Articles Posted in Stateside Unlawful Presence Waiver Processing

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On 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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As 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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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:

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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Provisional 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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There 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:

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At the beginning of the year, USCIS introduced the I-601A Provisional Waiver for Unlawful Presence. This post will focus on the extreme hardship standard that must be met for this type of waiver. If you qualify, you must be able to prove extreme hardship to a U.S. citizen spouse or parent. This person is known as the qualifying relative.

“Extreme hardship” must be proved by showing that the hardship the qualifying relative will experience if the alien is denied admission will be more than normal. It is important to prove two things: (1) why the qualifying relative cannot move abroad, and (2) why the qualifying relative cannot live in the U.S. without the alien.

The following are a couple of strong examples of extreme hardship:

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An I-601A waiver only waives the unlawful presence element of inadmissibility. Unlawful presence refers to unauthorized periods of stay in the US. You may qualify for a waiver if you can prove that a qualifying relative, which is defined as a United States’ citizen parent or spouse, will suffer extreme hardship if you are not admitted to the US.

Applicants must provide substantial documentation of the extreme hardship that the qualifying relative will experience if he or she remains in the US without the applicant or he or she leaves the country with the applicant. Extreme hardship is determined by the facts and circumstances of each individual case. However, it must be more than the hardship that would be experienced as a result of removal or separation. Some factors that could be considered when determining whether a qualifying relative will face extreme hardship are: economic detriment, efforts required in relocating to another country, adjusting to life in another country, and integrating into a different society.

Keep in mind that there are 3 and 10-year bars to re-entry into the U.S. The 3-year bar applies to individuals who have been unlawfully present in the U.S. for an uninterrupted period of more than 180 days, but less than one year, and who voluntarily depart the U.S. The 3-year bar begins when the individual departs the U.S.

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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.

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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.

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