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FAQs on Provisional Waiver, DAPA, and H1B Visas

By Humera Subhani

February 2015

FAQs on Provisional Waiver, DAPA, and H1B Visas

• What is a provisional waiver and how does it help family members of U.S. citizens and lawful permanent residents (LPRs) who might be eligible for permanent status?
Many unauthorized family members of U.S. citizens and LPRs could become permanent residents themselves if they left the U.S., requested and obtained a waiver of inadmissibility for their unlawful presence in the U.S. (three- and 10-year bars problem), and then applied for an immigrant visa through a U.S. consulate abroad. This process is uncertain and can take years, during which time the individual is separated from his/her family in the U.S.

In 2013, USCIS started the stateside waiver process, allowing spouses, minor children, and parents of U.S. citizens to apply for the inadmissibility waiver from within the U.S. and then travel abroad for consular processing after USCIS provisionally granted the waiver, significantly reducing the time outside the country and providing more confidence that they would be able to return. Under Obama’s new Executive Action (November 20, 2014), the family members eligible for the “provisional waiver” process include adult children of U.S citizens and LPRs, and spouses and minor children of LPRs.

In order to obtain a waiver, a person must demonstrate that his or her absence from the United States would cause “extreme hardship” to a qualifying relative, defined as a spouse or parent who is a U.S. citizen or LPR. At this point it is uncertain which standard USCIS uses to grant the waiver. Many applicants have complained about inconsistent denials of this type of petition, so additional guidance on the standard is needed, and USCIS has been directed to provide it.

• Will DAPA (Deferred Action for Parental Accountability) recipients be eligible for public benefits and when will it start?
President Obama’s Executive Action stated that DAPA provides both temporary relief from deportation (called deferred action) and work authorization to unauthorized parents of U.S. citizens or LPRs. The program will most likely start in May 2015, with forms and more details released in the next few months.

DAPA recipients will not be eligible for federal public benefits, including federal financial aid, food stamps, and housing subsidies. The New York Times reported that the Obama Administration will make regulations to exclude DAPA recipients from any benefits under the Affordable Care Act, much as it did in the aftermath of the DACA (Deferred Action for Childhood Arrivals) announcement.

Whether DAPA recipients will be eligible for state benefits and opportunities like driver’s licenses, in-state tuition, and professional licenses will depend on state law. Deferred action recipients are eligible for driver’s licenses in most states.

• Will the H1B season be similar to last year and when should I start preparing?
On Wednesday, April 1, 2015, USCIS will begin accepting H1B cap-subject case filings. There are only 65,000 regular H1B cap numbers plus 20,000 advanced-degree cap exemptions (master's cap) available per year—but two years ago, the USCIS received over 120,000 H1B filings during the first five business days of April, and last year, over 170,000. So, be well prepared. Get educational equivalency evaluations (if needed) finished early. Start filing for the Labor Condition Application (LCA) in early March. For employees, speak with the employer soon. Make sure all documents are received and all questions answered so there are not last minute issues.

VISA PREFERENCE NUMBERS FOR February 2015

FAMILY	India	Pakistan/Bangladesh
1st	22Jul07	22Jul07
2A	08May13	08May13
2B	22May08	22May08
3rd	01Jan04	01Jan04
4th	15Apr02	15Apr02

EMPLOYMENT	India	Pakistan/Bangladesh
1st	Current	Current
2nd	01Sep05	Current
3rd	22Dec03	01Jan14
Other	22Dec03	01Jan14
4th	Current	Current
5th	Current	Current1B