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The I-601A is Almost Here

1 Mar

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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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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!“

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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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Fighting for Togetherness

22 Dec

It isn’t only the holiday that is celebrated, the sweets that are eaten, the gifts that are given, or the resolutions that are made that defines this time of year; it is also family.  Regardless of your religion, your nation of origin, or your profession, our common purpose this time of year is togetherness.  Yet there are so many, no matter how strong their resolve, who are unable to realize that seemingly simple goal.  Instead, countless families are kept apart by an immigration system that is bursting with backlogs, unreasonably punitive, and often marred by bureaucratic incompetence.

Whether waiting in the endless line for a visa to become available, waiting for a ten year bar to re-entry to be lifted, or simply waiting for an immigration agency to notice their file and process their application, thousands and thousands of families remain separated this holiday season.  Perhaps even more troubling, countless other families face the threat of imminent separation due to their inability to regularize their status while present in the United States, even if married to a U.S. citizen and a parent to U.S. citizen children.

For a country that lauds “family values,” with politicians endlessly citing family priorities and an immigration system ostensibly built on a foundation of “family unity,” we have to do better, we must do better.  We must comprehensively reform our system so that it unites families, rather than keeping them and often tearing them apart.  A seemingly daunting task, fighting for togetherness is simpler than it seems.  Our system needs more family-based immigrant visa numbers.  Family members of U.S. citizens need a vehicle for regularizing their status while present in the U.S.  We need to practice forgiveness for past mistakes – rather than perpetual punishment – for those with U.S. citizen family members.

Until we accomplish family togetherness, we at Benach Ragland will continue fighting for families – families like our clients from Bangladesh, who were separated for over five years because of a misunderstanding at a consular interview and a mistake that the consul repeatedly refused to correct.  A naturalized U.S. citizen husband petitioned for his wife and young son to bring them to the United States, excited to build a life together in the country that he now called home.  Yet, the consulate refused to issue the wife her visa, alleging that she had made a misrepresentation.  This alleged misrepresentation was neither material to the application nor was it a misrepresentation at all – what she had said to the consul was true. However, the consul refused to correct the error.

The family came to us and we prepared and filed an application for a waiver of inadmissibility on her behalf, demonstrating that if she was kept apart from her U.S. citizen husband, he would continue to suffer from depression and anxiety.  He would continue living in near-poverty while trying to support two households in two different countries on the salary of a fast-food restaurant manager.  When our client’s waiver finally was granted, our perseverance and resolve were given the ultimate reward: his family is spending these holidays together in their adopted nation, their home.

We will keep fighting for families like our Ethiopian asylee-now-U.S.-citizen, who was separated from his Canadian wife and three children for over eight years because his wife was refused re-admission to the United States after a short trip abroad.  After suffering persecution in Ethiopia and fleeing in fear for his life, our client was granted asylum and safety in the U.S., where he met the woman of his dreams, a Canadian citizen, who had immigrated to Canada as a refugee from Ethiopia.  They started a family together in the United States and began building a bright future for their U.S. citizen children.  Yet, when our client traveled to Canada for a short trip, she was refused re-admission due to a prior act of fraud she had committed.  While she regretted that act before, her regret deepened when she realized that it would lead to an eight-year separation and the near collapse of her family unit.  The difficulty of obtaining a waiver for a Canadian citizen, showing extreme hardship and an inability for the family to relocate to Canada, may have turned some advocates away.

Not Benach Ragland. We saw the pain that this young family was suffering due to their separation and wanted to fight on their behalf.  We prepared and filed an application for a waiver of inadmissibility, showing the government that without his wife and children with him in the U.S., our U.S. citizen client would continue to suffer.  As a refugee who had to flee his home in fear for his life and who had finally been freed from “statelessness” by a grant of U.S. citizenship, to attempt to resettle in Canada would be psychologically and emotionally devastating.  Yet, without his family in the U.S., he also faced extreme psychological and financial hardship, trying to bond with his very young children and build upon his marriage from afar, while supporting two households on the salary of a parking garage attendant.  After over eight years of holidays apart, this family gets to spend this one together.

As we reflect on 2012 and hope for 2013, we remember these families, as well as all of those families who remain separated, longing to achieve their “togetherness” in 2013.  We at Benach Ragland hope that 2013 brings common sense immigration reform, buttressed by the pillar of family unity.  Until then, our resolution is to continue advocating for families and never, never stop fighting for togetherness.

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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