We will have to see how this develops as USCIS clarifies and revises its guidelines, but it appears there may be a loophole — albeit an expensive one — for families hoping to use the new I-601A process despite having already reached a crucial point in the consular interview process.
A big disappointment with the Final Rule is that it maintains the mostly senseless and seemingly unjust stipulation that anyone whose immigrant visa appointment was already processed for scheduling as of January 3, 2013 is shut out of the I-601A process. This seems to make things easier for DOS and USCIS at the cost of penalizing the most proactive applicants.
The prelimiary publication in the Federal Register reads:
An alien who is ineligible to apply for a provisional unlawful presence waiver because of a previously scheduled immigrant visa interview may still qualify for a provisional unlawful presence waiver if he or she has a new DOS immigrant visa case because 1) DOS terminated the immigrant visa registration associated with the previously scheduled interview, and they have a new immediate relative petition; or 2) the alien has a new immediate relative petition filed on his or her behalf by a different petitioner.
What this seems to mean is that an individual who had already reached the consular interview stage may choose to let his or her case and petition lapse and then re-file a new I-130, pay new fees to the National Visa Center, and then proceed with an I-601A process without leaving the U.S.
We are thinking in particular of one family that we are working with. “Alfred” is a national of Mexico who entered the United States without inspection. He has never left the country, he has a completely clean criminal record, and he is married to a U.S. citizen and they have three U.S. citizen children. When Alfred came to us, he had an approved I-130 petition and he wanted help completing the rest of his consular interview process. We finished those steps in late 2011 and then in January 2012 came the first mention of the new I-601A process. As we awaited a final rule on this process, Alfred’s consular interview came and went — he did not attend it and hoped that the I-601A process would offer him a way to gain lawful status without an unpredictable separation from his family.
Alfred cannot afford to be apart from his family for unknown months and years. He is the sole provider for his family, and his wife is not able to work. Alfred is instrumental to the wellbeing of these four U.S. citizens, and even though he has a strong case it is by no means guaranteed that he would be able to return to the U.S. quickly enough to prevent the family from suffering gravely without him. The I-601A process would allow Alfred to request a provisional waiver, gain pre-approval, and then depart the U.S. for a few days or weeks before returning to the U.S. as a Permanent Resident.
In Alfred’s case, the rules have been written in a way that leave him on the sidelines. He might choose to continue with the traditional I-601 waiver and accept the difficulty this will cause his family. Or, if this “loophole” is valid, he might choose to cancel his pending case and re-file a new one. Re-filing will come at a cost of nearly $1,000 in new filing fees, but it might be worthwhile for him.
We will await further clarification on this point from CLINIC, ILRC, and USCIS among other entities. Does the rule mean to distinguish a case in which “DOS terminated registration” from one in which the applicant chooses to have the case lapse? The language cited above is also clearly intended to permit individuals to pursue an I-601A despite having an old case pending through a previous petitioner.