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Provisional Unlawful Presence Waiver – Notifying the National Visa Center

By Keshab Raj Seadie, Esq. special to N24:
About the new waiver
On January 2nd, 2013, U.S. Citizenship and Immigration Services (USCIS) announced that certain immediate relatives of U.S. citizens present in the United States, who are in the process of seeking immigrant visas with the Department of State to become lawful U.S. permanent residents, may apply and be approved for provisional unlawful presence waivers before departing the United States to attend their immigrant visa interviews. USCIS will begin accepting provisional unlawful presence waivers on March 4th, 2013. In order to be eligible to apply for the stateside waiver, individuals must meet the following criteria:
Be 17 years or older
An immediate relative of a U.S. citizen
Have an approved Form I-130 or approved Form I-360
Have an immigrant visa case pending with U.S. Department of State
Paid the U.S. Department of State immigrant visa processing fee
Demonstrate that the denial of the waiver would result in extreme hardship to the U.S. citizen spouse or parent
Be present in the U.S. at time of filing of waiver and present to provide biometrics
Not be scheduled for a U.S. Department of State immigrant visa interview prior to January 3, 2013 (*)
Must be inadmissible only on account of unlawful presence
(*) Also worth noting in USCIS final rule was the issue of the immigrant visa interview date, which indicated the following:

If the date that the Department of State initially acted to schedule the immigrant visa interview is prior to the date of publication of this final rule, [January 3, 2013], then the alien is ineligible to apply for a provisional unlawful presence waiver. If the date that the Department of State initially acted to schedule the immigrant visa interview is on or after the publication date of this final rule, the alien is eligible to apply for a provisional unlawful presence waiver. The actual date and time that the alien is scheduled to appear for the interview is not relevant for the eligibility determination.
If you would like to apply for a provisional unlawful presence waiver, please take the following steps:
STEP A – Review the Provisional Unlawful Presence Waiver News Release on the USCIS Website to decide if you might meet the requirements. If you meet the requirements, you may choose to apply for the provisional unlawful presence waiver in accordance with the instructions on the USCIS webpage.
STEP B – Notify the National Visa Center (NVC) or Post: Before applying for the I-601A, you must notify NVC if you choose to seek a provisional unlawful presence waiver and have a pending immigrant visa case at NVC. If you do not notify NVC, your case may be scheduled for interview at a U.S. embassy or consulate abroad. If NVC has scheduled your immigrant visa appointment, you must notify the immigrant visa processing post where your appointment has been scheduled before applying for the provisional waiver.
NOTE: Applicants with an interview appointment letter from the National Visa Center dated before January 3rd, 2013 are not eligible to file the I-601A. Only applicants scheduled by the National Visa Center on or after January 3rd, 2013 for an upcoming initial immigrant visa interview are eligible to apply for the I-601A. “Scheduled” means the date on which NVC took the action to schedule the case – not the date of the visa interview appointment. NVC dates interview appointment letters on the day it schedules a case, so refer to the appointment notification letter to see when NVC took the scheduling action.
When do I notify the NVC or post?
Notify NVC immediately after you have paid the immigrant visa processing fee and before you apply for the provisional unlawful presence waiver. NVC will schedule your immigrant visa interview after USCIS has finished processing your provisional waiver application.
For cases at the U.S. Embassy or consulate: If NVC has scheduled you for an immigrant visa appointment and you are eligible to apply for the I-601A, you must notify the immigrant visa processing post where your appointment has been scheduled before applying for the provisional waiver. Once USCIS finishes processing your provisional waiver, you may contact post to reschedule your immigrant visa appointment.
How do I notify the NVC?
If you need to contact the National Visa Center, please email NVCi601a@state.gov
1.
Enter your NVC Case Number or USCIS Receipt Number in the Subject Line of the email.
Provide the applicant’s name and date of birth and the petitioner’s name and date of birth.
Provide the attorney of record’s name, law firm, and address (if applicable).
Include a statement that the applicant is applying for the provisional unlawful presence waiver with USCIS.
NOTE: Applicants with an interview appointment letter from the National Visa Center dated before January 3rd, 2013 are not eligible to file the I-601A. Only applicants scheduled by the National Visa Center on or after January 3rd, 2013 for an upcoming initial immigrant visa interview are eligible to apply for the I-601A. “Scheduled” means the date on which NVC took the action to schedule the case – not the date of the visa interview appointment. NVC dates interview appointment letters on the day it schedules a case, so refer to the appointment notification letter to see when NVC took the scheduling action.
What does my notification to the NVC do?
Your notification directs the NVC not to schedule your immigrant visa interview appointment until USCIS has processed your provisional unlawful presence waiver application.
What happens if I forget to notify the NVC?
If you do not notify NVC, your case may be scheduled for interview at an overseas post, which will delay processing of your immigrant visa application once USCIS has finished processing your provisional unlawful presence waiver application.
What will happen during the visa interview at the U.S. embassy or consulate if the consular officer determines that I have other visa ineligibilities?
If the consular officer determines at your immigrant visa interview that you have other ineligibilities (grounds of inadmissibility or are otherwise not eligible for the visa) beyond unlawful presence, the USCIS approved provisional waiver is automatically revoked. Learn more on the USCIS Website, www.uscis.gov/provisionalwaiver.
Think before you travel abroad
As the name suggests and described above, provisional waivers do not guarantee that applicants will be admitted if they leave the U.S. If there is negative information which comes up after the provisional waiver is granted, or it turns out the applicant is inadmissible on another ground in addition to the three/ten year bar, the waiver will not be valid.
During the teleconference, Director Mayorkas also mentioned the anticipated processing time for Form I-601A stateside waivers have yet to be determined. USCIS will wait until after the waiver is implemented (after March 4, 2013) in order to assess the volume of waiver applications before deciding on an appropriate processing timeline. Stateside waivers that are denied by USCIS are not appealable and individuals may be subject to receiving Notices to Appear.

Published Date: Friday, February 15th, 2013 | 06:38 PM

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