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In Other News: CLINIC’s Update on Provisional Waivers

4 Oct

Despite the government shutdown, USCIS carries on processing applications and petitions at its glacial pace as usual, including the large number of provisional unlawful presence waiver applications (I-601As) that have been filed since they were first accepted in March 2013, and a corresponding high number of I-130 Immediate Relative Petitions pending approval.

We have written on the unlawful presence waiver topic many times, but have been thirsty for statistics and helpful information on the process. Our thirst has been quenched! Last week the Catholic Legal Immigration Network, Inc. (CLINIC) conducted an intensive training on provisional unlawful presence waivers, including an update and presentation by Robert Blackwood, the Assistant Section Director for Adjudications at the National Benefits Center (NBC), which serves as a pre-processing center for applications adjudicated at USCIS field offices, including I-130 immediate relative petitions and I-601A applications for provisional waivers. CLINIC generously has circulated the update on the NBC’s I-601A process, and we share portions of it with you here.

I-601A Adjudication Process

All I-601As are filed at the Chicago Lockbox, which reviews submissions under rules that address document sufficiency. If an application is rejected for sufficiency reasons, the rejection should be accompanied by an explanation of deficiency. If the application is accepted, the Chicago Lockbox creates a case receipt file and forwards it to the NBC. Division 1 (of eight divisions) at NBC is responsible for I-601A adjudications and currently is staffed with between 45-50 adjudicators and 5 supervisors. Once a forwarded application is received at the NBC, the NBC goes through its own initial processing checklist to determine if the application is complete. If NBC staff determines documents are missing, it issues a Request for Evidence (RFE); otherwise, it will schedule the applicant for a biometrics appointment. When the biometrics and the name check results come back, the application is transferred to the “JIT” (“Just in Time”) shelves and is considered ready to be adjudicated.

Division 1 Supervisors assign cases to adjudicators when they are ready to be adjudicated. When an adjudicator receives a file, he or she first looks for basic eligibility – name check and biometrics response, national security issues – and if there is a “hit,” the file is forwarded to a security clearance team for resolution. For cases that pass security clearance or do not have “hits,” the adjudicators follow a “processing checklist” sheet, which guides them through the process of determining statutory eligibility for the waiver (e.g., USC qualifying relative) and whether the applicant has satisfied the extreme hardship standard. The adjudicator makes notes on the processing checklist, for purposes of decisionmaking and supervisor review. If the case is denied, the file is sent to the National Records Center, where it will be stored. If it is approved, the file will be sent to the Texas Service Center (TSC). The TSC holds on to the case files so they can be matched up after the applicant immigrates. The NBC sends the applicant and the representative the written approval or denial decision.

The NBC sends the National Visa Center (NVC) an electronic data report on I-601A receipts on a daily basis, so that the NVC can stop processing the immigrant visa (IV) application until there is a decision on the waiver application. A “decisions” report is sent to the NVC every week, to inform the NVC of waiver application outcomes so that the NVC can then proceed with IV processing. The NBC does not send the actual I-601A decision to the NVC; it only sends notification of whether the I-601A was approved or denied. If the NBC denies the application because it has a “reason to believe” the applicant might be inadmissible under another ground, it only informs the NVC that the waiver application was denied.

For the first two months of provisional waiver adjudication, all applications were reviewed by division supervisors to ensure that the appropriate decisions were being made. Now, all denials are reviewed by the supervisor and approvals are only spot-checked. If a supervisor has questions or concerns about a particular decision, the encourages a dialogue with the adjudicator to find out more about the decision recommendation, but does not instruct the adjudicator on how to rule in a particular case. If there is still disagreement as to whether the application should have been approved or denied, the supervisor may seek further guidance from one of the section chiefs.

Every week a report is generated indicating how many applications were adjudicated. The NBC communicates and shares data with the State Department to determine whether I-601A applicants who were denied were later approved by the consulate through an I-601 waiver, and whether applicants whose I-601As were approved were later denied by the consulate due to a finding of inadmissibility on a ground other than unlawful presence. The statistical evidence is not yet meaningful to draw any conclusions on these issues.
If an I-601A applicant who is denied elects to re-file, the NBC will pull the original application and check it against the new application.

Statistics

The NBC has provided the following numbers based on I-601A applications received or adjudicated from March 4 – September 14, 2013:

23, 949 applications were sent to Lockbox
17,996 applications were accepted by Lockbox
5,953 applications were rejected by Lockbox

The reasons for rejection could include no applicant signature, no proof of I-130 approval, no proof of NIV fee paid, or applicant is under 17. The number of applications received may include re-filings by applicants whose cases were initially rejected at the Lockbox.

The NBC currently has 12,098 applications in the pipeline, with approximately 2,300 ready for processing. It is averaging approximately 600 applications/week, so it has about four weeks of applications to adjudicate. With 45 adjudicators currently working these cases, this averages out to each adjudicator handling about 13 applications per week, or about 2.6 per day. Mr. Blackwood noted that adjudicators have other work responsibilities, including time spent in trainings and at meetings.

The NBC has issued the following decisions:

3,497 approvals (59%)
2,292 denials (39%)
103 administrative closures (application returned for various reasons, e.g., filed I-601 instead of I-601A) (2%)

Although applications have been denied for various reasons, the highest number of denials – 1,093, or 48% of all denials – is for “reason to believe.” That is, the adjudicator has reason to believe that the applicant is inadmissible for reasons other than unlawful presence. The second highest number – 937, or 41% of all denials – is for failure to establish extreme hardship. Other reasons for denial include: abandonment, applicant in proceedings, pending adjustment of status application, lack of qualifying relative, pre-2013 consular interview scheduled, and applicant subject to existing or final order of removal.
At present, the average time between receipt of an application at the Lockbox and decision issuance is 103 days. The goal is to reduce the adjudication time to 90 days, the pace at which NBC adjudicators were working until “reason to believe” denials became a controversial issue.

Reason to Believe

USCIS has no authority to determine admissibility in a case to be decided by the consulate after the applicant has left the United States and appeared for the interview. Mr. Blackwood explained that the provisional waivers working group developing the I-601A regulations and procedures for processing wanted USCIS officers to limit their consideration to waiver adjudication, leaving inadmissibility determinations as a function of the Department of State. In other words, the USCIS did not want its adjudicators analyzing whether the applicant was inadmissible on grounds other than unlawful presence, but at the same time, the USCIS did not want to approve I-601As and have the applicant be denied at the consulate for another ground of inadmissibility.

That was the rationale for developing the “reason to believe” standard, where the adjudicators make a quick assessment as to whether the applicant might be inadmissible on a ground other than unlawful presence, based on the name check and biometrics results. Under this standard, adjudicators are instructed to deny all applications involving a criminal conviction, regardless of the type of conviction, when it occurred, or whether it fell within a recognized exception to inadmissibility, like a petty offense. If the fingerprint check resulted in a “hit” that revealed a conviction, then the application was denied under the “reason to believe” standard. Similarly, if there was an inconsistency in the name or date of birth of the applicant and that provided during CBP processing for voluntary departure after an arrest at the border, the applicant was denied for “reason to believe.”

The NBC staff soon realized that this broad application of the “reason to believe” standard led to a high denial rate. Given this development, Mr. Blackwood announced that, as of six weeks ago, NBC stopped issuing any “reason to believe” denials and is suspending adjudication of cases where this issue is present while USCIS and DOS reconsider the current policy and decide how to proceed in the future. During this time, the 1300 pending cases that involve a potential “reason to believe” concern are being held in abeyance, and will not be adjudicated until there is further guidance. Mr. Blackwood noted that if the “reason to believe” standard is changed so that not all of the denied cases would warrant denial under revised interpretation, the NBC will consider whether to apply any new policy retroactively and reopen denied cases sua sponte.

While there is no mechanism to appeal a denial or seek reconsideration, the NBC can reopen a case on its own if it believes a denial was made incorrectly based on misapplication of the reason to believe standard, including, for example, cases where the applicant’s name and date of birth appear inconsistent as a result of clerical or insignificant error, but not including cases containing criminal convictions. Mr. Blackwood indicated during his presentation that denials made under the reason to believe standard that seem clearly wrong could be brought to his attention, and he would pull the file to see if the agency made a mistake. To bring those cases to Mr. Blackwood’s attention, applicants were directed to send an e-mail to CLINIC training leaders at sschreiber@cliniclegal.org or cwheeler@cliniclegal.org, and to include the name of the applicant, the waiver receipt number, and the “A” number, as well as a brief description of the issue (e.g., month and day of applicant’s date of birth were transposed; applicant’s name recorded incorrectly).

Adjudication of Extreme Hardship and RFEs

Current policy does not mandate that the agency issue a Request for Evidence (RFE) before issuing a denial, but NBC adjudicators typically will issue an RFE if they believe additional documentation will help them reach a decision in a case. (For example, if an applicant claims a health-related hardship, but only submits financial evidence, or if the applicant claims multiple hardships but submits evidence supporting only one claimed hardship, or weak evidence of hardship.) If the applicant claims hardship and the officer believes sufficient evidence was presented but that the extreme hardship standard was not met, then the adjudicator can simply issue a denial without issuing an RFE. In other words, if additional documentation would not add any value to the hardship claim, the NBC will forgo issuing an RFE. Mr. Blackwood noted again that all denials are reviewed by a supervisor.

RFE response times are set at 30 days so that consular processing is not delayed. A request for an extension may be considered if there are compelling reasons warranting additional time to respond to the RFE.

Comparison with NSC Adjudications of I-601

Mr. Blackwood explained that NBC staff made adjustments to their standards for evaluating “extreme hardship,” in the wake of exchanging information and statistical data with the NSC regarding its adjudication of I-601 waivers, as well as reviewing AAO waiver denial reversals. Adjudicators are now assessing extreme hardship to the qualifying relative as impacted by hardships to other family members. As a result, the denial rate has come down and the NBC is approving more applications. Mr. Blackwood anticipates that the denial rate will continue to go down as adjudicators gain more experience.
Mr. Blackwood also noted that the provisional waiver is more challenging for the applicant, because the hardship to the qualifying relative is prospective, as opposed to the I-601 applicant who has left the United States and whose qualifying relative is already experiencing the hardship. For this reason, the denial rates will not necessarily be comparable.

Waiver Submission Format

Mr. Blackwood encourages applicants to submit a cover letter or brief that summarizes the hardships and helps the adjudicator understand the theory of the case, and all supporting evidence that is pertinent, such as a doctor’s letter summarizing medical conditions. The Chicago Lockbox removes all tabs and bindings, so applicants are encouraged to use some kind of pagination system to help identify and segregate supporting documentation. The original submission is sent to the NBC – any highlighting of important documentation or color dividers separating exhibits will be retained.

If submitting supplemental information after the application has already been submitted, make sure to include the receipt number and the A#. Avoid sending multiple pages from the Internet on a specific medical condition (e.g., definition of diabetes) or DOS country conditions reports.


In the coming months…

Stay tuned for a formal decision from the USCIS on whether the NBC will modify the way it adjudicates I-601As with respect to the “reason to believe” standard. Expect the NBC’s current approval rate (approximately 60%, including reason to believe denials) to increase.

Many thanks to CLINIC for this thorough and helpful information!

Immigration Briefing Publishes Dree Collopy’s Article on I-601A Provisional Waivers

13 Sep

Dree

In June 2013, Immigration Briefings, a West publication serving lawyers, published Dree Collopy’s article entitled “I-601A Provisional Unlawful  Presence: A Practitioner’s Guide for Preserving Family Unity.” (June2013_IB)  Intended to help attorneys navigate the new legal landscape of the I-601A provisional waiver, Dree’s article demonstrates Dree’s expertise in hardship waivers and skill in getting the most for her clients.  (PS- That’s Dree in the middle, getting an award!)

The article identifies the problems that the I-601A provisional waiver was meant to solve and the practical step lawyers should follow to ensure that they prepare a proper application.  Moreover, Dree provides a detailed discussion of the nature of “extreme hardship” and provides suggestions to show how applicants can meet their burden of establishing extreme hardship.

The complexities of the new I-601 provisional waiver process and the subjectivity of the extreme hardship standard are challenging issues for even the most seasoned practitioners.  Dree’s briefing gives lawyers the practical knowledge they need to serve their clients.

Congratulations on a great article Dree!

Some Provisional News on Provisional Waivers

22 Jul

DHS_cis_WR_at

It has been four months since the U.S. Citizenship & Immigration Service (CIS) began stateside adjudication of I-601A Applications for Provisional Waivers of inadmissibility due to unlawful presence.  In those four months, we have learned a few things about how U.S. CIS is implementing this new program.  Initially, the U.S. CIS has received over 7,000 I-601A provisional waiver applications.   Many have been already been decided and CIS states that it has a six month processing goal.

Many applications have already approved but a significant portion have been denied.  By far, the most common reason for denial is that the CIS found “reason to believe”  that a person might be found inadmissible by the consulate on a ground of inadmissibility other than unlawful presence.  As background, the provisional waiver is meant to waive unlawful presence for the immediate relatives of U.S. citizens.  In regulations, the CIS stated that if an adjudicator has reason to believe that the consulate might find another ground of inadmissibility other than unlawful presence, the adjudicator should deny the application.  This has had the most obvious impact in cases where an FBI rap sheet shows that an applicant for a provisional waiver has been arrested.  Although not every arrest leads to inadmissibility, CIS appears to be taking the position that an arrest is sufficient “reason to believe” that a consulate might find inadmissibility on criminal grounds.  of course, this is highly over-inclusive.  Individuals are, generally, inadmissible due to convictions and not due to charges.  While many arrests do not result in convictions, the CIS approach treats many arrests as the equivalent of convictions.  Thus, even if a person is found to be not guilty of an offense, the fact that she was charged with a crime can be sufficient to create a “reason to believe.”  In addition, another situation in which the “reason to believe” standard frustrates the intentions behind the provisional waiver is where an individual is convicted of an offense that does not, under any circumstances, cause inadmissibility.  Not all convictions result in inadmissibility and certain convictions are very clearly and beyond a doubt not crimes which create inadmissibility.  The CIS is not entertaining arguments that the individual applicant is not inadmissible.  Rather, it is concluding that the bare fact of conviction is enough “reason to believe” that the consulate might find inadmissibility.  Thus, the CIS denies the provisional waiver, leaving the applicant and her U.S. citizen family members to the same Catch-22 they faced before the provisional waiver was introduced to eliminate that dilemma.

The American Immigration Lawyers Association and other advocacy groups have raised this issue in liaison meetings and have asked CIS to revisit this over-inclusive policy.

It appears that, for now, the provisional waiver should only be sought by those with no previous encounters with law enforcement or the immigration authorities.  While CIS has stated that those denied will, generally, not be referred to Immigration & Customs Enforcement (ICE) for removal proceedings, the filing of a provisional waiver is expensive and cumbersome process and one’s resources and hopes should only be spent where there is a realistic chance of success.  At this moment, we can not state that there is a realistic chance of success for those with any previous law enforcement contact, no matter how minor or insignificant.

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.

Should I Seek a Provisional Waiver or Just Wait for Immigration Reform?

13 Feb

bird-in-handThe optimism and hope that have been generated by all of the hype around immigration reform has been intense.  Every day, a new prominent political figure comes out in favor of immigration reform.  Look, Sean HannityCondoleeza Rice!  Was that closet really big enough for Fox News Chairman Roger Ailes? Eric Cantor and John Boehner now support the DREAM Act after voting against it in 2010!  It is enough not only to induce whiplash, but it is creating a frenzy of anticipation that often manifests itself in odd ways in the privacy of a consultation with an immigration lawyer. Specifically, many people are now asking, should I just wait for immigration reform?

For the past couple of years, the last resort of the hopeless case was the possibility of immigration reform.  The whiff of a chance of a possibility of potential reform was the only bit of hope that we could muster for some folks who came into our offices.  After we explained that the law did not provide them with any practical options, we were able to console the client with the hope that someday the political system will come to their rescue. As the day becomes more and more visible, the number of people considering doing nothing and hoping for the best appears to have increased.

Frankly, that has always been a pretty decent option for many people.  People who entered the U.S. illegally and had few significant family ties generally had little opportunity to fix their immigration situation.  Sure, we could do some long shot application with little chance of success that would cost a lot of money.  But we often advised people not to spend their money on quixotic ventures and to sit back and see whether the law will develop in a way that could benefit them.  Wait and see was really the best advice.

Now, we seem to be on the verge of the “see” portion of wait and see.  Immigration reform seems imminent and the incentive to wait and see has increased.  But, even though the promise of immigration reform seems within our grasp, real changes that will help untold numbers of people have taken effect now. It is unwise to avoid these measures in the hope that immigration reform will save the day.

The biggest example of this is the I-601A provisional waiver.  The government has changed the process of seeking waivers of inadmissibility for those spouses of U.S. citizens who are only inadmissible due to unlawful presence.  By allowing the couple to seek a waiver of inadmissibility in the U.S. before making an uncertain trip to the U.S. embassy in their home country, the administration has removed a formidable obstacle to legalization of thousands of immigrants married to Americans who are unwilling to take the risk of being separated from their families for up to a decade. This procedural change has the potential to allow thousands of people to legalize their status.

Yet, just as these very important and welcome changes take effect, people are pulling back.  Why should I try to seek a waiver when Obama is going to legalize everyone anyway?  The answer is the old cliche about the bird in hand.  The provisional waiver is the bird in hand and, as much as we believe it is going to happen, and as much as we want it to happen, immigration reform is not a done deal and can collapse.  It has happened before.  There are forces assembled to fight immigration reform tooth and nail.  They will find a ready audience in much of the Republican caucus in the House, always fertile ground for anti-immigrant sentiment.  Even if Congress passes immigration reform, there is no guarantee it will include a path to citizenship.  The Senate plan offers applicants a temporary status that will last until a border commission says that the border is secure, an automated entry and exit system is imposed, and the entire backlog is cleared.  Senator Dick Durbin, one of the most pro-immigrant Senators, said that that temporary status could last as long as ten years!  At the end of those ten years, applicants can seek residence!  To paraphrase the Beatles, the path to citizenship is the long and winding road.  If it even happens!

The provisional waiver is law.  It is really happening and people can use it to fix their status and obtain residence.  No temporary status.  No watching committees and reading the tea leaves of pundits and politicians.  It is in the Code of Federal Regulations and there is a form.  Nothing in immigration is real until there is a form and the provisional waiver has a form- the I-601A.

The provisional waiver is not perfect.  It needs to be available more widely.  But it has the advantage of being law.  A bird in hand.  Over years in immigration law, we have learned that one must take the opportunities presented to you.  The government fails to bring conviction records to a hearing, move to terminate removal proceedings.  The government fails to oppose a motion to reopen, file a notification of non-opposition.  Seek an extension of work authorization even though the residence interview is in two weeks.  Immigration law is so stacked against the immigrant that we must take those opportunities presented to us when they are presented.  They may not come again.

What is Extreme Hardship?

28 Jan

With all the excitement and buzz about the new I-601A Provisional Waiver process, described in Benach Ragland’s live video chat and our previous posts, it is important to remember that what has changed for certain non-citizens and their family members is the procedure for applying for a waiver of inadmissibility, not the substance of the legal standard.  I-601A Provisional Waivers of inadmissibility for unlawful presence in the United States will soon be available to assure family unity for certain eligible applicants who seek permanent resident status.  Among other requirements, to be eligible for such a waiver of inadmissibility, applicants for I-601A Provisional Waivers must demonstrate that they have the requisite qualifying relative – in this case, a United States citizen spouse or parent – and that their U.S. citizen spouse or parent will suffer “extreme hardship” if the applicant is not allowed to re-enter the United States as a lawful permanent resident.  Of course, every family member who is forcibly separated from their loved ones suffers some degree of hardship.  But the I-601A Provisional Waiver requires a showing that the hardship would be extreme.  So, what is extreme hardship, and how can an applicant demonstrate extreme hardship?

Extreme hardship is hardship beyond the normal hardship that is suffered when family members are separated from one another.  This can be a difficult standard to meet and requires substantial supporting evidence, so it is important that applicants retain competent immigration attorneys who are experienced in preparing extreme hardship waivers.  The factors considered in determining whether the U.S. citizen spouse or parent will suffer extreme hardship may include:

  • The presence of family ties within and outside of the United States, particularly within the country of relocation;
  • The emotional and psychological impact of separation on the U.S. citizen relative;
  • The political, economic, and social conditions in the country of relocation;
  • The financial and professional impact on the U.S. citizen relative;
  • Any significant health conditions, particularly when tied to the unavailability of suitable medical care in the country of relocation;
  • The U.S. citizen’s ability to raise children in the country of relocation and other quality of life factors; and
  • The U.S. citizen’s age, length of residence in the United States, health, technical skills, employability, and other factors.

These factors are weighed in the aggregate, so it is important to highlight and thoroughly document every possible hardship factor – what matters in the extreme hardship analysis is the totality of the circumstances.  Moreover, the applicant should show extreme hardship to the U.S. citizen spouse or parent in each of two different scenarios: (1) if the U.S. citizen remained in the United States without the applicant; and (2) if the U.S. citizen accompanied the applicant to his or her home country.

The process of preparing an I-601A Provisional Waiver application, similar to preparing an I-601 application for a waiver of inadmissibility based on extreme hardship, is labor intensive and requires extensive documentation.  The applicant must document who he or she is, as well as any connections to the United States, familial and otherwise.  Such documentation may include government-issued identification, passports, marriage certificates, children’s birth certificates, a list of all U.S. citizen and permanent resident family members with proof of their immigration status and relationship to the applicant, a list of all relatives in the country of relocation, photographs with family members, personal declarations, and letters of support from relatives, employers, friends, and community members.  The applicant and the qualifying relative’s personal declarations are quite possibly the most important documentation for demonstrating extreme hardship, as they fully describe in the applicant’s and relative’s own words the totality of all of the hardship factors that would affect their family if the I-601 Provisional Waiver is not granted.  At Benach Ragland, we spend a significant amount of time with our clients, working with them to draft these important documents.

The applicant and U.S. citizen relative should also submit documentation that shows their financial ties to the United States, debt incurred in the United States, and the financial hardship that would be caused by the applicant’s continued inadmissibility to the United States.  This may include mortgage, lease, or deed documentation; documentation of property ownership; evidence of loans or other debts; monthly bills; insurance; other regular family expenses; tax returns and W-2 forms; social security records; evidence of current employment; or documentation showing financial support of family members in the U.S. and abroad.  Additionally, evidence of the economic and financial conditions in the applicant’s home country may assist in establishing extreme financial hardship.  If a country has a high unemployment rate or significantly lower wages than those paid for the same job in the United States, those factors may be helpful in showing that the U.S. citizen would suffer financially, either because she no longer has her husband’s income to help support the family or because she would be unable to obtain a similar position in the applicant’s home country.

Medical and psychological hardship is often one of the strongest hardship factors to highlight in preparing an extreme hardship waiver application, such as the I-601A Provisional Waiver.  To document this factor, applicants should obtain letters from medical professionals (including treating physicians, specialists, psychiatrists, psychologists, or therapists), which explain the family member’s diagnosis and his or her medical and treatment needs.  It is also helpful to submit documentation of doctor and hospital visits, prescription medications, and evidence of family medical history or risk factors.  Quite possibly the most important piece of evidence of medical hardship is a thorough report prepared by the family member’s treating physician or licensed mental health professional.  At Benach Ragland, we work with our clients’ doctors and therapists to finalize their reports and to ensure their legal sufficiency and effectiveness.  If mental health is a relevant hardship factor in our client’s case, we also assist our client in working with a forensic psychologist who is experienced in documenting extreme psychological hardship, which can range from anxiety and depression to more serious psychological disorders.  Finally, it is important to also document the health care system of the applicant’s home country, as well as any deficiencies, to demonstrate that the U.S. citizen family member could not relocate to that country without experiencing extreme medical hardship.

Although children are not considered “qualifying relatives” for purposes of the I-601A Provisional Waiver process, their hardship factors may still be relevant as well, as they could add to the qualifying relative’s own hardship.  For instance, if a child has a learning disability that requires special education and increased parental involvement, the inability of the applicant to remain with that child in the United States may cause his U.S. citizen spouse to suffer extreme hardship, because without the applicant, she would suddenly have to provide for that child’s needs on her own.  Thus, any documentation of children’s special needs, their progress in school, and their awards and activities may also be helpful evidence in demonstrating extreme hardship.

Finally, since there is an element of discretion involved in the adjudication of an I-601A Hardship Waiver, it is important to document the applicant’s good moral character and contributions to the communities of which the applicant is a part.

Of course, the hardship factors and types of evidence mentioned above are not exhaustive.  At Benach Ragland, we spend a significant amount of time with our clients to determine each individual’s extreme hardship factors and how they can best be presented through documentary evidence to achieve a successful resolution to a waiver application.  We plan to continue with this practice in our clients’ I-601A Provisional Waiver applications, and look forward to assisting our clients in fighting for togetherness based on the extreme hardship that a separation or relocation would bring to their families.