The 3 and 10 year bars to reentry are triggered upon departing the United States. As the procedure is currently administered, an applicant must depart the United States before applying for an I-601 waiver. If the waiver is denied, the applicant is outside of the United States and subject to reentry. Under the proposed provisional waiver procedure, the applicant will learn whether the waiver is approved before departing the United States.

The procedural change is expected to accomplish two objectives: (1) to reduce the hardship of extended family separation that successful waiver applicants have until now endured, and (2) to lure many applicants who are eligible for waivers, but fear the waiver application process.

The proposed rule provides that for I-601A provisional waivers only US citizen spouses and parents constitute qualifying relatives.  The existing process, which will continue in force, allows both US citizen and permanent resident spouses and parents to serve as qualifying relatives.

Another important difference bewteen the I-601 waiver and I-601A waiver is that the new I-601A waiver will allow only once chance.  If the application is denied, the applicant may not make a second I-601A application.  This raises the stakes and makes it necessary to prepare the best possible application the first time.

While I-601 waivers do require a showing of extreme hardship, the FY 2011 approval rate for Mexico was 84% suggesting that the waiver is a good strategic choice for many aliens with a US citizen spouse or parent.  The 84% approval rate combined with the very dangerous conditions in Mexico right now, especially for "Nortenos" who are subject to a high risk of kidnappings for ransom, makes the I-601A  worth pursuing when there is sufficient evidence that the qualifying relative will suffer extreme hardship.
 

USCIS's notice in the Federal Register is part of the Administrative Procedures Act's "notice of proposed rulemaking" requirement.  The public now has the opportunity to comment on the proposed rule from April 2, 2012 until June 1, 2012 by visiting www.regulations.gov.
 

If the new provisional waiver regulations are ultimately implemented, applicants will still be required to depart the United States and apply for an immigrant visa and a waiver abroad.  But they will do so with the security of knowing that the waiver in their particular situation will be granted.  USCIS Director Alejandro Mayorkas said,

The law is designed to avoid extreme hardship to U.S. citizens, which is precisely what this proposed rule will more effectively achieve... The current process can subject U.S. citizens to months of separation from family members who are waiting for their cases to be processed overseas.

The new provisional waiver application will be made on form I-601A and require a filing fee of $585 plus a biometrics fee of $85.  It will not be possible to seek a waiver of this fee under the new rule as it has been proposed.

As proposed, the rule will not allow an appeal or motion to reopen a decision denying an I-601A provisional waiver application.

Director Alejandro Mayorkas

The USCIS questions and answers on provisional waivers notes that in some cases applicants whose provisional waiver applications are denied may be issued a Notice to Appear (NTA), the initial step in the removal process.

The questions and answers document USCIS issued on March 30, 2012 directs the reader to the USCIS policy memorandum dated November 7, 2011 titled Revised Guidance for the Referral of Cases and Issuance of Notices to Appear (NTAs) in Cases Involving Inadmissible and Removable Aliens.  That notice provides that USCIS will generally not issue an NTA to an unsuccessful applicant for immigration benefits except in the following circumstances:

1. Termination of conditional permanent residence status and denials of an I-751 petition to remove the conditions on permanent residence
2. Denial of an I-829 petition by an EB-5 investor to remove the conditions on permanent residence
3. Denials of NACARA 202 and HRIFA adjustment of status applications
4. Asylum referrals (where the asylum officer does not grant asylum and refers the case to the Immigration Court), termination of asylum, or withholding of removal
5. NACARA 203 cases where the application for suspension or cancellation is denied
6. Certain TPS cases
7. Where a Statement of Findings (SOF) that substantiates is part of the record of proceedings
8. Egregious Public Safety (EPS) cases including:

a. Murder, rape or sexual abuse of a minor

b. Illicit trafficking in firearms or destructive devices

c. Offenses relating to explosive materials or firearms

d. Crimes of violence for which the term of imprisonment imposed, or where the penalty for a pending case, is at least one year

e. An office relating to the demand for or receipt of ransom

f. An offense relating to child pornography

g. An office relating to peonage, slavery, involuntary servitude, and trafficking in persons

h. Human rights violators, known or suspected street gang members, or Interpol hits

i. Persons who re-entered after an order of exclusion, deportation, or removal subsequent to conviction for a felony where an I-212 waiver application has not been approved

Because even the provisional I-601A waiver process may result in initiation of removal proceedings, it is wise to consult with a lawyer before filing an I-601A provisional waiver application.

It is also important to note that it is not possible to apply for a provisional I-601A waiver at this time.  It will likely be another three to six months before the waiver is available and USCIS make a formal announcement of the effective date of the new regulations after the final rule is adopted.