Tag Archives: unlawful presence waiver

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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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.

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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.

 

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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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