Tag Archives: extreme hardship

Five Things We Have Learned about the I-601A Provisional Waiver Program

12 Jan

<p><a href=”http://vimeo.com/39267368″>Don’t Think Twice It’s Alright [Bob Dylan 1962]</a> from <a href=”http://vimeo.com/user8051179″>Dan Pick</a> on <a href=”https://vimeo.com”>Vimeo</a&gt;.</p>

Last week, we had another I-601A provisional waiver approved.  This makes us 6 for 6, so far, with a few more pending.  We have learned quite a bit in the past 18 months or so that we have done provisional waivers.

  1. Don’t underestimate your own hardship.  We think that people endure a lot of hardship and have grown accustomed to it and accepted it as the normal state of affairs rather than recognizing that things could be better.  We think that many people living with an undocumented spouse have come to accept the anxiety  surrounding the risk of separation, financial ruin and uncertainty.  Of course, this is a common human coping mechanism.  As Bob Dylan sang, “I’ve never gotten used to it, I just learned to turn it off.”  Many people that come into our office states that they can not point to any specific hardship that they would suffer if their spouse were forced to remain in their home country; they just know it would be bad.  We have found that the sense merely scratches the surface and that by digging, speaking, and, most importantly, listening, the details of the hardship can be identified.  Extreme hardship may be financial, emotional or health and safety related.  It can be a combination of these factors or it can be the presence of a single form of hardship.  The bottom line here is that too many people wrongly assume that they do not have the hardship to meet the standard and a honest and open conversation with an attorney can reveal hardship that an individual may have learned to turn off.
  2. The availability of the provisional waiver changes the game in removal proceedings. Many cases where the only relief has been a long-shot cancellation of removal are now strong provisional waiver cases.  We have found that the government is willing to terminate and reopen cases where a good claim to a provisional waiver case can be made to ICE.  These practices change from office to office, in fact, from ICE attorney to ICE attorney, but, as a general rule, we have found tremendous flexibility in removal proceedings for people who qualify for provisional waivers.
  3. The family is alive and well.  Back in 2012, when DACA came out, we were heartened to see all the young people who came to our office with their parents to discuss how DACA could change their lives.  The parents were always apprehensive and elated simultaneously to see the possibility that the dreams they had for their children being realized, if only partially.  we decided then that the family is alive and well in America.  With the provisional waiver, we are meeting all sorts of people who are raising families under the trying circumstances of one of the spouses lacking legal status.  The lives that people have been able to build despite this challenge are impressive.  However, the opportunity of obtaining lawful status opens up so many doors for families and removes the anxiety and stress of uncertainty over immigration.
  4. The National Visa Center remains a hold-up.  The NVC has been good at putting a hold on immigrant visa processing where a provisional waiver has been filed.  However, once the Visaprovisional waiver is approved, the NVC reverts to its standard practice of being an impediment, rather than a facilitator of orderly processing of immigrant visas.  For example, one challenge we have seen relates to police clearances from El Salvador.  According to the State Department, those police certificates must be obtained by the applicant in person in El Salvador.  That’s fine, except for the case of provisional waivers, where the applicant is in the U.S.  Since the NVC will not schedule an appointment until it has all the documents, this issue could force an applicant to return to El Salvador and wait several months for an interview, undermining the benefit of certainty that the provisional waiver is supposed to provide.  We are working on this specific issue and will update this blog as circumstances merit.
  5. There is nothing better than solving this situation.  When an individual goes to the Embassy, gets the visa, and returns to the U.S. as a permanent resident, we are lucky to be the first ones called.  We share the joy and relief of our clients and can immediately see the reduction in tension in their lives.  Getting to be a part of and a witness to that transformation is one of the great things about being an immigration lawyer.

Think you or someone you know may qualify for the provisional waiver? Contact us at consults@benachragland.com or 202-644-8600.

EXECUTIVE REFORMS: Expansion of I-601A Provisional Waiver Program

23 Nov

Another positive development included in the President’s administrative reforms to U.S. immigration laws is the proposed expansion of the provisional waiver program, which the President initiated in 2013.  The provisional waiver, as initially introduced allowed the spouses and children of U.S. citizens to seek a waiver of inadmissibility for the three and ten year bars due to unlawful presence to seek a waiver in the U.S. rather than after proceeding abroad to seek a visa at a U.S. consulate abroad.  This program has been successful and we have had several provisional waivers approved and been lucky to witness reunions made possible by the provisional waiver.

The provisional waiver was initially limited only to spouses and children of American citizens.  The new memo instructs CIS to “expand access to the provisional waiver to all statutorily eligible classes of relative for whom an immigrant visa is immediately available.”  This will clearly include the spouses and children of permanent residents, but could also potentially include a larger group of  individuals such as the adult sons and daughters of U.S. citizens.

Also, for tremendous significance, the Secretary of Homeland Security has directed the CIS to “clarify the factors that are considered by adjudicators in determining whether the “extreme hardship” standard has been met.  Most importantly, the Secretary has directed CIS to consider whether a legal presumption of extreme hardship may be determined to exist.  The creation of the presumption of hardship would reduce the burden on applicants seeking to show extreme hardship.  We particularly love this idea, because we suggested it here while pointing out the legal authority for such a move. 

Benach Ragland is offering reduced fee consultations for individuals who may be covered by any of these reforms.  To schedule an appointment, please call 202-644-8600 or email msanchez@benachragland.com.  You can learn the latest news on this blog, on our Facebook page and can follow us on Twitter: @BenachRagland.

Visa Granted at U.S. Embassy in Brazil after I-601A Provisional Waiver Approved!

22 May

First, let us state outright: the inclusion of this Motley Crue video was done only at the suggestion of the client.  Benach Ragland is not, and never has been, a fan of Motley Crue.  But, as dedicated counselors, we will tolerate hair metal for the needs of the client.

 

We are happy to report that today we received our first visa at a U.S. Embassy abroad for an individual who required an I-601A provisional waiver.  Our clients received the passport with the immigrant visa in the mail from the U.S. Consulate in Rio de Janeiro.  The clients left the U.S. last month for the visa application after we obtained approval of an I-601A provisional hardship waiver.  This required the leap of faith that they would be able to return.  While inadmissibility due to unlawful presence had been waived, if the consulate were to find any other inadmissibility, our client would not be able to return.  we carefully scoured his record and determined that there was no other ground of inadmissibility.  The clients then took the risk based upon our advice.  Gulp.  After some typical bureaucratic miscues, such as the physician failing to deliver the report and a request for a document that the consulate had returned, the visa was issued today.

Our client got to see his family for the first time in over a decade.  His parents met their U.S. citizen granddaughter.  Husband, wife and child will return after a month spent reconnecting with family in Brazil solid in the knowledge that U.S. immigration law should never require their separation again.

Congratulations dear friends.

Lifted Lamp’s Top Ten Blog Posts for 2013 & Poll for Topics for 2014

27 Dec

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Looking back on what turned out to be a disappointing 2013 for the lack of progress on meaningful immigration reform and on the continuing pace of removals, we have tried to figure out what articles and stories most appealed to our readers.  Turns out that our readers were not as interested in the minute-by-minute accounts of progress, but rather came to Lifted Lamp for information about developments in the law that had a real impact upon their lives.  The provisional waiver, DACA, the de Osorio litigation were topics that continually received interest from our readers.  We hope to use this information to make this blog more useful and interesting to our readers.

We have compiled our 2013 Top Ten Blogposts and provide some thoughts on them after they have been written, published and we have received feedback.

10.  Leave it to controversy to be popular.  Our tenth most popular blog of 2013 is just over a month.  On November 25, we wrote about the young man who challenged the President to halt removals while waiting for immigration reform.  In “Does the President Have the Power to Stop All/Most Removals?“, we discussed whether the President can use his executive power to halt all deportations.  We decided that the President probably could not halt all deportations, but he could definitely stop a whole lot more.

9.   The provisional waiver, which has allowed the spouses of U.S. citizens to seek the required waiver of the ten year bar before traveling abroad, has been a continually popular topic on this blog.  In February 2013, we asked “Should I Apply for a Provisional Waiver or Wait for Immigration Reform?”  We answered that the provisional waiver was likely the better bet.  Turns out we were right.  Hundreds of people have received their residence through the provisional waiver, whereas immigration reform remains stuck in the quagmire of today’s politics.  While there is lots of talk about the prospects for reform in 2014, we continue to place our bet on the provisional waiver.

8.  The de Osorio litgation regarding the interpretation of the Child Status Protection Act has generated a lot of interest on this site.  We have chronicled the litigation from our submission of an amicus brief on behalf of undocumented youth at the 9th circuit and celebrated the victory in the 9th Circuit decision.  We implored the administration not seek review of the 9th Circuit’s decision in the Supreme Court and  shared our disappointment in the government’s decision to seek certiorari review in “Opportunity Lost: Administration Seeks Supreme Court Review of de Osorio.”  The Court heard arguments on December 12, 2103 and a decision is expected by June 2014.

7.  Also, in January 2013, we sought to explain some basics of immigration law as the popularity of the “go to the back of the line” school of thought dominated discussion of immigration reform.  In “What’s The Deal with the Immigration Line?“, we discussed how the visa numbers and quotas work and, more often, don’t work.  We had a lot of fun with this post and are glad that it was so well received.

6.  In February 2013, we highlighted a piece of legislation proposed by Senator Orrin Hatch (R-UT) called the I-Squared Act.  In “Immigration Reform 2013: Understanding the I-Squared Act,” we described Senator Hatch’s proposals to modernize and improve the visa process for high tech workers.  Much of Senator Hatch’s bill was folded into the Senate bill which passed the Senate in June 2013 and remains languishing in the House of Representatives.

5.  A surprise for number 5!  In March, we wrote about Congress’ belated re-authorization of the Violence Against Women Act.  In “Congress Reauthorizes VAWA But Falls Short on Immigration Provisions,” we discussed the history of the VAWA, improvements made in the 2013 reauthorization, and disappointments in the bill.  One of the bigger disappointments was Congress’ failure to raise the cap on U visas, a failure that has proven to be significant as the U visa cap for 2013 was reached in December.

4.  In January 2013, we discussed the development and roll-out of the provisional waiver process.  The provisional waiver has been one of the most popular topics on our blog.  And for good reason, the provisional waiver is one change to the immigration laws that has directly benefited immigrants in 2013.  While immigration reform has stalled, the provisional waiver has proven to be a way out of the catch-22 of ineligibility for adjustment in the U.S. and the ten year bar triggered by traveling abroad.  In “Q&A on I-601A Provisional Waivers,” we reported on the procedures that CIS would use in executing the provisional waiver process.

3.  The provisional waiver dominates the top three spots.  In “The Provisional Waiver and Removal Proceedings,” we discussed the process of seeking a provisional waiver for individuals in removal proceedings.  This topic still draws interest as I took a call yesterday from a lawyer who wanted our thoughts on a government motion to terminate removal proceedings so that the client could seek the provisional waiver.

2. Again, the provisional waiver draws a lot of interest.  In this post, “What is Extreme Hardship?“, we used our years of experience preparing applications for waivers to help illuminate this very subjective and squishy standard.  One of our most popular posts, this post is very similar to many of the consultations we do where we help people identify relevant hardship factors before applying for waivers.

numero uno1.  Our most popular post is “10 Facts About the Provisional Waiver Process.”  This is, by far, our most popular post.  It was our first post of 2013.  We are a bit curious as to its popularity given how many developments there have been in the provisional waiver process, but this post remains an informative introduction to the provisional waiver, what it means to accomplish, and the mechanics of seeking a waiver.

Thanks to all of our readers.  We have studied these results and will use this information to make this blog more interesting and useful to you.  Happy new year to all!

Some Provisional News on Provisional Waivers

22 Jul

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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.