Chicago Immigration Lawyer Blog

Now that the new Provisional Waivers for Unlawful Presence are in place, I am getting many phone calls from people who are inquiring as to whether they qualify for the waiver. There are many misconceptions about this from person-to-person communication and on the Internet, so I want to use this blog post to again define the qualifications for I-601A applicants.

1. The I-601A only waives the Unlawful Presence ground of inadmissibility. If you have any other factors that make you inadmissible (multiple undocumented entries into the United States, criminal issues, previous removals) then you cannot use the I-601A. Absolutely seek the counsel of an experienced immigration attorney if you have any doubts about this.

2. You must be the beneficiary of an approved immediate relative petition. That means you must have a United States Citizen Spouse, Child over 21, or Parent (if you are under 21) who can petition for you.

3. You must be able to prove extreme hardship to a United States Citizen spouse or parent. This person is known as the qualifying relative. The qualifying relative does not have to be the person who filed the immediate relative petition on your behalf. The qualifying relative is the USC spouse or parent would experience extreme hardship if you were refused admission to the United States. Children are not qualifying relatives.

4. Other requirements are that you are now physically present in the United States, you are at least 17 years old, and you have an immigrant visa case pending with the Department of State.

Navigating the I-601A Provisional waiver process is complicated and tricky. Please consult with an experienced immigration attorney before you attempt to file the waiver on your own. The cost of an attorney processing your waiver application may seem expensive; however the value you will receive in having the application prepared by an expert is extremely high. If you attempt to file on your own and are denied there is no appeal and you will have to file your waiver abroad. Moreover; you could be putting yourself in peril with the USCIS if you have negative factors that you did not take into consideration. Kalita Law Group P.C is highly experienced in I-601 waiver preparation, and has been successful in winning appeals of denied I-601 waivers (filed abroad). Be sure to seek qualified counsel before attempting your own filing.

The LA Times reported today that the Senate version of the Immigration Bill is gathering steam, as eight senators working together to write a bipartisan bill to overhaul immigration laws announced today that they have agreed on a pathway for undocumented immigrants to achieve legal status. The latest draft of the senate bill creates a probationary status that allows undocumented residents to remain in the United States and work. Once the probationary period is over, undocumented persons may apply to become permanent residents and, eventually, citizens. To be eligible for probationary status, one must register with the Department of Homeland Security. Applicants must have a clean criminal record, demonstrate proof of payment of federal taxes since working in the United States or pay all federal back taxes that are due, and pay a still to be determined fine. Once probationary status is granted, probationary residents will be allowed to work, but will be barred from receiving any federal public aid or benefits including food stamps and Medicaid. There are many factors still undecided, such as how long probationary status will last and the wait could be as long as 10 years. Although it is far from being a sure thing - the latest draft of the immigration reform bill gives millions of undocumented residents hope of legalization and a path to citizenship that would be impossible under current immigration laws.

Nothing happens quickly in Washington, and there have been many previous versions of immigration reform bills that have failed. But the results of the last election that showed the Republicans clearly need Latino support has lead to bipartisan support of immigration reform, and this particular bill draft give rise to optimism that we have lacked in the past. Watch this blog for updates as this bill makes its way though the legislative process.

Speaking in Las Vegas, President Obama revealed his intention to pursue comprehensive immigration reform during his second term. He outlined a rough sketch of a plan that would involve an increase in border security and enforcement of employment laws but that would also create a path to legal status or citizenship for undocumented immigrants and streamline the existing immigration system. The outline provided by the White House provides a lot of nice-sounding bullet points, but is light on specifics.

Obama wants to strengthen border security, combat transnational crime and crack down on passport and visa fraud--has he not been doing this? Already, some politicians resistant to immigration reform are suggesting that reform can only come after the borders are sufficiently strengthened. But it seems obvious at this point that our borders are secure as they can be and by offering this security "olive branch" to his opposition, has Obama in some sense opened his plan to attack?

However, his speech wasn't devoid of meaningful content, he does propose the good, common sense reform that is needed in our laws This includes measures to begin moving undocumented immigrants currently here to a legal status, allowing "DREAMers" to a path to citizenship and some additional technical/administrative reforms to help streamline the existing system. Although some people have a visceral reaction against "amnesty" for undocumented immigrants, Obama isn't suggesting that these 11 million people will automatically become legal citizens; rather, he's proposing a system that will gradually allow undocumented people to become legal residents (not citizens) and only after they have paid taxes, fees and "gone to the back of the line". Of course, the devil is in the details with these reforms and until either the President or Congress offers up an actual bill, it's pointless to speculate on what the outcome of this reform would be.

My reaction to Obama's announcement is one of cautious optimism. He's forcing the issue of immigration reform and some of his ideas appear to make sense. But we have to stand back and watch what emerges in the form of an actual bill before we can begin to judge if this will ultimately be a step in the right direction.

Not everyone is eligible to apply for an I-601A waiver (a.k.a. the I-601 provisional waiver). If any of the six criteria below applies to you, you are not likely to be eligible to apply for an I-601A waiver:

1. You not are physically present in the United States
2. You are 16 years of age or younger
3. You are not (or cannot be) the beneficiary of an approved immigrant visa petition (I-130) classifying you as the immediate relative of a U.S. citizen
4. You do not have an immigrant visa case pending with the U.S. Department of State
5. You already have an interview scheduled at the foreign consulate
6. You are inadmissable to the U.S. for any reason other than unlawful presence

There are many other issues that come in to play with I-601A waivers, particularly the challenge of proving extreme hardship. If you are not a beneficiary of an immigrant visa petition (I-130), or do not have a visa case pending, you need to see an experienced attorney to determine if you qualify as an immediate relative for and I-130 petition and have a proper qualifying relative for the I-601A waiver hardship determination.

Kalita Law offers free phone consultations and can help you determine if an I-601A waiver is right for you and your family. Contact us today and begin the process of becoming a legally documented U.S. resident.

On Tuesday, the Illinois House voted 65-46 to allow undocumented immigrants to become licensed drivers in the state. All that's left is for Governor Pat Quinn to sign the bill into law, which he has announced he will do. Ten months after passage, the new law will take effect, which means that the new licenses should be available some time in October--November of 2013.

Prior to this law, temporary visitor's drivers licenses were available to foreigners who were present in Illinois legally but ineligible to obtain a social security number. To get one of these licenses, the foreigner would have to present documentation to the state that he was here with authorization from the federal government. What the new law does is allow for any foreigner living in Illinois to obtain a driver's license, whether he has permission from the federal government to be here or not. The new law DOES NOT give legal immigrant status to anyone and the driver's licenses are valid for driving only--they cannot be used as ID for anything else, whether that be voting, buying a weapon, purchasing alcohol, etc. The law also DOES NOT allow the holder to obtain a social security number so they are not legally eligible to work if they weren't before. Vistor's license holders are also subject to the same examination and insurance requirements as holder's of normal driver's licenses.

Although I still believe that the federal government needs to overhaul immigration laws, state laws like the new visitor's diver's licenses are a step in the right direction. It is no secret that there are millions of undocumented immigrants in the United States, and these reforms do less to encourage illegal immigration than they do to help bring our laws into alignment with reality. The truth is, whether licensed or not, many immigrants are going to drive vehicles on our roads. By giving them a way to drive legally, we can encourage them to become properly trained and insured which makes the roads safer for everyone.

For many months, I have been blogging about the hotly anticipated I-601 provisional waivers. After the proposed rule was announced there were several months allowed for interested parties to comment on the rule and then there was a much longer period of silence from USCIS. Finally, last Wednesday, USCIS announced that it had settled on language for the rule and would begin accepting application in early March of this year.

It is estimated that nearly 1 million people in the United States illegally could be helped by this rule change which makes it less painful for hopeful immigrants to become legal. Under current U.S. law, after an immigrant is in the country illegally for more than 180 days, he is barred from legally immigrating for a full three years from his date of departure. If the illegal immigrant is here for over one year then he must leave for 10 years before it is possible to apply again for legal status.

Immigrants subject to the 3/10 year bar have some relief from these onerous penalties in the form of an I-601 waiver. If an immigrant has a qualifying U.S. citizen relative, he can apply for a hardship waiver for his unlawful presence, showing USCIS that if he were forced to leave the country, his qualifying relative would be subject to extreme hardship (which is not well-defined, but see my previous post for more details).

Now this I-601 waiver has always been available to people who could otherwise legally immigrate if not for their unlawful presence bar (that is to say, beneficiaries of I-130 applications), however the major change is in the timing of the applications. Currently and in the past, once your I-130 petition is approved, you must complete the consular processing stage after returning to your country of origin. Leaving the United States triggers the 3 or 10 year bar. At the consulate interview, your application is denied because of unlawful presence, and you are then able to file an I-160 waiver. You would have to wait outside of the United States while the waiver is being processed. Because of this convoluted process, it was likely that you could be separated from your family for months while awaiting the judgement of USCIS. The new rule streamlines this process. Now, once you have an approved I-130 petition filed by an immediate relative, you can pay the consular processing fees and then immediately apply for the provisional waiver, while remaining in the U.S. Then, after your I-601 provisional waiver has been approved, you leave the U.S. for a brief period of time to attend your consular interview, after which you can return to the U.S.

We have already begun processing I-130 applications for some clients who will be applying for provisional I-601 waivers. If you have been waiting to become a legal resident, now is an excellent time to begin the process. Contact us for more information.

There are only 7 working days left in 2012 and USCIS remains silent on provisional waivers for unlawful presence. Although there is no reason to suspect that the rule change WON'T be implemented, it now seems unlikely that it will happen before next year.

To review once more, USCIS is expected to create a new rule which will make it easier for some people to become legal immigrants to the U.S. Existing law is very harsh on people who are in the U.S. illegally--people who are here illegally for more than 180 days are prevented from immigrating legally for 3 years once they leave. Even more harsh, people in the U.S. illegally for one year or more are prevented from immigrating legally for 10 years.

Long term, many people in favor of immigration reform would like to see this 3/10 year bar relaxed because it makes it very difficult for people to become legal immigrants once they have stayed in the U.S. illegally for even a relatively short amount of time. However, current law does allow some relief in the form of I-601 waivers. If an immigrant who is subject to the 3/10 year bar can show that his absence would cause extreme hardship to a U.S. citizen family member, he can receive a waiver that allows him to immigrate legally without waiting for his bar to expire.

Unfortunately, current rules require the I-601 applicant to return to his home country while applying for the I-601 waiver and because this process can be somewhat lengthy, this means that relatives end up spending a long time apart. The proposed rule change (which is what we're waiting for USCIS to approve) would allow for immigrants to apply for the I-601 waiver while remaining in the U.S., then, after it was approved, he would go back to his home country briefly for an interview at the consulate after which he could return to the U.S. to rejoin his family.

Applying for a waiver is a complex process the requires the help of an experienced immigration attorney. It's important to submit the strongest possible argument for undue hardship to maximize your chances of receiving a waiver. This applies to all I-601 waivers but particularly so for the provisional waivers because appeals are not allowed for them there is only one chance to get it right.

The reelection of Barack Obama has alleviated some concern that the approval of the proposed stateside processing of I-601 waivers might be halted. It now seems likely that the rule change will be approved before the close of 2012. To recap: the new rule would allow visa applicants who are present in the U.S. illegally to apply for a waiver of their inadmissibility while remaining in the States. Previously, these applicants would have to return to their country of origin before they were allowed to apply for the waiver.

In order to apply for an I-601 waiver, a prospective immigrant must already have a notice of approval from an I-130 application (a petition for an immigrant visa from a qualifying relative). Currently, I-130 applications take about five (5) months for approval so with the approval of the stateside waiver process looming, now may be a good time to start your application. It's important to remember that the stateside waiver rule is limited to a very specific class of applicants. The process is only available for waiver of unlawful presence (i.e. people would otherwise be subject to a 3/10-year bar if they left the U.S.) and the applicant must show that their removal would cause extreme hardship to a US citizen relative.

Extreme hardship can be difficult to prove and assembling a solid case requires expertise and time. If you think you might benefit from the proposed stateside waiver rule, now would be an excellent time to speak to an experienced immigration attorney. Because the law in this area is so complex, only an experienced attorney specializing in immigration will be able to assess your case and determine if you qualify for stateside processing.

Last week a bill which would give driver's licenses to illegal immigrants in Illinois moved out of its committee. This week, on Tuesday, it passed 41-14 in the State Senate. The next step is for the bill to pass the House where a vote is scheduled for January.

Under current Illinois law, undocumented immigrants cannot get driver's licenses and some supporters of the bill say this makes it more likely for these immigrants to drive without insurance and proper training. The hope is that by making it legal for undocumented immigrants to get licensed, they will be able to get insurance more easily. And because all drivers will still be required to pass a driving test, licensing illegal immigrants should improve the skill of drivers who may otherwise be on the road without formal training.

Although the bill passed with a wide margin in the Senate with support from both Democrats and Republicans it faces some resistance in the House. However, the Speaker of the House, and the sponsor of the bill both think it has a good chance of passing. Republicans have traditionally been largely opposed to immigration reform at the state level, but that sentiment is changing as the party adapts in order to court more hispanic voters. Many representatives, Republican and Democrat, see this bill as a common sense improvement and acknowledge the reality that many illegal immigrants drive despite being unlicensed, because they need to get to work or buy groceries. Changing the law will simply make it easier for these people to be trained to drive and to be covered by liability insurance.

On Thursday, the Illinois State Senate moved one step further towards passing a bill that would allow illegal immigrants to get a driver's license in the state. There are estimated to be hundreds of thousands of illegal immigrants living in Illinois, many of whom drive even though they are not licensed. Becasue they do not have legal status to drive, they are not able to purchase liability insure, and many have not passed driver's education courses.

The law which moved out of it's committee on Thursday would create a new class of temporary license, valid for three years at a time. The card would be colored differently from normal licenses and would not function as a form of ID other than for driving a vehicle (i.e. it cannot be used to purchase a gun, or register to vote).

In addition to bringing revenue to the state in the form of registration fees, and allowing more drivers to purchase liability insurance, the law is another sign that sentiment is turning in favor of of sensible immigration reform. The bill which is supported by many prominent Democrats including Chicago mayor Rahm Emmanuel, is also enjoying support among some Senate Republicans, who have traditionally been less enthusiastic about immigration.

As Illinois continues to move forward with immigration reform, we can hope that legislation at the federal level will soon catch up.

On Election Day, the state of Maryland voted to enact it's state version of the DREAM Act. FIfty-eight percent of Marylanders voted to allow undocumented immigrants to pay in-state tuition when attending public colleges in the state. This Maryland law is similar to the Illinois DREAM Act passed here in 2011.

Though it shares a name with the federal DREAM Act which Congress failed to enact last session, the state law in Maryland does not confer immigration benefits to undocumented people, nor does it alter their legal status in the eyes of the federal government. Instead, the law make it possible for young people to become contributing members of society by affording them a path to higher education. The Maryland law also requires undocumented immigrants to declare their intention to apply for permanent residency as well as prove filing of income taxes and selective service registration.

There are now 11 states with some form of DREAM Act (though Maryland is the first state to pass such a measure by public vote) and it is clear that public opinion is turning in favor of sensible immigration reform. State laws can only do so much and what America's undocumented immigrants need now is a way to become a legal, contributing member of society.

Barack Obama has been reelected to a second term in which he is expected to pursue comprehensive immigration reform. In his first term, Obama supported the DREAM Act which would have provided a path to citizenship for undocumented people who enetered America illegally at a young age. The bill was stalled by filibuster in the Senate the last time it was called to a vote.

During the Republican primaries, Mitt Romney said that life for illegal immigrants should be made so difficult that they would "self deport" and move back to their home countries. After winning the primary race, Romney spoke in more moderate terms regarding immigration, suggesting he supported some form of immigration policiy reform. Despite his attempts to woo them with Spanish language campaign ads and appeals from latino Republicans, Romeny had the support of only 27% of latino voters.

Now that the election is over, some Republicans seem to be more amenable towards the idea of a comprehensive overhaul of our country's immigration policy. And while Obama has been somewhat reserved in declaring his priorities for his second term, it's a good bet that passing immigration reform will be near the top of his list.

America's piecemeal immigration laws are long overdue for reform, especially when it comes to our handling of young people illegally in the U.S. due to no fault of their own. The Deferred Action for Childhood Arrivals (DACA) AKA deferred action for DREAMers program is a step in the right direction for America's immigration policy.

Right now I'm assisting several clients in applying for protection under DACA, which allows certain young people to remain in the U.S. without fear of deportation and gives them permission to work legally. DACA does not, however, provide a path to citizenship for these young people which is what the defeated DREAM act would have done.

For now, the best option for DREAMers is the deferred action for childhood arrivals program. If you believe you qualify and would like more information on the program, contact me and we can discuss your options.

Just short of one month after USCIS applications became available for Deferred Action for Childhood Arrivals (DACA) program, USCIS has begun mailing out approvals to applicants. News sources estimate that since the program began on August 15, 2012, some 72,000 young, undocumented immigrants have applied. Department of Homeland Security estimates there are more than 1.2 million immigrants eligible for DACA.

The DACA program is political. It does not convey legal immigration status, and its benefits may not be permanent. DACA status must be renewed every two years and there could be risks involved in bring your undocumented status to the attention of the USCIS, particularly any criminal history exists. So why apply? Because the benefits probably outweigh the risks for most people. It is a chance to get Employment Authorization, apply for a social security number, obtain a drivers license (in most states), go to college, travel, and, for at least two years, be free from the fear of deportation.

To be eligible for DACA, you must meet the following criteria:
You may request consideration of deferred action for childhood arrivals if you:

1. Were under the age of 31 as of June 15, 2012;
2. Came to the United States before reaching your 16th birthday;
3. Have continuously resided in the United States since June 15, 2007, up to the present time;
4. Were physically present in the United States on June 15, 2012, and at the time of making your request for consideration of deferred action with USCIS;
5. Entered without inspection before June 15, 2012, or your lawful immigration status expired as of June 15, 2012;
6. Are currently in school, have graduated or obtained a certificate of completion from high school, have obtained a general education development (GED) certificate, or are an honorably discharged veteran of the Coast Guard or Armed Forces of the United States; and
7. Have not been convicted of a felony, significant misdemeanor, three or more other misdemeanors, and do not otherwise pose a threat to national security or public safety.

With the application, your must supply documentation to show that you meet each of the 6 specific eligibility requirements. The documentation can be elementary, high school or college records, report cards, or transcripts, baptism, communion, confirmation certificates, federal and state tax returns, medical, dental and vaccination records, bank checking and savings account records, including checks written on specific dates, credit card receipts, apartment leases and pay stubs. Many other documents can be used to demonstrate your presence in the United States, as long as they are normal documents used in the course of business and your name and date appears on the document.

Lawyers may charge $1,000 to $5,000 and higher to file your DACA petition. If you have ever been arrested, you should definitely seek the counsel of a lawyer before you send and application to the USCIS. However, my law office has seen many applicants who feel confident in preparing and filing their applications pro se, and just want to consult an attorney to answer questions and possibly review their applications. Some attorneys are providing this service for a small consultation fee.

This week I want to take some time away from the Deferred Action for Childhood Arrivals Program (DACA) and switch back to the topic of the anticipated I-601 stateside provisional waiver procedures. Provisional waivers for unlawful presence was introduced under rulemaking proposed by USCIS on March 30, 2012. (The Rulemaking is not final as yet) Under the new rules, certain immediate relatives of U.S. Citizens may apply for a waiver of the unlawful ground of inadmissibility from the United States, if they can demonstrate that their removal would cause extreme hardship to a U.S citizen spouse or parent. This new rule can have profound implications to many immigrants with unlawful presence who are the spouse or adult child of a US Citizen. Although the I-601 waiver application is currently available to those with unlawful presence, you must leave the country for the immigrant visa process, forcing you to remain in your home country for six months to a year or more while the waiver is being processed. If granted a provisional waiver here in the United States, you still have to return to your home country to process your immigrant visa, but the time spent away from your family in the Unites States would be significantly lower. Most importantly, you would know if your waiver was granted before you leave the country - significantly improving your chances of being granted a visa (assuming you do not have any other grounds of inadmissibility.)

While the provisional waiver can make your life easier by allowing you to remain with your relatives in the United States, it does not change the existing standards for unlawful presence and extreme hardship. Extreme hardship is a threshold issue, and must be thoroughly documented. It is not enough that you would be sad or depressed if forced to be separated from your family. The standards are tough, and are defined mostly in the case law, decisions of Bureau of Immigration Appeals and Administrative Appeals Office. It is important you find an attorney who is familiar with the current state of the law regarding extreme hardship, and who has experience in documenting the hardship to the satisfaction of the adjudicator.

In order to apply for a provisional waiver, you must have an approved I-130 petition. You must be physically present in the United States and at least 17 years old. You must be actively pursuing an immigrant visa, and have paid the Department of State Immigration Processing Fees. You cannot be subject to any other grounds of inadmissibility, and must demonstrate that the refusal of your immigrant visa would result in extreme hardship to a United States spouse or parent.

If you require an waiver for the inadmissibility ground of unlawful presence, you should consult with a lawyer to see if you qualify for the provisional waiver, and can demonstrate a sufficient hardship to your U.S.C relatives. If you are a good candidate for a successful waiver, you might want to begin the process now by having an I-130 filed on your behalf. There are risks, however, in that the Provisional waiver program is not yet in effect, and there is no guarantee the rulemaking will pass. But if you are willing to take the risk that you might have to process your I-601 in your home country, then you might want to consider beginning the immigrant visa process.

On June 15, the USCIS began accepting applications for Deferred Action for Childhood Arrivals (called DACA). Deferred Action is not a grant of lawful immigration status, nor does it give you a pathway to a green card or naturalization. DACA is merely a policy to allow individuals who were brought to the United States as children, a relief from accruing further unlawful presence and the ability to obtain work authorization and a social security number. As has been published in many places, the basic eligibility criteria are:

• Were under the age of 31 on June 15, 2012;
• Arrived in the United States before your 16th birthday;
• Continuously resided in the United States from June 15, 2007 to present;
• Were physically present in the United States on June 15, 2012, as well as at the time of application for DACA;
• On the date of application, are in school, have graduated or obtained a GED certificate or are honorably discharged from the US Armed Forces;
• Have not been convicted of a felony, significant misdemeanor or three or more other misdemeanors, and do not otherwise pose a threat to national security or public safety.

• Form I-821D - Consideration of Deferred Action for Childhood Arrivals;
• Form I-765 - Application for Employment Authorization Document (EAD)
• Form I--765WS, EAD worksheet.

Unless you are in removal proceedings, you must be 15 years old at the time you file your application. You will need various forms of documentation to establish that you meet all of the eligibility criteria. These include tax returns, bank statements, pay stubs, school records, report cards, medical records, insurance records, rental agreements, or any other reliable evidence to show that you were in the United States during the relevant time periods.

There are no appeals if your Deferred Action application gets denied. So if you have any doubts about your eligibility and what documentation you need to qualify, seek the advice of an experienced immigration attorney. Beware of notarios or other non-attorneys who may charge you for processing your application. Shelley Kalita is a member of the American Association of Immigration Lawyers and stays informed on the latest USCIS interpretations and evaluation criteria to assist you in filing an application that will get you the best result for your case. Watch this blog for updates as clarifications are received from USCIS.