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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 Hannity!  Condoleeza 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.

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10 Facts About the New Provisional Waiver Process

2 Jan

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

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

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

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

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

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

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

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

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

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

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

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

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

  • Interviews still scheduled abroad:

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

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

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

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

  • Who is not eligible?

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

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

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

  • No appeal process:

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

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

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

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

There are no fee waivers available for the process.

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

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Stateside Unlawful Presence Waivers Coming Soon

18 Oct

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

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

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

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

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

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

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

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

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

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