Articles Posted in I-601 Provisional Waivers

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Seal_of_the_United_States_Department_of_Homeland_Security-300x300On January 25th, President Trump signed and executive order “Enhancing Pubic Safety in the Interior of the United States.”  Early this week, Department of Homeland Security Director John Kelly issued a memo further defining removal priorities of the undocumented.  Although the new policy memo expands the deportation priorities to almost all undocumented immigrants, the DACA program (Deferred Action for Childhood Arrivals) remains in tact for now. Kelly states “the Department shall faithfully execute the Immigration Laws of the United States against all removable aliens.” Regarding prosecutorial discretion, DHS is directed to initiate removal proceedings against “any alien subject to removal under any provision of the INA.”  Clearly every undocumented person is at risk for deportation (with the exception of those who have DACA approval)

With limited resources, it is unlikely that the current number of CPB, ICE, and USCIS officers and officials will allow for mass scale deportation.  The priorities are meant to define individuals that the Department should seek out for deportation.  Individuals who have been convicted of any criminal offense, charged with any criminal offense that has not been resolved, or have committed acts that constitute a criminal offense are priorities for removal.  Criminal offenses are not defined and can presumably be anything from driving without a license to aggravated felonies.  Other priorities for deportation are those who engaged in fraud or willful misrepresentation in connected with any official matter before a government agency, anyone who has abused any program related to receipt of public benefits, subject to a final order of removal but failed to leave, or those who pose a risk to public safety or national security.  Within these categories, DHS is directed to fast-track removal of Criminal Aliens, bypassing the Immigration Court for any noncitizen convicted of an aggravated felony.  To quote Trump “Were getting really bad dudes out of this country and at a rate that nobody’s ever seen before. . . And they’re the bad ones. And its a military operation.”

Enforcing the Immigration Laws of the country also includes the due process afforded to legal permanent residents and undocumented persons that meet certain criteria.  In many most cases, undocumented persons are allowed a hearing before an immigration judge. There are certain defenses and waivers are available for some (not all) grounds of .  Make sure you talk to an immigration lawyer experienced in removal hearings if you come to the attention of any ICE, CBP, or USCIS official and are eligible for deportation.

 

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statue_of_libertyAs discussed in our last blog post about provisional waivers, a requirement for obtaining the waiver for unlawful presence is a finding of “Extreme Hardship” to a US Citizen or LPR spouse or parent.  This person is known as the Qualifying Relative and must be a US citizen or LPR spouse or parent – not a US citizen or LPR child or children.  Recently, USCIS published new policy guidelines that define the term Extreme Hardship and guide USCIS adjudicators on the types of evidence that qualifies as Extreme Hardship.  In general, two types of Extreme Hardship are addressed: 1) Separation- when the qualifying relative remains in the United States and is separated from the applicant who is residing abroad, and 2) Relocation- when the qualifying relative suffers by having to relocate abroad to join the applicant.

Extreme hardship must be more that the common consequences of family separation and relocation.  Common consequences of being removed from the  United States or denied admission to this country are difficulties to the Qualifying Relative in adjusting to a new country, quality and availability of education opportunities abroad, inferior quality of medical care and services and the ability to pursue a chosen career abroad.  To establish extreme hardship, it is not necessary to prove that a single hardship alone rises to the level of extreme, but rather all of the relevant hardship factors are considered in the aggregate.  Further, extreme hardship determinations made are based on the “totality of circumstances,” which may be the hardship factors themselves, arguments made in the application and the types of evidence submitted.  The USCIS will consider as evidence of relocation hardship published documents such as Department of State travel advisories to particular countries, Department of State published Country Conditions and  Human Rights Reports.

One of the most important documents in an application for a Provisional Waiver is the statement of the Qualifying Relative.  This credibility of this statement is paramount in getting a provisional waiver application approved.  Putting together a good application for a provisional waiver requires well-organized documents and evidence  to support the QR’s statement.  You should seek the counsel of a qualified attorney experienced in waivers of inadmissibility, who can guide you in determining the best arguments for your particular circumstances and based on the evidence you are able to provide for a successful waiver application.

 

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we_are_all_immigrantsIn this posting, lets briefly take a look at Provisional Waivers.  Waivers for Unlawful Presence in the U.S. have been historically used by persons filing outside of the United States and undergoing Consular Processing to receive an immigrant visa to enter the United States.  Under this scenario, the applicant must remain outside of the United States while his/her I-601 waiver is being adjudicated.  In the past, families often had no choice but to be separated for periods of time of one year or more.  The Provisional Waiver was initiated in 2013 by the administrative rules process and is now a codified Federal Rule.  With an approved Provisional Waiver for Unlawful Presence, the applicant will eventually leave the United States to consular process,  but will be permitted to file the I-601 Application for waiver from the United States and can remain in the U.S. while the application is pending.  If everything else is satisfactory and there are other inadmissibility issues, the applicant will likely be out of the country for a just few days to complete visa processing at the consulate, and  re-enter the United States with permanent residence status.

Provisional Waivers can waive unlawful presence 3 and 10 year bars if a person meets the following criteria:

  • You are physically present in the United States
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handcuffs-308899_640Documented and Undocumented immigrants are understandably worried about what will happen in January when President-Elect Trump takes the Oath of Office.  Although his campaign began with a pledge to build a wall and immediately deport 11 million undocumented immigrants and their families, Trump seems to continue to walk back that promise.  In recent interviews Trump limited his threat of immediate deportation to those immigrants with criminal history.  As I discussed in a previous blog posts, that sounds sounds very much like Obama’s Enforcement Priorities for the Apprehension and Removal of Undocumented Immigrants.  It remains to be seen whether Trump can expedite removals without due process and a hearing before an immigration judge, protections that found in the current law.  Although most convictions for crimes trigger removability or inadmissibility, defenses are available to remain in the United States, and in some cases receive or maintain legal permanent residence status.    Some of these defenses come in the form of waivers.  There are many different types of waivers in the immigration law, but generally a 212(h) waiver can waive some criminal grounds of inadmissibility.   At 212h waiver can waive an admission for conviction for crimes of moral turpitude, engaging in prostitution, and conviction of two or more offenses of any kind with an aggregate sentence imposed of a least five years.  It cannot waive drug offenses for anything other than possession of under 30 grams of marijuana.  Also – it may not available to certain Legal Permanent Residents who have not held Legal Permanent Residence Status for 7 years prior to being put into removal proceedings.  In most 212h cases, the waivers require a finding of extreme hardship to a lawful permanent resident or United States Citizen spouse, child or parent. The law is very complicated in the area and one would be wise to seek counsel from an experienced attorney if you are placed in removal proceedings for a criminal conviction.  More about waivers – including provisional waivers for unlawful presence bars next week.

 

 

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In May of this year, USCIS proposed fee increases for a multitude of immigration services. The fee increases did not go into effect immediately as the public has to be allowed 60 days to comment on the proposed changes. Those 60 days have come and gone and it appears the fee increases are here to stay. While still not in effect, the fee increases will likely go into effect over the next couple of months. The Department of Homeland Security is required to review its fee structure every so often under federal law. According to the Department, the last time fees were increases was in 2010. USCIS is a fee based agency and says that if fees are not raised, the agency will face a $560 million budget shortfall next fiscal year. A list of the most popular immigration services along with their current fee and proposed fee is listed below:

Fee Increase

Some good news is that the $85 biometric fee for fingerprints will remain the same. Additionally, if you file before the fee increase goes into effect, you can file under the lower fee rate. As of this writing, there is no official date that these fees are expected to go into effect. For a the full list of fee changes, click here: Full List Fee Increase

If you have any questions about immigration fees or have an immigration issue you’d like to discuss, you should be sure to contact an experienced immigration attorney.

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USCISLogoEnglishThe Department of Homeland Security rule to expand provisional waivers goes into effect on August 29, 2016. Currently, DHS only allows immediate relatives of a United States citizen to apply for the I-601A waiver of the 3 or 10-year bars for remittance to the United States. DHS limited the waiver to this subset of individuals to prioritize family members impacted by the bars. In an effort to expand the provisional waiver to all statutorily eligible individuals, the Department has now introduced a rule to make the expansion a reality.

Under the rule, all statutorily eligible immigrants can apply for an I-601A waiver if they are eligible for an immigrant visa and for a waiver of inadmissibility based on unlawful presence. This includes family based immigrants, employment immigrants, and a limited number of Diversity Visa program selectees. The new rule allows any immigrant that is eligible to apply for an I-601 waiver after they leave the country to now apply for the I-601A waiver prior to departing the United States for their immigrant visa interview. Additionally, the rule also would expand who may be considered a qualifying relative for purposes of the extreme hardship determination to include lawful permanent resident spouses and parents.

DHS Secretary Johnson said the expansion of the program is inline with the Department’s efforts to promote “family unity” and that the new rule seeks to encourage “eligible aliens to complete the visa process abroad, promot[e] family unity, and improv[e] administrative efficiency.” The new applications will be available on August 29 at USCIS’s website.

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uscis.jpgThe Department of Homeland Security introduced a rule last week that would expand access to the I-601a waiver to all statutorily eligible individuals. Currently, DHS only allows immediate relatives of a United States citizen to apply for the I-601A waiver of the 3 or 10-year bars for remittance to the United States. DHS limited the waiver to this subset of individuals to prioritize family members impacted by the bars. In an effort to expand the provisional waiver to all statutorily eligible individuals, the Department has now introduced a rule to make the expansion a reality.

Under the proposed rule, all statutorily eligible immigrants can apply for an I-601A waiver if they are eligible for an immigrant visa and for a waiver of inadmissibility based on unlawful presence. This includes family based immigrants, employment immigrants, and a limited number of Diversity Visa program selectees. The new rule allows any immigrant that is eligible to apply for an I-601 waiver after they leave the country to now apply for the I-601A waiver prior to departing the United States for their immigrant visa interview. Additionally, the proposed rule also would expand who may be considered a qualifying relative for purposes of the extreme hardship determination to include lawful permanent resident spouses and parents.

DHS Secretary Johnson said the expansion of the program is inline with the Department’s efforts to promote “family unity” and that the new rule seeks to encourage “eligible aliens to complete the visa process abroad, promot[e] family unity, and improv[e] administrative efficiency.” Because the new rule was just submitted by DHS, the public has sixty days to comment on the proposed changes before they go into effect. Once the rule goes into effect, it will likely take the Department several months before it begins accepting applications from the expanded eligible applicants.

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Thumbnail image for Thumbnail image for STAMPEDPASSPORT.jpegProvisional Unlawful Presence Waivers, or more commonly known as I-601A waivers, are very confusing and complicated to complete. Many factors are considered and a lot of documentation is needed to complete an I-601A waiver. That is why you should definitely seek the assistance of a skilled immigration lawyer if you want to complete one. Here are some important things to consider about an I-601A waiver.

Do you qualify for an I-601A Waiver?

To be eligible for a provisional unlawful presence waiver you must fulfill ALL of the following conditions:

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US_Flag_Backlit.jpgThere are many grounds of inadmissibility that can prevent someone from being granted a visa, green card or entry to the United States. This post examines one of the four most common grounds of inadmissibility – fraud or misrepresentation.

Under INA § 212(a)(6)(C)(i), any person who fraudulently or willfully misrepresents a material fact when they apply for a visa, green card or other type of document to enter the United States is inadmissible.

The US Attorney General has the discretion to waive inadmissibility due to misrepresentation or fraud if the immigrant is the immediate relative of a US citizen if the immigrant can prove that refusal of admission would cause extreme hardship to the US citizen. If the immigrant is a lawful permanent resident, the alien must prove that refusal of admission would cause extreme hardship to their lawful permanent resident spouse or parent.

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USA_visa_issued_by_Shenyang_(2012).jpgThere are many grounds of inadmissibility that can prevent someone from being granted a visa, green card or entry to the United States. The four most common grounds of inadmissibility are unlawful presence, fraud, criminal convictions and prior orders of deportation. This post examines the unlawful presence ground of inadmissibility.

I-601A provisional waivers allow certain spouses, parents and minor children of U.S. citizens to waive the unlawful presence ground of inadmissibility if they are physically present in the U.S. and remain in the country while applying for the waiver to become a permanent resident. The I-601A provisional waiver only waives the unlawful presence ground of inadmissibility.

In order to qualify for a provisional unlawful presence waiver, you must: