DHS Announces Planned Changes to I-601 waiver for Unlawful Presence Waivers

Posted on by Ruby Powers in Consular Processing, I-601 Waivers, Immigration Law, Immigration Trends, Legislative Reform Leave a comment

The January 6, 2012, DHS Announcement about
Planned Changes to Processing for Unlawful Presence Waivers
Frequently Asked Questions
What was announced on January 6?

On January 6 DHS announced, in a notice to be
published in the Federal Register on January 9 that it will be issuing new regulations for
how unlawful presence waivers will be processed for certain immediate relatives who are
filing immigrant visa applications abroad. Specifically, the new procedure will allow
these individuals to file for a provisional unlawful presence waiver and await
adjudication while in the U.S. If approved, they will still have to depart the U.S. to
undergo visa processing and an interview at a U.S. consulate abroad. To receive a
provisional waiver, they will still need to show that a lengthy bar from the U.S. would
cause their U.S. citizen spouse or parent “extreme hardship.”
What is the current process and why is the change necessary?


Currently, many relatives of U.S. citizens and lawful permanent residents face
unnecessary and dangerous bureaucratic hurdles when they apply for lawful permanent
residence (“green card”). In order to be granted permanent residence, these applicants
are required to travel to a U.S. consulate in their home country to be interviewed and wait
for the visa to be processed. But departure from the U.S. triggers a 3- or 10-year bar to
re-entry for many applicants—specifically those who have been unlawfully present in the
U.S. for more than 180 days.
Individuals subject to this re-entry bar may apply for a waiver (using DHS Form I-601;
see 8 U.S.C. 1182(a)(9)(B)(v)) so that they do not have to face years of separation from
their family. To qualify, they must demonstrate that their U.S citizen or permanent
resident spouse or parent would experience “extreme hardship” if the waiver is not
granted. But under the current process, the individual can only apply for the waiver in
the home country, after having had an initial interview at the consulate. The decision on
the waiver, which is made by USCIS even though the family member is abroad, often
takes weeks, months or even years to be completed. Meanwhile, families are separated,
and the spouses and children of U.S. citizens and lawful permanent residents are forced to
endure potentially dangerous situations in the home country until the waiver is granted
and they can return to the U.S. as lawful permanent residents.
Immigration law provides that U.S. citizens and lawful permanent residents can apply for
“green cards” for their foreign-born spouses and children. But the lengthy delays and
risks in the current waiver procedure discourage many family members from completing
the process of legal immigration. Family members have been assaulted or killed while
waiting for waivers to be reviewed.
What will the new process be?


The new procedure will allow certain immediate relatives—spouses, children and parents
of adult of U.S. citizens—to apply for waivers of the unlawful presence bars while
remaining in the U.S. If the individual is found eligible, USCIS will grant a provisional
waiver. He or she will still have to depart the U.S. and visit a U.S. consulate abroad to
apply for an immigrant visa. During the immigrant visa interview, the consular officer
will make the finding of inadmissibility based on unlawful presence and apply the
provisional waiver. If other grounds of inadmissibility are found, the individual would
need to submit another waiver application, if eligible, while abroad. In many cases, the
provisional waiver will reduce the wait period abroad and the separation from the
applicant’s family by several months or years.
Individuals will still need to meet the extreme hardship standard established in existing
law to obtain a waiver. The January 6 notice states that USCIS does not intend to modify
the standard.
Who will be able to use the new process?
As announced in the January 6 notice, the new regulation will change the application
process only for immediate relatives whose U.S. citizen spouse or parent would suffer
extreme hardship if the bar is not waived.
Who is left out of the new process?
According to the January 6 notice, the new process will not apply to family members of
lawful permanent resident petitioners. It will also not include immediate relatives if their
qualifying relative for the hardship waiver is not a U.S. citizen spouse or parent. These
individuals will still need to apply under the existing procedure (departing the country
first and applying for the waiver while abroad). There is no valid reason not to apply the
same procedure to these individuals whose spouses and children face the same
bureaucratic delays, obstacles and dangers when required to wait abroad for their waiver
adjudications.
The new procedure will apply only to individuals who are subject to the 3- and 10-year
bars for unlawful presence. Individuals who are subject to other grounds of
inadmissibility are not affected under the new process and will still have to depart the
U.S. before applying for any waiver.
When will the new regulations and process be implemented?


The new provisional waiver procedure has not yet taken effect. The notice issued on
January 6 announces the government’s intent to issue a proposed regulation at a future
date. Next, DHS will issue a Notice of Proposed Rulemaking (NPRM) that will include a
proposed regulation governing the waiver process and will invite public comment. The
notice states that the new waiver process will not be implemented until a final rule is
issued and the change becomes effective.
What should current and prospective waiver applicants do at this time?
The January 6 announcement has not changed anything in the current waiver procedure.
The notice discourages the filing of applications for provisional waivers and states that
such requests will be rejected. The new procedure will not take effect until a final
regulation is issued.
Once the new procedure takes effect, individuals with pending applications for unlawful
presence waivers will not qualify under the new procedure.
What is the cost for applying for a waiver under the new procedure?


The January 6 announcement does not mention a change in the application fee for filing a
waiver application (Form I-601). The current fee is $585.
How will the new procedure improve government efficiency?

Under the current
procedure, waiver applications are filed by individuals who have departed the U.S. and
are applying at U.S. consulates abroad. However, those waiver applications are not
adjudicated by the U.S. consulate. Instead, they are forwarded to USCIS. Wait times for
processing waivers can be months or years. Processing these applications in the U.S. will
save government resources at the consulates and reduce the costs of shifting cases back
and forth between government agencies.


In GOP debate over national security, Gingrich defends long-term illegal residents

Posted on by Ruby Powers in Immigration Law Leave a comment

American policy toward Iran and the difficulty of America maintaining a robust foreign policy as its national debt is growing were issues that dominated the Republican presidential debate Tuesday night in Washington.

But in the debate’s final half hour, illegal immigration suddenly became the focus as former House Speaker Newt Gingrich made an extended and vigorous defense of allowing illegal residents who’d settled in America for many years to stay and not be deported. Read more of the November 22, 2011 article

 

 

 

 


Immigrant workers, farmers fearful in wake of Alabama immigration law

Posted on by Ruby Powers in Immigration Law, Immigration Trends, State and Local Immigration Rules Leave a comment

Immigrant workers, farmers fearful in wake of Alabama immigration law

 

 

Alabama passed the severest immigration law in the US.  Basically, Americans don’t want to do the jobs that people without papers or status in the US are willing to do so a lot of farm work will not have enough labor to be completed and I can see food prices rising.  Illegal and legal immigrants are leaving Alabama in droves, I even have a client that has left Alabama.  We really need immigration reform. I understand why states are trying to put immigration in their own hands but really we need action from the Federal government.

 

Ruby L. Powers

US Immigration Attorney

 

 

 

 

 

 

 

 

 

 


Applying for Consular Processing and I-601 Waivers in Juarez, Mexico

Posted on by Ruby Powers in Immigration Law Comments Off on Applying for Consular Processing and I-601 Waivers in Juarez, Mexico

Applying for Consular Processing and I-601 Waivers in Juarez, Mexico Lawline CLE course


Recent developments in Defense of Marriage Act

Posted on by Ruby Powers in Immigration Law, Immigration Trends, Legislative Reform Comments Off on Recent developments in Defense of Marriage Act

In Febuary 2011, President Obama declared that the Department of Justice would no longer be defending the Defense of Marriage Act (DOMA) in certain Courts of Appeals. This radical stance change has had a profound effect on undocumented aliens and foreign nationals in the LGBT community. However, due to certain legal realities, the DoJ has had to continue with its defense of DOMA in certain parts of the country.

Prior to February 2011, the government had a very clear position on DOMA, namely that they would defend the law at all costs. They used several rationales to justify their defense of the law: Congress passed it and thus the DoJ must uphold the laws of the land; the president had instructed the executive branch (which the DoJ is a central part of) that they must continue to enforce it until DOMA is repealed; that marriage is about having children and that gay couples do not make good parents. Some arguments were stronger than others.

After February 2011 the DoJ’s position changed drastically. The DoJ effectively admitted that DOMA is unconstitutional by stating that “DOMA is not just an immigration issue; any law that targets people based on their sexual orientation is unconstitutional.” While this statement may suggest that the DoJ will be taking the same simple, clear-cut approach that they took in defending DOMA (but now in reverse) the reality is anything but simple.

The President’s statement of DOMA’s unconstitutionality does nothing to keep the DoJ from defending it in a Court of Appeals circuit. These nine circuits are grounded in federal law but each circuit sets its own precedents.  When it comes to the particular defense of DOMA, the DoJ has used “Rational Basis” to defend it. Thus, if a circuit allows “Rational Basis” to be used in the defense of DOMA, then the DoJ must defend the law in those courts. If the circuit has set no precedent, or has stated that Rational Basis may not be used to defend the law, then the DoJ is not obligated to defend it.

Rational basis review is the most deferential standard of review that federal courts use to evaluate the constitutionality of legislation when challenged on due process or equal protection grounds; however, just because a law discriminates does not mean that certain “discrimination” is unconstitutional. For example, US lawful permanent residents are not allowed to vote-a clearly discriminatory law that has never been challenged as unconstitutional (although it should; permanent residents pay taxes like everyone else and should have a right to elect their officials).

This lack of accord among the CA circuits has not only put the DoJ and the DHS in the unenviable position of having to, in some circuits, defend a law that has been declared unconstitutional, but has also made life for undocumented LGBT aliens and LGBT foreign nationals in valid status that much more complicated.  However, the DHS does have one thing working for them in the form of Prosecutorial Discretion. Prosecutorial Discretion allows the DHS to decline to detain and deport an alien that it decides is not a dangerous threat to the United States. The DHS has made clear that its enforcement priorities are national security, public safety, border security and repeat immigration law violators. Since foreign nationals in same same-sex couples rarely fall into any of those categories, they may qualify for prosecutorial discretion.

As it stands, the DoJ does not seem too eager to prosecute same-sex couples, but it is bound by law to continue to enforce DOMA. Until DOMA is repealed or deemed unconstitutional, or there is a change in executive policy, this situation will continue as is.


Bill Would Give U.S. Visas to Foreign Home Buyers

Posted on by Ruby Powers in Immigration Law, Legislative Reform Comments Off on Bill Would Give U.S. Visas to Foreign Home Buyers

The reeling housing market has come to this: To shore it up, two Senators are preparing to introduce a bipartisan bill Thursday that would give residence visas to foreigners who spend at least $500,000 to buy houses in the U.S. more


Texans for Immigration Reform Monthly Meeting

Posted on by Ruby Powers in Immigration Law Leave a comment

2nd Saturday (10m-12:30pm) or Thursday (7-9pm) each month at Tracy Gee Community Center, Houston, TX. Ongoing events from the group, American Border Patrol as seen in “Border Invasion Pics.” There are several home videos taken on the US/Mexico border. According to the website, “All activity shown… is a result of citizen volunteer effort. Detection is by citizen, and where apprehension takes place it is by citizen guidance of Border Patrol agents. More and more citizens are doing a job our government won’t do.”


Immigrants fearing deportation make plans for kids

Posted on by Ruby Powers in Immigration Law Leave a comment

They’re signing documents allowing others to care for their children if needed, assistance groups say


Hispanic students vanish from Alabama schools

Posted on by Ruby Powers in Immigration Law Leave a comment
By JAY REEVES

updated 9/30/2011 7:04:01 PM ET

BIRMINGHAM, Alabama — Hispanic students have started vanishing from Alabama public schools in the wake of a court ruling that upheld the state’s tough new law cracking down on illegal immigration.

…..

Local and state officials are pleading with immigrant families to keep their children enrolled. The law does not ban anyone from school, they say, and neither students nor parents will be arrested for trying to get an education…The Obama administration filed court documents Friday announcing its plans to appeal the ruling that upheld the law…

 


‘Til 2013 do us part? Mexico mulls 2-year marriage

Posted on by Ruby Powers in Immigration Law Leave a comment

Reform would allow couples to decide on the length of their commitment

Around half of Mexico City marriages end in divorce, usually in the first two years.”

This is all very interesting. In a practical way, this could affect US immigration. If this law passes, I would assume that US Immigration/Foreign Affairs Manual would not allow immigration visas to be dependent on these 2-year marriages.

 

Ruby L. Powers

US immigration attorney

I-601 waiver attorney

 

 

 

 


Facebook

YouTube

LinkedId