Seattle Immigration Lawyer Blog

Today, I attended a USCIS Public Engagement Teleconference at which USCIS and State Department officials provided further details about the January 6, 2012 USCIS Notice of Intent to issue regulations, discussed in my earlier blog post, USCIS Proposes Stateside Processing of I-601 Waivers: Know Before You Go?. Recapping briefly the USCIS proposal, regulation will be issued for public comment describing new procedures for how and where immigrant visa applicants will file their waiver applications if they are subject to the three or ten-year unlawful presence bars to inadmissibility. The proposed regulation would change the place of waiver filings to the U.S. from the current rule of filing at the U.S. consulate while abroad. This would allow applicants to file before going to their green card visa interviews at U.S. consulates abroad. The purpose of the teleconference was both to further inform stakeholders as well as to solicit ideas for the proposed regulation.

USCIS plans an education push on the subject. Already, they say, notarios and other legal consultants are advertising a new law, a new benefit or other nonsense that simply isn't true. Anti-immigrant advocates mischaracterize this as President Obama's attempt to carry out a "back-door amnesty" or is "an abuse of his administrative authority," when in fact this is just a procedural change in the place of application. It would not be a change in the qualifications for waiver applications that already exist by Congressional statute. Others note that this is just a political ploy by the Obama administration to appeal to Hispanic voters. Nonetheless, USCIS has the regulatory authority to determine how to carry out a statute enacted by Congress.

Here are some highlights from the public engagement teleconference:

1. USCIS anticipates issuing proposed regulations "in the Spring" with a 60-day comment period and final rule "by the end of the year." The goal is to implement the regulation "this calendar year." Note, this is an election year; therefore, whether the regulation will really be implemented "by the end of the year" may depend upon the outcome of the Presidential election in November. Nonetheless, the agency will still exist and be responsible for the waiver adjudications unless Congress changes the overall structure of the bars and waivers before then.
2. Presently, there are 23,000 waiver applicants abroad around the world, which includes all waiver types, not just waivers for the unlawful presence bars. 75% of those are applicants for immigrant visas at the U.S. consulate in Ciudad Juarez. These are the people who have decided to take the risk to pursue their employment or family based green cards abroad (because they are ineligible to do so in the U.S.), knowing they may be separated from families while waiting for waiver applications or fulfillment of the three or ten years residence abroad before they can return. Meanwhile, millions of people eligible to immigrate at consulates abroad who need waivers have chosen to remain in the U.S. illegally despite being eligible for visas and potentially eligible for waivers. They are unwilling to take the risk of lengthy family or job separation under the current process.
3. USCIS wants ideas and comments now to help with rule formulation. Suggestions should be sent to: public.engagement@dhs.gov. Note that this process for input is no substitute for formal comments once the proposed rule is published. At that time, that's when public comments will really count, but suggestions submitted now can go into the initial rule formulation process.
4. USCIS reiterated that the purpose of the rule change is to reduce the separation period facing U.S. citizens and their families while immigrant visa applicants continue with the existing immigration process. This has the added benefit of saving the government money from inconsistent procedures, adjudication and constant routing of files between the State Department and USCIS. Note again, that this is strictly a procedural change, not a legislative change, amnesty or qualification change. See USCIS Q&A. Many stakeholders at the meeting commented on why USCIS was not including U.S. citizen parent beneficiaries since they are immediate relatives; permanent resident petitioners with U.S. citizen relatives who are qualifying family members for waiver hardships; and U.S. citizens with permanent resident family members suffering hardship who also qualify for waivers. All of these categories are waiver eligible and affect U.S. citizens.

Continue reading "Provisional I-601 Unlawful Presence Waiver Update" »

Today, U.S. Citizenship and Immigration Services (USCIS) announced a "Notice of Intent" that it is considering issuing a rule change to allow a narrow class of specified immigrant visa applicants to process their I-601 waivers of inadmissibility in the U.S. This means that they would have a provisional decision about their waiver eligibility BEFORE they leave the U.S. to complete interviews at U.S. consulates abroad. The rule itself has not been issued. There will most likely be a period for public comment before the rule is implemented. Therefore, it could be a few months before this procedural change goes into effect, and the nature of the final rule could change based on public feedback. Meanwhile, next week, USCIS will hold a teleconference with stakeholders.

The proposal would be a procedural change only. It is not a change to qualifications. It is not amnesty or another new benefit, as the anti-immigrant folks will surely claim. USCIS intends this rule to make the overall process more efficient and a cost saver for the government by reducing the back and forth of applications between the State Department (consulates) and USCIS. Most importantly, the change would reduce the amount of time some families are separated and promote family unity, something desperately needed in our immigration laws and procedures. However, the proposal is limited to a very, very narrow group of applicants. One has to ask why the government doesn't want to save more money by broadening the group of people to whom this procedural change should apply and suffer the same family hardships. Nonetheless, for the limited group to which it will apply, the change is a welcome assist to applicants for immigrant visas abroad who are presently in the U.S. Presently, they have to decide whether or not to take the risk of leaving the U.S. to complete processing their family based green card applications at U.S. consulates not knowing if their waiver applications will be approved. This change will presumably make that decision making process for families easier.

About Unlawful Presence Waivers

Briefly, if an applicant has been unlawfully present in the U.S., whether by unlawful entry or other visa violation, for six months or more, the very act of leaving the U.S. to legalize status by obtaining an immigrant visa abroad triggers the three or ten-year bar to returning to the U.S. Once the bar is triggered, a waiver of the unlawful presence bar is required to come back earlier than three or ten years. Not everyone who has been in the U.S. unlawfully needs to consular process or is subject to the unlawful presence bar. Examples include unlawful entrants who are eligible for section 245(i) adjustment of status in the U.S., or certain immediate relatives who entered with lawful visas who may have overstayed. Whether one is or is not subject to the bar or must consular process should be determined in consultation with an experienced immigration lawyer.

Because waivers are decided by USCIS and not the consulate, applicants can be stranded abroad, separated from families and jobs while waiting for waivers to be decided. Once the waiver is approved by USCIS, the applicant returns to the consulate for issuance of the visa. If the waiver is not approved, the applicant remains outside the U.S. until the three or ten-year period ends. This separation creates huge hardships for families. Wouldn't you want to know the likelihood of your waiver application being granted BEFORE deciding whether to leave the U.S. for the final visa interview?

The U.S. consulate in Ciuadad Juarez, Mexico is the largest consulate in the world. It has the greatest number of visa applicants waiting for waivers. Many applicants or their families have suffered from the violence in Mexico while waiting for the outcome of their visas. Similar fates await visa applicants in other countries such as Nigeria, Sudan and places where there is internal conflict. There are immigrant visa applicants all over the world currently waiting for waiver decisions while being separated for months or years from their U.S. citizen or green card holding family members.

Waiver eligibility weighs heavily into the applicant's risk/benefit analysis for deciding whether to leave the U.S. Unpredictability in the waiver adjudications puts applicants into a Catch-22 situation and is one reason why many people in the U.S. who could regularize their status remain unlawfully in the U.S. The proposed rule change, however, will not impact waiver requirements or adjudication variables. It only affects whether one applies for the waiver before or after leaving the U.S. USCIS acknowledges this irony in its proposal, thanks to Congress, who in 1990 enacted the bars and waivers: "The action required to regularize the status of an alien, departure from the United States, therefore is the very action that triggers the section 212(a)(9)(B)(i) [unlawful presence ground of ] inadmissibility that bars that alien from obtaining the immigrant visa." As I have mentioned in prior blog posts, eliminating the unlawful presence bars should be an essential element of immigration reform that would also save the government lots of money. The government bureaucracy devoted to waiver adjudications has mushroomed over the years as has the cottage industry of psychologists, doctors, country condition experts and others who often weigh in on the hardships an applicant will face.

Narrow requirements for stateside processing of waivers

If and when the rule becomes effective, unfortunately, it will be very limited as currently proposed. First, it would apply only to immediate relative visa applicants (spouses, minor unmarried children under 21, and parents of U.S. citizens) and some self-petitioners (widows/widowers of U.S. citizens). It would not apply to the same family members of green card holding sponsors or other family member combinations, nor to employment based visa applicants. The rule is only intended to modify the time of family separation among U.S. citizen family members during waiver processing. It does not change the extreme hardship qualifying standard or statute.

Continue reading "USCIS Proposes Stateside Processing of I-601 Waivers: Know Before You Go?" »

On January 5, 2012, USCIS issued new draft templates for Requests for Evidence (RFE) concerning L-1 Intra-Company Transferee visas for multinational managers, executives and those with specialized knowledge. USCIS has been reviewing its policies and trying to streamline adjudications of different visa categories to insure more consistent adjudications among officers and offices. Over the last year, the agency has issued draft RFE templates and implementation policy memos in the temporary and permanent business visa categories.

RFEs are a major sore spot with attorneys and their clients. They often reflect that a) the officer did not read or ignored the evidence already submitted; b) the officer confused category requirements or misinterprets the law; c) the officer sends boilerplate information about the law and then asks for everything but the kitchen sink and d) the officer automatically suspects small businesses are engaged in fraud. RFEs create delays and are a barrier to new business start ups and job creation. Although we do not receive many RFEs in our office, discussions about the RFE problems among our colleagues in the immigration bar have been frequent, especially since the recession began. It could be due in part to some combination of USCIS hypersensitivity to protect American jobs, internal personal politics of the officers, lack of training or possibly poor preparation of applications. Whatever the reason, Director Alejandro Mayorkas is aware of the problem, though his direction may not filter down to the front line workers in his agency. In particular, our colleagues complain consistently about business adjudications at the California Service Center.

Knowing the agency's views on potential RFE requests in advance of filing can be helpful in selecting the best visa categories for a client and for preparing cases in a way that avoids receiving RFEs. The templates and memos accompanying them are posted for public comment until February 3. One of the L-1 templates concerning qualifying entity relationships was issued December 15 and is open for comment until January 17, 2012. Of particular interest is the boilerplate option that the officer must explain deficiencies in the evidence already provided when asking for more evidence. This is very important since requests often ask the applicant to "send XYZ" without explaining why or how it would be relevant, or what was wrong with previously submitted evidence on the subject. Whether the process of refining RFEs and soliciting feedback will help improve adjudications will be reflected when we can see that the officers are following the guidelines, interpreting the law correctly and moving cases quickly. Thus, it's important to make comments now before the templates are finalized.