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Q&A on I-601A Provisional Waivers

11 Jan

The Citizenship & Immigration Service has released more information about the I-601A provisional waiver process set to begin on March 4.  The I-601A provisional waiver process is meant to allow the immediate relatives of United States citizens to seek a waiver of inadmissibility due to unlawful presence while in the United States and prior to departing the U.S. for an interview at a U.S. consulate abroad.  Under the previous procedure for seeking this waiver, an immigrant would have to depart the United States to seek the waiver, subjecting himself to the ten year bar on returning.  The immigrant could apply for the waiver, which could take up to two years to be approved.  However, if it were not approved, the immigrant would be barred from returning for a period of ten years.  Understandably, few immigrants were willing to take this risk of separation from their family, homes and careers.  By allowing immigrants to seek the waiver in the United States prior to departing the U.S., the CIS procedural change will allow thousands of immigrants to regularize their status.

The newly released question and answer memo from the U.S. CIS helps clarify some of the legalese from the official regulations released on January 2, 2012.  So let’s talk procedure and, although this process applies to the children between 19 and 21 and the parents of U.S. citizens, we are going to focus on the spouses of U.S. citizens:

  1. First, you need an I-130 to be approved.  An I-130 immigrant petition is filed by a U.S. citizen on behalf of her foreign spouse.  The petition classifies the immigrant as the spouse of a citizen.  An I-130 petition is filed with the CIS and must be supported by evidence of a legal and bona fide marriage.  As of this moment, the CIS will deny petitions by same-sex married couples, but that does not necessarily mean that they should not file I-130s.  Currently, the CIS is taking between 6-9 months to adjudicate I-130 petitions.
  2. Once the I-130 is approved.  The CIS will send the approved petition to the National Visa Center (NVC) of the Department of State, which will initiate processing of an immigrant visa to be completed at the consulate in the home country of the foreign national spouse.  To be able to file an I-601A provisional waiver application, the immigrant must initiate the consular processing by paying the immigrant visa processing fee.
  3. Starting on March 4, 2013, immigrants with an approved I-130 petition by a U.S. citizen spouse who have paid the immigrant visa processing fees to the NVC may file applications for I-601A provisional waivers with the CIS.
  4. Individuals MAY NOT FILE for I-601A provisional waivers if the applicant is: (1)  inadmissible on other grounds (certain convictions, fraud, etc.); (2) in removal proceedings that have not been administratively closed; (3) outside the U.S.; (4) scheduled for a visa interview at a U.S. embassy abroad; or (5) an applicant for adjustment of status.
  5. I-601A provisional waiver applications have a filing fee of $585 plus the $80 biometric fee.
  6. Applicants must establish that the denial of a visa would cause their U.S. citizen relative extreme hardship.  Extreme hardship is defined as hardship going beyond that normally suffered by a family when there is prolonged separation.  In evaluating extreme hardship, adjudicators must look at the totality of the circumstances– health issues, emotional and psychological issues, financial issues, country conditions abroad, family ties in the U.S. and abroad.  There is no magic formula and each case must be evaluated on its own individual merits.  It is never enough to rely on generalities, but the particular hardship factors related to the individuals involved must be explored and presented.
  7. The filing of an application for I-601A provisional waiver will not provide any interim benefits such as employment authorization, lawful status, or protection from removal.
  8. Upon approval of the I-601A provisional waiver, an applicant will have to travel abroad upon the scheduling of the visa interview and apply for the immigrant visa.  The approval of an I-601A provisional waiver does not guarantee visa issuance as the consulate may discover new ineligibility in the visa interview.  For this reason, applicants should consult counsel prior to filing for a waiver and certainly prior to traveling abroad.
  9. If the I-601A provisional waiver is denied, there is no direct appeal.  An applicant may file a motion to reopen or reconsider or file anew with additional evidence.  The applicant may also proceed abroad and apply for the waiver at the consulate abroad.
  10. The CIS will adhere to its latest guidance on the issuance of Notice to Appears regarding denied applications for waivers.  Under current policy CIS will not issue notices ot appear in removal proceedings unless there is evidence that the individual denied is an enforcement priority such as a convicted criminal, an individual who has committed immigration fraud or has a final order of removal.

Benach Ragland will be hosting a Live Question & Answer session online today at 2PM EST.  Please feel free to join us so we can answer your questions.

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10 Facts About the New Provisional Waiver Process

2 Jan

Today, the USCIS  finally published the much-awaited rule on the unlawful presence waiver (I-601A), which will take effect on March 4, 2013.  We previewed this development in this blog in October 2012.

This is an enormous development.  The so-called stateside waiver process will allow thousands of immigrants to take the steps to regularize their immigration status.  The new waiver provisions do nothing to change the substantive requirement that an immigrant demonstrate that the denial of her permanent residence would cause extreme hardship to her U.S. citizen spouse or parent, but do eliminate the risk of long-term separation that has always been required to even seek the waiver.  By relocating decision-making of waivers to the United States and allowing immigrants to seek them in advance of their departure for their home country, this new regulation should reduce the numbers of immigrants without status in a humane way that honors family relationships.

The new waiver process will allow the immediate relatives of U.S. citizens to apply for a provisional unlawful presence waiver while they are still in the United States and before they leave to attend their immigrant visa interview abroad. Under the old rule, applicants who are not eligible to adjust status in the U.S. to become lawful permanent residents must leave the U.S. and obtain an immigrant visa and unlawful presence waiver abroad. The current process involved a long wait and a lot of uncertainty as the applicant had to prove extreme hardship to U.S. citizen parent or spouse in order to win a waiver for unlawful presence to get back to the United States. The new process is intended to reduce the reluctance of non-citizens who may wish to obtain a green card through their marriage to U.S. citizens or relationship to a U.S. citizen parent, because the applicant would no longer be deterred by lengthy separation and uncertainty of success imposed by the process.

Under the new rule, an applicant must meet all of these requirements to qualify for the waiver:

  • Applicant must be present in the U.S. at the time they file for the waiver;
  • Applicant must prove hardship to U.S. citizen spouse or parent;
  • Applicant must be barred from readmission based only on unlawful presence in the U.S. and have no other grounds of inadmissibility;
  • Applicant must be a beneficiary of an approved immediate relative petition;
  • Applicant must have a case pending with the Department of State based on the approved immediate relative petition and paid the immigrant visa processing fee;
  • Applicant must depart from the United States to obtain the immediate relative immigrant visa; and
  • Applicant must be able to prove extreme hardship to her or his U.S. citizen spouse or parent.

After reading through the 148-page rule, here are a few things you should know about the new process:

  • The provisional waiver is limited to immediate relatives of U.S. citizens who can prove extreme hardship to the U.S. citizen:

Applicants for the waiver must be able to prove extreme hardship to a U.S. citizen spouse of parent. The extreme hardship to a U.S. citizen spouse or parent is a discretionary determination based on a totality of circumstances.

Many commentators argued for the provisional unlawful presence waiver to apply to certain additional family and employment based visa preferences. After all, the I-601 waiver is not limited to immediate relatives of U.S. citizens. However, DHS justifies limiting the provisional waiver process to immediate relatives of U.S. citizens because immigrant visas are always available for this category as opposed to preference categories. The DHS also hopes that the new rule would also encourage long-term LPRs to naturalize, so that their spouses, parents and children under the age of 21 can become immediate relatives and also benefit from the process.

  • The waiver is limited to waiver for unlawful presence, and not other grounds of inadmissibility:

Non-citizens who have other grounds of inadmissibility besides unlawful presence are not eligible for this new process but may nonetheless be eligible for the waiver and ultimately, an immigrant visa, through the existing process.

  • The waiver is available to non-citizens in removal proceedings who have their proceedings administratively closed or terminated:

Non-citizens in removal proceedings should have their proceedings administratively closed or terminated and apply directly to the USCIS for the waiver. For cases that have been administratively closed, the non-citizen should seek termination AND receive termination before departure from the U.S. to avoid triggering other bars of inadmissibility. The waiver is unavailable to applicants who have received deferred action but have final orders of removal or other grounds of inadmissibility beyond unlawful presence. Individuals with final orders of removal should seek to have their proceedings reopened and then administratively closed, in order to apply for the waiver with USCIS.

  • Interviews still scheduled abroad:

Under the new process, immediate relatives who have already departed the United States must pursue their waiver from abroad. Also, immediate relatives who are still in the U.S. must still depart the U.S. for the consular immigrant visa process. However, the immediate relatives who are in the U.S. can apply for the provisional waiver from within the United States and wait until it has been approved to depart the country so that they do not face lengthy separation from their families.

Non-citizens who have already been scheduled for their immigrant visa interviews at consulates abroad are ineligible for the provisional unlawful waiver process. However, if the DOS scheduled the immigrant visa interview after the publication of the final rule, the non-citizen can apply for a provisional unlawful presence waiver. An individual can also qualify for the waiver process in the U.S. if she or he has a new immigrant visa cases because DOS terminated the immigrant visa registration associated with the previous interview and they have a new immediate relative petition filed by a different petitioner.

  • The waiver is not limited to first-time filers:

The filing of the provisional unlawful presence waiver is not limited to those filing for the first time as DHS agrees that the one-time filing limitation that was initially proposed was too restrictive. Rather, when an applicant’s waiver has been denied or withdrawn, the applicant can file a new waiver with the appropriate fees. This is especially pertinent to cases where circumstances have changed since the first filing or the first filing was done through notarios or ineffective assistance of counsel.

  • Who is not eligible?

USCIS  has specifically stated that the following non-citizens would be ineligible for a waiver:

  1. Applicants under the age of 17
  2. Applicants subject to other grounds of inadmissibility
  3. Applicants who have already scheduled an immigrant visa interview abroad before the publication of this rule
  4. Applicants who do not have an immigrant visa pending with the Department of State, based on the approved immediate relative petition and have not paid the immigrant visa processing fee
  5. Applicants in removal proceedings, unless the proceedings are administratively closed
  6. Applicants subject to final orders of removal
  7. Applicants with pending applications to USCIS for adjustment of status
  • No non-removability clause:

For individuals who are denied a waiver, DHS will follow the NTA issuance policy in effect at the time of adjudication  This means that individuals whose waiver request is denied or who withdraw before final adjudication will only be referred to ICE for removal proceedings if he or she is considered a removal priority by the agency, such as having a criminal history, engaging in fraud, misrepresentation, national security or public safety threat.

  • No appeal process:

There is no appeal for denial of an I-601A waiver. However, in the event of denial, there are several alternate avenues such as filing a new form I-601A with the required fees or filing a form I-601 after attending the immigrant visa interview abroad and after the department of State determines that the individual is inadmissible. The I-601 can be appealed to the Administrative Appeals Office of CIS.

  • No right to employment authorization or parole upon the filing of a waiver:

A pending or approved provisional waiver does not create lawful immigration status, extend an authorized period of stay or protect non citizens from removal or grant any other immigrant benefit such as employment authorization or advance parole.

  • Filing fees for the process will be $585, plus a biometrics fee of $85.

There are no fee waivers available for the process.

The new procedure does not take effect until March 4, 2013.  Before filing any waiver application, it is advisable that you consult with an immigration lawyer.


13 Dec


It is very true that the immigration laws need a wholesale revision.  Congress needs to make substantial changes, regulations need to be re-written, precedent decisions scrapped and new guidance forthcoming.  But another change is needed and this change may the hardest of all.  It is a change of attitude within the agencies.  We have written in this space on multiple occasions about the hostility that elements within ICE have for their political leadership and the “culture of no” within CIS has been well-documented.  However, less reported is the blase indifference that many civil servants within the agency take toward the people affected by the way they go about their jobs.

Here is where I am supposed to say that the majority of the people who work for the immigration agencies are hard-working, well-intentioned people laboring under tremendous workloads and inadequate resources.  I am supposed to say that those who are indifferent to the human lives in the case before them are far outnumbered by the valiant majority who struggle against the bureaucratic odds to make a difference.  Sorry, but I can not say that.  I have to say that indifference is the default and care and compassion and vigor are the exception.  Such virtues do exist within the immigration agencies, but they are rarely on display.  Initiative and “going the extra mile” are snuffed out like weeds in those Round-Up commercials.  The overwhelming majority simply have little concern for the people affected by the way they do their jobs.  Immigration reform will be incomplete unless it addresses this problem as the power of clerks and administrative staff to harm the interests of immigrants remains immense.

Let’s focus on the Executive Office for Immigration Review (EOIR), the Immigration Court system.  Here are just a couple of things that have happened to us in the past few months that show how bureaucrats affect people’s lives by the way they do their jobs:

  • Client was detained by ICE.  ICE said that he was subject to mandatory detention.  We wanted to argue to the Judge that he was not.  We filed a request for a bond hearing, which is a matter of right, on October 24.  The case was not scheduled until November 27, five weeks after we filed.  This meant that our client had to sit in jail for an additional five weeks after we asked for his release before a judge could consider his claim that he should not be detained.  Five weeks is a long time to sit in jail when the law says you do not have to sit in jail.  The decision on when to give him a hearing was made by the Immigration Judge’s legal assistant.  No doubt she was reacting to limits on how many cases a judge can hear on any given day, but the harm of the judge hearing one more case against an individual spending several weeks in jail ought to be considered.
  • Client was detained by ICE.  When ICE detains an individual that they are placing into removal proceedings, ICE must issue a Notice to Appear (NTA) charging the individual with removability.  ICE must file the NTA with the Immigration Court and the Court must schedule the hearing.  We requested bond.  Although the rules require the Court to schedule a bond hearing for any detained individual regardless of whether an NTA has been filed, the Court’s backlog in recording the filing of NTAs causes the staff to fail to schedule a bond hearing.  A hearing was finally scheduled 30 days after the client is taken into custody and the Judge orders release.
  • Client was scheduled for hearing on her application for cancellation of removal for 10/31/2012.  That hearing was set in December 2011.  Hurricane Sandy closed the Immigration Court that day and for several days afterwards.  Expecting that the court would reschedule the case once it reopened, we wished to inform the court that we did not need much time for a hearing.  In December 2011, the Court scheduled the case for three to four hours of time.  However, since then, we negotiated with ICE counsel and agreed that all issues in the case could be resolved in a hearing of an hour or less.  On November 15, 2012, we filed a motion letting the court know that we did not need much time, so that the Court could squeeze us in wherever it had time.  We made several calls to and left messages with the court’s clerical staff, none of which were returned.  We finally spoke with the legal assistant to the judge around December 1, who stated that she had not seen the motion and she would have to look for it, but that she was not going to stop what she was doing to do so.  If she found it and the Judge ruled on it, she would give us a courtesy call.  On December 4, 2012, we got the call- hearing on December 11!  However, on December 5, the rumors started flying- the cap on grants of cancellation of removal had been met and no cancellation grants could be made until October 1, 2013.  As these were just rumors, we went ahead with the hearing, traveling to another city to be there on December 11.  At the hearing the Judge informed us that, since there were no cancellation numbers, she could not and would not hold a hearing and we could come back in October 2013.  So many small acts of initiative could have made a difference here: (1) the clerk could have addressed the motion in a timely manner and we could have gotten on the calendar before  numbers ran out; (2) when numbers ran out, the court could have called and rescheduled knowing that we would have to travel to attend the hearing at substantial cost to the client.
  • They never call back.  Never.

These are problems that are not going to be addressed by legislation.  They require a wholesale change in attitude and a lesson in courtesy. This is not simply a problem of
“poor customer service.” I hate the idea of customer service in a government agency. I think they owe us MORE than a business owes its customers. We are citizens, we are a polity and they are our government. They derive their authority from us. A business derives its income from us, which it can choose to accept or not. Citizen vis-a-vis government is entitled to more respect and deference than a Slurpee-buying sap at a Seven-Eleven.  Homer_and_Apu

These problems require an understanding that immigration detention is a serious deprivation of liberty that must be limited in duration and for the most serious matters.  A culture must grow within the Immigration Court that anything that unnecessarily prolongs detention is to be avoided and that resources will be provided to ensure that immigrants have access to prompt hearings.  Employees of the court system must be trained to recognize that they should do all they can to ensure that detained individuals have access to process.  A person is charged with murder is put in front of a magistrate judge within 24 hours who sets bail (or not).  A person charged with overstaying a visa is often detained for weeks before he gets review of his detention.  How does that system make sense?

This post was mostly cathartic.  Future posts will explore some of the legal underpinnings of the immigration detention regime.  For example, a U.S. Supreme Court decision many years ago said that removal proceedings are civil and not criminal and many criminal procedural protections are, therefore, unavailable in removal proceedings.  Given the militarization of the border and the use of detention during removal proceedings, we wonder how much of that flawed doctrine still can stand.

Stateside Unlawful Presence Waivers Coming Soon

18 Oct

The CIS has announced that a major change to the way that it processes waivers for unlawful presence will be finalized by the end of the year.  This change has the potential to help thousands of immigrants married to Americans but unable to adjust status in the U.S. to regularize their status.

It has always been one of the worst parts of being an immigration lawyer.  I meet a young couple- an American citizen and her foreign-born husband.  They may have a kid or two.  Maybe the kid is running around the office or quietly munching on pretzel sticks.  The couple works and owns a small house.  They want to know if she can get him a green card.  I already am fairly certain I know the answer because the questionnaire they filled out in advance of the meeting has told me most of what I need to know.  He entered the country illegally (“without inspection”).

Under US law, an individual who entered the United States without inspection is ineligible to obtain adjustment of status to residence in the United States.  Even if they are married to a U.S. citizen.  Even if they have American children.  No matter how long they have lived here or where their entire family resides.  There is an exception, however.  If someone- a family member, an employer- filed an immigrant petition on behalf of the foreign national prior to April 30, 2001, they will be “grandfathered” under the old 245(i).  This provision allowed an individual who had a basis for residence, such as a U.S. citizen spouse, to adjust his status in the U.S. to permanent resident by paying a $1000 fine.  As a provision of law, it was brilliant: it allowed thousands of people to fix their status, kept families together, and allowed employers to sponsor needed workers.  All while providing a substantial sum to the U.S. Treasury.  As brilliant legislation, it was, of course, doomed.  It was eliminated in 1998, revived briefly between December 2000 and April 2001 and has been buried since.  The law does provide that anyone who was the beneficiary of a petition filed prior to April 30, 2001 and was physically present in the U.S. on December 20, 2000 can continue to claim the benefits of 245(i).

The grandfathering provision, while beneficial, does little to solve the situation of the couple described above as most of these people have entered the U.S. long after April 2001.  This couple has two options.  First, they can choose to do nothing.  The husband can remain in the shadows, fearful of removal, unable to get work authorization, decent work, health care or a driver’s license.  Second, they could elect to try their hand at seeking residence through processing an immigrant visa at a U.S. consulate in the husband’s home country.  This option would require the husband to return home and to apply for a visa abroad.  But, aha!  By departing the U.S. after having been here illegally for more than a year, the husband has subjected himself to a ten year bar on returning to the U.S.  The consulate would have to deny the immigrant visa for a period of ten years.  The law does provide for a waiver of the ten year bar.  If the applicant can prove that denying him an immigrant visa would cause his U.S. citizen wife “extreme hardship,”the ground of visa ineligibility may be waived by the consulate and a visa issued.  But this waiver may only be sought after the immigrant visa is denied.  In other words, the husband must proceed abroad, apply for the visa, get denied and then apply for the waiver, all with no guarantee that he will be able to return in less than ten years.  Thus, it may come as no surprise that many people choose the first option, as unappealing as it is.  Only people with the strongest evidence of hardship would take that gamble.

The Obama administration is trying to do something about this catch-22 situation.  The administration has proposed to move the processing of these waivers from the foreign offices to the U.S.  Most importantly, they will process these waiver applications before people proceed abroad.  This minor procedural change will have an enormous impact on the lives of thousands of immigrants and their families.  By knowing in advance that they will be able to return, scores of immigrants will step out of the shadows to regularize their status by seeking waivers and immigrant visas.  With the uncertainty of being able to return  and prolonged separation from loved ones and employment eliminated, many immigrants will be able to take important steps to improve their situation.

The administration announced its intention to change the processing of these waivers in January 2012.  In April 2012, the Department of Homeland Security (DHS) published proposed regulations to govern this process.  According to DHS, an individual who is the beneficiary of an approved immigrant petition by their U.S. citizen spouse or son or daughter over 21 may seek a provisional waiver before departing the U.S. for a visa interview in their home country.  That waiver would only become effective once the person departs the U.S. and applies for a visa at the U.S. consulate abroad.  With waiver in hand, an applicant can be confident that he is likely to return within a relatively short period of time after leaving the U.S. The regulations identify some key points regarding the new process:

  • The provisional waiver process is only available to the beneficiaries of “immediate relative” petitions.  These are the spouses, children (under 21), and parents of U.S. citizens.
  • Individuals in removal proceedings will not be able to seek provisional waivers.
  • It can only waive unlawful presence.  Although waivers are available for certain misrepresentations and crimes, those waivers may not be sought provisionally.
  • There will be a biometric requirement.
  • There is no appeal/ reconsideration mechanism, for denied provisional waiver applications.

The April 2012 regulations are proposed regulations and not yet in force.  By law, an agency must provide the public with an opportunity to comment on any proposed regulations.  In May 2012, the American Immigration Lawyers Association submitted extensive comments in an effort to improve on the provisional waiver process.  The latest information is that CIS has reviewed all the comments and is working on a final rule which they intend to publish before the end of the year. 

Despite the imperfections of the proposed rules, this change in waiver processing has the potential to help thousands of immigrants, their families, employers and communities.  Many people have always been able to demonstrate extreme hardship but were too worried about the potential of being stuck abroad for ten years if the case did not go well.  Even if it was approved, waiver processing has usually required at least a year abroad for the applicant.  By being able to depart abroad to seek a visa with the security that he will be able to return, the new rule will allow thousands of immigrants to resolve their status and generate additional stability and tranquility in their lives.