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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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Dree Collopy Leads Immigration Training at ABA Annual Meeting

21 Aug

As Co-Chair of the American Bar Association (ABA) Section on Litigation’s Immigration Litigation Committee, Dree Collopy recently collaborated with immigration attorneys from across the country to develop and conduct an immigration training at the ABA 2012 Annual Meeting in Chicago, Illinois.  In partnership with the ABA Commission on Immigration, Dree’s committee provided a pro bono training program designed to encourage attorneys to serve immigrants in need of a zealous advocate and to equip those attorneys with the skills they need to provide high quality, effective representation for people in removal proceedings.

From August 2nd to the 7th, Chicago, Illinois was inundated with members of the American Bar Association, who congregated in “the Second City” for the ABA’s 2012 Annual Meeting.  Everywhere you looked there were lawyers.  Some were learning about architecture on tour boats on the Chicago River, while others marveled at the views from atop the Willis Tower (formerly Sears Tower) and shopped on Michigan Avenue and State Street “that great street.”  Still more ate deep-dish pizza and Italian beef, perhaps while tapping their feet to the blues rhythm at Buddy Guy’s Legends or cheering on the Sox at U.S. Cellular Field.  Amidst the city’s many attractions, however, thousands of America’s attorneys gathered to further the practice of law and the legal profession.  Countless engaged in Continuing Legal Education and leadership meetings focused on strategizing another year aimed at serving the public, defending liberty, and delivering justice for all.

One of the Annual Meeting’s critical goals was to develop ways in which ABA members could serve the public by providing pro bono services to underrepresented populations.  At the forefront of the dialogue was the plight of the most vulnerable groups in America.  Facing language barriers, increased detention, notario fraud, erosion of due process, and a lack of access to counsel, immigrants and refugees are in desperate need of skilled advocates in the fight for justice.  As Co-Chair of the ABA Section on Litigation’s Immigration Litigation Committee, Dree collaborated with committed attorneys from across the country to address this very need.  Together, they educated attorneys on Immigration Court procedures and assisted them in developing the skills needed to represent clients in Immigration Court.  Dree and the other contributors trained attorneys on how to seek various forms of relief from removal, and opined on ethical issues that arise when representing clients in removal proceedings.  Chicago Immigration Judge Giambastiani generously donated her time to provide tips from the bench, passionately affirming the need for effective representation in Immigration Court and urging attorneys to participate in defining a more just system by undertaking pro bono immigration cases.

As an attorney who avidly represents this vulnerable group daily, it was inspiring for Dree to witness corporate, tax, and tort attorneys focusing their attention on addressing the pronounced need for pro bono representation for immigrants.  The Immigration Litigation Committee’s programs ensured that those committed attorneys boarded their flights from Chicago equipped to zealously and effectively advocate their immigrant clients’ matters before the nation’s Immigration Courts.  Dree boarded her flight from O’Hare to Washington National encouraged by the commitment of our nation’s attorneys and her Committee’s ability to further the mission of increasing pro bono immigration representation nationwide.  Whether representing the single mother of two U.S. citizen children facing removal from the United States, the political activist fleeing imprisonment and torture, or the undocumented victim of years of abuse at the hands of a U.S. citizen, the dedicated attorneys who congregated in Chicago will be defending liberty and delivering justice to people in great need of skilled and trained advocates.

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