Newsletter Vol II #1

pic22At last! The provisional waiver we have been talking about and waiting for since last summer is now in full effect. However, its limitations are greater than anticipated. For example, unlike the traditional waiver that considers extreme hardship on either a parent or spouse, the provisional waiver will only consider hardship on the spouse. Another limitation is that unlike the traditional waiver that accepts the extreme hardship of either a legal permanent resident or citizen spouse, the provisional waiver demands the spouse be a United States citizen. Probably the most esoteric limitation is the inability to rely on two family members at the same time. For example, under the traditional waiver, you could be petitioned by an adult citizen son, but then demonstrate an extreme hardship on your permanent resident father. The new and more restrictive provisional waiver re-quires the petitioner to be your citizen spouse and it will only consider his or her hardship. The only variation of this rule is if you are between 17 and 20 years of age and your parent is a citizen. If the aforesaid limitations have not already frustrated your case, now consider that if your case has been pending with the National Visa Center (NVC), since before January 3, 2013, you might not qualify for the provisional waiver! Another requirement of the provisional waiver is that the United States Department of State (DOS) hasn’t already schedule your appointment at a US consulate. The NVC is responsible for coordinating cases with the consulates abroad, so if you already paid the required fees to the NVC before January 3, your case was likely scheduled for an interview. If the NVC moved to schedule your case before January 3, 2013, regardless of the interview date, you are prohibited from filing the provisional waiver. Fortunately, if you are disqualified on this basis, your relative can always file a new petition for you and if approved, continue with the provisional waiver.

Even If your I-601A waiver of unlawful presence is approved, consider there is no interim benefit such as work authorization; it does not grant lawful status, it does not waive the requirement to depart the US, nor is it a guarantee that a visa will ultimately be is-sued. The consular officer can still deny your case on other grounds. Yet despite all of these provisional waiver limitations, its benefit still justifies the effort. The provisional waiver reduces the time your family will be separated from what could have been one year or more to what is expected to be one week or less. You can also apply for the provisional waiver even if you are in removal proceedings, but you must first have the case administratively closed.

pic23The California Service Center for United States Citizenship and Immigration Services (USCIS) has its hands full of applications for Deferred Action for Childhood Arrivals (DACA). To alleviate the burden, the California Service Center transferred many of its pending DACA cases to the Texas Service Center for processing. As of March 8, 2013, If you have a pending DACA application and you receive a letter from USCIS saying your case has been transferred to Texas, do not worry. The transfer was merely logistical and does not require you to do anything.

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