Tag Archives: unlawful presence waiver

Good News on I-601A Provisional Hardship Waiver Applications!

18 Mar

VisaToday, the US Citizenship & Immigration Service announced a fix to one of the more serious problems with the provisional waiver process for unlawful presence.  As you may know, the CIS instituted the I-601A provisional waiver process last year to allow immigrants who are immediate relatives of U.S. citizens but are also ineligible to seek residence in the U.S. due to unlawful entry to seek a provisional waiver of inadmissibility in anticipation of seeking a visa at the U.S. embassy abroad.  The provisional waiver, sought on form I-601A, only waives inadmissibility due to unlawful presence (i.e., entering without inspection and remaining more than 6 months in the U.S.).  The waiver does not waive any other ground of inadmissibility such as inadmissibility due to criminal convictions or fraud.  To address this issue, the CIS decided early on that where another ground of inadmissibility may be present, such as due to criminal convictions, the CIS would deny such applications because there was a reason to believe that inadmissibility might apply.  This approach left a lot of people out of eligibility for the provisional waiver, many of whom are not, in fact, inadmissible despite having criminal convictions.  This is because not all convictions create inadmissibility.  The largest class of crimes that cause inadmissibility are those that are considered to involve “moral turpitude.”  Crimes involving moral turpitude are those offenses that are inherently base, vile, or depraved.  They usually involve theft, dishonesty, or violence.  However, many crimes, such as trespass, disorderly conduct, or a simple driving under the influence, clearly do not involve moral turpitude.  In addition, there is an exception to inadmissibility for “petty offenses.”  A petty offense is one in which the maximum possible sentence does not exceed one year and the individual is sentenced to less than 180 days in prison.  A crime involving moral turpitude that falls within the petty offense exception does not cause inadmissibility.  However, under the reason to believe standard, CIS was denying waiver applications simply because an offense could create inadmissibility, which was patently unfair to those who were not, in fact, inadmissible.

In an email today, U.S. CIS stated that on January 24, 2014, it issued Field Guidance to its offices instructing officers not to find a reason to believe someone might be inadmissible where the applicant is clearly not inadmissible.  The Field Guidance provides:

USCIS officers should review all evidence in the record, including any evidence submitted by the applicant or the attorney of record. If, based on all evidence in the record, it appears that the applicant’s criminal offense: (1) falls within the “petty offense” or “youthful offender” exception under INA section 212(a)(2)(A)(ii) at the time of the I-601A adjudication, or (2) is not a CIMT under INA section 212(a)(2)(A)(i)(I) that would render the applicant inadmissible, then USCIS officers should not find a reason to believe that the individual may be subject to inadmissibility under INA section 212(a)(2)(A)(i)(I) at the time of the immigrant visa interview solely on account of that criminal offense. The USCIS officer should continue with the adjudication to determine whether the applicant meets the other requirements for the provisional unlawful presence waiver, including whether the applicant warrants a favorable exercise of discretion.
The CIS has also agreed to reopen, on its own motion, cases that were denied on “reason to believe” to determine whether an applicant denied was, in fact, inadmissible.  If not, the CIS would proceed to consideration of the merits of the I-601A provisional waiver application.
This is a tremendous improvement from the previous position that CIS took.  It is a credit not only to CIS but to the many individuals and groups who pushed CIS on this issue.

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!

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.

The Provisional Waiver and Removal Proceedings

17 Jan

 

Over the last few weeks we have answered dozens of questions about the provisional waiver.  One group of questions keeps appearing- questions about how people in removal proceedings or with a removal order can qualify for the provisional waiver.  Whereas, the initial rule announced by the Department of Homeland Security indicated that the provisional waiver would be unavailable to people in removal proceedings, the final rule is somewhat more forgiving.  The final rule states that an individual in removal proceedings can not seek a provisional waiver with the Citizenship & Immigration Service (CIS) unless proceedings have been administratively closed or terminated.

brockes-600

As Julie Andrews sang, let’s start at the very beginning as it is a very good place to start.  Removal proceedings are initiated when the DHS issues a charging document known as a Notice to Appear (NTA) and lodges it with the Immigration Court.  Any of the three immigration agencies, Immigration & Customs Enforcement, Citizenship & Immigration Services and Customs & Border Protection has the authority to issue NTAs.  Usually, the time between DHS issuing an NTA and filing it with the court is close to simultaneous.  However, on occasion, the NTA is issued and not filed with the court for days, weeks, months or even years.  An individual is not “in removal proceedings” until an NTA has been filed with the court.  Until the NTA is filed with the court, DHS has exclusive authority to choose not to bring removal proceedings against an individual.  In cases where an NTA has been issued and not filed with the court, that individual is not in removal proceedings and should remain eligible for the provisional waiver.  Removal proceedings continue until the immigration judge grants relief and terminates the case or the person departs the U.S. either under an order of voluntary departure or an order of removal.  In cases where there is a final order of removal, but the individual has not been removed yet, even though there are no more proceedings before the court, that individual is still “in proceedings” and would be ineligible for the provisional waiver.

Once a person is in removal proceedings, the provisional waiver rule is clear that those proceedings must be administratively closed or terminated before that individual can seek the provisional waiver.  Termination of removal proceedings can happen in one of two ways.  First, proceedings are terminated where the immigration judge grants relief, allowing an individual to remain in the U.S. in some sort of legal status.  Second, and this is the rarer form of termination, ICE may elect to terminate proceedings because it has decided that seeking removal in a particular case is no longer in the interests of the government.  Although the DHS has exclusive authority to issue and to decide whether to file a Notice to Appear in immigration court,  once proceedings have been initiated, DHS becomes a party to litigation and only the immigration judge has the authority to terminate removal proceedings.

Administrative closure is a tool of convenience for immigration courts.  Administrative closure allows the court to take a case off an active docket and place it into “hibernation.”

clipart_sleepingbearBy administratively closing a case, the case remains pending before the immigration court, but it is taken off the active calendar.  When a case is pending before the court, it is on an active calendar and at the end of each hearing another hearing must be calendared.  When a case has been administratively closed, it is not on any calendar and no hearings are scheduled.  The case remains before the court, but the court is not acting on the case.  In order to get the case back on the active docket, one of the parties must file a “motion to recalendar” the case.  Cases can be administratively closed for months or years at a time.  Either party may request administrative closure and the immigration judge has authority to grant it.  Until recently, the law required the concurrence of both the foreign national and the government to allow for administrative closure.  However, last year, in Matter of Avetisyan, the Board of Immigration Appeals held that an immigration judge may grant administrative closure over the objection of one of the parties.  In other words, DHS can not unilaterally deny the foreign national’s  ability to obtain administrative closure.

People currently in removal proceedings who would otherwise qualify for the provisional waiver can seek both termination and administrative closure.  We expect that ICE, who represents the government in removal proceedings, will be fairly accommodating to requests to terminate or administratively close cases where the foreign national can present a prima facie case for eligibility for the provisional waiver.  In these cases, your lawyer ought to prepare a motion to terminate or administratively close demonstrating that you qualify for the provisional waiver and that the pending removal proceedings are the only impediment.  These individuals should be able to demonstrate that they are the spouse, parent or children of a U.S. citizen and that their only violation of law relates to entering illegally.  By presenting evidence to the government of qualification for the provisional waiver and readiness to file it, it seems that ICE would exercise its discretion to administratively close the case to allow the applicant to file the provisional waiver application.  Upon approval, termination seems appropriate.  If the case is not approved, it is reasonable to expect that ICE would seek to recalendar the case and proceed with removal proceedings.  Should the government refuse to join a motion for administrative closure, the immigration judge has the authority under Matter of Avetisyan to close the case nonetheless upon the motion of the foreign national.

People with old orders of removal who have not yet departed the United States would need to reopen removal proceedings so that removal proceedings can be administratively closed or terminated.  This is a heavy lift.  If the removal order is more than 90 days old, a foreign national will, generally, need the government to agree to reopen for the purpose of closing.  Makes sense, right?  However, there may be circumstances where the hardship is so clear and extreme and the facts are so compelling that the government agrees to this.  By asking the government to join a motion to reopen, an individual with a final order of removal, who may or may not be on the government’s radar screen for removal, makes herself vulnerable to enforcement of the removal order should the government prove unwilling to join in reopening.  While there are limited circumstances in which an immigration judge can reopen on his own motion, those instances are rare and should not be, generally, relied upon.

Finally, people who have been deported or departed the U.S. under an order of voluntary departure or removal are ineligible for the provisional waiver and must seek the waiver through the traditional means at the consulate in their home country.

The provisional waiver has the potential to help thousands of people in removal proceedings.  Many of them may be waiting for hearings on cancellation of removal which requires a much higher level of hardship than the provisional waiver’s standard of extreme hardship.  It is not really conceivable that anyone can navigate this thicket without experienced counsel.  Visit us at BenachRagland.com or check with your local bar or the American Immigration Lawyers Association to find qualified attorneys to assist you.

 

Live Video Chat of Andres Benach on the Unlawful Presence Provisional Waiver

11 Jan



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In this video, Andres answers your questions on the unlawful presence waiver process.

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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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DACA, Provisional Waivers, and de Osorio?

4 Jan

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The publication of the rule allowing for processing of provisional waivers for unlawful presence in the United States was another act of administrative rule-making that the President has undertaken to make the immigration laws more humane.  Over the past year, the effort at prosecutorial discretion, the introduction of Deferred Action for Childhood Arrivals (DACA), and the provisional waiver have created a much improved immigration system that attempts to solve real immigration problems for families.

The President has been justly criticized for an enforcement-only approach to immigration.  It is clear that, early in the first term, the White House miscalculated in believing that if it demonstrated that it could enforce U.S. immigration law, it could persuade Republicans in Congress to support sensible immigration laws.  It did not work.  Despite record removals, many members of Congress labor under the fallacy that the President has refused to enforce immigration laws.  As the intransigence of Congressional Republicans made any meaningful immigration reform an impossibility, the administration has taken significant steps to make the immigration system better.

And make no mistake- these steps taken by the administration have made the immigration system better.  Critics can cite the low numbers of cases where prosecutorial discretion has been applied and the individual instances where prosecutorial discretion has been refused where it seems like the individual fit within the criteria.  The systems have not been perfect, but they are improved.  If one case was terminated as a result of memoranda issued in the past year, a benefit was received.  In the past, a request for the exercise of prosecutorial discretion was a last ditch and usually fruitless effort reserved for the saddest of cases.  It is now a routine part of representation and utilized successfully in cases where the law provides no options for relief.

In addition, I have seen the exercise of prosecutorial discretion bleed into areas other than the termination of cases.  I have seen the government agree to join motions to reopen to allow the spouses of citizens to adjust their status in the U.S.  This was a rarity before.  I won’t go so far as to say that they are regularly joined these days, but I have had more joined in the past year than in the previous five years.  DACA has been an amazing experience. Watching all of these kids get a chance to go to college or put their education to work has been an inspiration.  The country has benefited tremendously from the energy and vigor they have brought to our communities when the smallest of welcome was extended to them.

Finally, the provisional waiver will allow families to regularize their status without the risk of long term separation.  Thousands of families have refused to risk separation and have thus continued with one partner without status fearful of being stopped by the police and unable to find meaningful work.  The provisional waiver process should allow thousands of undocumented immigrants to get their residence properly.

The President has done this in the face of a hostile Congress colluding with an insubordinate agency.  ICE bureaucrats have been in open rebellion against liberalized immigration policies since the beginning of the President’s terms.  They have teamed with their Congressional supporters to accuse the administration of everything from allowing jihadis to roam free to making cynical ploys for Latino votes.  Luckily, these rear-guard actions have failed.  They are the death shrieks of a disappearing order, where once can say of Joe Arpaio, Russel Pearce, Kris Kobach, and Steve King, as Bob Dylan once did, “something is happening here, but you don’t know what it is.

While there are countless other administrative actions that the administration can take, another step that would further demonstrate the administration’s willingness to place family unity and sensible immigration policy over “the way things have always been,” would be for the administration to forgo Supreme Court review in de Osorio v. Mayorkas, the decision of the 9th Circuit Court of Appeals that allows the unmarried sons and daughters of permanent residents who aged out of eligibility under petitions for their parents to receive credit for the time they waited under their parents’ petitions.  In de Osorio, the 9th Circuit joined the 5th Circuit in Khalid v. Holder rejecting the Board of Immigration Appeals decision in Matter of Wang.  Both Courts of Appeals decided that the plain language of the  Child Status Protection Act allowed kids who aged-0ut of eligibility under petitions filed for their parents to recapture the time that they waited when their parents, now permanent residents, filed petitions for them.  In Matter of Wang, the Board decided that the kids could not recapture that time and would have to go to the end of the line.  This resulted in what one brief in de Osorio calculated would be a 115 year wait for an unmarried adult son or daughter of a Mexican citizen!  The de Osorio decision has the potential to help ensure family unity for thousands of families where parents and minor children have received residence, but one or two older children aged-out.

The de Osorio decision came down on September 26, 2012 and the next stop for review is the Supreme Court.  The government has sought two extensions to decide whether to appeal to the Supreme Court.  As of now, their petition for Supreme Court review, known as a petition for a writ of certiorari, is due on January 26.  If the government files a petition, the Supreme Court may or may not take the case.  However, the de Osorio case will likely not take effect until the Supreme Court decides whether to take the case.  If the Supreme Court takes the case, then we will have to wait until the Supreme Court decides the matter before we know anything further.  If the Supreme Court does not take the case, the de Osorio case will take effect and many people will become eligible for adjustment of status.

Of course, the government does not have to file a petition for a writ of certiorari.  They did not seek certiorari in Khalid.  Moreover, WHY??  Why appeal this?  What is the possible compelling interest for the government?  The de Osorio decision allows the sons and daughters of permanent residents who waited in line with their parents only to lose their eligibility due to lengthy delays in the immigration process to rejoin their families.  How does the government have an interest in avoiding that happy result.  Immigration law has always been anchored in the concept of family unity?  Prosecutorial discretion, the provisional waiver and, to a lesser extent, DACA, reflect principles of family unity.  By letting the de Osorio decision stand, the administration can once again signal its firm alliance with immigrant families.

As one former President said, on a petition for cert, Mr. President, “Just say no!