Archive | March, 2013

Stateside Waivers Have Arrived

4 Mar

Sixty agonizingly long days after final regulations were published, U.S. Citizenship and Immigration Services (USCIS) this morning released Form I-601A, Application for Provisional Unlawful Presence Waiver, and its accompanying instructions. In previous posts, we discussed many aspects of the stateside waiver process (see here, here, and here). In this post, we’ll discuss some basic filing-related details.

How much will it cost?

The filing fee for Form I-601A is $585 plus $85 for biometrics for applicants under age 79. No waivers are available for either fee. The check or money order should be made payable to “U.S. Department of Homeland Security” (not DHS).

Where should Form I-601A be filed?

According to USCIS’ website, Form I-601A should be filed with the Chicago Lockbox. Before filing their forms, applicants should double-check the website or call the National Customer Service Center at (800) 375-5283.

What must be filed with Form I-601A?

All applicants must submit a copy of the approval notice (Form I-797) for the immigrant visa petition showing they are the immediate relative of a U.S. citizen, as well as a copy of the fee receipt from the State Department for the immigrant visa processing fee. All applicants would also be wise to submit evidence in support of their claims of extreme hardship that would be suffered by a qualifying relative. (Examples of such documentation are listed in the instructions.)

What other materials must be filed with Form I-601A may vary based on applicants’ prior criminal and immigration histories. For example, applicants who are currently in removal proceedings must provide a copy of the Notice to Appear (NTA) along with an order demonstrating that their case has been administratively closed. Applicants who have ever been arrested or detained (for any reason other than a traffic violation) must provide information about the incident. Applicants who have been charged with a crime must provide certified court dispositions showing the outcome of proceedings, even if the relevant records are sealed or have been expunged. And applicants who were arrested but not charged must provide documents from the arresting or prosecuting authority demonstrating that charges were not filed.

Does the granting of a provisional waiver make me “legal”?

No. The approval of a Form I-601A will not affect an individual’s immigration status in any way. It does not provide employment authorization or any other interim benefits, and does not stop the accrual of unlawful presence. Nor does it eliminate the requirement that applicants depart the country to obtain an immigration visa at a U.S. embassy or consulate, nor guarantee that an immigrant visa will actually be issued.

What if my request for a provisional waiver is denied?

Applicants whose requests for a provisional waiver are denied have two options. First, they can re-file Form I-601A with the required filing and biometric fees. Second, they can seek a regular waiver of unlawful presence using the standard Form I-601, Application for Waiver of Grounds of Inadmissibility, after attending an immigrant visa interview at a U.S. embassy or consulate.

Do I need an attorney to file Form I-601A?

We think so. Visit us at BenachRagland.com or check with your local bar or the American Immigration Lawyers Association to find qualified attorneys to assist you.

The I-601A is Almost Here

1 Mar

jump-for-joy4

We are now days away from the launch of the provisional waiver process, a White House initiative that will permit immediate relatives of U.S. citizens to stay in the country while immigration officials process their waivers for the unlawful presence bars. U.S. Citizenship and Immigration Services (USCIS) will start accepting applications on March 4, and will release Form I-601A and its accompanying instructions either today or on Monday. We’ve talked about the provisional waiver process before (here and here), but thought we should again answer some frequently asked questions.

What’s the point of provisional waivers?

Existing immigration laws place many undocumented immigrants in a Catch-22. Unlike visa overstayers, those who entered without inspection must return home to obtain an immigrant visa. As soon as they depart the country, however, those who were unlawfully present for more than six months become inadmissible for either three or ten years. While such noncitizens can seek a waiver of inadmissibility, they are currently required to apply from abroad—resulting in separation from their families for many months if the waivers are approved, and for up to a decade if they are denied. As the name suggests, provisional waivers will allow such noncitizens to seek waiver before leaving the United States, reducing the period of separation to potentially just a few weeks.

Why are provisional waivers only available to immediate relatives of U.S. citizens?

Despite vociferous requests from immigrant advocates, USCIS limited eligibility for provisional waivers to those who are immediate relatives (i.e. parents, spouses, and children) of U.S. citizens. In the notice posted in the Federal Register, the agency gave two reasons. First, unlike immigrant visas in the family- and employment-based preference categories, no limits exist on the number that can be awarded to immediate relatives of U.S. citizens. And second, opening the process only to U.S. citizens could provide an incentive for eligible LPRs to naturalize.

Should I apply for a provisional waiver or wait for the possible passage of comprehensive immigration reform?

Funny you should ask, since we devoted a previous post to this very topic. In short, whereas comprehensive immigration reform is a possibility, the provisional waiver process is a reality. Qualified applicants could become permanent residents in a matter of months not years, as could be the case with comprehensive immigration reform. Moreover, while the cost of provisional waiver process is not cheap ($585 for Form I-601A, $85 for biometrics, plus costs associated with obtaining an immigrant visa from a foreign consulate), they could still be less than the fines and fees required under a comprehensive bill.

What qualifies as “extreme hardship”?

We also discussed this topic in a previous post. For hardship to qualify as “extreme,” it must be more severe than that experienced any time family members are forcibly separated. Among other factors, adjudicators will consider: (1) whether applicants have family ties in their home country; (2) the emotional and psychological impact of separation; (3) the living standards and societal conditions in the country of origin; (4) the financial and professional impact of separation on the U.S. citizen relative; (5) any health conditions affecting the applicant; and (6) the U.S. citizen’s age and length of residence in the United States.

Who must suffer “extreme hardship” to qualify for a provisional waiver?

Under federal law, waivers may only be granted based on hardship that would be suffered by the spouse and/or parent of the applicant, not the children. Presumably, Congress believed that allowing undocumented immigrants to receive unlawful presence waivers based on the hardship facing their U.S. citizen children would make it too “easy” for them to avoid the three- and ten-year bars. Perhaps this law will be changed if and when Congress does enact comprehensive immigration reform. But for now, the law is the law.

What if I have a criminal conviction?

This is a tricky one. Under federal regulations, provisional waivers are only available to overcome the grounds of inadmissibility related to unlawful presence. Noncitizens who are inadmissible for additional reasons—including a criminal conviction—cannot file Form I-601A. The answer, then, depends on whether USCIS has “reason to believe” your criminal conviction makes you inadmissible on some other ground. “Reason to believe” not a high threshold from a legal standpoint, and is certainly lower than the standard the government would need to satisfy in court. But if there’s any reasonable possibility that your conviction would independently make you inadmissible, USCIS would likely make you apply through the existing waiver process using Form I-601.

What if I’m in removal proceedings?

To qualify for a provisional waiver, noncitizens who are in removal proceedings must first successfully move for the proceedings to be administratively closed. If the I-601A is granted, such noncitizens must then move for termination of proceedings before leaving the country, lest they be considered to have “self-deported” during the pendency of proceedings.

What if I’m subject to a final order of removal?

Officially, noncitizens who are subject to a final order of removal are precluded by federal regulations from applying for a provisional waiver. As previously noted, however, noncitizens who are in removal proceedings may apply for such waivers. Thus, noncitizens with final orders of removal should move to have the order rescinded and the proceedings reopened before filing Form I-601A.

What if I’ve already filed Form I-601A?

If you have already filed Form I-601A, we have some bad news for you. You’ve been duped. USCIS will not accept provisional waivers before March 4, period.