Most of the very lengthy Final Rule for Expansion of Provisional Unlawful Presence Waivers of Inadmissibility published on Friday, July 19, 2016 in the Federal Register is about what they are not going to do. Let's talk about what they are going to do.
1. I-601A eligibility is expanded to anyone who is statutorily eligible for an unlawful presence waiver under INA 212(a)(9)(B)(v). That means the person is (a) the beneficiary of any approved I-130 or I-140, or the derivative of such, or is a Diversity Visa (DV) Lottery winner/derivative, and (b) has a United States Citizen (USC) or Lawful Permanent Resident (LPR) spouse or parent who would experience extreme hardship if the waiver isn’t approved. The differences in eligibility between the statute and the Provisional Waiver program are: (i) the I-601A applicant must be present in the US at the time of filing and biometrics and must have paid the DOS immigrant fees, and (ii) the I-601A applicant must not be inadmissible on any other ground.
2. They are eliminating the “reason to believe” grounds for denial. Previously, if the USCIS adjudicator has “reason to believe” that the consulate would make an additional finding of inadmissibility, the I-601A application would be denied. This was controversial as attorneys alleged that USCIS was applying inadmissibility law more strictly than the consulates, in a way that was inconsistent with case law. USCIS disagreed with the allegation, but ultimately decided to stop making the “reason to believe” assessment. The program is still only for people who won’t be found inadmissible on another ground at the consulate, but now the impetus is fully on the applicant (and attorney) to self-select out of the program if there is another ground of inadmissibility. If the I-601A is approved and additional inadmissibility is found at the consulate, the I-601A is automatically revoked. Also, information relating to other grounds of inadmissibility may still be used to deny the case as a matter of discretion. Note: the change in policy will increase the number of people whose I-601A is revoked at the consulate.
3. Those with an outstanding order for removal can file an I-601A after getting I-212 approval. The I-601A cannot be filed until after the I-212 is approved. The I-601A cannot be filed during an applicant’s Voluntary Departure period nor while proceedings are open. The applicant must have a final order for removal or the case must be administratively closed. It is unknown at the moment whether an applicant can file the I-212, followed by an I-601A, if the applicant has remained beyond the Voluntary Departure period, which results in an automatic conversion to a Removal Order. AILA is awaiting clarification from USCIS. Even if this is possible, attorneys are warned that advising one’s client to overstay Voluntary Departure in order to qualify for the Provisional Waiver process is most likely malpractice as it would be advising the client to increase the grounds of inadmissibility for the case.
4. The previous requirement that no interview could be scheduled before Jan 3, 2013 is eliminated.
5. They clarified that the rule that the I-601A cannot be filed if the applicant is subject to reinstatement only applies if removal has actually been reinstated and not merely if it could be reinstated.
The most important thing we thought they would do that they did not is provide guidance for the “extreme hardship” standard. That is forthcoming, though no date has been provided.
USCIS estimates that the number of people eligible for the I-601A process will increase by about 50%. The largest increase in eligible applicants will be family of LPRs. While the number of people with outstanding removal orders will be eligible, the dramatic increase in the number of people eligible for the program comes from opening it up to LPRs.
Removing the "reason to believe" denials increases the pressure on attorneys to correctly identify grounds of inadmissibility in the consultation. The clients will be furious with the attorney if they are found inadmissible at the consulate after I-601A approval.
Attorneys have been wondering if they can file a Motion To Reopen/Reconsider (MTR) or get the Ombudsman involved to re-open I-601A cases that were denied under the “reason to believe” standard in light of USCIS' decision to stop denying I-601As for that reason. The answer is "no". The new rule is not retroactive. Please note that filing MTRs will take adjudicators' time to review and deny, and the time they spend reviewing and denying is time not spent adjudicating cases. If a lot of people make this request, it will increase processing times for currently pending I-601As and will not benefit anyone. Same thing with requesting help from the Ombudsman: it will only gobble up the Ombudsman’s time and won’t benefit the clients. It is best to simply re-file the I-601A.
Please note that the I-601A form has changed as of August 29, 2016 and the previous form is no longer being accepted.