Provisional Hardship Waiver Regulations Now Available

The moment so many people have been waiting for: the provisional hardship waiver regulations.

Important key points:

1) Applications can be filed from March 4, 2013.

Don't file any provisional hardship waiver application before March 4, 2013.  Hopefully USCIS won't publish the new form (I-601A) until just prior to March 4 to ensure people don't file early.

2) At this time, the waiver is only for the spouses, unmarried children (under 21) and parents of U.S. citizens who can demonstrate that a U.S. citizen spouse or parent will suffer extreme hardship if the waiver is not approved.

The waiver is being limited to the immediate relatives of U.S. citizens who can demonstrate extreme hardship to qualifying U.S. citizen relatives.

This is a very important distinction from the regular hardship waiver.  The difference is best illustrated through the following lists of qualifying relatives and qualified applicants:

Regular Hardship Waiver Qualified Applicants (Form I-601) (Person who is inadmissible)

• Parent of a U.S. citizen
• Spouse of a U.S. citizen
• Spouse of a lawful permanent resident (LPR)
• Unmarried child under 21 years of U.S. citizen
• Unmarried child under 21 years of an LPR
• Son/daughter (married or unmarried) of a U.S. citizen
• Unmarried son/daughter of an LPR
• Sibling of a U.S. citizen

Regular Hardship Waiver Qualifying Relatives (Form I-601)  (Relationship of the qualifying relative to the waiver applicant)

• U.S. citizen spouse
• LPR spouse
• U.S. citizen parent
• LPR parent

Provisional Hardship Waiver Qualified Applicants (Form I-601A) (Person who is inadmissible)

• Parent of a U.S. citizen
• Spouse of a U.S. citizen
• Unmarried child under 21 years of U.S. citizen

Provisional Hardship Waiver Qualifying Relatives   (Form I-601A) (Relationship of the qualifying relative to the waiver applicant)

• U.S. citizen spouse
• U.S. citizen parent

Although the I-130 petitioner does not have to be the qualifying relative (the person who must show extreme hardship), the I-130 petitioner most likely is the qualifying relative for the provisional hardship waiver.

Any adult U.S. citizen filing an I-130 petition for a parent who needs a hardship waiver for unlawful presence needs to be extremely careful.  If that parent (the I-601A applicant) does not have a parent(s) (the applicant's parent(s)) or spouse, who is a US citizen, then the waiver will be automatically denied. If uncertain about eligibility, consult with an immigration attorney. 

Any lawful permanent resident sponsoring a spouse or child (under 21) who needs the hardship waiver should consider becoming a U.S. citizen to ensure eligibility for the provisional hardship waiver.

3) If the provisional hardship waiver gets denied, a second provisional hardship waiver application can be filed.

This is an important and welcome change from what the draft regulation stated.  Most waiver applications are denied because either the person did it without any assistance (and simply misunderstood what constitutes extreme hardship) or they were assisted by a notario or an inexperienced attorney who also did not understand what constitutes extreme hardship. 

If the I-601A is re-filed, filing fees must be paid again, but this is a relatively small price to pay for the benefit of not being separated from a spouse/parent for 6 months or more. 

The nice thing about the provisional hardship waiver is the applicant is still in the country when the waiver gets denied.  This means there is no additional separation even if the provisional hardship waiver application gets denied.  However, denial does mean wasted filing fees and possibly fees paid to notarios.

4) Being in removal proceedings does not automatically disqualify a person from the provisional hardship waiver, but does require the applicant's removal proceedings be administratively closed prior to filing the waiver.

To date, getting a removal case administratively closed has been extremely difficult.  Hopefully that might change. If not, then very few individuals in removal proceedings will be able to file for the provisional hardship waiver, even if they otherwise qualify.

If the provisional hardship waiver is approved, then the successful applicant must seek termination or dismissal of removal proceedings before proceeding abroad to his/her immigration interview.  This is necessary because administrative closure does not terminate removal proceedings.  In other words, if the court administratively closes a removal case, the person is still in removal proceedings.  Administrative closure means only that nothing is being done to bring the case to its conclusion in the court.

Failure to get the removal case terminated or dismissed after approval of the provisional hardship wavier could mean a possible in absentia removal order, which means the successful I-601A applicant would leave the U.S. to attend a consulate interview only to then get stuck outside the U.S. for 5 years.

5) Having a previously scheduled immigration interview at a U.S. consulate disqualifies a person from the provisional hardship waiver.

This is the most disappointing feature of the final regulation. USCIS will check the Dept. of State's Consular Consolidated Database to determine the date the National Visa Center (NVC) initially acted to schedule an appointment.  "Initially acted to schedule" is not the actual interview date, but the date the NVC scheduled the appointment.  The interview usually gets scheduled about 4-5 weeks prior to the actual appointment date. 

It is not known at this time how someone (e.g. an attorney or an applicant) could check to see whether the NVC has acted to schedule an appointment.

While this news is disappointing, there are two ways to re-establish eligibility for the provisional hardship waiver.

1) Allow 2 years to lapse since last contact with the National Visa Center, which then triggers automatic termination of the I-130.  Then the petitioner files a new I-130 petition. 

2) File a new I-130 petition with a different petitioner.

For example, if a beneficiary who has two adult U.S. citizen children, the other child could file an I-130. 

Another example: the current petitioner is a U.S. citizen spouse, but the beneficiary also has an adult U.S. citizen child.  Under that scenario, the child now should sponsor the parent.

Both options involve the expense of a new filing fee. The first option also means a year delay until the new I-130 can be filed (based on the fact that most people affected by this rule have already allowed at least one year to lapse since last contact so are one year away from administrative termination). But in both cases, that might be a small price to pay in contrast to the cost of living in separate countries for 6 months.

Next Steps?

For those individuals who have not started the immigration process, now is a good time to get an I-130 petition filed.  The petition will take about 6 months to be approved.  The provisional hardship waiver is filed after the I-130 petition is approved.

For those individuals with I-130 petitions already approved, now is the time to start preparing the provisional hardship waiver application so it is ready for filing on March 4, 2012.

Should You Seek Assistance From an Immigration Attorney?

As an immigration attorney, I strongly believe people's best interests are served by working with an immigration attorney, preferably one who has prior experience doing hardship waivers.  This is based on experience of working with individuals who tried to do the hardship waiver by themselves and got denied as well as individuals who worked with notarios.  In both scenarios, the reason for the denial is usually lack of understanding about how to prove the extreme hardship. The denials cause delays and waste money, both of which could have been avoided.

Good luck! You are now on your way to becoming a lawful permanent resident.

 

 

Comments

[Mel]

I'm an adult US Citizen, & my mom has an approved I-130 petition already approved. I'm my mom's only relative. (She hasn't a US parents or spouse). If I understood right, I wouldn't qualified to get the waiver approve. Is that right?