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The Expected Expansion of the Provisional Waiver (I-601A)
By Board Certified Immigration Attorney Ruby L. Powers
November 4, 2015
The Provisional Waiver (I-601A) process currently allows certain people who are present in the United States to request from U.S. Citizenship and Immigration Services (USCIS) a provisional waiver for certain unlawful presence grounds of inadmissibility prior to departing from the United States for consular processing of their immigrant visas—rather than applying for a waiver abroad after the immigrant visa interview using the Form I-601, Waiver of Grounds of Inadmissibility. The Department of Homeland Security (DHS) proposes to expand eligibility for provisional waivers to include aliens in all statutorily eligible immigrant visa categories, including family-sponsored immigrants, employment-based immigrants, certain special immigrants, and Diversity Visa program selectees, together with their derivative spouses and children. It also proposes expanding who may be considered a qualifying relative for purpose of the extreme hardship determination to include legal permanent resident spouses and parents. This has a far reaching scope and is a refreshing positive change in light of deadlocked reform and executive actions being held in litigation all year.
Before the existing and more limited provisional waiver rule was implemented in March 4, 2013, many families had to be separated for 4 to 18 months to complete a legal permanent residency process via consular processing due to an illegal entry or other grounds of inadmissibility. Before the provisional waiver, clients might have been able to stay in Mexico only 4 months due to the generous pilot program in Cd. Juarez, Mexico or in some cases wait 18 months in Honduras or longer, if an appeal was sought and in other countries there were inconsistent waiting times. Obviously, there were hesitations for families to proceed with this process for legalization.
Then the idea of the Provisional Waiver was formulated as a way to allow certain family members to apply for the waiver in the U.S., and prevent waiting and separation times abroad. The concept was proposed in January 2012 and initially opened for Federal Register comment period on January 9, 2012 and again April 2, 2012. The rule was announced January 3, 2013 and began 60 days later, on March 4, 2013.
After the Provisional Waiver program began, the Law Office of Ruby L. Powers has been able to help countless families gain legal permanent residency for family members who only need to remain out of the country for 2 to 4 weeks, sometimes for less time, to complete their consular processing. From fiscal years 2013 to 2015, 74,439 waivers were filed and of those 44,198 waivers were approved and 18,773 waivers were denied. It was such a success that the DHS would like to expand it to people in all statutorily eligible immigrant visa categories and expand the qualifying member for the waiver to spouses and citizens of legal permanent residents as well.
On November 20, 2014, DHS Secretary Jeh Johnson issued a memorandum, “Expansion of the Provisional Waiver Program,” directing U.S. Citizenship and Immigration Services (USCIS) to amend its regulations to expand access to the provisional waiver program, to provide additional guidance on the definition of “extreme hardship,” and to “consider criteria by which a presumption of extreme hardship may be determined to exist.”
Currently DHS is proposing to expand eligibility for provisional waivers to include as qualifying relatives, who can establish extreme hardship, an LPR spouse or parent, not just to U.S. citizen spouses or parents, as it currently stands. This would be in the interests of encouraging eligible aliens to complete the visa process abroad, promoting family unity, and improving administrative efficiency. The expansion of the provisional waiver program would be a welcome change. The hardships suffered by preference category families, who face the same lengthy separation from loved ones when they seek legal permanent resident status, are as equally compelling as those suffered by immediate relatives. Opening up the provisional waiver process to these individuals will offer more measurable benefits to USCIS and DOS, will further facilitate legal immigration by encouraging a more sizable group to come out of the shadows, and comports with USCIS’s goal of alleviating unnecessary familial hardships. On July 22, 2015, the Federal Register opened a 60-day public comment period on the expansion of the provisional waiver which ended September 21, 2015. As we see, the previous provisional waiver had two comment periods and took a year of discussion that was noted to the public. In this case, the expansion was noted nearly a year ago on November 20, 2014 and we greatly hope the rule will be in place in early 2016.
Additionally, the new rule may have a more concise definition of extreme hardship, the standard one must meet for a successful provisional waiver. This will allow legal practitioners to save their clients time and money by telling them what specific type of evidence is required to prove extreme hardship and accordingly streamline the process and shorten the processing times for cases filed meeting the new guidelines. Currently there are only a few cases that hold guidance and a large room for discretion which can cause varying results in the applications and outcomes.
If you may know someone who could benefit from this expanded provisional waiver, although it is not a rule yet, it is helpful to have a consultation with a qualified immigration attorney. Ideally, learn if the attorney and their firm have extensive experience with waivers. It is important to plan in advance in case freedom of information act requests, FBI background checks, and collection of other documents are necessary. Additionally, in many cases certain processes would need to be started with requisite wait times before the waiver process may begin. In some cases, preparation, research and strategy take time. Once this rule is in effect, many people will be searching for help to see how it could benefit them.
Furthermore, we would like to warn you and others about the use of people who practice law without a license. In Texas, people often called ‘notarios’ frequently persuade people needing immigration legal services that the process is simple and an attorney is not needed. In the process, they are acting illegally by providing legal advice without a license and many times put people in difficult situations that are hard to correct.
The Law Office of Ruby L. Powers has had continued success with waiver and provisional waivers reuniting families from many countries. I regularly speak locally and nationwide on the topic of waivers and am regularly consulted by other attorneys on problem cases. We have a team with many years of immigration, consular processing, and waiver experience specific to this article’s topic. We pride ourselves in quality service and helping guide clients through the arduous process to a reunification, peace of mind, greater financial and emotional stability and an improved life in the United States.Written by Ruby Powers on November 4, 2015 @ 2:14 pm
Filed under: citizenship, Consular Processing, Deportation, I-601 Waivers, I-601A Waivers, Immigration Law, Immigration Trends, pathway to citizenship
As of October 2015, DOS began issuing a visa bulletin with dual charts for each immigrant visa category. First chart reflects “Application Final Action Date” and the second chart reflects “Dates For Filing.” Applicants ought to refer to the second chart, for the date when an application for adjustment of status or NVC process may be filed; while the first chart refers to the date when a visa will actually become current and issued. This was usually done for diversity lottery visas. Advantages for being able to file an application for example a year before the visa is actually available, lies in the fact that applicants would be able to obtain work permit while they are waiting for the green card visa availability.
This new visa bulletin dynamic has caused issues/chaos and lawsuits are pending and now Government agencies are giving different policies related to its implementation. In fact, USCIS has announced that, approximately one week after DOS releases the Visa Bulletin each month; it will post an announcement on its website to inform adjustment of status applicants whether they can rely on the “filing dates” chart or the “final action dates” chart in the Visa Bulletin to determine when they can file their applications. In its announcement, USCIS states: “Unless otherwise stated on our website, the Application Final Action Date chart will be used to determine when individuals may file their adjustment of status applications.” This means that the benefits accorded by the dual charts visa bulletins might not be granted if the USCIS visa bulletin shows different charts. Read more at: http://www.uscis.gov/visabulletininfo
Immigration Attorney at Law Office of Ruby L. PowersWritten by Ruby Powers on October 20, 2015 @ 12:21 pm
Filed under: Immigration Law
U.S. President Barack Obama speaks at a news conference at the end of the G20 summit in Brisbane November 16, 2014.
(Reuters) – President Barack Obama is set on Thursday to outline a controversial plan to relax U.S. immigration policy and grant relief from deportation to as many as 5 million undocumented immigrants in a go-it-alone move that will deepen a partisan divide with Republicans.
Sources close to the administration said the rollout would include a televised speech by Obama on Thursday night laying out the plan followed by a trip to Las Vegas on Friday to build support. Nevada is home to the highest proportion of undocumented immigrants in the country.
The White House declined to comment on the specific timing of the announcement but officials have made clear Obama was planning to take executive action soon. Some conservative Republicans have threatened to try to thwart the immigration move by imposing funding restrictions in a must-pass spending bill, which could conceivably raise the possibility of a government shutdown.
Frustrated by years of congressional inaction on what most in Washington agree is a broken immigration system, Obama is planning to issue a reprieve from deportation that will cover some parents of U.S. citizens and legal permanent residents.
That initiative would expand on a 2012 executive order by the president that gave relief from deportation and work permits to undocumented children brought to the United States by their parents.
There is also expected to be a border security element and Obama will act to help companies hire and retain high-skilled workers from abroad, the sources said.
“We’ve identified a number of ways that we will (fix the system) which the president will speak to in the coming days,” Homeland Security Secretary Jeh Johnson said at a National Press Club event on Wednesday.
Obama’s move, coming little more than two weeks after elections in which Republicans seized the Senate, is certain to provoke a backlash and House of Representatives Republicans are weighing a range of responses.
Michael Steel, a spokesman for House Speaker John Boehner, said in a statement: “If ‘Emperor Obama’ ignores the American people and announces an amnesty plan that he himself has said over and over again exceeds his constitutional authority, he will cement his legacy of lawlessness and ruin the chances for congressional action on this issue and many others.”
Written by Ruby Powers on November 19, 2014 @ 2:03 pm
Filed under: Immigration Law
His executive action could be announced in a television speech Thursday night, according to a person familiar with the planning.
Nov. 19 (Bloomberg) — President Barack Obama plans to issue as soon as tomorrow a reprieve for undocumented immigrants whose children were born in the U.S., part of an order that would shield between 4 million and 5 million from deportation, according to people familiar with the proposal.
Obama’s executive action could be announced in a television speech tomorrow night, according to a person familiar with the planning who asked for anonymity. Obama is tentatively scheduled to fly to Las Vegas on Friday, where he’d discuss his immigration actions at a school.
Obama’s executive actions would expand eligibility for his 2012 Deferred Action for Childhood Arrivals program that has given protection to 600,000 child immigrants.
The planned action, which the White House says is a partial fix for the U.S. immigration system, may improve Obama’s standing with Hispanics after he presided over a record number of deportations and damage his chances of working with Republicans in Congress on other policy matters.
The idea behind his strategy is to cover categories of immigrants that would be politically difficult for Republicans to oppose, because that would involve separating parents from their children, according to a Democratic aide familiar with the matter.
By centering his plan on family unification, Obama is seeking to drive a wedge in the Republican Party, which includes members who support what the president is doing even if they oppose his use of presidential powers to achieve it.
Senator John Cornyn, a Texas Republican, said Obama was abusing his power and instead should have worked with Republicans.
“There is nobody who’s abused the authority to issue executive orders more than the current occupant of the White House,” he said. Obama is undermining Republican support for “common-sense immigration bills,” he said.
A spokesman for House Speaker John Boehner, an Ohio Republican, said Obama was behaving as an “emperor” and ignoring the will of the people. “He will cement his legacy of lawlessness and ruin the chances for congressional action on this issue –- and many others,” Boehner spokesman Michael Steel said in an e-mail.
In an NBC News/Wall Street Journal poll released today, 48 percent of Americans oppose Obama taking executive action on immigration while 38 percent support it. About 14 percent have no opinion or are unsure. The poll was conducted Nov. 14-17 and has a margin of error of 3.1 percentage points.
Obama will also expand a program that gives work permits for up to 29 months to foreign graduates of U.S. universities with degrees in science, technology, engineering and math, according to the people, who requested anonymity before a formal announcement. That provides more workers to fill high-tech jobs.
The administration already broadened eligibility for the program in 2012 by increasing the qualifying fields of study.
The executive action will include enforcement measures and changes to legal-immigration procedures, the people said.
The president’s action is expected to stop short of including the parents of children brought to the U.S. illegally, called Dreamers, the people said. Senate Democrats were pressing the White House to cover this group under the current plan.
Republicans are vowing to try to block the executive action, arguing that it’s an unconstitutional power grab that will poison the environment for bipartisan compromise in the new Congress, which they will control.
A group of at least 60 House Republicans is pushing to use a government funding bill to deny the president the money needed to implement his plan. Congress must approve funds by Dec. 11 to keep the government open or risk an interruption similar to last year, when Republican demands to defund the president’s health-care law led to a 16-day partial shutdown.
Democratic lawmakers have been urging the president to be bold with his plan. They cite the failure of the Republican-led House to take up a bill the Senate passed last year with bipartisan support creating a path to citizenship for many of the nation’s estimated 11 million unauthorized immigrants.
Republicans are split on the immigration issue generally. Some say the party must take steps to ease its stance against undocumented immigrants while others consider them lawbreakers who don’t deserve what many of them label amnesty.
National demographic shifts, particularly in competitive states such as Nevada and Florida, make the support of Hispanic voters critical to both political parties.
Republicans have already begun to temper some of their threats over shutting down the government to stop Obama.
Earlier yesterday, Boehner and his allies said they’re reviewing alternatives to using a funding bill to fight the executive action, including retroactively canceling money in 2015 for any action taken by Obama.
Republican Representative Tom Cole of Oklahoma, a Boehner ally, said many members “understand what was done in October of last year is not the appropriate way going forward.” Court challenges also are a possibility, he said.
“The conference is trying to be a lot more thoughtful,” Cole said. “Our aim is to shut down what the president is doing, not to shut down the government.”
The White House began sharing both policy and messaging plans yesterday with outside groups and Democrats on Capitol Hill. In addition to arguing that Obama has the legal authority to revamp the immigration system, the White House says Congress can step in at any time with legislation.
“There is a very simple solution to the perception that somehow the president is exercising too much executive authority, and that’s for Congress to pass a bipartisan bill to permanently fix the system,” according to White House talking points, which were obtained by Bloomberg.
“If they get that done, the president looks forward to signing it into law — superseding the actions he’s taken on his own to fix as much of the system as he can.”
The number of people who would be protected from prosecution depends on how the executive action is structured and whether it requires the undocumented parents and spouses of U.S. citizens and permanent residents to have been in the country for five years or 10 years to qualify.
3.3 Million Parents
The Migration Policy Institute has estimated that a five-year threshold would protect 3.3 million parents of U.S. citizens and legal residents. It also would provide a reprieve for 1.2 million spouses, a set that overlaps with the group of parents. The figures would be much lower — 2.5 million parents and 910,000 spouses — if the bar was set at 10 years, according to the institute.
In addition, the institute reported, 520,000 undocumented immigrants would be shielded by an Obama order that changes eligibility for the Deferred Action for Childhood Arrivals program by eliminating the maximum age of 30 and changing the age of arrival to under 18.Written by Ruby Powers on November 19, 2014 @ 2:00 pm
Filed under: Immigration Law
Filed under: Immigration Law