas can include:

  • B1 Temporary visitor for business
  • B2 Temporary visitor for pleasure
  • B1/B2 Temporary visitor for business or pleasure
  • E1 Treaty trader, spouse and children
  • E2 Treaty investor, spouse and children
  • H1B (petition-based) Temporary worker in a specialty occupation
  • H1C (petition-based) Registered nurses
  • H2A (petition-based) Temporary worker performing agricultural services unavailable in the United States
  • H2B (petition-based) Temporary worker performing non-agricultural services unavailable in the United States H3 (petition-based) Industrial trainee
  • H4 (petition-based) Dependent of H1, H2 or H3
  • L1 (petition-based) Intra-company transferee (executive, managerial, and specialized personnel continuing employment with an international firm or corporation)
  • L2 (petition-based) Dependent of L1
  • O1 (petition-based) Aliens with extraordinary ability in sciences, arts, education, business or athletics
  • O2 (petition-based) Aliens accompanying and assisting the above in a professional capacity
  • O3 (petition-based) Dependent of O1 or O2
  • P1 (petition-based) Athletes and entertainers for a specific competition or performance
  • P2 (petition-based) Athletes and entertainers participating in reciprocal exchange program
  • P3 (petition-based) Artists and entertainers performing under a program that is culturally unique
  • P4 (petition-based) Dependent of P1, P2 or P3
  • Q (petition-based) International cultural exchange visitor

Board of Immigration Appeals/Federal Court Litigation:
The Board of Immigration Appeals (BIA or Board) is the highest administrative body for interpreting and applying immigration laws.  The Board has been given nationwide jurisdiction to hear appeals from certain decisions rendered by Immigration Judges and by District Directors of the Department of Homeland Security (DHS) in a wide variety of proceedings in which the Government of the United States is one party and the other party is either an alien, a citizen or a business.  In addition, the Board is responsible for the recognition of organizations and accreditation of representatives requesting permission to practice before DHS, the Immigration Courts and the Board.

Decisions of the Board are binding on all DHS officers and Immigration Judges unless modified or overruled by the Attorney General or a Federal court.  All Board decisions are subject to judicial review in the Federal courts.  The majority of appeals reaching the Board involve orders of removal and applications for relief from removal.  Other cases before the Board include the exclusion of aliens applying for admission to the United States, petitions to classify the status of alien relatives for the issuance of preference immigrant visas, fines imposed upon carriers for the violation of immigration laws, and motions for reopening and reconsideration of decisions previously rendered.

While most immigration matters involve administrative court proceedings at the US Immigration Courts and the Board of Immigration Appeals, federal courts such as the Court of Appeals and the U.S. District Courts have jurisdiction over very significant immigration matters.

Employment Visas/Labor Certification:
Companies that need qualified workers, but are unable to find enough U.S. workers to fill those positions, can use the labor certification process to sponsor workers from other countries. In most cases, these workers have specific medical skills, technical ability and bilingual experience and work in occupations like engineering, medicine, teaching, computer science or research.

It is critical that each application is meticulously prepared, all deadlines are met, all references are verified, data is exact and everything documented is in accordance with all current laws.  The types of immigration law work employees and employers may require can include, but is not limited to:

  • PERM Application
  • E-1/E-2 – Treaty Country Investor Visas
  • EB1 - National Interest Waiver, Alien Of Extraordinary Ability, Outstanding Professor Or Researcher, Multinational Executive
  • EB2 - Member Of Profession Holding An Advanced Degree Or Alien Of Exceptional Ability
  • EB3 - Skilled Worker Or Professional
  • EB4 - Any Other Worker
  • EB5 - Immigrant Investor
  • H-2A – Seasonal Worker Visas
  • H-2B - Other Seasonal Work Visas
  • L-1 - Inter-Company Transferees Visas

Naturalization:
Naturalization is the process by which a foreign person becomes a U.S. citizen. Almost everyone who goes through naturalization must first have held a green card for several years.  A naturalized U.S. citizen has virtually the same rights as a native-born American citizen.

Naturalization is the process by which U.S. citizenship is conferred upon a foreign citizen or national after he or she fulfills the requirements established by Congress in the Immigration and Nationality Act (INA).  The general requirements for administrative naturalization include:

  • a period of continuous residence and physical presence in the United States;
  • residence in a particular USCIS District prior to filing;
  • an ability to read, write and speak English;
  • a knowledge and understanding of U.S. history and government;
  • good moral character;
  • attachment to the principles of the U.S. Constitution; and,
  • favorable disposition toward the United States.

All naturalization applicants must demonstrate good moral character, attachment and favorable disposition. The other naturalization requirements may be modified or waived for certain applicants, such as spouses of U.S. citizens.

Political Asylum:
Political Asylum may be granted to people who are already in the United States and are unwilling or unable to return to their home country because of persecution or a well-founded fear or persecution on account of race, religion, nationality, membership in a particular social group or political opinion. As of 1996, persons in the United States have one calendar year to apply for political asylum, unless the conditions of the country of persecution change or there are exceptional circumstances.

Waivers of Inadmissibility:
An Application for a Waiver of Inadmissibility is an application for legal entry to the United States made by an individual who is otherwise inadmissible on one or more grounds.  The application is submitted to U.S. Citizenship and Immigration Services (USCIS), a Bureau of the U.S. Department of Homeland Security (DHS).

Employment Authorization:
U.S. employers must check to make sure all employees, regardless of citizenship or national origin, are allowed to work in the United States. If you are not a citizen or a lawful permanent resident, you may need to apply for an Employment Authorization Document (EAD) to prove you may work in the United States.

USCIS issues Employment Authorization Documents (EAD) in the following categories:

  • EAD:  This document proves you are allowed to work in the United States.
  • Renewal EAD:  You should apply for a renewal EAD six months before your original EAD expires.
  • Replacement EAD:  This document replaces a lost, stolen or mutilated EAD.  A replacement EAD also replaces an EAD that was issued with incorrect information, such as a misspelled name.
  • Interim EAD:  If USCIS does not approve or deny your EAD application within 90 days (within 30 days for an asylum applicant; note: asylum applicants are eligible to file for EADs only after waiting 150 days from the date they filed their properly completed original asylum applications), you may request an interim EAD document.
  • The specific categories that require an Employment Authorization Document include (but are not limited to) asylees and asylum seekers; refugees; students seeking particular types of employment; applicants to adjust to permanent residence status; people in or applying for temporary protected status; fiancés of American citizens; and dependents of foreign government officials.  Please see Form I-765 (Application for Employment Authorization) for a complete list of the categories of people who must apply for an Employment Authorization Document to be able to work in the United States.
  • If you are a U.S. citizen, you do not need an Employment Authorization Document.
  • If you are a lawful permanent resident or a conditional permanent resident, you do not need an Employment Authorization Document.  Your Alien Registration Card proves that you may work in the United States.
  • If you are authorized to work for a specific employer, such as a foreign government, you do not need an Employment Authorization Document.  Your passport and your Form I-94 (Arrival-Departure Record) prove that you may work in the United States.  Please see 8 CFR 274a.12(b), which provides a full list of the categories of people who do not need to apply for an EAD.

Temporary Protected Status:
Temporary Protected Status (TPS) is a temporary immigration status granted to eligible nationals of designated countries (or parts thereof). In 1990, as part of the Immigration Act of 1990 (“IMMACT”), P.L. 101-649, Congress established a procedure by which the Attorney General may provide TPS to aliens in the United States who are temporarily unable to safely return to their home country because of ongoing armed conflict, an environmental disaster, or other extraordinary and temporary conditions.  On March 1, 2003, pursuant to the Homeland Security Act of 2002, Public Law 107-296, the authority to designate a country (or part thereof) for TPS, and to extend and terminate TPS designations, was transferred from the Attorney General to the Secretary of Homeland Security.  At the same time, responsibility for administering the TPS program was transferred from the former Immigration and Naturalization Service (Service) to U.S. Citizenship and Immigration Services (USCIS), a component of the Department of Homeland Security (DHS).

During the period for which a country has been designated for TPS, TPS beneficiaries may remain in the United States and may obtain work authorization.  However, TPS does not lead to permanent resident status.  When the Secretary terminates a TPS designation, beneficiaries revert to the same immigration status they maintained before TPS (unless that status had since expired or been terminated) or to any other status they may have acquired while registered for TPS.  Accordingly, if an alien had unlawful status prior to receiving TPS and did not obtain any status during the TPS designation, the alien reverts to unlawful status upon the termination of that TPS designation.

TN Visas:
When the North American Free Trade Agreement (NAFTA) was implemented on January 1, 1994, a category for Mexican and Canadian professionals was created to allow for temporary entry into the United States.

Under the NAFTA, Mexican and Canadian professionals are now eligible for Trade NAFTA (TN) status.  Under TN status, Mexican and Canadian citizens in certain professions may enter the United States to work for a U.S. company on a temporary basis.  Eligible professionals may also work for Mexican and Canadian companies in the United States.

In order to qualify for TN status, the applicant must be intending to be involved in a profession listed in Appendix 1603.D.1 of NAFTA and the applicant must possess the required credentials to be considered a "professional”.  In most, but not all of the listed professions, a bachelor's degree or better is usually required.  However, the list of eligible professions also includes occupations which do not necessarily require a bachelor's degree as a minimum requirement.  Examples of these occupations are management consultants, hotel managers, librarians and graphic designers. The requirements for each of these categories appear in Appendix 1603.D.l of NAFTA.

I-130 Petition:
An I-130 is a Petition for Alien Relatives and it applies to mothers, fathers, sisters, brothers and children.  Parents, spouses and unmarried children under 21 years of age of U.S. Citizens are considered immediate relatives and are not placed under a quota system.  The others are placed into preference order which determines who is given priority entry into the United States:

  • First preference: Unmarried adult (21 years of age or older) sons/daughters of US citizens
  • Second preference:  Spouses of lawful permanent residents and unmarried sons and daughters of lawful permanent residents
  • Third preference:  Married sons and daughters of U.S. citizens
  • Fourth Preference:  Brothers and sisters of adult U.S. citizens

This process can take a very long time (several years) depending upon the preference ranking. The most current online visa bulletin will give those who are waiting an idea of how long they must wait for their immigration application or green card to be granted.

AlLA Practice Alert:
Provisional Unlawful Presence Waivers for Certain Immediate Relatives

AILA InfoNet Doc. No. 13012540 (Posted 1/25/13)

On January 3, 2013, U.S. Citizenship and Immigration Services (USCIS) published a final rule in the Federal Register, "Provisional Unlawful Presence Waivers of Inadmissibility for Certain Immediate Relatives," with an effective date of March 4, 2013.1 This rule allows certain immediate relatives of U.S. citizens (spouses, parents of adult U.S. citizens, and minor children)2 who are physically present in the United States to request a provisional waiver of the unlawful presence bars to admissibility under INA §2l2(a)(9)(B)(i) prior to traveling abroad for consular processing of their immigrant visa applications.

How Is The Rule Beneficial?

Under current law, a significant number of immediate relatives of U.S. citizens who are present in the United States are not eligible to apply for lawful permanent resident (LPR) status in the U.S. because they entered the country unlawfully. Instead, such aliens must depart the U.S. and request waivers of inadmissibility due to their prior unlawful presence during the overseas immigrant visa process, which often results in a lengthy separation from their U.S. citizen relative. Because of the heavy toll of separation and the uncertainty in the process, many immediate relatives of U.S. citizens forego the process of applying for LPR status and remain in the shadows.

USCIS expects that this new process will significantly decrease the amount of time that U.S. citizens are separated from their family members and will ultimately encourage more immediate relatives to seek an immigrant visa who are otherwise reluctant to travel abroad for an unknown period of time.

The approval of an application for a provisional waiver prior to the immediate relative's immigrant visa interview should, in most cases, allow the Department of State (DOS) consular officer to issue the immigrant visa without delay if there are no other grounds of inadmissibility and if the immediate relative is otherwise eligible for an immigrant visa.

Who Qualifies as an Immediate Relative?

For purposes of this rule, an immediate relative is the child or spouse of a U.S. citizen, or the parent of a U.S. citizen who is 21 years or older.3 This includes adult sons and daughters who remain classified as immediate relative "children" for immigration purposes under the Child Status Protection Act,4 and also includes qualified widow(er)s of U.S. citizens who self-petition on Form l-360. Though battered spouses of U.S. citizens are also included in the definition of immediate relative, they are generally eligible for adjustment of status in the United States, regardless of having entered without inspection or parole,5 and are unlikely to be affected by this rule.6

Immediate relatives DO NOT include (1) adult (21 or older) sons and daughters of U.S. citizens; (2) children and spouses of lawful permanent residents; (3) brothers and sisters of U.S. citizens; or (4) any other family relationship. USCIS has said, however, that it will consider expanding the availability of the provisional waiver process to other categories of individuals after assessing its effectiveness.7

What Criteria Must the Immediate Relative Meet to Qualify for a Provisional Waiver?

To qualify for a provisional unlawful presence waiver, the immediate relative must:

  • Be present in the United States at the time of filing the provisional waiver application and for biometrics collection;
  • Be inadmissible only under INA §212(a)(9)(B)(i) (unlawful presence) upon departure and at the time of the consular interview;
  • Qualify as an immediate relative under INA §201(b)(2)(A)(i);
  • Be the beneficiary of an approved I-130 immediate relative petition;
  • Have a case pending with DOS based on the approved I-130 immediate relative petition and have paid the immigrant visa processing fee;
  • Depart the United States to obtain an immigrant visa abroad; and
  • Demonstrate that the denial of a waiver of inadmissibility would result in extreme hardship to his or her U.S. citizen spouse or parents.8

What Factors Will Disqualify an Immediate Relative from a Provisional Waiver?

Notwithstanding the eligibility criteria listed in 8 CFR §212.7(e)(3),a provisional unlawful presence waiver will not be granted if:

  • USCIS has "reason to believe" that the alien may be subject to inadmissibility grounds other than unlawful presence. For example, inadmissibility due to criminal activity; fraud or misrepresentation; or entry, or attempted entry, without inspection following a prior period of unlawful presence in the U.S. in excess of one year;9
  • The alien is under the age of 17;
  • The alien does not have a case pending with DOS based on the approved I-130 immediate relative petition or has not paid the immigrant visa processing fee;
  • DOS "initially acted" to schedule the immigrant visa interview prior to January 3, 2013 for the approved immediate relative petition on which the provisional waiver is based, even if the interview was cancelled or rescheduled after January 3, 2013;
  • The alien is in removal proceedings, unless such proceedings have been administratively closed and not recalendared at the time of filing the provisional waiver application;
  • The alien is subject to a final order of removal, exclusion, or deportation, or is subject to reinstatement of a prior removal order under INA §241(a)(5); or
  • The alien has a pending application with USCIS for adjustment of status.10

My Client Is in Removal Proceedings but Is Otherwise Eligible for a Provisional Waiver. What Should I Do?

As noted above, an alien in removal proceedings is not eligible to apply for a provisional waiver unless those Proceedings were administratively closed and not recalendared at the time of filing the waiver application.11 If your client is eligible for a provisional waiver but is currently in removal proceedings, you should consider whether your client may want to pursue the I-601A in lieu of relief before the immigration judge.

If so, you will need to either contact DHS ICE for its position on administrative closure or termination, or alternatively, present a motion to administratively close to the immigration judge under Matter of Avetisyan.12 Whether the audience is DHS or EOIR, the motion to administratively close or terminate proceedings should be supported by evidence of your client's eligibility for a provisional waiver. If proceedings are terminated or administratively closed (with no future hearing date on the calendar) the alien can apply for a provisional waiver. Be aware that if the case is terminated instead of administratively closed, your client may no longer be eligible for an Employment Authorization Document (EAD) if it was based on an application for relief that was pending before the immigration court.

If the provisional waiver is granted, and proceedings were terminated, the alien can proceed abroad once the immigrant visa interview is scheduled. If the provisional wavier is granted and proceedings were administratively closed, you will then need to file a motion to recalendar and terminate or dismiss, attaching evidence of the provisional waiver approval.

The applicant should not depart the United States until proceedings are terminated or dismissed. 1f they do, they may experience delays in their immigrant visa processing or risk becoming ineligible for the immigrant visa based on another ground of inadmissibility.13

My Client has a Final Order of Removal. Is There Anything We Can Do?

An alien with a final order of removal is not eligible for a provisional unlawful presence waiver.14 Concurrent filing of a provisional waiver application (on Form I-601A) along with Form 1-212 is not permitted. However, an alien with a final order may file Form I-212 to obtain permission to reapply for admission after deportation or removal and an I-601 unlawful presence waiver in accordance with the regular process. It is unclear at this point in time whether an individual may apply for advance approval of Form I-212,15 and if successful, thereafter utilize the provisional waiver process instead of traditional filing.

What about People Who Have Already Started, but Not Completed, Consular Processing?

An alien is not eligible for the provisional waiver if DOS "initially acted" to schedule the immigrant visa interview prior to January 3, 2013.16 Note that the cut-off is the date on which the government scheduled the alien for an interview, not the actual date of the interview, The DOS National Visa Center (NVC) dates interview appointment letters on the day it schedules a case, so refer to the appointment letter to determine when NVC "initially acted" to schedule the interview.17 This bar applies even if:

  • The alien fails to appear for the interview;
  • The alien cancels the interview;
  • The alien requests that the interview be rescheduled.

There are two exceptions to this rule:

  • DOS terminates the immigrant visa registration and a new immediate relative petition is filed; or
  • The alien is the beneficiary of a new immediate relative petition filed by a different petitioner.18

When Can I Start Submitting Applications for Provisional Unlawful Presence Waivers?

USCIS will begin accepting applications for provisional unlawful presence waivers (Form I-601 A) on March 4, 2013.19 Please note that the applicant must already have an approved immediate relative 1-130 or I-360 petition, must have a case pending with DOS, and must have paid the DOS immigrant visa processing fee before submitting the application.20 Concurrent filing of a visa petition and provisional waiver is not allowed. 

Before applying for the I-60lA, the applicant must notify the NVC of his or her intent to seek a provisional unlawful presence waiver.21 If the DOS visa fee fees not yet been paid, notify the NVC of your client's intent to apply for a provisional waiver immediately after the fee is paid. If NVC has already scheduled your client's immigrant visa appointment, notify the immigrant visa processing post where the appointment has been scheduled before applying for the provisional waiver.22

How Do I Notify DOS that My Client Intends to Apply for a Provisional Unlawful Presence Waiver?

To notify the NVC, send an e-mail to NVCi601a@state.gov and:

  • Reference the NVC Case Number or USCIS Receipt Number in the subject line of the e-mail;
  • Provide the applicant's name and date of birth, and the petitioner's name and date of
    birth;
  • Provide the attorney of record's name, law firm, and address (if applicable);
  • Include a statement that the applicant is applying for a provisional waiver with USCIS.23

What Happens if the NVC Is Not Notified of the Intent to Apply for a Provisional Unlawful Presence Waiver?

By notifying the NVC of your client's intent to apply for a provisional waiver, you are instructing the NVC to not schedule the immigrant visa interview until USCIS has finished processing the provisional waiver application. If NVC is not notified, the interview may be scheduled at the consulate and processing of the immigrant visa application may be delayed.24

How Much Is the Filing Fee for a Provisional Unlawful Presence Waiver?

The filing fee for Form I-60lA is $585, plus $85 for biometrics.25 USCIS will not, as a matter of discretion, grant fee waivers for the provisional waiver application or for biometrics.26 1f the I-601A is withdrawn prior to adjudication, the filing fee will not be refunded.27

Form l-601A will be automatically rejected for failure to pay the correct filing fee ($585).28 If the correct filing fee is paid, but the biometrics fee is not, the applicant will be notified of the error and given an opportunity to correct the deficiency.29 USCIS will not, however, process or adjudicate applications until the biometrics fee is paid.30

Under What Circumstances Will USCIS Reject an Application for a Provisional Waiver?

A provisional waiver application will be automatically rejected by USCIS and returned to the applicant/attorney with the fees if:

  • The applicant fails to pay the correct filing fee ($585, see above);
  • The applicant fails to sign the provisional waiver application;
  • The applicant fails to provide his or her family name, domestic address) and date of birth;
  • The applicant is under the age of 17;
  • The applicant does not include evidence of an approved petition that classifies the alien as an immediate relative of a U.S. citizen;
  • The applicant fails to include a copy of the fee receipt evidencing that the alien has paid the DOS immigrant visa processing fee;
  • The applicant has indicated on the provisional unlawful presence waiver application that DOS initially acted to schedule the immigrant visa interview prior to January 3, 2013.31

What Should I Do if New Evidence of Hardship or Eligibility Arises After the Application Has Been Filed?

An individual with a pending I-60lA may supplement the application with additional materials at any time prior to adjudication.32 In addition, a provisional waiver application may be withdrawn prior to adjudication, and may be refiled, as long as the underlying case is still pending with DOS.33 The applicant must notify DOS that he or she intends to file a new Form 1-60lA.34

Will Provisional Unlawful Presence Waiver Applicants be Subject to an Interview?

Most provisional waiver applications will be adjudicated by the USCIS National Benefits Center (NBC), which does not conduct onsite interviews.35 To schedule an interview, the NBC will be required to transfer the file to the local office for scheduling which can take several months. To require this for every provisional waiver application would undermine the goals of the initiative, therefore, interviews will not be routinely required. However, USCIS has reserved its right to schedule provisional waiver interviews on a case-by-case basis.36

Will USCIS Issue a Request for Evidence or Notice of Intent to Deny Before Denying a Provisional Waiver?

USCIS will issue a Request for Evidence (RFE in any case where it is missing critical  information related to extreme hardship or whether the alien merits a favorable exercise of discretion, or to any issue helpful to its adjudication.37 USCIS will not, however, issue a Notice of Intent to Deny (NOID) a provisional waiver application.38

My Client's Provisional Waiver Application Was Denied. What's Next?

There is no administrative appeal of a denied I-60A.39 An individual whose provisional waiver application is denied may file a new Form I-601A with additional evidence to overcome the reasons for the denial.40 If your client elects to refile, the case must still be pending with DOS, and you must notify DOS of your client's intent to file a new Form I-601A.41 Alternatively, the client may follow the regular waiver process by filing Form I-601 after attending a visa interview abroad and being found inadmissible.42

Motions to reopen or reconsider a denied provisional waiver application are not permitted.43 USCIS, however, has reserved the authority to reopen and reconsider, on its own motion, an approved or denied provisional waiver at any time, including when new factors come to light after the applicant's immigrant visa interview abroad.44 Before reopening an approved provisional waiver for revocation, USCIS will notify the applicant of its intent, provide the applicant with the derogatory information, and give the applicant an opportunity to respond.45 There is no right to appeal the revocation of a provisional waiver approval.46

Waivers denied on discretionary grounds are not subject to review in federal court.47

Once a Provisional Waiver Application Is Approved, What Are the Next Steps?

As long as you notified NVC of your client's intent to apply for a provisional waiver, NVC will schedule the immigrant visa interview after USCIS has approved the provisional waiver application.48 DOS estimates that it will schedule the interview within two to three months after approval of the provisional waiver and the applicant's submission of the required documents to DOS.49 If NVC already scheduled your client for an immigrant visa appointment at the consular post and you notified the post of your client's intent to apply for a provisional waiver, you should contact the post to reschedule the interview after USCIS has approved the provisional waiver.50

Does the Approval of a Provisional Waiver Confer Legal Status on the Applicant or Provide any Other Immigration Benefits?

A provisional unlawful presence waiver approval does not:

  • Confer legal status;
  • Stop or retroactively eliminate the accumulation of unlawful presence;
  • Allow entry into the U.S. without an appropriate visa or entry document;
  • Allow an alien to apply for work authorization or advance parole;
  • Protect an alien from being placed in removal proceedings or removed from the United States;
  • Allow an alien to receive a Social Security card or driver's license;
  • Guarantee return to the U.S.; or
  • Waive any ground of inadmissibility other than INA §212(a)(9)(B)(i)(I) or (II).51

Will Applying for a Provisional Waiver Put My Client at Risk for Immigration Enforcement or Removal?

USCIS does not anticipate that it will issue charging documents against those aliens with approved provisional waiver applications, but reserves the right to do so if it discovers acts, omissions, or post-approval activity that would meet the criteria for NTA issuance, or if it determines that the waiver was approved in error.52

Similarly, consistent with its civil enforcement priorities, USCIS does not envision initiating removal proceedings against aliens whose provisional waivers are denied or withdrawn prior to final adjudication. Such individuals will typically be referred to ICE only if they are considered a DHS enforcement priority that is, if they have a criminal history, have committed fraud, or otherwise pose a threat to national security or public safety.53

Under What Circumstances Can a Provisional Waiver be Revoked?

An approved provisional unlawful presence waiver is automatically revoked if: 

  • The consular officer determines at the interview that the alien is inadmissible for reasons other than INA §212(a)(9)(B)(i)(I) or (II);
  • The underlying immigrant visa petition associated with the provisional waiver is revoked, withdrawn, or rendered invalid (and not otherwise reinstated for humanitarian reasons or converted to a widow(er) petition);
  • The immigrant visa registration is terminated and not reinstated in accordance with INA §203(g).
  • The alien, at any time before or after approval of the provisional waiver or before the immigrant visa is issued, reenters or attempts to reenter the United States without inspection or parole.54

1 78 Fed. Reg. 536(Jan. 3, 2013).

2 With respect tom in or children, note that "[n]o period of time in which an alien is under 18years of age shall be taken into account in determining the period of unlawful presence in the United States...." INA §212(a)(9)(B)(iii)(I).

3 INA§201(b)(2)(A)(i).

4 NA §201(f).

5 INA §245(a).

6 78 Fed. Reg. at 565.

7 78 Fed. Reg. at 537,

8 8 CFR §212.7(e)(3).

9 Note that under this provision, a finding by USCIS that there is a "reason to believe" a person is inadmissible under another ground will not be treated as a conclusive determination of inadmissibility. Nor will a denial on this basis preclude an individual from applying for other waivers from abroad(where permitted by law) to overcome other grounds of inadmissibility.

10 8 CER §212.7(e)(4).

11 8 CFR §212.7(e)(4)(v).

12 25 I&N Dec. 688 (BIA 2012), published on AlLA InfoNet at Doc, No. 12013169 (posted 1/31/12).

13 See 78 Fed, Reg. at 538, 544.

14 8 CFR §212.7(e)(4)(vi).

15 8 CFR §212.2(j).

16 8 CFR §2l2.7(e)(4)(iv).

17 DOS Advisory, "Provisional Unlawful Presence Waiver—Notifying the National Visa Center," published on AILA InfoNet at Doc. No. 13010340 (posted 1/3/13) (hereinafter "DOS Advisory").

18 78 Fed. Reg. at 562, 563.

19 "DHS Press Release on Provisional Unlawful Presence Waiver Final Rule," published on AILA InfoNet at Doc. No. 13010242 (posted 1/2/13). See also www.usics.gov,

20 8 CFR §2I2.7(e)(3)(iv) and (v).

21 DOS Advisory, supra note 16. 

22 Id

23 Id.

24 Id

25 8 CFR §l03.7(b)(1)(i)(AA).

26 78 Fed. Reg. at 549; 8 CFR §103.7(e)(3)(i).

27 78 Fed, Reg. at 562.

28 8 CFR §212.7(e)(5)(ii)(A).

29 8 CFR §103.17(b).

30 Id.

31 8 CFR §212.7(e)(5)(ii).

32 78 Fed. Reg. at 550.

33 8 CFR §212.7(e)(10).

34 Id. See generally, DOS Advisory, supra note 16.

35 78 Fed. Reg. at 552.

36 8 CFR 212.7(e)(8).

37 78 Fed. Reg. at 553.

38 Id.

39 8 CFR §212.7(e)(11).

40 8 CFR §212.7(e)(9).

41 Id. See also 78 Fed. Reg. at 553. See generally, DOS Advisory, supra note 16.

42 8 CFR §212.7(e)(9).

43 CFR §212.7(e)(11).

44 78 Fed, Reg. at 553-54; 8 CFR §212.7(e)(13).

45 8 CFR§§103.2(b)(16); 103.5(a)(5).

46 78 Fed. Reg. at 556.

47 INA §242(a)(2)(B)(ii).

48 DOS Advisory, supra note 16.

49 78 Fed. Reg. at 552.

50 DOS Advisory, supra note 16. 

51 78 Fed. Reg. at 555; 8 CFR §2l2,7(e)(12).

52 78 Fed. Reg. at 554. See also USCIS Memorandum, "Revised Guidance for the Referral of Cases and Issuance of Notices to Appear (NTAs) in Cases Involving Inadmissible and Removable Aliens;" PM-602-0050 (Nov. 7, 2011), published on AlLA InfoNet at Doc. No. 11110830 (posted 11/8/11).

53 Id. See also ICE Memorandum, "Civil Immigration Enforcement: Priorities for the Apprehension, Detention, and Removal of Aliens," Policy No. 10072.1 (Mar. 2, 2011), published on AlLA InfoNet at Doc. No. 11030323 (posted 3/3/11).

54 8 CFR §212.7(e)(14).

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Our office is located one block from the building from the United States Citizenship and Immigration Services, Department of Homeland Security (DHS), in San Francisco. We help businesses and people throughout the Bay Area and California, as well as nationally and abroad. Our clients come from such counties as Marin, Santa Clara, San Mateo, Contra Costa, Alameda, Santa Cruz, Stanislaus, etc., and such cities as Oakland, San Jose, Richmond, Napa, Sonoma, Mendocino, Stockton, Sacramento, Vallejo, Fresno, Porterville, Visalia, Bakersfield, Redwood City, Martinez and Modesto. When you or your business needs the assistance of an experienced immigration attorney, contact the Law Office of Rhoda Wilkinson Domingo.

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