1.  This bulletin summarizes the availability of immigrant numbers during May. Consular officers are required to report to the Department of State documentarily qualified applicants for numerically limited visas; U.S. Citizenship and Immigration Services in the Department of Homeland Security reports applicants for adjustment of status.  Allocations were made, to the extent possible, in chronological order of reported priority dates, for demand received by April 9th. If not all demand could be satisfied, the category or foreign state in which demand was excessive was deemed oversubscribed.  The cut-off date for an oversubscribed category is the priority date of the first applicant who could not be reached within the numerical limits.  Only applicants who have a priority date earlier than the cut-off date may be allotted a number.  If it becomes necessary during the monthly allocation process to retrogress a cut-off date, supplemental requests for numbers will be honored only if the priority date falls within the new cut-off date announced in this bulletin.

2. Section 201 of the Immigration and Nationality Act (INA) sets an annual minimum family-sponsored preference limit of 226,000.  The worldwide level for annual employment-based preference immigrants is at least 140,000.  Section 202 prescribes that the per-country limit for preference immigrants is set at 7% of the total annual family-sponsored and employment-based preference limits, i.e., 25,620.  The dependent area limit is set at 2%, or 7,320.

3.  INA Section 203(e) provides that family-sponsored and employment-based preference visas be issued to eligible immigrants in the order in which a petition in behalf of each has been filed.  Section 203(d) provides that spouses and children of preference immigrants are entitled to the same status, and the same order of consideration, if accompanying or following to join the principal.  The visa prorating provisions of Section 202(e) apply to allocations for a foreign state or dependent area when visa demand exceeds the per-country limit.  These provisions apply at present to the following oversubscribed chargeability areas:  CHINA-mainland born, INDIA, MEXICO, and PHILIPPINES.

4.  Section 203(a) of the INA prescribes preference classes for allotment of Family-sponsored immigrant visas as follows:         

FAMILY-SPONSORED PREFERENCES

First:  (F1) Unmarried Sons and Daughters of U.S. Citizens:  23,400 plus any numbers not required for fourth preference.

Second:  Spouses and Children, and Unmarried Sons and Daughters of Permanent Residents:  114,200, plus the number (if any) by which the worldwide family preference level exceeds 226,000, plus any unused first preference numbers:

A. (F2A) Spouses and Children of Permanent Residents:  77% of the overall second preference limitation, of which 75% are exempt from the per-country limit;

B. (F2B) Unmarried Sons and Daughters (21 years of age or older) of Permanent Residents:  23% of the overall second preference limitation.

Third:  (F3) Married Sons and Daughters of U.S. Citizens:  23,400, plus any numbers not required by first and second preferences.

Fourth:  (F4) Brothers and Sisters of Adult U.S. Citizens:  65,000, plus any numbers not required by first three preferences.

On the chart below, the listing of a date for any class indicates that the class is oversubscribed (see paragraph 1); “C” means current, i.e., numbers are available for all qualified applicants; and “U” means unavailable, i.e., no numbers are available.  (NOTE:  Numbers are available only for applicants whose priority date is earlier than the cut-off date listed below.)

*NOTE:  For May, F2A numbers EXEMPT from per-country limit are available to applicants from all countries with priority dates earlier than 01FEB11.  F2A numbersSUBJECT to per-country limit are available to applicants chargeable to all countriesEXCEPT MEXICO with priority dates beginning 01FEB11 and earlier than 01MAR11.  (All F2A numbers provided for MEXICO are exempt from the per-country limit; there are no F2A numbers for MEXICO subject to per-country limit.)

5.  Section 203(b) of the INA prescribes preference classes for allotment of Employment-based immigrant visas as follows:         

EMPLOYMENT-BASED PREFERENCES

First:  Priority Workers:  28.6% of the worldwide employment-based preference level, plus any numbers not required for fourth and fifth preferences.

Second:  Members of the Professions Holding Advanced Degrees or Persons of Exceptional Ability:  28.6% of the worldwide employment-based preference level, plus any numbers not required by first preference.

Third:  Skilled Workers, Professionals, and Other Workers:  28.6% of the worldwide level, plus any numbers not required by first and second preferences, not more than 10,000 of which to “*Other Workers”.

Fourth:  Certain Special Immigrants:  7.1% of the worldwide level.

Fifth:  Employment Creation:  7.1% of the worldwide level, not less than 3,000 of which reserved for investors in a targeted rural or high-unemployment area, and 3,000 set aside for investors in regional centers by Sec. 610 of Pub. L. 102-395.

On the chart below, the listing of a date for any class indicates that the class is oversubscribed (see paragraph 1); “C” means current, i.e., numbers are available for all qualified applicants; and “U” means unavailable, i.e., no numbers are available.  (NOTE:  Numbers are available only for applicants whose priority date is earlier than the cut-off date listed below.)

*Employment Third Preference Other Workers Category:  Section 203(e) of the Nicaraguan and Central American Relief Act (NACARA) passed by Congress in November 1997, as amended by Section 1(e) of Pub. L. 105-139, provides that once the Employment Third Preference Other Worker (EW) cut-off date has reached the priority date of the latest EW petition approved prior to November 19, 1997, the 10,000 EW numbers available for a fiscal year are to be reduced by up to 5,000 annually beginning in the following fiscal year.  This reduction is to be made for as long as necessary to offset adjustments under the NACARA program.  Since the EW cut-off date reached November 19, 1997 during Fiscal Year 2001, the reduction in the EW annual limit to 5,000 began in Fiscal Year 2002.

6.  The Department of State has a recorded message with visa availability information which can be heard at:  (202) 663-1541.  This recording is updated on or about the tenth of each month with information on cut-off dates for the following month.

B. DIVERSITY IMMIGRANT (DV) CATEGORY

Section 203(c) of the INA provides up to 55,000 immigrant visas each fiscal year to permit additional immigration opportunities for persons from countries with low admissions during the previous five years.  The NACARA stipulates that beginning with DV-99, and for as long as necessary, up to 5,000 of the 55,000 annually-allocated diversity visas will be made available for use under the NACARA program.  This resulted in reduction of the DV-2013 annual limit to 50,000.  DV visas are divided among six geographic regions.  No one country can receive more than seven percent of the available diversity visas in any one year.

For May, immigrant numbers in the DV category are available to qualified DV-2013 applicants chargeable to all regions/eligible countries as follows. When an allocation cut-off number is shown, visas are available only for applicants with DV regional lottery rank numbers BELOW the specified allocation cut-off number:

Entitlement to immigrant status in the DV category lasts only through the end of the fiscal (visa) year for which the applicant is selected in the lottery.  The year of entitlement for all applicants registered for the DV-2013 program ends as of September 30, 2013.  DV visas may not be issued to DV-2013 applicants after that date.  Similarly, spouses and children accompanying or following to join DV-2013 principals are only entitled to derivative DV status until September 30, 2013.  DV visa availability through the very end of FY-2013 cannot be taken for granted.  Numbers could be exhausted prior to September 30.

C. ADVANCE NOTIFICATION OF THE DIVERSITY (DV) IMMIGRANT CATEGORY RANK CUT-OFFS WHICH WILL APPLY IN JUNE

For June, immigrant numbers in the DV category are available to qualified DV-2013 applicants chargeable to all regions/eligible countries as follows. When an allocation cut-off number is shown, visas are available only for applicants with DV regional lottery rank numbers BELOW the specified allocation cut-off number:

D. EMPLOYMENT THIRD PREFERENCE VISA AVAILABILITY

The Employment-based Third preference category cut-off date for most countries has advanced significantly.  This has been done in an attempt to generate demand so that the annual numerical limits may be fully utilized, and such movements may continue for the next few months.  The rapid movement of cut-off dates is often followed months later by a dramatic increase in demand for numbers.  Once such demand begins to materialize the cut-off date movements will begin to slow or stop.

The post Visa Bulletin For May 2013 appeared first on Avelino Immigration.

FAMILY-SPONSORED PREFERENCES

First:  (F1) Unmarried Sons and Daughters of U.S. Citizens:  23,400 plus any numbers not required for fourth preference.

Second:  Spouses and Children, and Unmarried Sons and Daughters of Permanent Residents:  114,200, plus the number (if any) by which the worldwide family preference level exceeds 226,000, plus any unused first preference numbers:

A. (F2A) Spouses and Children of Permanent Residents:  77% of the overall second preference limitation, of which 75% are exempt from the per-country limit;

B. (F2B) Unmarried Sons and Daughters (21 years of age or older) of Permanent Residents:  23% of the overall second preference limitation.

Third:  (F3) Married Sons and Daughters of U.S. Citizens:  23,400, plus any numbers not required by first and second preferences.

Fourth:  (F4) Brothers and Sisters of Adult U.S. Citizens:  65,000, plus any numbers not required by first three preferences.

On the chart below, the listing of a date for any class indicates that the class is oversubscribed (see paragraph 1); “C” means current, i.e., numbers are available for all qualified applicants; and “U” means unavailable, i.e., no numbers are available.  (NOTE:  Numbers are available only for applicants whose priority date is earlier than the cut-off date listed below.)

*NOTE:  For March, F2A numbers EXEMPT from per-country limit are available to applicants from all countries with priority dates earlier than 15NOV10.  F2A numbersSUBJECT to per-country limit are available to applicants chargeable to all countriesEXCEPT MEXICO with priority dates beginning 15NOV10 and earlier than 22NOV10.  (All F2A numbers provided for MEXICO are exempt from the per-country limit; there are no F2A numbers for MEXICO subject to per-country limit.)

5.  Section 203(b) of the INA prescribes preference classes for allotment of Employment-based immigrant visas as follows:         

EMPLOYMENT-BASED PREFERENCES

First:  Priority Workers:  28.6% of the worldwide employment-based preference level, plus any numbers not required for fourth and fifth preferences.

Second:  Members of the Professions Holding Advanced Degrees or Persons of Exceptional Ability:  28.6% of the worldwide employment-based preference level, plus any numbers not required by first preference.

Third:  Skilled Workers, Professionals, and Other Workers:  28.6% of the worldwide level, plus any numbers not required by first and second preferences, not more than 10,000 of which to “*Other Workers”.

Fourth:  Certain Special Immigrants:  7.1% of the worldwide level.

Fifth:  Employment Creation:  7.1% of the worldwide level, not less than 3,000 of which reserved for investors in a targeted rural or high-unemployment area, and 3,000 set aside for investors in regional centers by Sec. 610 of Pub. L. 102-395.

On the chart below, the listing of a date for any class indicates that the class is oversubscribed (see paragraph 1); “C” means current, i.e., numbers are available for all qualified applicants; and “U” means unavailable, i.e., no numbers are available.  (NOTE:  Numbers are available only for applicants whose priority date is earlier than the cut-off date listed below.)

*Employment Third Preference Other Workers Category:  Section 203(e) of the Nicaraguan and Central American Relief Act (NACARA) passed by Congress in November 1997, as amended by Section 1(e) of Pub. L. 105-139, provides that once the Employment Third Preference Other Worker (EW) cut-off date has reached the priority date of the latest EW petition approved prior to November 19, 1997, the 10,000 EW numbers available for a fiscal year are to be reduced by up to 5,000 annually beginning in the following fiscal year.  This reduction is to be made for as long as necessary to offset adjustments under the NACARA program.  Since the EW cut-off date reached November 19, 1997 during Fiscal Year 2001, the reduction in the EW annual limit to 5,000 began in Fiscal Year 2002.

6.  The Department of State has a recorded message with visa availability information which can be heard at:  (202) 663-1541.  This recording is updated on or about the tenth of each month with information on cut-off dates for the following month.

B.  DIVERSITY IMMIGRANT (DV) CATEGORY

Section 203(c) of the INA provides up to 55,000 immigrant visas each fiscal year to permit additional immigration opportunities for persons from countries with low admissions during the previous five years.  The NACARA stipulates that beginning with DV-99, and for as long as necessary, up to 5,000 of the 55,000 annually-allocated diversity visas will be made available for use under the NACARA program.  This resulted in reduction of the DV-2013 annual limit to 50,000.  DV visas are divided among six geographic regions.  No one country can receive more than seven percent of the available diversity visas in any one year.

For March, immigrant numbers in the DV category are available to qualified DV-2013 applicants chargeable to all regions/eligible countries as follows. When an allocation cut-off number is shown, visas are available only for applicants with DV regional lottery rank numbers BELOW the specified allocation cut-off number:

Entitlement to immigrant status in the DV category lasts only through the end of the fiscal (visa) year for which the applicant is selected in the lottery.  The year of entitlement for all applicants registered for the DV-2013 program ends as of September 30, 2013.  DV visas may not be issued to DV-2013 applicants after that date.  Similarly, spouses and children accompanying or following to join DV-2013 principals are only entitled to derivative DV status until September 30, 2013.  DV visa availability through the very end of FY-2013 cannot be taken for granted.  Numbers could be exhausted prior to September 30.

C.  ADVANCE NOTIFICATION OF THE DIVERSITY (DV) IMMIGRANT CATEGORY RANK CUT-OFFS WHICH WILL APPLY IN APRIL

For April, immigrant numbers in the DV category are available to qualified DV-2013 applicants chargeable to all regions/eligible countries as follows. When an allocation cut-off number is shown, visas are available only for applicants with DV regional lottery rank numbers BELOW the specified allocation cut-off number:

D. VISA AVAILABILITY IN THE COMING MONTHS (April – June)

FAMILY-sponsored categories (potential monthly movement)

Worldwide dates:
F1:  Three or four weeks
F2A: Three to five weeks
F2B: Three to five weeks
F3:  One or two weeks
F4:  Up to two weeks

EMPLOYMENT-based categories (potential monthly movement)

Employment First:  Current

Employment Second:

Worldwide:  Current

China:  Three to six weeks

India:  No movement.  Despite the established cut-off date having been held for the past five months in an effort to keep demand within the average monthly usage targets, the amount of demand being received from U.S. Citizenship and Immigration Services (USCIS) Offices for adjustment of status cases remains extremely high.  Should the current rate of demand continue, it is likely that at some point the cut-off date will need to be retrogressed in an effort to hold demand within the FY-2013 annual limit.

Employment Third:

Worldwide:    Four to six weeks
China:        Two to three months
India:        Up to two weeks
Mexico:       Four to six weeks
Philippines:  Up to one week

Employment Fourth:  Current

Employment Fifth:  Current

Item D of the December 2012 Visa Bulletin alerted readers that a China cut-off date might be imposed at some point during the second half of the fiscal year.  Currently there is no reason to believe that it will be necessary to establish a China Employment Fifth preference category cut-off date during FY-2013, since demand over first six months of FY-2013 has now averaged out to a manageable level.

The above projections for the Family and Employment categories are for what is likely to happen during each of the next few months based on current applicant demand patterns.  Readers should never assume that recent trends in cut-off date movements are guaranteed for the future.  The determination of the actual monthly cut-off dates is subject to fluctuations in applicant demand and a number of other variables which can change at any time.  Those categories with a “Current” projection will remain so for the foreseeable future.

The post Visa Bulletin For March 2013 appeared first on Avelino Immigration.

The new provisional unlawful presence waiver process is for certain individuals who seek a waiver of inadmissibility only for unlawful presence. They can now apply for a provisional unlawful presence waiver while in the United States and before departing for their immigrant visa interview at a U.S. Embassy or Consulate abroad. Under the current process, which continues to remain in effect, immediate relatives of U.S. citizens who are not eligible to adjust status in the United States have to travel abroad and be found inadmissible at their immigrant visa interview before they can apply for an inadmissibility waiver.

The new process is expected to shorten the time U.S. citizens are separated from their immediate relatives while those family members go through the process of becoming lawful permanent residents of the United States.

For eligibility details and information on the process, see: Provisional Unlawful Presence Waivers.

The post USCIS Begins Accepting Applications for Provisional Waivers Today appeared first on Avelino Immigration.

1.  This bulletin summarizes the availability of immigrant numbers during March. Consular officers are required to report to the Department of State documentarily qualified applicants for numerically limited visas; U.S. Citizenship and Immigration Services in the Department of Homeland Security reports applicants for adjustment of status.  Allocations were made, to the extent possible, in chronological order of reported priority dates, for demand received by February 8th. If not all demand could be satisfied, the category or foreign state in which demand was excessive was deemed oversubscribed.  The cut-off date for an oversubscribed category is the priority date of the first applicant who could not be reached within the numerical limits.  Only applicants who have a priority date earlier than the cut-off date may be allotted a number.  If it becomes necessary during the monthly allocation process to retrogress a cut-off date, supplemental requests for numbers will be honored only if the priority date falls within the new cut-off date announced in this bulletin.

2. Section 201 of the Immigration and Nationality Act (INA) sets an annual minimum family-sponsored preference limit of 226,000.  The worldwide level for annual employment-based preference immigrants is at least 140,000.  Section 202 prescribes that the per-country limit for preference immigrants is set at 7% of the total annual family-sponsored and employment-based preference limits, i.e., 25,620.  The dependent area limit is set at 2%, or 7,320.

3.  INA Section 203(e) provides that family-sponsored and employment-based preference visas be issued to eligible immigrants in the order in which a petition in behalf of each has been filed.  Section 203(d) provides that spouses and children of preference immigrants are entitled to the same status, and the same order of consideration, if accompanying or following to join the principal.  The visa prorating provisions of Section 202(e) apply to allocations for a foreign state or dependent area when visa demand exceeds the per-country limit.  These provisions apply at present to the following oversubscribed chargeability areas:  CHINA-mainland born, INDIA, MEXICO, and PHILIPPINES.

4.  Section 203(a) of the INA prescribes preference classes for allotment of Family-sponsored immigrant visas as follows:         

FAMILY-SPONSORED PREFERENCES

First:  (F1) Unmarried Sons and Daughters of U.S. Citizens:  23,400 plus any numbers not required for fourth preference.

Second:  Spouses and Children, and Unmarried Sons and Daughters of Permanent Residents:  114,200, plus the number (if any) by which the worldwide family preference level exceeds 226,000, plus any unused first preference numbers:

A. (F2A) Spouses and Children of Permanent Residents:  77% of the overall second preference limitation, of which 75% are exempt from the per-country limit;

B. (F2B) Unmarried Sons and Daughters (21 years of age or older) of Permanent Residents:  23% of the overall second preference limitation.

Third:  (F3) Married Sons and Daughters of U.S. Citizens:  23,400, plus any numbers not required by first and second preferences.

Fourth:  (F4) Brothers and Sisters of Adult U.S. Citizens:  65,000, plus any numbers not required by first three preferences.

On the chart below, the listing of a date for any class indicates that the class is oversubscribed (see paragraph 1); “C” means current, i.e., numbers are available for all qualified applicants; and “U” means unavailable, i.e., no numbers are available.  (NOTE:  Numbers are available only for applicants whose priority date is earlier than the cut-off date listed below.)

*NOTE:  For March, F2A numbers EXEMPT from per-country limit are available to applicants from all countries with priority dates earlier than 15NOV10.  F2A numbersSUBJECT to per-country limit are available to applicants chargeable to all countriesEXCEPT MEXICO with priority dates beginning 15NOV10 and earlier than 22NOV10.  (All F2A numbers provided for MEXICO are exempt from the per-country limit; there are no F2A numbers for MEXICO subject to per-country limit.)

5.  Section 203(b) of the INA prescribes preference classes for allotment of Employment-based immigrant visas as follows:         

EMPLOYMENT-BASED PREFERENCES

First:  Priority Workers:  28.6% of the worldwide employment-based preference level, plus any numbers not required for fourth and fifth preferences.

Second:  Members of the Professions Holding Advanced Degrees or Persons of Exceptional Ability:  28.6% of the worldwide employment-based preference level, plus any numbers not required by first preference.

Third:  Skilled Workers, Professionals, and Other Workers:  28.6% of the worldwide level, plus any numbers not required by first and second preferences, not more than 10,000 of which to “*Other Workers”.

Fourth:  Certain Special Immigrants:  7.1% of the worldwide level.

Fifth:  Employment Creation:  7.1% of the worldwide level, not less than 3,000 of which reserved for investors in a targeted rural or high-unemployment area, and 3,000 set aside for investors in regional centers by Sec. 610 of Pub. L. 102-395.

On the chart below, the listing of a date for any class indicates that the class is oversubscribed (see paragraph 1); “C” means current, i.e., numbers are available for all qualified applicants; and “U” means unavailable, i.e., no numbers are available.  (NOTE:  Numbers are available only for applicants whose priority date is earlier than the cut-off date listed below.)

*Employment Third Preference Other Workers Category:  Section 203(e) of the Nicaraguan and Central American Relief Act (NACARA) passed by Congress in November 1997, as amended by Section 1(e) of Pub. L. 105-139, provides that once the Employment Third Preference Other Worker (EW) cut-off date has reached the priority date of the latest EW petition approved prior to November 19, 1997, the 10,000 EW numbers available for a fiscal year are to be reduced by up to 5,000 annually beginning in the following fiscal year.  This reduction is to be made for as long as necessary to offset adjustments under the NACARA program.  Since the EW cut-off date reached November 19, 1997 during Fiscal Year 2001, the reduction in the EW annual limit to 5,000 began in Fiscal Year 2002.

6.  The Department of State has a recorded message with visa availability information which can be heard at:  (202) 663-1541.  This recording is updated on or about the tenth of each month with information on cut-off dates for the following month.

B.  DIVERSITY IMMIGRANT (DV) CATEGORY

Section 203(c) of the INA provides up to 55,000 immigrant visas each fiscal year to permit additional immigration opportunities for persons from countries with low admissions during the previous five years.  The NACARA stipulates that beginning with DV-99, and for as long as necessary, up to 5,000 of the 55,000 annually-allocated diversity visas will be made available for use under the NACARA program.  This resulted in reduction of the DV-2013 annual limit to 50,000.  DV visas are divided among six geographic regions.  No one country can receive more than seven percent of the available diversity visas in any one year.

For March, immigrant numbers in the DV category are available to qualified DV-2013 applicants chargeable to all regions/eligible countries as follows. When an allocation cut-off number is shown, visas are available only for applicants with DV regional lottery rank numbers BELOW the specified allocation cut-off number:

Entitlement to immigrant status in the DV category lasts only through the end of the fiscal (visa) year for which the applicant is selected in the lottery.  The year of entitlement for all applicants registered for the DV-2013 program ends as of September 30, 2013.  DV visas may not be issued to DV-2013 applicants after that date.  Similarly, spouses and children accompanying or following to join DV-2013 principals are only entitled to derivative DV status until September 30, 2013.  DV visa availability through the very end of FY-2013 cannot be taken for granted.  Numbers could be exhausted prior to September 30.

C.  ADVANCE NOTIFICATION OF THE DIVERSITY (DV) IMMIGRANT CATEGORY RANK CUT-OFFS WHICH WILL APPLY IN APRIL

For April, immigrant numbers in the DV category are available to qualified DV-2013 applicants chargeable to all regions/eligible countries as follows. When an allocation cut-off number is shown, visas are available only for applicants with DV regional lottery rank numbers BELOW the specified allocation cut-off number:

D. VISA AVAILABILITY IN THE COMING MONTHS (April – June)

FAMILY-sponsored categories (potential monthly movement)

Worldwide dates:
F1:  Three or four weeks
F2A: Three to five weeks
F2B: Three to five weeks
F3:  One or two weeks
F4:  Up to two weeks

EMPLOYMENT-based categories (potential monthly movement)

Employment First:  Current

Employment Second:

Worldwide:  Current

China:  Three to six weeks

India:  No movement.  Despite the established cut-off date having been held for the past five months in an effort to keep demand within the average monthly usage targets, the amount of demand being received from U.S. Citizenship and Immigration Services (USCIS) Offices for adjustment of status cases remains extremely high.  Should the current rate of demand continue, it is likely that at some point the cut-off date will need to be retrogressed in an effort to hold demand within the FY-2013 annual limit.

Employment Third:

Worldwide:    Four to six weeks
China:        Two to three months
India:        Up to two weeks
Mexico:       Four to six weeks
Philippines:  Up to one week

Employment Fourth:  Current

Employment Fifth:  Current

Item D of the December 2012 Visa Bulletin alerted readers that a China cut-off date might be imposed at some point during the second half of the fiscal year.  Currently there is no reason to believe that it will be necessary to establish a China Employment Fifth preference category cut-off date during FY-2013, since demand over first six months of FY-2013 has now averaged out to a manageable level.

The above projections for the Family and Employment categories are for what is likely to happen during each of the next few months based on current applicant demand patterns.  Readers should never assume that recent trends in cut-off date movements are guaranteed for the future.  The determination of the actual monthly cut-off dates is subject to fluctuations in applicant demand and a number of other variables which can change at any time.  Those categories with a “Current” projection will remain so for the foreseeable future.

The post Visa Bulletin For March 2013 appeared first on Avelino Immigration.

How Is The Rule Beneficial?

Under current law, a significant number of immediate relatives of U.S. citizens who are present in the United States are not eligible to apply for lawful permanent resident (LPR) status in the U.S. because they entered the country unlawfully. Instead, such aliens must depart the U.S. and request waivers of inadmissibility due to their prior unlawful presence during the overseas immigrant visa process, which often results in a lengthy separation from their U.S. citizen relative. Because of the heavy toll of separation and the uncertainty in the process, many immediate relatives of U.S. citizens forego the process of applying for LPR status and remain in the shadows.

USCIS expects that this new process will significantly decrease the amount of time that U.S. citizens are separated from their family members and will ultimately encourage more immediate relatives to seek an immigrant visa who are otherwise reluctant to travel abroad for an unknown period of time.

The approval of an application for a provisional waiver prior to the immediate relative’s immigrant visa interview should, in most cases, allow the Department of State (DOS) consular officer to issue the immigrant visa without delay if there are no other grounds of inadmissibility and if the immediate relative is otherwise eligible for an immigrant visa.

Who Qualifies as an Immediate Relative?

For purposes of this rule, an immediate relative is the child or spouse of a U.S. citizen, or the parent of a U.S. citizen who is 21 years or older. This includes adult sons and daughters who remain classified as immediate relative “children” for immigration purposes under the Child Status Protection Act, and also includes qualified widow(er)s of U.S. citizens who self-petition on Form I-360. Though battered spouses and children of U.S. citizens are also included in the definition of immediate relative, they are generally eligible for adjustment of status in the United States, regardless of having entered without inspection or parole, and are unlikely to be affected by this rule.

Immediate relatives DO NOT include (1) adult (21 or older) sons and daughters of U.S. citizens; (2) children and spouses of lawful permanent residents; (3) brothers and sisters of U.S. citizens; or (4) any other family relationship. USCIS has said, however, that it will consider expanding the availability of the provisional waiver process to other categories of individuals after assessing its effectiveness.

What Criteria Must the Immediate Relative Meet to Qualify for a Provisional Waiver?

To qualify for a provisional unlawful presence waiver, the immediate relative must:

• Be present in the United States at the time of filing the provisional waiver application and for biometrics collection;
• Be inadmissible only under INA §212(a)(9)(B)(i) (unlawful presence) upon departure and at the time of the consular interview;
• Qualify as an immediate relative under INA §201(b)(2)(A)(i);
• Be the beneficiary of an approved I-130 immediate relative petition;
• Have a case pending with DOS based on the approved I-130 immediate relative petition and have paid the immigrant visa processing fee;
• Depart the United States to obtain an immigrant visa abroad; and
• Demonstrate that the denial of a waiver of inadmissibility would result in extreme hardship to his or her U.S. citizen spouse or parent.

What Factors Will Disqualify an Immediate Relative from a Provisional Waiver?

Notwithstanding the eligibility criteria listed in 8 CFR §212.7(e)(3), a provisional unlawful presence waiver will not be granted if:

• USCIS has “reason to believe” that the alien may be subject to inadmissibility grounds other than unlawful presence. For example, inadmissibility due to criminal activity; fraud or misrepresentation; or entry, or attempted entry, without inspection following a prior period of unlawful presence in the U.S. in excess of one year;
• The alien is under the age of 17;
• The alien does not have a case pending with DOS based on the approved I-130 immediate relative petition or has not paid the immigrant visa processing fee;
• DOS “initially acted” to schedule the immigrant visa interview prior to January 3, 2013 for the approved immediate relative petition on which the provisional waiver is based, even if the interview was cancelled or rescheduled after January 3, 2013;
• The alien is in removal proceedings, unless such proceedings have been administratively closed and not recalendared at the time of filing the provisional waiver application;
• The alien is subject to a final order of removal, exclusion, or deportation, or is subject to reinstatement of a prior removal order under INA §241(a)(5); or
• The alien has a pending application with USCIS for adjustment of status.

When Can I Start Submitting Applications for Provisional Unlawful Presence Waivers?

USCIS will begin accepting applications for provisional unlawful presence waivers (Form I-601A) on March 4, 2013. Please note that the applicant must already have an approved immediate relative I-130 or I-360 petition, must have a case pending with DOS, and must have paid the DOS immigrant visa processing fee before submitting the application. Concurrent filing of a visa petition and provisional waiver is not allowed.

Before applying for the I-601A, the applicant must notify the NVC of his or her intent to seek a provisional unlawful presence waiver. If the DOS visa fee has not yet been paid, notify the NVC of your client’s intent to apply for a provisional waiver immediately after the fee is paid. If NVC has already scheduled your client’s immigrant visa appointment, notify the immigrant visa processing post where the appointment has been scheduled before applying for the provisional waiver.

How Much Is the Filing Fee for a Provisional Unlawful Presence Waiver?

The filing fee for Form I-601A is $585, plus $85 for biometrics. USCIS will not, as a matter of discretion, grant fee waivers for the provisional waiver application or for biometrics. If the I- 601A is withdrawn prior to adjudication, the filing fee will not be refunded.

Form I-601A will be automatically rejected for failure to pay the correct filing fee ($585). If the correct filing fee is paid, but the biometrics fee is not, the applicant will be notified of the error and given an opportunity to correct the deficiency. USCIS will not, however, process or adjudicate applications until the biometrics fee is paid.

Under What Circumstances Will USCIS Reject an Application for a Provisional Waiver?

A provisional waiver application will be automatically rejected by USCIS and returned to the applicant/attorney with the fees if:

• The applicant fails to pay the correct filing fee ($585, see above);
• The applicant fails to sign the provisional waiver application;
• The applicant fails to provide his or her family name, domestic address, and date of birth;
• The applicant is under the age of 17;
• The applicant does not include evidence of an approved petition that classifies the alien as an immediate relative of a U.S. citizen;
• The applicant fails to include a copy of the fee receipt evidencing that the alien has paid the DOS immigrant visa processing fee;
• The applicant has indicated on the provisional unlawful presence waiver application that DOS initially acted to schedule the immigrant visa interview prior to January 3, 2013.

What Should I Do if New Evidence of Hardship or Eligibility Arises After the Application Has Been Filed?

An individual with a pending I-601A may supplement the application with additional materials at any time prior to adjudication. In addition, a provisional waiver application may be withdrawn prior to adjudication, and may be refiled, as long as the underlying case is still pending with DOS. The applicant must notify DOS that he or she intends to file a new Form I-601A.

Will Provisional Unlawful Presence Waiver Applicants be Subject to an Interview?

Most provisional waiver applications will be adjudicated by the USCIS National Benefits Center(NBC), which does not conduct onsite interviews. To schedule an interview, the NBC will be required to transfer the file to the local office for scheduling which can take several months. To require this for every provisional waiver application would undermine the goals of the initiative, therefore, interviews will not be routinely required. However, USCIS has reserved its right to
schedule provisional waiver interviews on a case-by-case basis.

Will USCIS Issue a Request for Evidence or Notice of Intent to Deny Before Denying a Provisional Waiver?

USCIS will issue a Request for Evidence (RFE) in any case where it is missing critical information related to extreme hardship or whether the alien merits a favorable exercise of discretion, or to any issue helpful to its adjudication. USCIS will not, however, issue a Notice of Intent to Deny (NOID) a provisional waiver application.

My Provisional Waiver Application Was Denied. What’s Next?

There is no administrative appeal of a denied I-601A. An individual whose provisional waiver application is denied may file a new Form I-601A with additional evidence to overcome the reasons for the denial. If you elect to refile, the case must still be pending with DOS, and you must notify DOS of your intent to file a new Form I-601A. Alternatively, you may follow the regular waiver process by filing Form I-601 after attending a visa interview abroad and being found inadmissible.

Motions to reopen or reconsider a denied provisional waiver application are not permitted. USCIS, however, has reserved the authority to reopen and reconsider, on its own motion, an approved or denied provisional waiver at any time, including when new factors come to light after the applicant’s immigrant visa interview abroad. Before reopening an approved provisional waiver for revocation, USCIS will notify the applicant of its intent, provide the applicant with the derogatory information, and give the applicant an opportunity to respond. There is no right to appeal the revocation of a provisional waiver approval.

Waivers denied on discretionary grounds are not subject to review in federal court.

Once a Provisional Waiver Application Is Approved, What Are the Next Steps?

As long as you notified NVC  your intent to apply for a provisional waiver, NVC will schedule the immigrant visa interview after USCIS has approved the provisional waiver application. DOS estimates that it will schedule the interview within two to three months after approval of the provisional waiver and the applicant’s submission of the required documents to DOS. If NVC already scheduled your client for an immigrant visa appointment at the consular post and you notified the post of your client’s intent to apply for a provisional waiver, you should contact the post to reschedule the interview after USCIS has approved the provisional waiver.

Does the Approval of a Provisional Waiver Confer Legal Status on the Applicant or Provide any Other Immigration Benefits?

A provisional unlawful presence waiver approval does not:

• Confer legal status;
• Stop or retroactively eliminate the accumulation of unlawful presence;
• Allow entry into the U.S. without an appropriate visa or entry document;
• Allow an alien to apply for work authorization or advance parole;
• Protect an alien from being placed in removal proceedings or removed from the United States;
• Allow an alien to receive a Social Security card or driver’s license;
• Guarantee return to the U.S.; or
• Waive any ground of inadmissibility other than INA §212(a)(9)(B)(i)(I) or (II).

Will Applying for a Provisional Waiver Put An Applicant at Risk for Immigration Enforcement or Removal?

USCIS does not anticipate that it will issue charging documents against those aliens with approved provisional waiver applications, but reserves the right to do so if it discovers acts, omissions, or post-approval activity that would meet the criteria for NTA issuance, or if it determines that the waiver was approved in error.

Similarly, consistent with its civil enforcement priorities, USCIS does not envision initiating removal proceedings against aliens whose provisional waivers are denied or withdrawn prior to final adjudication. Such individuals will typically be referred to ICE only if they are considered a DHS enforcement priority – that is, if they have a criminal history, have committed fraud, or otherwise pose a threat to national security or public safety.

Under What Circumstances Can a Provisional Waiver be Revoked?

An approved provisional unlawful presence waiver is automatically revoked if:

• The consular officer determines at the interview that the alien is inadmissible for reasons other than INA §212(a)(9)(B)(i)(I) or (II);
• The underlying immigrant visa petition associated with the provisional waiver is revoked, withdrawn, or rendered invalid (and not otherwise reinstated for humanitarian reasons or converted to a widow(er) petition);
• The immigrant visa registration is terminated and not reinstated in accordance with INA §203(g). The alien, at any time before or after approval of the provisional waiver or before the immigrant visa is issued, reenters or attempts to reenter the United States without inspection or parole.

Source: American Immigration Lawyers Association (AILA)

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