USCIS Memo to DHS recommending termination of Haiti's TPS Designation

USCIS issued a memorandum to the Department of Homeland Security ("DHS") on April 24, 2017 recommending DHS terminate the designation for Temporary Protected Status ("TPS") for Haiti, as the agency concluded that the conditions in Haiti no longer support its designation. USCIS recommended that the effective termination date be set for January 22, 2018. The memo states "[USCIS] has concluded that the specific extraordinary and temporary conditions stemming from the 2010 earthquake which caused Haiti to be initially designated for TPS and to be redesignated in 2011 have been largely ameliorated. Those myriad problems remaining in Haiti are longstanding problems which have existed for many years before the 2010 disaster. Haitian nationals may safely return to Haiti ..."  

USCIS's memo included its recommendations to DHS on how to treat Haitian nationals in the U.S. on TPS: "If you determine that Haiti no longer continues to meet the statutory requirements for its TPS designation, you must terminate TPS for Haiti. Termination would end TPS benefits for existing Haitian TPS beneficiaries unless you provide for these benefits during a period for orderly transition. Upon the termination of TPS benefits, former beneficiaries without another immigration status or authorization to remain would no longer have permission to work and remain in the United States."

This recommendation from USCIS received a quick response from sixteen Democratic Senators, including Senator Elizabeth Warren of Massachusetts and Senate Minority Leader Charles Schumer of New York, urging DHS Secretary John F. Kelly and U.S. Secretary of State Rex Tillerson to extend the benefit despite USCIS's recommendation. DHS has not commented on USCIS's recommendation. Since the release of that memo, the Associated Press is reporting the Trump administration has begun hunting for evidence of crimes committed by Haitian immigrants as it decides whether to continue the TPS designation. In its report, the AP stated, "The request for criminal data for an entire ethnic community is unorthodox...Introducing new criteria is likely to cause consternation among law-abiding Haitians who may feel they are being penalized for the wrongdoing of others." We will continue to closely monitor the situation in the coming weeks and provide updates on our website.

The latest on the President's Executive Order impacting non-immigrants, immigrants and U.S. businesses

On Friday January 27, 2017, President Donald J. Trump signed an Executive Order that contained sweeping changes to processing arrivals at our nation's airports and land borders of non-immigrants with a variety of work and travel visas, immigrants, lawful permanent residents, and refugees. Although styled as imposing temporary measures, it is having a dramatic impact on thousands of individuals in the U.S. and abroad, and contains language that suggests long-lasting changes to the visa application process abroad and the adjudication of immigration-related applications within the U.S. This news release summarizes the Executive Order, the litigation that has followed, and the Order's effect on individuals and employers in the coming weeks.

What is in the Executive Order?

• Major items in the Executive Order include a temporary suspension of visa issuance abroad and entry into the U.S. for individuals from 7 countries, a temporary suspension of admission of all refugees, an indefinite suspension of refugees from Syria, and suspension of the Visa Interview Waiver Program for all non-immigrant visa renewals (by citizens of all countries).
• The Order covers "immigrants and non-immigrants" and includes anyone with a valid visa (including professional work visas, student visas, and tourist visas) and returning lawful permanent residents. The Department of Homeland Security ("DHS") later released a statement indicating the entry of lawful permanent residents would be considered in "the national interest" but it did not assure their entry. Rather, the statement included the caveat "absent derogatory information indicating a serious threat to public safety and welfare, lawful permanent resident status will be a dispositive factor in our case-by-case determinations."
• Section 5 of Order directs the Secretary of State to suspend the U.S. Refugee Admissions Program ("USRAP") for 120 days, and specifically states that the entry of nationals of Syria as refugees is suspended indefinitely, with exceptions for 1) if admitting the individual would be in the national interest; 2) if the person seeking admission is from a religious minority facing religious persecution; 3) to conform to international agreement; or 4) if the person is in transit and there would be undue hardship if he/she were denied admission to the U.S.
• Section 8 of the Order requires the Secretary of State to immediately suspend the Visa Interview Waiver Program ("VIWP"), a worldwide program which allows U.S. consuls to waive in-person visa interviews for nationals of any country who have been recently vetted for security clearances and who seek a visa renewal.

What is the status of litigation regarding the Executive Order?

• Attorneys with the American Immigration Lawyers Association ("AILA") and the American Civil Liberties Union ("ACLU") have filed lawsuits on behalf of affected individuals in federal district courts in New York, Massachusetts, Virginia, and Washington state. Judges in those federal courts have issued Temporary Restraining Orders ("TROs") based on plaintiffs' likelihood of success on Constitutional grounds.
• New York's TRO provides a nationwide stay of removal preventing deportation for individuals with valid visas and approved refugee applications affected by the Executive Order.
• Massachusetts' TRO has barred federal officials from detaining or removing anyone affected by the Executive Order for 7 days (until February 4), and further instructs Customs and Border Protection ("CBP") to notify international airlines that passengers flying into Boston's Logan Airport will not be subject to the Executive Order. Airlines had been refusing to board affected individuals.
• Virginia's TRO specifically orders federal officials to allow lawyers access to "all legal permanent residents detained in Dulles International Airport."
• Washington state's TRO bars federal officials from deporting two unnamed individuals in the U.S.
• Judges in the federal district courts in these jurisdictions will hold hearings this week on these pending suits to determine whether to extend, modify or cancel the TROs. The outcomes are difficult to predict. If the judges are persuaded on the merits of the case, it is possible the TROs may be converted into preliminary injunctions while awaiting further judicial review, effectively stopping the Executive Order or parts of it from taking effect until the matter can be argued and decided by the court. Alternatively, attorneys for the Trump Administration may succeed in their argument that the President's broad discretion on matters of national security permits the actions contained in the Order. If a judge permits the TROs to expire without issuing a preliminary injunction, the Executive Order would be in effect until either a successful appeal by the immigrants to a higher court or possibly an ultimate decision by the Supreme Court.
• In addition, Massachusetts Attorney General Maura Healey announced she is filing a lawsuit today to challenge the Executive Order as unconstitutional.

What are the consequences of this Executive Order on individuals and employers?

• Foreign nationals from one of the seven countries affected by this Executive Order -- either lawful permanent residents or holders of valid visas -- should not travel. There is no guarantee these individuals will be permitted back into the U.S. after travel abroad. This could have disastrous consequences for individuals, their families, and their employers, as they risk being unable to re-enter the U.S. for at least 90 days, if not longer based on how quickly they might be able to obtain a new visa (if needed). 
• For those foreign nationals affected by this Executive Order who are currently outside the U.S., they should consider returning to the U.S. immediately via a direct flight into Boston's Logan Airport if possible before February 4 when the TRO expires.
• If foreign nationals are asked to relinquish U.S. permanent residence, the returning lawful permanent residents should be aware they have a right to request a hearing before an immigration judge. Green card holders should not sign a Form I-407 to relinquish their residence if they desire a hearing.
• Credible reports indicate that applications by nationals from these seven countries for immigration benefits with U.S. Citizenship and Immigration Services ("USCIS") such as Adjustment of Status, Petitions for Non-Immigrant Workers, Applications for Employment Authorization, etc. have been suspended. Currently, issuance of visas abroad for these foreign nationals is also suspended, and sources indicate USCIS will accept but not complete final adjudication until further notice of applications filed by or on behalf of foreign nationals from those seven countries.
• Employers should be aware of both the risk for delays with adjudication of applications and the risk travel presents for any employee needing to apply for a visa abroad. The suspension of Visa Interview Waiver Program will affect students and professional visa holders across the globe, as appointments for visa renewals in all countries will likely experience increased wait times since all visas applicants are now required to attend an in-person visa interview. There is also a greater likelihood of administrative processing (security) delays, given the additional information the Department of State will be seeking as contemplated by the Executive Order.
• In addition, the broad language in Section 3 of the  Order states that the Secretary of DHS and the Secretary of State shall conduct a review to determine the information needed from any country to adjudicate any visa, admission or other benefit under the Immigration and Nationality Act ("INA"), including adjudications. This language suggests a full revisiting of the current processing procedures, which may also result in delays.

We will bring you further updates on this and other immigration-related news in our February newsletter next week. 

DHS publishes new International Entrepreneur Rule

On January 17, 2017, the Department of Homeland Security ("DHS") published a final rule in the Federal Register concerning regulations to implement new International Entrepreneur parole authority. DHS lists increasing and enhancing entrepreneurship, innovation and job creation as its goals for this new rule which is scheduled to become effective on July 17, 2017. The rule provides guidance for the use of parole - on a case-by-case basis - for entrepreneurs of start-ups who can demonstrate they would provide significant public benefit to the U.S. through evidence of "substantial and demonstrated potential for rapid business growth and job creation." Among the criteria adjudicators would consider are receipt of capital investment from U.S. investors with established records of successful investments and obtaining significant awards from certain Federal, State or local government entities. A foreign national who receives a grant of parole under this new rule would be permitted an initial stay of up to 30 months in the U.S., with the possibility of an additional 30 month extension to facilitate the applicant's ability to oversee and grow her or his start-up in the U.S.

We expect to bring you a detailed summary of this new rule in our February newsletter.

Repeal of National Security Entry-Exit Registration System (NSEERS)

On December 23, 2016, DHS finally repealed its outdated and arguably discriminatory regulations relating to the National Security Entry-Exit Registration System (NSEERS), an obsolete special registration program that required immigrants from 25 Muslim-majority, Arab, and South Asian countries to register their presence in the United States. NSEERS was enacted in reaction to 9/11 and required certain foreign nationals in the U.S. to present themselves for fingerprinting, photos, and interviews at U.S. immigration offices, with further requirements to check-in at designated intervals. This program only applied to men over the age of 16 on non-immigrant visas (including tourism and work visas) from a list of 25 countries the Bush administration considered "havens for terrorists."

In 2011 the Obama Administration removed all 25 countries from the "special registration" list, which essentially suspended the program. In anticipation of the incoming Trump Administration, DHS officially repealed the program from the regulations. Only time will tell if the new administration will move to re-enact similar special registration rules, as the incoming president made campaign promises to that effect. Stay tuned for updates on our website at http://iandoli.com/newsandupdates/.

DHS announces redesignation of TPS for Yemen & extension for Somalia

USCIS recently announced Temporary Protected Status ("TPS") for Yemen and Somalia will be extended for an additional 18 months. For Yemen, the extension is effective March 4, 2017 through September 3, 2018, and the re-designation allows eligible nationals of Yemen to register for the first time or to re-register for TPS. For Somalia, the extension is effective March 20, 2017 through September 17, 2018, and applicants can re-register for TPS during the 60 days registration period that runs until March 20, 2017.

For more information please visit USCIS's TPS website.

DHS publishes new regulations affecting high-skilled non-immigrants, EB-1, EB-2, and EB-3 immigrant workers, and their employers

On November 18, 2016, the Department of Homeland Security (“DHS”) published its final rule affecting high-skilled nonimmigrant workers, EB-1, EB-2, and EB-3 immigrant workers and their employers. This new rule becomes effective January 17, 2017 and contains a number of important changes, as well as codifies a great deal of existing agency policy, including the following provisions:

Immigrant Petitions

• The new rule expands the list of events that can lead to a loss of a priority date. An individual may be stripped of a priority date if the underlying employment based immigrant visa petitions is revoked for fraud, or a willful misrepresentation of a material fact, if DOL revokes an underlying labor certification, if a USCIS or DOS officer invalidates a Labor Certification, or if USCIS determines that the original petition was approved based on a material error.
• Codifies that an approved I-140 remains valid where USCIS determines that a new job offer is in the same or similar occupation as listed in the original approved I-140.
• Explicitly confirms the long-standing policy that an approved petition remains valid indefinitely unless approval is revoked by USCIS or the DOS.
• Provides a new basis for a narrow group of individuals in valid H-1B, L-1, H-1B1, O-1 and E-3 status to obtain employment authorization independent of their current status. A nonimmigrant in one of the aforementioned statuses who is the beneficiary of an approved I-140, is subject to an immigrant visa retrogression, and who can demonstrate “compelling circumstances” may now apply for employment authorization. USCIS has provided examples of compelling circumstances such as serious illness or disability of the nonimmigrant or a dependent family member “that entails the worker moving to a different geographic area for treatment or otherwise substantially changing his or her employment circumstances.” If an individual can establish compelling circumstances, USCIS may in the exercise of discretion issue an Employment Authorization Document or Card (EAD) valid in one year increments. Once the principal worker is granted an EAD under the new rule, his or her spouse and children may also apply. Unfortunately, USCIS makes clear that use of employment authorization granted by the new rule will generally result in a loss of nonimmigrant status and result in, at a minimum, a temporary ineligibility for adjustment of status.
• For renewals for these “compelling circumstance” EADs, the principal worker will need to demonstrate he or she is still subject to an immigrant visa retrogression and compelling circumstances continue to exist. Alternatively, renewals are authorized if the worker’s priority date is one year or less from the Final Action date on the Visa Bulletin in effect at the time the extension application is filed. The principal worker’s spouse and children may apply for a renewal at the same time as the principal worker, but their applications hinge on the principal’s being approved.

Revocation of Approval of Immigrant Petitions

• Modifies the existing revocation rules in light of INA §204(j). The amended revocation rule provides that an employer’s written withdrawal an approved employment based preference petition 180 or more after the petition’s approval or 180 or more days after an associated application for adjustment of status has been filed remains approved for purposes of I.N.A. §204(j).  Prior to this amendment, a written withdrawal would lead to an automatic revocation of the petition.
• Also modifies the existing rule regarding situations where the petitioning employer ceases business.  An approved petition will remain valid if the petitioning employer ceases business 180 or more days after the petition’s approval or 180 or more days after the filing of an associated application for adjustment of status for purposes of 204(j).  Again, prior to this amendment, a petitioning employer’s termination of business was an event that triggered automatic petition revocation.

Non-immigrant Classes

• The new rule allows individuals coming to the U.S. in E-1, E-2, E-3, L-1 and TN nonimmigrant classifications to be admitted up to 10 days prior to the beginning of their authorized employment to permit them sufficient time to arrive, get settled, and begin employment (similar to what is permitted already for H-1B visa holders). These same individuals should also see their admission period include 10 days at the end of their period of authorized employment to permit them time to depart the U.S. or extend, change or otherwise maintain lawful status.
• Establishes by regulation a grace period of up to 60 consecutive days during each authorized validity period for a number of visa categories, including for E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1, and TN non-immigrants, in order to permit these high-skilled workers the ability to pursue new employment and an extension of their nonimmigrant status without having to depart the U.S. or needing to file a change of status request to B-2 or dependent non-immigrant status.
• Codifies and expands portability rules previously established under AC21 and subsequent agency guidance, including:
  • An H-1B nonimmigrant may begin concurrent or new employment upon the filing of a non-frivolous H-1B petition on his/her behalf, or at the start date of a requested petition –whichever is later.
  • Successive H-1B portability petitions are allowed – for example, if the H-1B worker was working at Company A, ports to Company B, and while Company B’s petition is still pending, the H-1B worker ports to Company C.
  • Requests to amend or extend any successive H-1B portability petition cannot be approved if a request to amend or for an extension of any preceding H-1B portability petition in the succession is denied, unless the worker’s previously approved H-1B status remains valid.
  • Denial of a successive portability H-1B petition does not preclude an H-1B worker from continuing or resuming working in accordance with a previously approved H-1B petition so long as that prior petition remains valid and the beneficiary has otherwise maintained H-1B status or been in a period of authorized stay and has not work without authorization.
• Explicitly recognizes that some states permit non-licensed individuals to perform work that otherwise requires licensure if they do so under the supervision of a licensed senior or supervisory personnel. The new rule notes that USCIS will consider the nature of the duties, in addition evidence of the identity, physical location and credentials of the person who will be supervising the H-1B worker and the facts must demonstrate that alien will fully perform the duties of the occupation.
• Confirms that DHS may approve, for up to 1 year, an H-1B petition on behalf of a worker who will be employed in a job that requires licensure by a state or local authority if the only things precluding the H-1B worker from obtaining the license are a lack of a social security number or proof of employment authorization, or similar technical requirement. Extensions for these individuals may not be approved unless the petitioner can demonstrate at the time of applying for the extension that the H-1B worker is now licensed in that position, or working in a different position or location that either requires a different license (which the H-1B worker has) or no licensure requirement is applicable in the new location.
• Provides for more consistent adjudication for non-profit employers affiliated with institutions of higher learning and government research organizations filing cap-exempt H-1B petitions, including the potential for non-profit employers and government research organizations to pursue cap-exempt H-1Bs even if they have never previously petitioned for an H-1B employee.
• Prior regs and interim policy memoranda had required cap-exempt non-profits to demonstrate the non-profit was connected to or associated with an institution of higher education through shared oversight or control by the same board or federation, was operated by an institution of higher education, or was attached to an institution of higher education as a member, branch, cooperative, or subsidiary, or proof the organization had been granted a cap-exempt H-1B in the past.  The new rule provides an additional option: proof that the non-profit has entered into a formal written affiliation agreement with an institution of higher education that establishes an active working relationship with the institution of higher ed for purposes of research or education, and that a fundamental activity of the non-profit is to directly contribute to research or education mission of the institution of higher education.
• The new rule also expands cap-exempt status for government research organizations by clarifying that federal, state or local entities whose primary mission is the performance of basic and/or applied research may qualify as cap-exempt. The previous version of the regulations stated a government research organization was a “United States Government entity” so the expansion to state and local government entities engaged in research is notable.
• In addition, an H-1B petitioner who is not a qualifying institution or organization may claim an exemption from the cap for H-1B employees if the majority of his/her duties will be performed at a qualifying institution, organization or entity, and those duties directly and predominantly further the essential purpose, mission or objectives of the organization (higher education or non-profit or government research).
• Clarifies two existing policies of USCIS concerning employees working for cap-exempt and then cap-subjected employers: 1) that an H-1B nonimmigrant working for a cap-exempt organization must be counted against the cap when changing employers to a cap-subject employer if he/she has not previously been counted against the cap within the past 6 years, and 2) concurrent employment with a cap-exempt and cap-subject employer is permitted, but the H-1B nonimmigrant must continue to maintain the cap-exempt employment. Failure to do so may result in USCIS revoking the concurrent, cap-subject petition unless the beneficiary has been counted against the cap within the past 6 years or obtains a new cap-subject H-1B approval.
• Codifies that time spent physically outside the U.S. exceeding 24 hours by an alien during the validity of an H-1B petition approved on the alien’s behalf does not count towards the 6 year maximum. The burden is on the H-1B petitioner to provide evidence in the form of passport stamps, I-94 records, and airline tickets, along with a chart, indicating 24 hour periods spent outside the U.S. when seeking to recapture time and extend the alien’s H-1B status.
• Allows for extension of H-1B status beyond the 6 year maximum under 214(g)(4) when a petitioner can show more than 365 days have passed since it filed a labor cert with DOL under 203(b) or an immigrant visa petition with USCIS under 203(b).  Petitioners may file an H-1B petition seeking a lengthy adjudication delay exemption within 6 months of the requested start date, which may be before 365 days have elapsed since the filing of the Labor Cert or I-140.

Adjustment of Status to that of Person Admitted for Permanent Residence

• EADs may not be issued to an application for adjustment of status under the Haitian Refugee Immigration Fairness Act of 1998 (HRIFA) until the AOS application has been pending for 180 days, with limited exceptions. If USCIS fails to adjudicate the applicants EAD upon expiration of the 180 day waiting period or within 90 days of filing the EAD application (whichever is later), the applicant shall be eligible for an EAD.
• USCIS may require any applicants for adjustment of status based on an approved employment-based immigrant petition to affirmatively demonstrate to USCIS, on Form I-485 Supplement J that the employment offer by the petitioning employer is still valid or the applicant has a new offer of employment from the same petitioner, a new employer, or a new offer based on self-employment in the same or similar occupational classification as the employment offered in the original petition. The qualifying visa petition (the I-140) needs to have already been approved (and not revoked) or still pending when the beneficiary notifies USCIS of a new job offer 180 days or more after he or she filed an I-485 application, and the I-140 is subsequently approved. 

Control of Employment of Aliens

• If an individual’s employment authorization is due to expire, the new regulations require employers to re-verify on Form I-9 (no later than date of expiration of current employment authorization) to reflect the individual is still work-authorized in the U.S. in order to continue his or her employment.
• For persons presenting EADs for I-9, reverification applies upon the expiration of the automatically extended validity period for the EAD (discussed below) and not the expiration date indicated on the face of the EAD.
• EADs that are issued to individuals who are not employment authorized incident to status (and including those filing based on Temporary Protected Status) will have their EADs automatically extended for up to 180 days from the date of their EAD expiration upon timely filing for an extension.
• NOTE: the regulation that provides for automatic extension of EADs also removes the existing regulation requiring USCIS to adjudicate EAD applications within 90 days of receipt. It remains to be seen how this change will affect applicants for initial EADs.

Proposed rule would allow entrepreneurs temporary entry into the U.S.

On August 26, 2016, the Department of Homeland Security ("DHS") announced new proposed regulations to increase and enhance entrepreneurship, innovation, and job creation in the United States. DHS's proposed rule would add new regulatory provisions permitting the use of parole/temporary stay on a case-by-case basis with respect to entrepreneurs of start-up entities whose entry into the U.S. would provide a significant public benefit through the substantial and demonstrated potential for rapid business growth and job creation. The regulations describe several metrics for assessing this potential, including the receipt of significant capital investment from U.S. investors with established records of successful investments or obtaining significant awards or grants from certain federal, state or local government entities. 
 
If granted, parole would provide the entrepreneur a temporary, initial stay of up to 2 years, with the possibility of being extended by up to an additional 3 years, in order to facilitate the entrepreneur's ability to oversee and grow her or his start-up entity in the U.S. DHS would consider subsequent requests for re-parole only when the entrepreneur can demonstrate the start-up entity continues to provide a significant public benefit as evidenced by substantial increases in capital investment, revenue, or job creation.

DHS published its notice of proposed rulemaking in the Federal Register, inviting public comment for 45 days - until October 10, 2016. Once the comment period closes, the agency will review comments received and consider changes to the proposed regulations, publishing a final rule in the Federal Register at a later date. You may submit comments on the proposed rule by e-mail at uscisfrcomment@dhs.gov with DHS docket number USCIS-2015-0006 in the subject line of the message. Iandoli Desai & Cronin P.C. will continue to bring you updates on this new proposed rule in our newsletter and on our website at www.iandoli.com/newsandupdates.

DHS increases fines for I-9 and other immigration violations

As of August 1, 2016, DHS's new rule increasing fines for I-9 and other immigration violations is now in effect.  DHS, in cooperation with the Department of Justice ("DOJ") and the Department of Labor ("DOL") has increased civil fines against employers who commit immigration-related offenses, such as Form I-9 and E-Verify violations, H-1B visa program violations, unfair immigration employment practices and unlawfully employing foreign nationals. Although the increased penalties are applicable only to penalties assessed after August 1, 2016, they will apply to violations committed by employers going back to November 2, 2015.
 
The penalty increases are substantial because the federal agencies are adjusting fines for inflation from the dates of initial enactment of the I-9 rules in 1986.  For instance, penalties for violating the Form I-9 identity and employment eligibility verification provisions almost doubled from a range of   $110 - $1,100 per violation to a range of $216 - $2,156 per violation.  When violations are coupled with multipliers for each offense, the fines can add up to hundreds of thousands of dollars and even into the millions very quickly.  If you have questions about I-9 compliance or compliance with temporary worker visa programs, please contact one of the attorneys at Iandoli Desai & Cronin at info@iandoli.com.

Reminder: STEM OPT extension deadline fast approaching

F-1 students on 17-month STEM OPT and their employers should be aware of the fast-approaching deadline for applying to extend STEM OPT to the new 24-month maximum. Eligible F-1 students with at least 150 days of OPT remaining have until August 8, 2016 to apply for the additional 7 months of work authorization permitted under the Department of Homeland Security's ("DHS") final STEM OPT rule. For further details about applying for this STEM extension, please visit our website.

DHS expands provisional waivers

The Department of Homeland Security ("DHS") published a final rule on July 28, 2016 that expands provisional unlawful presence waiver eligibility. Generally, individuals who are in the U.S. and seek lawful permanent resident ("LPR") status (commonly referred to as "green card" status) must either obtain an immigrant visa abroad through consular processing with the Department of State ("DOS") or apply to adjust their status to that of an LPR while they remain in the U.S. Individuals present in the U.S. without having been inspected and admitted or paroled, or who have overstayed a previously valid visa are typically ineligible to adjust status and instead have to depart the U.S. to process their immigrant visas abroad. However, once these individuals depart the U.S., if they have been present in the U.S. without having been inspected and admitted or paroled, or if they overstayed a previously valid visa, they may trigger a 3 year or 10 year bar to re-admission into the U.S. based on accrual of unlawful presence. The Secretary of Homeland Security has had discretion to waive this ground of inadmissibility if the individual can demonstrate that refusal of his or her admission into the U.S. would result in extreme hardship to his or her U.S. citizen spouse or parent. Previously, the foreign national would have to attend his or her immigrant visa interview abroad, and then submit a Form I-601 and evidence of the hardship to USCIS for adjudication. This process resulted in foreign nationals being separated from their family members in the U.S. for extended periods of time while awaiting adjudication of the Form I-601. 
 
In 2013 DHS implemented a final rule that allowed certain immediate relatives of U.S. citizen spouses and parents to submit a Form I-601A while still in the U.S., accompanied by evidence of extreme hardship their family would face if they were unable to return to the U.S. after immigrant visa processing. USCIS adjudicates the Form I-601A prior to the foreign national departing the U.S. to attend his or her visa interview, thereby reducing the amount of time families are separated from one another while awaiting immigrant visas. The 2013 final rule permitted only immediate relatives - certain parents, spouses and children of U.S. citizens - to request the waiver. By granting the waiver prior to the foreign national departing the U.S., families experienced reduced hardships and lower processing costs for DHS and DOS. In 2015 DHS published a proposed rule to expand the class of individuals who could be eligible for provisional waivers to all statutorily eligible individuals regardless of their immigrant visa classification. The final rule, published August 1, 2016, expands consideration of hardship to include both U.S. citizen and LPR spouses and parents, and is now available to all preference category immigrants, individuals with approved employment-based immigrant visa petitions, and diversity lottery immigrants. A full copy of the rule can be viewed on the Federal Register website and newly eligible individuals may begin submitting Form I-601A beginning August 29, 2016.