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The “New” Provisional Inadmissibility Waiver-Its Not a New Law!

Haroen Calehr Jan. 6, 2013

OK, TIME OUT! Its Superbowl time! But, there is an analogy here to U.S. Immigration law and the newly announced March 4, 2013, policy change and directive by Department of Homeland Security Secretary Janet Napolitano last week.

ITS NOT A NEW LAW folks! I’ve been getting emails and calls and on Friday one of my own legal assistants, Darlene walked into my office with a smile from ear to ear and said: “Can I now file for my mom with this new law?” There is no new law once again. Only Congress can pass new laws.

Starting March 4, 2013, certain relatives of American citizens who are in the country illegally and need a waiver of unlawful presence before being eligible for a green card can get a decision on their case before leaving the United States. This is a nice new policy change from USDHS, albeit it years late, but better late than never I guess.

For those who can take advantage of the new rule, this means a certain degree of peace of mind, knowing that their loved one will now prior to the dreaded overseas trip complete the immigration process and not be stranded in a foreign country for an unknown length of time. For some, however, the new rule will do nothing to resolve their immigration issues. Like my legal assistant’s mother, nothing has really changed folks. I’m not trying to rain on any one’s parade here.  Listen, this new procedure is helpful although 5 years late. Napolitano should have been more creative with many other procedures, memos and discretionary possibilities she could and should have implement which lie in here power to help our undocumented friends, relatives, and fellow “citizens.” Napolitano is and always will be wearing her “prosecutor” hat.  She used to be Attorney General of New Jersey. Once a prosecutor always one. Very few can ever shed their paradigm and change their outlook in life after being an enforcer. I see it all the time.  Once lawyers become prosecutors or judges, they often times see no grey only black and white.  Napolitano needs to be replaced by President Obama with someone who is a former AILA (American Immigration Lawyer’s Association), a progressive, who can truly and comprehensively fully understand how to assist Congress and the Administration in comprehensive immigration reform and fix what needs fixing and don’t tinker with what’s working.

So, quickly what is the “new policy rule?”

Under current law, many immigrants who enter the country illegally or overstay their visas cannot apply for an adjustment of status (a “green card”) in the U.S. since a law that used to allow this called INA 245(i) expired on April 30, 2001, and instead must finish the immigration process abroad as a punishment for being here “illegally.”

The big scare for families is that by simply leaving the country—in order to pick up their immigrant- visa sponsored by a family member—automatically makes the intending immigrant subject to a penalty for their previous  “unlawful presence” in the U.S. potentially separating them from their family anywhere from 3 to 10 years.

The penalty can be waived for only a very narrow class of immigrants. Before this new rule, immigrants could be stranded outside the country for mostly months and some even years while waiting for a decision on whether they could return to their families in the United States. And all that time, the immigrant was stuck abroad, usually with no legal way to return. Many families endured the emotional strain, financial hardship and dangerous conditions. Others simply were unwilling to take the risk.

The new rule means that many immigrants will leave the United States, knowing in advance that their case will probably be approved, and they could be back with their families—as a legal resident—in a matter of days.

Who Is Eligible Under the New Rule?

Only applicants who are an “immediate relatives” of a U.S. citizen (spouses, parents and certain children) can apply at this time, though the rule may later be expanded to other relatives.

The applicant must be physically present in the United States, and not already have a scheduled interview at a U.S. consulate abroad. Also, the provisional waiver is only available if the sole issue holding up a case is unlawful presence. Applicants who have criminal issues or other immigration violations such as fraudulent entry into the U.S. requiring a INA 212(i) waiver cannot use the provisional new procedure. Individuals who are in immigration court proceedings or who have a final Order of Removal or failure to depart pursuant to an order of voluntary departure may not qualify unless they get the attorneys for USICE called Assistant Chief Counsel’s or the Board of Immigration Appeals to reopen their case first, and this is no easy task.

To be successful, applicants must show that denying the case would be an extreme hardship to their qualifying family members (QFM); the negative impact on the alien applicant immigrant doesn’t count at all!  Extreme Hardship factors can include family separation, economic hardship, medical issues, country conditions abroad, and any other difficulty or harm faced by the qualifying family member (QFM) if the waiver isn’t granted.  And, so far, USCIS stateside has not been very liberal in granting these extreme hardship waiver and have raised the eligibility and bar artificially high, much more so then ever envisioned by Congress when the passed the law in 1996-1997.

What Does It Mean that The Waiver Is “provisional?”

The waiver even if initially granted, is “provisional,” meaning that its not a guarantee that the alien will be able to come back to the U.S.  As a practical matter, this means that the government has initially reviewed the case and believes that the waiver ought to be granted, but there is no absolute guarantee that the waiver once the alien presents themselves overseas at the Embassy or Consulate will be successful if facts change or new information comes to light. For example, if an applicant had previous immigration violations or criminal history, the provisional waiver will be revoked. If any new issues arise, and the applicant is still eligible for a waiver, he or she will be able to re-apply using the existing process, but will have to wait abroad for a decision on their case for a approximate minimum of 6 months, often more.  The overseas USCIS officers are in many places much tougher in finding reasons or equities to support the alien’s application. More often than not they look for minor and insignificant reasons to deny the case.

When Is the Earliest You Can Apply?

The “new” rule for provisional waiver application goes into effect on March 4, 2013, and no prior filings will be accepted before that date. You can only apply for a provisional waiver after an immigrant visa petition (I-130) has already been approved. If your U.S. citizen petitioner hasn’t filed yet or is still waiting for a decision on a pending petition, you can’t apply for the provisional waiver—yet.

What Else Do I Need to Know About Provisional Waivers?

A new rule provisional waiver is not a legal status, and even an approved waiver doesn’t provide work authorization, a social security number or the ability to apply for a State’s driver’s license. It does not allow someone in ICE detention to file if they have a previous outstanding order of deportation or if they are an arriving alien in the U.S. Having a provisional waiver will not protect an alien from deportation or any other adverse immigration consequences of being in the country illegally such as arrest by ICE. If an application for a provisional waiver is denied, there is no appeal. BUT it is denied without prejudice which means if you have more compelling evidence or better equities to prove your case, you can re-file, with a new steep filing fee of $585. Remember, not everyone can be sponsored or qualify for a waiver, and just as importantly, not everyone needs a waiver.  Immigration law is the most complex area of the law after Tax law and not utilizing a competent immigration attorney is a grave mistake.

Portions of this article were adopted from AILA

Contact the Calehr & Associates Houston Immigration Attorneys today if you need immigration legal help in Houston.