Articles Posted in Waivers – provisional, stateside, family unity

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President Obama announced tonight in very broad terms that he would expand “deferred action” to millions of undocumented immigrants beyond the DACA program of 2012 (Deferred Action for Childhood Arrivals). The new program, to begin in 2015, will benefit the following groups of people who choose to step forward out of the shadows for a less than perfect immigration status. Deferred action is NOT a green card/permanent residence, a visa, citizenship, amnesty nor legalization. It just defers or delays potential deportation for two years but does offer the opportunity to work during those three years.

Eligible Groups for Deferred Action:

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This blog posts follows up to an earlier post, Executive Action – Business Immigration Fixes Needed, discussing the American Immigration Lawyers Association (AILA) letter to President Obama of August 6, 2014 requesting Executive Action. AILA recommended additional fixes to family immigration, prosecutorial discretion and enforcement related issues that could be achieved administratively in the face of Congressional inaction on statutory changes.

AILA states that “the guiding principle for administrative actions should be to advance our national interest, which includes: supporting family unity, promoting economic growth, and improving processes.”

Expand Deferred Action.

AILA advocates expanding the 2012 Deferred Action for Childhood Arrivals (DACA) program to a wider group including:

  • Parents of U.S. citizens;
  • Parents of DACA-eligible individuals; and
  • Individuals who have resided in the U.S. for three years or more.

Further, DACA should include work authorization, as in the present DACA program, but USCIS should tweak the requirement for advance parole (a travel document) to be based on a wider range of travel needs beyond just “emergent circumstances.”

As a reminder, deferred action is NOT “amnesty; it is NOT a visa; it is NOT a green card or citizenship. It is a temporary fix given in two-year increments prohibiting deportation of individuals who are out of status until Congress gets around to more fundamental statutory changes for this population.

Do Not Count Derivatives Toward the Overall Visa Quotas.

This was mentioned in the business immigration context in the prior post, Executive Action – Business Immigration Fixes Needed. By not counting derivative spouses and children (single and under 21), more visas would be freed up for principals stuck in family based quotas (every category/every country) that could result in shorter backlogs.

Expand the Use of Parole-in-Place (PIP).

Section 212(d)(5) of the INA provides the Secretary of Homeland Security with the authority to parole into the U.S. temporarily, under such conditions as he or she may prescribe, on a case-by-case basis, for urgent humanitarian reasons, or significant public benefit, any alien applying for admission to the United States. Parole is like a legal fiction – the body is here, the status is not of nonimmigrant, permanent resident or US citizen, but the person is here with a defined permission under the circumstances above. Parole is very important as it is one of the grounds besides a formal admission in which someone can complete their green card process in the USA called “adjustment of status.” Right now, most people who entered illegally cannot file for adjustment and must instead consular process their green card application, whether business or family based. Leaving U.S. to go to the consulate then triggers the 3 or 10-year bar to readmission, thus requiring a waiver of inadmissibility and further delaying the case. A grant of parole in place would allow a person to avoid consular processing and the waiver in most cases. And it would be useful for those who do not have qualifying members for the waiver nor proof of extreme hardship. (See below.)

Currently, USCIS only uses PIP for family members of active duty and veteran military personnel. But, AILA advocates that its use be expanded to other non-military related individuals with US citizen or permanent resident parents, children or spouses.
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The provisional waiver procedure starts this week on March 4, 2013. Note the word “procedure.” It is not a new law, a new requirement, nor amnesty. It is a change in the location of where to file for a specific type of waiver and when it will be decided. A new form I-601A has been developed for this limited waiver procedure.

New Waiver Procedure Just for Unlawful Presence Bar

The new provisional or family unity waiver process will allow applicants for immigrant visas abroad to apply for unlawful presence waivers in the US before their visa appointments at US consulates abroad. Normally, the unlawful presence bar is “triggered” when the applicant leaves the US to attend the consular interview. Until March 4, these waivers have been filed only after a visa interview at the consulate. At the time of the interview, the consular officer makes an official finding that the person is subject to the unlawful presence bar to admissibility. Then the applicant submits the waiver to the consular office and waits, often for long periods of time or indefinitely for a decision on the waiver by USCIS and a re-interview at the consulate.

Under the new regulation, applicants who know in advance that they are subject to this ground of inadmissibility will be able to file their waiver application in the US or stateside with USCIS before going to the visa interview. This should not be confused with the fact that all waiver types are now being filed stateside in the US. The difference is that the provisional I-601A waivers will be decided before the applicant has to leave the US for the consular interview while the other waiver types are filed in the US (sent to a US lockbox) after the consular interview. If the I-601A application is approvable, USCIS will issue a “provisional” (not a definitive) grant of the waiver. Then, the applicant will have the consular appointment abroad a few months later. If all goes well, the applicant should be abroad for a short period of time. However, the consular officer may develop further information at the interview that may result in additional grounds of inadmissibility or could find that the information provided for the provisional waiver was not true. In that case, the applicant may need to submit another waiver application or could be permanently barred and will have to wait outside the US until it is resolved.

As described in an earlier post, this waiver is only available for:

-applicants who are immediate relatives: parents, spouses, unmarried minor children under 21 years old of US citizens with approved I130s;
-applicants who are at least 17 years old;
-applicants who can show “extreme hardship” to a waiver “qualifying relative” (QR), i.e., US citizen parents or spouses;
-applicants who seek to waive ONLY the ground of inadmissibility based on the three or 10-year bar to readmission due to a period of unlawful presence.

Preference based applicants (usually subject to the quota) cannot use this particular program; nor can visa applicants whose qualifying relatives are permanent residents; nor can applicants who have other grounds of inadmissibility that are waivable.

Preparing for provisional waivers requires some preliminary steps. First, there must be an approved I130 visa petition. One cannot file for the waiver before there is an approved I130 proving the immediate relative relationship. Second, certain notifications are required to be made and fees paid to the National Visa Center (NVC). NVC coordinates the interviews and documentation for the consulates after the I130 visa petition is approved. There are other requirements mentioned in an earlier blog post for pending applications for immigrant visas with interviews scheduled before January 3, 2013, and for those in removal proceedings.

Initial Eligibility Issues

1. Is the applicant even subject to the three or 10-year unauthorized presence bar?
2. Does the person qualify for any of the exceptions to these bars?
3. Has the person already been outside the US for the three or ten years?
Determination of who is and is not subject to the unauthorized presence bar can be difficult and should be discussed with counsel. The government has a 51-page memo on the subject. People who are not subject to the three or 10-year bar a) may not need to leave the US to process their case or b) may not need a waiver at all.
4. Is the applicant subject to any other grounds of inadmissibility? Many people try to handle their family based cases on their own not realizing that they may be subject to one or more grounds of inadmissibility such as fraud or misrepresentation, crimes involving moral turpitude, or the bars due to a prior removal or illegal reentry after a prior period of unauthorized stay, among others. Again, legal advice is recommended to determine admissibility for permanent residence and whether a waiver must be filed from abroad instead.
5. If the applicant has been in removal proceedings, is the case in a posture that would allow for seeking of the waiver or is additional follow up with the court required?
6. Can the applicant make a good enough case of “extreme hardship” to the qualifying relative(s)? This is the crux of the provisional waiver as well as for other waivers with “extreme hardship” standards, such as for fraud and misrepresentation, and crimes involving moral turpitude. Is the argument and supporting documentation good enough that it is worth making the application and taking a chance, or is the case barely qualified such that it would still be a big risk to proceed with the possibility of being stuck abroad, or is there a risk of a waiver denial and placement in removal proceedings? Or is there a chance of qualifying for something else?
7. Are there aggravating circumstances that would cause the case to be decided negatively in the exercise of discretion? e.g., prior criminal behavior, fishy documentation or immigration history, if the qualifying relative contributed to the applicant’s unlawful stay or entry; history of other problems.

The rest of this post focuses on the extreme hardship standard.
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USCIS released a new Q&A brochure for families of immediate relatives about the new provisional stateside I-601A waiver that will go into effect on March 4, 2013. The requirements are also mentioned in a prior blog post, Provisional Unlawful Presence Waiver to Begin March 4, 2013. Keep in mind that I130/I360 visa petitions must be approved first and that these waivers only apply to immediate relatives (parents, spouses, unmarried minor children under 21 years old of US citizens). This waiver only waives the unlawful presence ground of inadmissibility, and only applies to those needing to prove “extreme hardship” to US citizen spouses and parents. Everyone else must use existing waiver procedures.

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On January 2, 2013, USCIS announced its long awaited final regulation governing new “provisional” waiver processing for immigrant visa applicants. Beginning March 4, USCIS will begin accepting provisional waiver applications in the US from applicants subject to the unlawful presence ground of admissibility (INA section 212(a)(9)(B); 8 U.S.C. 1182(a)(9)(B)) that subjects them to a three or ten-year bar to admissibility. This ground of inadmissibility is triggered when applicants for immigrant visas abroad leave the US for their appointments at US consulates. The unlawful presence ground applies to people who have accrued six months or more of unlawful presence in the US. The act of leaving the US triggers the three or ten-year bar. To come back earlier than that, a waiver application is required.

The most common, but not only, group subject to this provision are people who cannot obtain their green cards in the US because they entered the US without inspection. Under the new regulation, applicants will be able to submit their waiver applications prior to leaving the US for their interviews abroad. The waiver can be provisionally granted prior to attending the visa interview abroad. This change in waiver procedures is intended to alleviate the hardships to American citizen family members and the length of family separation during the waiver and visa process. People with all other waivable grounds of inadmissibility will continue to apply for their waivers from abroad after their immigrant visa interviews. However, since June 2012, most of those waiver applications are now filed by mail to the US. None of these provisions affect people entitled to apply for adjustment of status in the US where their waivers can be filed at the centralized locations as well.

Currently, applicants for immigrant visas abroad must submit their waiver applications (form I-601 and accompanying evidence) directly to the US embassy or to a central processing facility in the US after their visa interviews if a consular officer determines that the applicant is inadmissible and requires a waiver. As a result, applicants must wait abroad for months, and sometimes years, while waiting for the waiver to be decided before they can return to the consulate to collect the immigrant visa once the waiver is approved. Many families in the US who have members out of status have not taken the risk of visa processing. They have passed up opportunities to finish their cases choosing instead to remain out of status indefinitely. The combination of the unlawful presence bars, the long delays in waiver processing, and consequent long family separations and hardships have contributed significantly to the high number of undocumented individuals in the US who otherwise are eligible to immigrate through family or work sponsors.

New Procedures, Not a New Law
The new procedure will enable applicants to file their applications (new form I601A) before they go abroad to the visa interview. I-601As can only be filed after approval of a form I-130 or self-petition I-360. If the waiver application is approvable, applicants will receive a provisional (not an absolute, final or conclusive) decision on the waiver application, giving families more time to be together and some level of predictability once the applicant leaves the US for the visa interview. USCIS expects applicants to spend a few days to a few weeks abroad under the new system.

The change is not a change in law, but rather a change in procedure, namely where, how and when waiver applications will logistically be filed and decided. The change does not affect who is subject to waivers or the requirements to have a waiver granted. It also does not permit applicants to have their green card applications decided in the US, nor is this a “fast track” to permanent residence. In fact, the entire group at issue in this regulation are those people who have lived in the US unlawfully and are not eligible to adjust status to permanent residence in the US. They continue to be deportable if caught. This is not an amnesty of any sort. Applicants must undergo the statutory dual “penalties” of visa processing abroad and make additional expensive waiver applications. Congress enacted INA 212(a)(9)(B) in the 1990s, and only Congress can change or eliminate that provision to truly alleviate the hardships to American citizens and lawful permanent resident (LPR) relatives. Furthermore, the provisional waiver process is only beneficial to those applicants who know in advance that they are subject to the unlawful ground of inadmissibility and will need a waiver.

Program Limitations
Unfortunately, this new process is for a narrow segment of the pool of potential immigrant visa applicants who need waivers. The new procedure is only available to “immediate relative” applicants, that is, spouses, parents and unmarried children under 21 years old of US citizens. Thus, the program does not apply to spouses and children under 21 of lawful permanent resident (LPR) sponsors, the adult children of US citizens, the siblings of US citizens, diversity lottery visa applicants, or applicants immigrating through work visa categories.

In addition, the program only applies to individuals who need waivers of the three and ten-year bars to return due to a prior period of unauthorized presence in the US of six months or more. Thus, if someone is inadmissible for an immigrant visa on different grounds for which a waiver is required and available, such as for a crime involving moral turpitude, or for a prior misrepresentation or fraud, that person will still need to go to the consulate first, have an interview, and then submit the waiver while abroad, forcing that person to wait months outside the US and separated from family in the US. Furthermore, if an applicant is subject to a three or 10-year bar and another ground of inadmissibility requiring a waiver, or the person was previously deported and requires an application for permission to reapply for admission (I-212), then the individual will not be able to use the provisional waiver process.
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