Seattle Immigration Lawyer Blog

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?" »

Earthquakes, tsunamis, radiation, mass protests and civil unrest, and now the U.S. bombing yet another country, this time Libya. How can Americans traveling abroad protect themselves? The U.S. State Department has three programs every American should be aware of before going abroad, if you don't mind having your personal information in a government database: STEP, ACS and Task Force Alert. I mentioned STEP and Task Force Alert briefly in my prior post, State Department Information on Japan Earthquake and Tsunami. All three programs are described in more detail below.

Besides individual travelers around the world visiting, studying and conducting business, plus millions of U.S citizens living abroad more permanently, we also have many members of the military, media, and humanitarian relief workers stationed in hot spots all over the world. IF you want to be able to get emergency information or relief from the U.S. government, these three programs could possibly help you. (Notice I use qualifiers like "may", "could", and "if". Many people would not depend on the U.S. government to assist them under any circumstance either due to distrust or political reasons. Others try but get mired in bureaucracy. However, many humanitarian relief and military operations are coordinated with the State Department as well as with private business. Be sure to check out the privacy statement for each program described below to determine your comfort level in disclosing your personal data.) By contrast, I suggest also reading the State Department's Twitter and Facebook pages as well as some interesting blogs and chat groups about the great work foreign service officers perform and the variety of help they provide to Americans abroad. (See also ConsularCorner on Facebook.)

Smart Traveler Enrollment Program (STEP)

STEP, formerly known as Registration with Embassies, allows travelers to receive State Department "Travel Warnings" and "Warden Messages" as well as other country condition updates while traveling. It also enables the local U.S. Embassy to quickly contact Americans in case of a crisis so they can find safety, be evacuated or receive other expedited assistance. It also enables family and friends to request Embassy assistance finding you if for some reason they were waiting to hear from you and did not. Travelers sign up once and then can change travel plan information online as needed. Other reasons for this service are to obtain Embassy assistance if you need serious legal, medical or financial assistance while traveling.

American Citizen Services and Crisis Management (ACS)

The State Department runs another program called ACS that "supports the work of ...overseas embassies and consulates in providing emergency services to Americans traveling or living abroad. [They]... also assist in non-emergency matters of birth, identity, passport, citizenship, registration, judicial assistance, and estates. ACS can facilitate the transfer of funds overseas to assist U.S. citizens in need, repatriate the remains of loved ones who have died overseas, assist victims of crime, and help U.S. citizens who are detained in foreign prisons....ACS also administers a repatriation loan program to bring home destitute Americans. [There are]....24-hour Duty Officers on Program and Crisis Response Teams who work on task forces convened to deal with natural or man-made disasters."

Contact information for this program is:
From within the U.S. 1-888-407-4747
From outside the U.S. 1-202-501-4444

ACS does not handle any of the following activities:
Act as your lawyer, translator, interpreter, personal assistant, travel agent, investigator, law enforcement agent or real estate agent;
Provide you or your family with physical protection;
Arrange release from U.S. military service obligations;
Pay your debts or fines, sort out property disputes; or interfere in judicial proceedings;
Find you employment, residence, or schools;
Search for missing luggage;
Settle disputes with hotel managers and landlords; or
Discuss visa cases.

Task Force Alert

Task Force Alert goes into service when there is an actual countrywide crisis such as currently exists in Japan. With this program, the traveler can enter information about oneself as well as loved ones so that the State Department can find out or transmit information about each person and between them. You can provide information about special needs of the traveler (e.g., elderly, needs medication, unaccompanied minor), and emergency contact information. You can also upload a photograph and provide the person's last known location as well as biographical and last known location information. Right now, the program is set up for the crisis in Japan.

Continue reading "Speaking of Emergencies, Be A Prepared Traveler: State Department Emergency and Crisis Programs For U.S. Citizens" »

The U.S. State Department, which issues visas abroad, issues U.S. passports and looks after the safety of U.S. citizens overseas, has a lot of useful information following the earthquake and tsunami in Japan as well as the nuclear radiation situation that is evolving. Here are some useful sites and contact information:

U.S. Citizens in Japan
Contact Information for the U.S. Embassy in Tokyo:

For calls from within the U.S. 1-888-407-4747
For calls from outside the U.S. 1-202-501-4444
For concerns about a specific U.S. citizen in Japan, email: JapanEmergencyUSC@state.gov
The State Department also has Twitter and Facebook accounts to follow.

Travelers to Japan should check the U.S. Embassy Tokyo website often for "Travel Warnings" and "Warden Messages" as well as any other news. Americans who sign up for Smart Traveler Enrollment Program (STEP) can receive constant updates from the U.S. Embassy. This is especially important for newly arriving humanitarian relief workers and family members, assuming you are in an area to receive digital information. Task Force Alert is a complimentary program that operates during a crisis to keep families informed. Travelers or their family members can register, provide biographic information, upload a photo, provide emergency contact information and any other special needs of the person traveling.

The State Department has also posted "Options for Travel out of Japan". This should be checked frequently due to the fluid situation in Japan right now.

Non-Citizens needing U.S. Visa Services
At the moment, the U.S. Embassy in Tokyo (including consular posts) is focused on assisting U.S. citizens. There is limited visa service for non-U.S. citizens seeking to come to the U.S. Applicants/potential applicants should check the Embassy website regularly for updates as to visa types being issued and hours of operation. Priority is being given to work visa applicants and students. For example, the U.S. consulate in Osaka is asking visa applicants to reschedule their appointments.

For U.S. visa inquiries related to departure from Japan to the United States, email japanvisainquiries@state.gov or consult the U.S. Consulate web pages for Tokyo, Osaka, Narita and others. (Right now, except for Osaka, they all refer back to the Embassy in Tokyo for operations status.)

Radiation Concerns

The U.S. Embassy is again another place to keep posted on radiation issues. Just today, the U.S. Embassy published this announcement:

March 20 - The U.S. Centers for Disease Control and Prevention (CDC) issued a Travel Health Precaution related to the 2011 earthquake, tsunami, and radiation release in Japan. On the same topic, CDC issued Health Information for Expatriates and Students Living in Japan and also Health Information for Humanitarian Aid Workers. Each of the announcements highlight the U.S. Nuclear Regulatory Commission recommendation that all Americans within 50 miles of the Fukushima reactors should evacuate the area.

The U.S. State Department announced today that the family-based permanent legal immigration quota will retrogress in January. The State Department makes monthly estimates about visa use around the world through an extremely complex formula that hardly anyone understands. Although the State Department posts a brief explanation online, it does not adequately reflect the true complex nature of calculating when visas are available. Not only does the State Department have to monitor how many permanent immigrant visas are being issued by each U.S. consulate world wide, but applications filed within the U.S., called "adjustment of status", also have to be monitored. Immigrant visas and adjustment of status applications can only be filed and granted when the quota is current. But in between those times, the quota can retrogress or become backlogged.

The quota status is published monthly in the Visa Bulletin at www.travel.state.gov. By understanding how the quota works, one can better understand why fixes are needed to the legal immigration system. Without these fixes, enforcement-only legislation will increase the numbers of people who fall out of status, or will encourage people to come illegally if one understands anything about the human condition or drive to protect and feed one's family.

I tell my clients to think of it this way. Suppose you are trying to see a movie at a theatre with 100 seats. You arrive at the theatre and the seats are sold out and you have to stand in line. How long you stand in line depends on demand for the limited supply of seats. You may get into the theatre for the next movie, or after several movies. Think of movies as months, maybe years. When people try to immigrate through family members, depending upon the relationship combination involved, the beneficiary may be waiting in line at theatre A, theatre B or theatre C for example, which we call preference categories. These are all defined and explained in the Visa Bulletin every month.

Where you are in line is further complicated by where you were born since visas are issued by country of birth, not citizenship, and each country is allocated a finite number of visas per category. If you were born in India, China, Mexico or the Philippines, you will usually wait much longer than everyone else. There are a few obscure rules on "cross-chargeability", so it's worth getting some legal advice to see if the beneficiary might fall into the world-wide category, which covers everyone else. But, for the most part, every single family preference category has been backlogged for years, and even moreso for Chinese, Mexicans, Indians and Filipinos. The only people NOT subject the quota backlogs are spouses and parents of U.S. citizens and minor unmarried children under 21 of U.S. citizens.

Continue reading "Legal Immigration Quota Backlogs Increase: Why Enforcement-Only Legislation Creates More Ilegal Immigration" »

Immigration enforcement legislation creates problems for U.S. citizens as well as for immigrants. Over the last few years, we have seen growth in our American citizen clientele because of new federal and state documentation burdens enacted under the guise of national security or to combat illegal immigration. The most common refrain we hear is: "I grew up in the U.S. I always thought I was an American but never had anything to show for it and I never needed the proof until now." Ironically, we hear the same thing about the children of undocumented immigrants who have grown up in the U.S.; only now we are dealing with "undocumented Americans."

Documentation burdens affecting American citizens include:

WHITI: WHITI stands for the Western Hemisphere International Travel Initiative. WHITI requires U.S. citizens to have one of these types of documents when returning from Canada, Mexico, the Caribbean or Bermuda: passports, enhanced drivers' licenses, military cards with travel orders, Merchant Marine Cards, I872 American Indian or Enhanced Tribal cards, Trusted Traveler Cards (see below), or in the case of children under 16, original birth certificates, evidence of birth recorded abroad, or naturalization certificates.

The number of Americans holding U.S. passports has been fairly low compared to other countries, but filings have substantially increased in the last two to three years as WHITI was fazed in. Now, more Americans need passports or one of the documents listed above to re-enter the U.S. from travel destinations not far from the U.S. U.S. Customs and Border Protection (CBP) has a useful "Know Before You Go" brochure describing what documents are needed. Keep in mind that the cheaper Enhanced Drivers License only allows for reentry from specified countries, and only some states offer it. A U.S. Passport is more flexible and required for travel from other countries around the world. You can learn about Washington State's Enhanced Drivers License here. To obtain a passport, see the U.S. Department of State's website.

Continue reading "U.S. Citizen Documentation Problems Stem from Immigration Enforcement" »