USCIS is considering changes that would allow certain immediate relatives who can demonstrate extreme hardship to a U.S. citizen spouse or parent to receive a provisional waiver of the unlawful presence bars before leaving the United States.
On March 15, 2012, USCIS hold a press conference to discusse Strategic Priorities and Initiatives for 2012. USCIS Director Alejandro Mayorkas presented at the conference, and explained in detail the I-601 provisional waiver. He said it is the “key priority” of USCIS this year. In this article, we select excerpts of his comments on this issue, to help you better understand rule changes and how it will affect your family.
Changes of Rules
The proposed new rule would reduce the time separation between a United States citizen and his or her children or spouse (of unlawful presence) when that separation would work in extreme hardship on the United States citizen.
Currently the process requires the children (unmarried, under 21 years old) or spouse to leave the country before they apply for the waiver. And what the proposed rule contemplates is that the individuals would be able to apply for the waiver while in the United States, and if their ground of inadmissibility was unlawful presence and they are the son or a daughter or a spouse of a United States citizen and separation would work an extreme hardship on the United States citizen’s relative.
And then USCIS would adjudicate that waiver request after capturing the biometrics and running the appropriate security screening, and if it is approved, USCIS would issue a provisional waiver. And then that individual would be able to schedule their consular appointment in the foreign country with the provisional waiver in hand.
If in fact no additional grounds of admissibility would be determined upon the consular interview or other reasons that were not known to the agency or a compelling denial of the waiver, then the waiver would be finalized and the individual would be able to be admitted to the United States.
So the time of separation would be reduced from six months or more now, to the time that it takes to visit the consular office with a previously scheduled appointment, have the appointment and allow for the finalization to occur.
Definition of Extreme Hardship
The term Extreme Hardship is a standard that is established in the law and it is based on the totality of the circumstances of the case. An example of what might be Extreme Hardship is: If in fact a United States citizen depended upon the spouse for urgent medical care and the U.S. citizen was suffering a very serious – an acute illness, that could be the type of case that would be presented to USCIS as demonstrating extreme hardship. And then USCIS would view those facts in the totality of facts that are presented to determine whether the case presented a case of extreme hardship.
Timeline of the Rule Making
The proposed rule is expected to publish imminently in a matter of days or weeks, and then what happens is that the public is given a 60 day period within which to comment. And then following that USCIS will be given a period of time to promulgate the final rule, taking into account the comments that have received. Alejandro Mayorkas envision it be published in the fourth quarter of 2012.
Can Citizen’s Parents Benefit from Provisional Waiver?
In response to the question if parents are eligible for the waiver in the case of hardship. Alejandro Mayorkas replied: “The law does not provide that the children may serve as the anchor for the waiver. It is the parent that serves as the anchor in most circumstances. And so the rule that would be – the proposed rule that would be spelled out for public comment — provides that it must be the parent or the spouse that suffers extreme hardship, like virtue of the separation from his or her children or spouse.”