January 10, 2012

Today’s stakeholders meeting was primarily to get comments from the public, rather than to answer questions, though they did provide some new information. Reporters were not permitted to ask questions during the meeting. The majority of questions and comments were from attorneys, though some members of the public who are not attorneys also participated. The meeting started about 20 minutes late and ran for an hour and 40 minutes, which is longer than most stakeholders meetings. Among the information provided by the government is the following:

• Lockbox filing is still envisioned for those who will still be filing at the consulate. There should be an announcement for another stakeholders’ meeting on this subject in a month or so.
• USCIS officially states that the staffing issues in Ciudad Juarez have nothing to do with the proposal for Provisional Waivers
• While procedures are still being developed, USCIS envisions that Provisional Waiver applications will be adjudicated at two Service Centers to be determined
• USCIS has been considering a new form – in lieu of the current I-601 – for Provisional Waivers to avoid confusion and for other reasons
• Spouses and minor (under age 21) children of US citizens only will be eligible for Provisional Waivers and the qualifying relative must be the petitioner. Adult children of US citizens will not be eligible.
• USCIS has been working with the AAO to increase the number of adjudicators in anticipation of an increase in I-601 appeals
• EADs for pending Provisional Waiver applicants are extremely unlikely as it may require a law change, rather than merely a rule change and/or too much of a stretch in interpretation of existing law
• The exact procedures have not been decided, e.g. must the I-130 be approved first before the I-601 can be filed or can they be filed concurrently, etc.
• No fee waiver will be available for Provisional Waiver applications

The audience – both in person and by phone – made many comments and suggestions. Many attenders suggested that anyone who would be able to apply for a waiver should be eligible to apply in-country, including those in preference categories and family of permanent residents, and those with additional grounds of inadmissibility. Also, many attenders wanted more information on whether an NTA (Notice to Appear) would be issued if the waiver was denied. The government acknowledged the comments and said they would be taken into consideration. Other comments and suggestions included:

• If the Provisional Waiver is approved and the consulate unexpectedly makes a finding of an additional ground of inadmissibility and requires a waiver for that ground, then ‘res judicata’ should be observed, the extreme hardship finding should stand, and the new waiver should be adjudicated purely on the basis of discretion, considering the additional information.
• Since one can already under current procedures file an I-212 prior to departing the US and have a decision in hand before the consular interview, then those who need an I-212 and an I-601 for unlawful presence only should be permitted to file both of those together. This would deviate from the statements in the intended rule change that the I-601 would not be granted if any other ground of inadmissibility applied.
• If in the adjudication of the Provisional Waiver application, another ground of inadmissibility is found, the government should send a Notice of Intent to Deny, rather than going straight to denial, so that the attorney may address the additional ground with the Service Center in the initial application, rather than having to go through the appeal process immediately.
• Upon request, the government should make an affirmative finding that a specifically identified additional ground of inadmissibility does not apply to the applicant so that the consulate will be bound by the finding.
• Those who are already abroad, but would otherwise qualify for the process, should be permitted to send in their waiver applications in an effort to save time while the I-130 is pending.

The next step is for people to send in their written comments.