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Proposed Waiver Rule: Still Waiting

On January 6, 2012, U.S. Immigration and Customs Enforcement (“USCIS”) issued an announcement proposing an provisional waiver process that would allow immediate relatives who entered the United States without documents to apply for a waiver while still in the United States.  Despite its limited applicability (it is nowhere near the breadth of 245(i)), that waiver would affect many people and bring a small but welcome modification to our immigration policy.  The same day as USCIS’ announcement, with hope and optimism, I wrote an article outlining the proposed rule and reminding people that the rule is not in effect.

On January 10, 2012, USCIS had a telephonic stakeholder’s conference, where they discussed this rule and answered questions.  USCIS indicated that a final decision on the rule was expected in November 2012 (election month!).  We are now in December, and there has been no outcome.  I told quite a few people to “check back” with me in November, and received a number of calls, but had to sadly inform them that the rule is still pending.  USCIS closed the comments on the proposed rule on June 1, 2012.  Since that date, there has been no further word from USCIS either finalizing the rule, or indicating when we can expect a decision, despite many people’s silent anticipation.

I would again like to remind people that the proposed waiver rule is still not in effect.  Do NOT pay anyone to start a case for this until, and if, this rule is final.  I have heard of some attorneys or notarios charging for this service, and even advertising this, despite the fact that it is not in effect.  USCIS explicitly advises that any I-601 waivers sent under this rule will be rejected.

Now to a brief summary of this proposed rule.  The rule would benefit certain immediate relatives who are beneficiaries of an I-130 or I-360 petition, but who are inadmissible only because their last entry to the United States was unlawful.  This category of individuals generally must go through consular processing in their countries; if they leave and have at least 180 days of unlawful presence in the U.S., they will be barred from returning for ten years.  They could leave and apply for a waiver outside the U.S., but this is never advised because if denied they remain stranded outside the U.S.

Under the new rule, these immigrants would be able to apply for a provisional waiver while still in the United States, and leave the country with some guarantee that they can return.  In order to be eligible for the provisional waiver, they will have to demonstrate that their U.S. citizen spouse or parent would suffer extreme hardship if they are not admitted as a green card holder, and that there are positive factors in favor of granting them the waiver.

Despite USCIS’ missed deadline for this rule, there has not been enough attention on this delay and no explanation has been requested or provided.  We need to stop spending years solely aspiring toward comprehensive immigration reform and ignoring all the little changes in policy that are actually making a difference in people’s day-to-day lives.

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