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Six Things You Need to Know about Stateside Processing of I-601A Waivers

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

Author: Laura Lichter on 01/04/2013

 

Starting March 4, 2013, certain relatives of American citizens who are in the country illegally and need a waiver of unlawful presence before being eligible for a green card can get a decision on their casebefore leaving the United States.

For those who can take advantage of the new rule, this means peace of mind, knowing that their loved one is likely to successfully complete the immigration process and not be stranded in a foreign country for an unknown length of time.  For some, however, the new rule will do nothing to resolve their immigration issues.

1.      What is the new rule and how can it help my family?

Under current law, many immigrants who enter the country illegally or overstay their visas cannot apply for permanent residence (a “green card”) in the U.S., and instead must finish the immigration process abroad.  Unfortunately, just leaving the country—even to pick up a visa sponsored by a family member—automatically makes the intending immigrant subject to a penalty for their “unlawful presence,” potentially separating them from their family for up to ten years.

For some, but not all, the penalty can be waived.  Before this new rule, immigrants could be stranded outside the country for weeks, months or even years while waiting for a decision on whether they could return to their life in the United States. And all that time, the immigrant was stuck abroad, usually with no legal way to return.  Many families endured the emotional strain, financial hardship and dangerous conditions. Others simply were unwilling to take the risk.

The new rule means that many immigrants will leave the United States, knowing in advance that their case will probably be approved, and they could be back with their families—as a legal resident—in a matter of days.

2.      Who can apply under the new rule?

Only applicants who are an immediate relative of a US citizen (spouses, parents and certain children) can apply at this time, though the rule may later be expanded to other relatives.

The applicant must be physically present in the United States, and not already have a scheduled interview at a U.S. consulate abroad.  Also, the provisional waiver is only available if the sole issue holding up a case is unlawful presence.  Applicants who have criminal issues or other immigration violations cannot use the provisional procedure.

Individuals who are in immigration court or who have an order of removal or voluntary departure may not qualify unless they get special permission from the government and a court order resolving their case.

To be successful, applicants must show that denying the case would be an extreme hardship to their qualifying relative(s); the impact on the immigrant doesn’t count.  Hardship factors can include family separation, economic hardship, medical issues, country conditions abroad, and any other difficulty or harm faced by the qualifying relative(s), if the waiver isn’t granted.

3.      What does it mean that the waiver is “provisional?”

Even if a waiver is granted, the approval is “provisional.”  As a practical matter, this means that the government has reviewed the case and believes that the waiver should be granted, but there is no guarantee that a case will be successful if facts change or new information comes to light.  For example, if an applicant had previous immigration violations or criminal history, the provisional waiver will be revoked.

If any new issues arise, and the applicant is still eligible for a waiver, he or she will be able to re-apply using the existing process, but will have to wait abroad for a decision on their case.

4.      When can I apply?

The new rule goes into effect on March 4, 2013, and no filings will be accepted before that date. You can only apply for a provisional waiver after an immigrant petition has been approved.  If you haven’t filed yet or you’re still waiting for a decision on a pending petition, you can’t apply for the provisional waiver—yet.

5.      What else do I need to know about provisional waivers?

A provisional waiver is not a legal status, and even an approved waiver doesn’t provide work authorization, a social security number or a driver’s license. Having a provisional waiver will not protect you from deportation or any other consequences of being in the country illegally.

If an application for a provisional waiver is denied, there is no appeal.  If you have more or better evidence to prove your case, you can re-file, with a new filing fee. Remember, not everyone can be sponsored or qualify for a waiver, and just as importantly, not everyoneneeds a waiver.

6.      Do I need to work with an attorney?

The immigration process can take months, even years, and government filing fees and other expenses are significant—it’s best to know your options before investing time and money.  A thorough legal consultation should look at all aspects of your immigration history to find the best solution for your family, not just evaluate eligibility for a provisional waiver.

Always work with a licensed immigration attorney.  Never trust legal advice from an unregulated consultant or notario. Consider consulting with an experienced immigration lawyer before starting the process to make sure that you qualify, and that stateside waiver processing is the best solution for your immigration case.

Additional Resources

Always turn to reputable sources for immigration advice and information about new developments. Finding an AILA lawyer is a good place to start. Members listed on www.ailalawyer.com meet legal education and malpractice insurance requirements, and have been AILA members for at least two years.

AILA Immigration Lawyer Referral Service

AILA Resources for Stateside Waivers

USCIS Resources on Provisional Waivers

Consumer Protection for Victims of Immigration or Notario Fraud

Written by Laura Lichter, AILA President


TOP 12 THINGS YOU NEED TO KNOW ABOUT THE PROVISIONAL WAIVER RULE – I-601A WAIVER

Posted on by Ruby Powers in Consular Processing, I-601 Waivers, I-601A Waivers, Immigration Law, Immigration or Notario Fraud, Immigration Trends, Processing of Applications and Petitions 1 Comment

By Ruby L. Powers – Provisional Waiver Attorney – January 4, 2013

  1. Final rule published January 3, 2013 and USCIS will start accepting I-601A waiver (provisional waivers) on March 4, 2013
  2. Only applies if the applicant’s qualifying relative is a US citizen spouse or parent.
  3. Only applied if the applicant’s ground of inadmissibility will be unlawful presence.
  4. Applicants still have to leave the US to follow through with the consular processing and waiver. Please note: this rule doesn’t keep the applicant from leaving and triggering a bar but it does diminish the time abroad.
  5. As per the form and instructions, applicants can apply for the provisional waiver more than once.
  6. If an applicant is at the National Visa Center stage, they must notify NVC of plans to apply for the provisional waiver rule.  One must notify the NVC as soon as the fee bills have been paid, by emailing NVCi601a@state.gov.
  7. If an applicant has had a visa interview scheduled, to be able to still submit a provisional waiver a new visa petition ( a new I-130) must be filed and one must ask the Consulate to cancel the registration of the previous immigrant visa case.
  8. If an applicant is in removal proceedings,  has their case administratively closed, has no calendared hearing in the future,  AND otherwise qualify, an applicant can submit a provisional waiver
  9. Only USCIS can adjudicate the I-601A waiver (not immigration court)
  10. An applicant should only file a provisional waiver if they don’t have any criminal history that would make them inadmissible. Therefore, one must consult with an immigration attorney if the applicant has any criminal history and wants to pursue this.
  11. After the I-601A waiver is approved, it is expected that the visa appointment in the applicant’s home country will be 2-3 months afterwards.
  12. If the Consulate at the visa appointment determines the applicant has other grounds of inadmissibility, an approved provisional waiver is automatically revoked.

 

The Law Office of Ruby L. Powers is located in Houston, Texas helping clients around the US and world with their US Federal Immigration needs.
Please beware of ‘notarios’ unlawfully practicing law as it is illegal and they often do not suffer the consequences of their actions as much as the applicants do who use them. The author sees this time and time again via her legal consultations with clients who have cases made more difficult to solve by notario actions.Immigration attorneys and immigrants are grateful for this opportunity by DHS!

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LAS 12 COSAS MAS IMPORTANTES QUE DEBE SABER SOBRE LA REGLA DE PERDON PROVISIONAL – PERDON 1-601A

  1. La norma final fue publicada el 3 de Enero del 2013 y el USCIS comenzara a aceptar el perdón I-610A (perdón provisional) el 4 de Marzo del 2013. 
  2. Este perdón solo aplica si el pariente calificado (madre, padre o esposo(a)) es ciudadano(a) American(a).
  3. Este perdón solo aplica si el motivo de inadmisibilidad del cliente es la presencia ilegal.
  4. Los solicitantes deben salir de los EE.UU. para seguir adelante con el proceso consular y perdón. Nota: esta regla no impide que al quitar el país se active el “bar” por haber residido en este ilegalmente pero si disminuye el tiempo que el solicitante debe estar en el extranjero.
  5. De acuerdo con el formulario y sus instrucciones, los aspirantes pueden solicitar el perdón provisional más de una vez.
  6. Si el solicitante se encuentra en la fase de Centro Nacional de Visas, este debe notificar al CNV sobre sus planes de aplicar al perdón provisional. Se debe notificar al CNV tan pronto como las cuotas hayan sido pagadas, por correo electrónico a NVCi610@state.gov.
  7. Si el solicitante ya tiene una entrevista programada, este deberá presentar una nueva solicitud de visa (una I-130 nueva) para poder solicitar el perdón provisional, así como pedir al Consulado cancelar cualquier petición de visa previa.
  8. Si el solicitante se encuentra en proceso de deportación, tiene un caso admirativamente cerrado, no tiene una audiencia programada en el futuro, y califica de otra manera, este puede aplicar a un perdón provisional.
  9. Solo USCIS puede adjudicar el perdón I-601A (no la corte de inmigración).
  10. El solicitante debe presentar una exención provisional solamente si no tiene antecedentes penales que lo harían de otra forma inadmisible. Por lo tanto, se debe consultar con un abogado de inmigración si el solicitante tiene antecedentes penales y quiere continuar con el proceso.
  11. Una vez que el perdón I.601A sea aprobado, se espera que la cita para la visa sea programada para 2 o 3 meses después en el país de origen del solicitante.
  12. Si el Consulado, en la cita para la visa, determina que existen otros motivos para la inadmisibilidad del solicitante, el perdón provisional aprobado es automáticamente revocado.

 Escrito por Ruby L. Powers, Abogada de I-601A/ Perdón Provisional

Oficina Jurídica de  Ruby L. Powers

Houston, Texas ayudando a clientes alrededor de los EE.UU. y el mundo con sus necesidades Migratorias Federales en los Estados Unidos.

 

 


Immigration Law: Provisional Waiver Rule Effective March 4, 2013

Posted on by Ruby Powers in Consular Processing, I-601 Waivers, Immigration Law, Immigration Trends, Legislative Reform 15 Comments

The Provisional Unlawful Presence Waiver has officially been approved and we expect it to be in motion no later than March 4, 2013. The public comment period on the regulation ended on June 1, 2012 and the final rule was published in the Federal Register on January 3, 2013. The Provisional Waiver Rule was announced by the Department of Homeland Security.

 

The waiver serves to substantially reduce the period of time that immigrants, who either entered without inspection or overstayed their visas, will have to spend apart from their families after applying for immigrant visas and a waiver of inadmissibility to the United States for unlawful presence. Prior to the most recent rule, the majority of immigrants who had been deemed ineligible for admissibility into the United States were required to return to their country of origin where they could possibly remain for months or even years while waiting for the approval of a waiver of inadmissibility, causing severe distress to family members left in the United States.

 

Now, via the Provisional Unlawful Presence Waiver, immigrants who are inadmissible due to unlawful presence in the United States may remain in the United States while their request for a waiver of inadmissibility is being processed. According to USCIS regulation, “the applicant must be an immediate relative of a U.S. inadmissible only on account of unlawful presence, and demonstrate the denial of the waiver would result in extreme hardship to his or her U.S. citizen spouse or parent.”  Immigrants will not be required to return to their country of origin until, either their waiver has been approved, in which case they will need to return in order to attend their consular interview and obtain their visa, or that waiver is denied. Presently, immigrants deemed inadmissible for any reasons other than unlawful presence [fraud, criminal activity, etc…] are ineligible for the Provisional Unlawful Presence Waiver.

 

Further details on the process change can be found on the regulations website.

Ruby L. Powers

Immigration Attorney with a focus on I-601 and I-601A waivers

Law Office of Ruby L. Powers

www.RubyPowersLaw.com

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Ley de Inmigración: Regla de Perdón Provisional efectiva a partir del 4 de Marzo del 2003

El Perdón Provisional por presencia ilegal ha sido oficialmente aprobado y se espera tome  efecto a más tardar el 4 de Marzo del 2013. El periodo de comentarios públicos sobre esta norma terminó el 1ro de Junio del 2012 y la norma definitiva fue publicada en el Registro Federal el 3 de Enero del 2013. La Regla de Perdón Provisional fue anunciada por el Departamento de Seguridad  Nacional.  

El perdón sirve para reducir substancialmente el periodo de tiempo que un inmigrante que o bien ingreso al país sin inspección o permaneció en este con una visa expirada, debe permanecer lejos de su familia después de haber solicitado una visa de inmigrante y un perdón de inadmisibilidad en los Estados Unidos por presencia ilegal. Con anterioridad a la norma más reciente, la mayoría de los inmigrantes que habían sido considerados no elegibles para admisibilidad en los Estados Unidos estaban obligados a regresar a su país de origen, donde podrían permanecer durante meses o incluso años a la espera de la aprobación de un perdón de inadmisibilidad, causando grave sufrimiento a los miembros de la familia que permanecían en los Estados Unidos.

Ahora a través del Perdón Provisional por Presencia Ilegal, los inmigrantes inadmisibles por presencia ilegal a los Estados Unidos pueden permanecer en el país mientras su solicitud de perdón es procesada. De acuerdo con  las reglas del USCIS, “el solicitante debe ser un familiar  directo de un inadmisible en los Estados Unidos solo por causa de presencia ilegal y debe demostrar que la denegación del perdón resultaría en graves dificultades para su conyugué o padre ciudadano(a) de los Estados Unidos”.

Los inmigrantes no serán obligados a regresar a su país de origen hasta que, o bien sus perdones hayan sido aprobados, en cuyo caso deberán regresar para asistir a su entrevista consular y obtener su visa, o su perdón sea negado.  En la actualidad, los inmigrantes considerados inadmisibles por cualquier otra razón que la presencia ilegal (fraude, actividad ilegal, etc…) no son ilegibles para un Perdón Provisional de Presencial Ilegal.   

Para más detalles sobre el proceso de cambio favor de visitar el sitio web de regulaciones.

Ruby L. Powers

Abogada de Inmigración especialista en perdones I-601 y I-601A.

Oficina Jurídica de Ruby L. Powers

www.RubyPowersLaw.com


Provisional Unlawful Presence Waiver announcement – January 3, 2013

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

After a year of waiting all of 2012, we have it folks! The provisional unlawful presence waiver is being published today, January 3, 2013 and will become effective on March 4, 2013 (60 days later).

For more info

Secretary Napolitano Announces Final Rule to Support Family Unity During Waiver Process

Release Date:
January 2, 2013

For Immediate Release
DHS Press Office
Contact: 202-282-8010

WASHINGTON—Secretary of Homeland Security Janet Napolitano today announced the posting of a final rule in the Federal Register that reduces the time U.S. citizens are separated from their immediate relatives (spouse, children and parents), who are in the process of obtaining visas to become lawful permanent residents of the United States under certain circumstances. The final rule establishes a process that allows certain individuals to apply for a provisional unlawful presence waiver before they depart the United States to attend immigrant visa interviews in their countries of origin. The process will be effective on March 4, 2013 and more information about the filing process will be made available in the coming weeks at http://www.uscis.gov/.

“This final rule facilitates the legal immigration process and reduces the amount of time that U.S. citizens are separated from their immediate relatives who are in the process of obtaining an immigrant visa,” said Secretary Napolitano.

U.S. Citizenship and Immigration Services (USCIS) received more than 4,000 comments in response to the April 2, 2012 proposed rule and considered all of them in preparing the final rule.

“The law is designed to avoid extreme hardship to U.S. citizens, which is precisely what this rule achieves,” USCIS Director Mayorkas said. “The change will have a significant impact on American families by greatly reducing the time family members are separated from those they rely upon.”

Under current law, immediate relatives of U.S. citizens who are not eligible to adjust status in the United States to become lawful permanent residents must leave the U.S. and obtain an immigrant visa abroad. Individuals who have accrued more than six months of unlawful presence while in the United States must obtain a waiver to overcome the unlawful presence inadmissibility bar before they can return to the United States after departing to obtain an immigrant visa. Under the existing waiver process, which remains available to those who do not qualify for the new process, immediate relatives cannot file a waiver application until after they have appeared for an immigrant visa interview abroad and the Department of State has determined that they are inadmissible. 

In order to obtain a provisional unlawful presence waiver, the applicant must be an immediate relative of a U.S. citizen, inadmissible only on account of unlawful presence, and demonstrate the denial of the waiver would result in extreme hardship to his or her U.S. citizen spouse or parent. USCIS will publish a new form, Form I-601A, Application for a Provisional Unlawful Presence Waiver, for individuals to use when applying for a provisional unlawful presence waiver under the new process.

Under the new provisional waiver process, immediate relatives must still depart the United States for the consular immigrant visa process; however, they can apply for a provisional waiver before they depart for their immigrant visa interview abroad. Individuals who file the Form I-601A must notify the Department of State’s National Visa Center that they are or will be seeking a provisional waiver from USCIS. The new process will reduce the amount of time U.S. citizen are separated from their qualifying immediate relatives. Details on the process changes are available at http://www.regulations.gov/.

For more information, visit www.uscis.gov.


Tattoo Checks Trip Up Visas

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

Body Art Associated With Gang Symbols Derails Some Immigrants’ Green Cards

By Miriam Jordan | The Wall Street Journal – Wed, Jul 11, 2012 10:47 AM EDT

In December, Hector Villalobos traveled from Colorado to his native Mexico for an interview, part of his application for U.S. permanent residency. Mr. Villalobos expected to be gone a couple of months to complete the process.

Seven months later, U.S. consular officers haven’t allowed the 37-year-old handyman to return home to his wife and three children. The problem: tattoos—some associated with violent Mexican gangs—on Mr. Villalobos’s body.

“He likes tattoos, just like many Americans like tattoos” said Veronica, his American wife of six years, who says her husband isn’t affiliated with any criminal organization. Mr. Villalobos says he got his tattoos—some in Mexico, some in the U.S.—because he thought they were cool.

In recent years, immigration attorneys say, concern about foreign gangs entering the U.S. has prompted Washington to delay or deny green cards, or legal permanent residency, to some applicants with tattoos.
MORE


Teen stuck in Mexico over ‘Leap Day’ error may miss graduation speech

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

By Miranda Leitsinger, msnbc.com

A teen who is slated to give the salutatorian speech at her high school graduation Saturday may miss the big event because of an immigration deadline that she missed by a day.

More..


Foreign-Filed I-601 Waivers: New Procedure starting late Spring/Early 2012

Posted on by Ruby Powers in Consular Processing, I-601 Waivers, Immigration Law, Immigration Trends, Legislative Reform, Processing of Applications and Petitions 2 Comments

In a teleconference on March 9, 2012, USCIS announced plans to transition all usually foreign filed I-601 applications for unlawful presence, criminal, misrepresentation, and other kinds of inadmissibility waivers to one central Lockbox filing location in the U.S. The practice now is to submit the waiver filing with the USCIS office connected to the foreign consulate. The current process has resulted in a lot of delays and longer wait times for a final decision at certain consulates who have less adjudicators available to decide the waivers. In theory, this will be better for applicants if they can reduce the average wait time and the efficiency of adjudication.

 

Please note: This new process Foreign-Filed Waiver Lockbox procedure has nothing to do with the provisional waiver process that should be in effect by late 2012 and proposed earlier in the year.

 

What this new process would do:

 

Procedural change

 

Waiver applications can only be submitted to the Lockbox in the US after the applicant has attended the immigrant visa interview abroad at the consulate and the consulate officer determines that the applicant is eligible to file a waiver. The waiver would be filed with the Lockbox, in Phoenix, which forwards the petition to the USCIS Nebraska Service Center for adjudication. USCIS expects to train 26 officers on waivers to handle the expected increased workload.

 

Proposed Benefits to this new process:

 

  • Should be faster for applicants – Goal is adjudication in 6 months.  They also hope a new centralized place to submit the foreign filed waivers should stop great variations on processing times at different consulates; overseas offices cannot grow easily – some USCIS offices abroad only have one officer to decide these case and the backlogs created are inevitable.  In contrast, service centers are huge (can pull staff from other units) and can respond quickly to increases in receipts of applications to avoid backlogs. 14 officers will start at NSC and will add more for a total of 26 to handle over 23,000 waivers submitted each year.  Right now there are 4 adjudicators in Mexico and in some cases 1 in other offices.
  • Case status info will be available online through USCIS’s website once the application is filed and receipted. This is a great addition and only available currently with some offices.
  • All cases will be adjudicated in order of being received.
  • Process applies to all I-212s (Advance Permission to Reapply After Removal Packages) filed with Inadmissibility Waivers as well. I-212 waivers can be sent to the Lockbox or still filed with the local offices.
  • E -notification will be available – if you provide email address – can get receipt number emailed to you.
  • Implementation of this new policy is expected in late spring, early summer 2012, around Memorial Day.

 

Other important notes:

  • Estimates of 23,000 waivers per year with 26 adjudicators allows 885 waivers to be reviewed per adjudicator per year. 885 waivers in 252 business days in a year is an average of 3.5 waivers per day, per adjudicator, or about 2.5 hours spent on each case. A great improvement on certain offices now with 1 adjudicator.
  • Concurrent I-130 and I-601 filing is not available.
  • The concurrent I-485 and I-601 filing procedures will not change – Follow the local filing instructions.
  • Applicants cannot apply from Havana – must file with intrasection there (only 10 cases a year)
  • There could be certain situations overseas where USCIS offices are available and could be faster for expedites than lockbox decisions which are expected to take no more than 6 months on average.
  • Transition period for CDJ (Juarez) cases – between 75-79% are filed at CDJ. Now takes two months to review if instantly approvable. If not, the case referred to another office to adjudicate.  For the first six months of this new process, the applicant will have the choice to file at a Lockbox or at CDJ. After this, will then all go to Lockbox filings. So the CDJ Pilot Program will be over within 6 months of this procedure coming in effect.
  • As of today’s teleconference, USCIS is not sure if it will be transferring pending cases from consulates at the time the new procedure becomes effective or if USCIS offices abroad will continue to decide those pending cases.
  • Refiles as the Lockbox if the NBC denies the case will be available if the applicant chooses this route instead of appealing the denial to the USCIS Administrative Appeals Office which could take over a year.
  • LockBoxSupport@dhs.gov – for questions and to inquire about the lockbox status.
  • The main reason the waivers will be rejected will be for lack of signatures (must be original), lack of proper fees, and missing information like name, address, and DOB.  Must follow directions for submitting form with most recent directions.
  • Do not file the waiver before the interview or it will be denied.  An applicant may not file the waiver until they are given permission at the visa interview.
  • Officers conducting the visa interview will send inadmissibility and case information visa an electronic database to the Nebraska Service Center (NSC) so adjudicators will have the case information readily available.
  • If waiver submissions are duplicated (ex: one foreign filed and one US filed), the duplicated waiver will be sent to NSC so one officer will adjudicate the two waivers.
  • Additional evidence should be sent to the NSC, not to the Lockbox.
  • Not all of the officers are experience adjudicators, but they will be receiving training. If outside support is necessary, the support team will also receive training before they start adjudicating.
  • Applicant will receive decision by mail.
  • If waiver is denied and person chooses to refile instead of appeal, they applicant will not need a second interview but will be able to send a new waiver to the Lockbox.

 

 

Expedites:

 

  • Requests need to be made in writing and sent to the Lockbox.
  • Expedite request requirements will be the same as before.
  • No notification will be provided if denied
  • Cases needing immediate attention to adjudicate the I-601 will have to be discussed with eh consulate interviewing officer.

This is a positive step in streamlining how waivers are adjudicated and we hope that the decreased wait time will allow families to be unified faster than before.

 

Ruby L. Powers – I-601 Waiver Attorney – Houston Immigration Attorney

www.RubyPowersLaw.com

 


Twelve Things to consider about the Provisional Waiver – I-601A waiver

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

Twelve Things to consider about the Provisional Waiver – I-601A waiver 

Law Office of Ruby L. Powers – Immigration Law Firm focused on Waivers

  1. It is not yet available (as of April 2012), but everything points to it being available later in the year.
  2. You must already have an approved I-130 or I-360. It can’t be pending.
  3. If you are in removal proceedings, DHS is still considering how to address provisional waiver requests from individuals in removal proceedings.
  4. The standard of hardship for I-601 waivers will be the same for I-601A waivers.
  5. It only waives the unlawful presence bar that would be triggered upon leaving the US, thus no guarantee of readmission.
  6. Once approved, you still have to leave the US to attend the visa appointment.
  7. It does not provide lawful status while pending.
  8. It does not stop the accrual of unlawful presence (used in calculation of the bar).
  9. It provides no interim benefits like an EAD (employment authorization) or advance parole.
  10. Unlike the I-601 waiver, the I-601A is only for spouses and children of US citizens.
  11. Unlike the I-601 waiver which covers other ground of inadmissibility, the I-601A will only cover unlawful presence inadmissibility.
  12. We are all excited about this making the wait for family members a lot less!

I-601 Waiver Immigration Attorney Ruby L. Powers – April 12, 2012


Provisional Unlawful Presence Waivers – March 30, 2012 – I-601A waiver

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

Reminder: This proposed process is not in effect. To learn more, read this alert.

What USCIS Proposes

On March 30, 2012, U.S. Citizenship and Immigration Services (USCIS) posted a Notice of Proposed Rulemaking (NPRM) in the Federal Register requesting public comment on its plan to create an alternative process for certain immediate relatives of U.S. citizens to apply for and receive a provisional waiver of the unlawful presence ground of inadmissibility while still in the United States, if they can demonstrate that being separated from their U.S. citizen spouse or parent would cause that U.S. citizen relative extreme hardship. The goal of the proposed process change is to reduce the time that U.S. citizens are separated from their immediate relatives while those family members go through the consular process overseas to obtain an immigrant visa.

Why We Propose It

Currently, immediate relatives of U.S. citizens who have accrued a certain period of unlawful presence in the United States are barred from returning to the United States for as long as 3 or 10 years if they leave the country. Immediate relatives can obtain a waiver of the unlawful presence bar if they show that a U.S. citizen spouse or parent will experience extreme hardship if they are required to remain outside the United States. The immediate relative also would have to show that they warrant a favorable exercise of discretion.   But in order to obtain the waiver, these individuals must depart the United States and wait abroad while the waiver is processed.

Under the current process, therefore, U.S. citizens suffer unnecessarily long periods of separation while family members go through consular processing overseas to obtain an immigrant visa. The proposed process change lessens the length of separation by reducing inefficiencies in the current immigrant visa process. USCIS believes that this proposed change will streamline the immigrant visa process for immediate relatives whose only ground of inadmissibility is unlawful presence. USCIS plans to adjudicate the provisional waiver application in the United States before the immediate relative departs for his or her immigrant visa interview, which will reduce the length of time immediate relatives must spend abroad for consular processing.

What the Proposed Process Would Do

Under the proposed process, immediate relatives of U.S. citizens who would need a waiver of unlawful presence in order to obtain an immigrant visa could file a new Form I-601A, Application for Provisional Unlawful Presence Waiver, before leaving the United States to obtain an immigrant visa at a U.S. Embassy or Consulate abroad. All individuals eligible for this streamlined process are still required to depart the United States and must meet all legal requirements for issuance of an immigrant visa and admission to the United States.

An individual may seek a provisional unlawful presence waiver if he or she:

  • Is physically present in the United States;
  • Is at least 17 years of age;
  • Is the beneficiary of an approved immigrant visa petition (I-130) classifying him or her as an immediate relative of a U.S. citizen;
  • Is actively pursuing the immigrant visa process and has already paid the Department of State immigrant visa processing fee;
  • Is not subject to any other grounds of inadmissibility other than unlawful presence; and
  • Can demonstrate that the refusal of admission would result in extreme hardship to a U.S. citizen spouse or parent.

An immediate relative would not be eligible for the proposed process if he or she:

  • Has an application already pending with USCIS for adjustment of status to lawful permanent resident;
  • Is subject to a final order of removal or reinstatement of a prior removal order;
  • May be found inadmissible at the time of the consular interview for reasons other than unlawful presence; or
  • Has already been scheduled for an immigrant visa interview at a U.S. Embassy or Consulate abroad.

Allowing immediate relatives of U.S. citizens to receive provisional waivers in the United States before departure for their immigrant visa interview at a U.S. Embassy or Consulate means that:

  • Immigrant visa processing times will improve because of greater capacity in the United States and fewer case transfers between USCIS and the Department of State;
  • Immigrant visas will be issued without unnecessary delay (if the individual is otherwise eligible); and
  • The period of separation and hardship many U.S. citizens would face due to prolonged separation from their family members will be minimized.

Next Steps

This new process will be implemented only after USCIS publishes a final rule in the Federal Register with an effective date. USCIS will consider all comments received as part of the proposed rulemaking process before publishing the final rule. The current waiver process remains in place and will continue to remain for those who may not be eligible for a provisional waiver.

DO NOT file an application or request a provisional waiver at this time. Any applications filed with USCIS based on this NPRM will be rejected and the application package returned to the applicant, including any fees, until the final rule is issued and the change becomes effective.

For additional information, please see our I-601A Questions and Answers document, linked at the upper-right side of this page.

This page can be found at: http://www.uscis.gov/provisionalwaiver

 


So Close and Yet So Far: How the Three- and Ten-Year Bars Keep Families Apart

Posted on by Ruby Powers in Consular Processing, I-601 Waivers, Immigration Law, Immigration Trends, Legislative Reform, Processing of Applications and Petitions 1 Comment

From Immigration Policy Center

Most Americans take it for granted that marriage to a U.S. citizen and other family relationships entitle an immigrant to a green card, but there are barriers that often prevent or delay these family members from becoming lawful permanent residents, even if they are already in the United States.  Among these barriers are the “three- and ten-year bars,” provisions of the law which prohibit applicants from returning to the United States if they were previously in the U.S. illegally. Thousands of people who qualify for green cards based on their relationships to U.S. citizen or lawful permanent resident relatives leave the U.S. to obtain their green card are caught in a Catch-22—under current law they must leave the country to apply for their green card abroad, but as soon as they leave, they are immediately barred from re-entering the U.S. for three or ten years.

The Secretary of Homeland Security may waive the bar to admission if extreme hardship to a spouse or parent can be established.  But there are no waivers available for others, even if it would mean hardship for U.S. citizen children.  Unfortunately, current policies and interpretations of these provisions have made it difficult—and sometimes impossible—for many deserving applicants to obtain a waiver, especially if they initially entered the country illegally.  Under current DHS policy, applicants must apply for the waiver from abroad, sometimes waiting months or years in another country before they learn whether the waiver has been granted and whether they will be permitted to return to their loved ones in the United States.

In other words, immigrants who have a chance to legalize their status are not able to do so because of a combination of overly punitive immigration laws and the rigid interpretations of those laws currently followed by DHS and Department of State. Immigrants have to choose between leaving the country and taking the risk they might not be able to return, or remaining in the country illegally.  Where waivers are available, many of the immigrants most likely to be able to show extreme hardship are afraid to leave the country precisely because of that hardship.  For example, a wife with a disabled husband must choose between departing the United States to get right with the law or taking care of her U.S. citizen husband.

Many have argued that the process need not be so complicated or unforgiving and that changes in existing policy could allow for the consideration of waivers before the applicant departs the United States.  In order to understand how this issue affects the immigration debate, this IPC Fact Check provides background on the three- and ten-year bar issue.

What Are the Three- and Ten-Year Bars?

Sections 212(a)(9)(i) and 212 (a)(9)(ii) of the Immigration and Nationality Act (INA) impose re-entry bars on immigrants who are present in the U.S. illegally for a period of time, leave the U.S., and want to re-enter lawfully.  An immigrant who enters the United States without inspection (illegally), or who overstays a period of admission by more than 180 days, but less than one year, and who then departs the U. S. voluntarily, is barred from being re-admitted or re-entering the United States for three years.  If an immigrant is in the country illegally for more than one year, a ten year bar to admission applies.

Who Must Leave the U.S. for a Green Card and Why?

U.S. citizens and legal permanent residents may petition for green cards for certain family members.  Sometimes the immigrant family members are outside of the U.S. when the petition is filed and when the visa becomes available, and sometimes those family members are already residing within the U.S. while they wait for their petition to be adjudicated and their visa to become available.  Those in the U.S. may be here legally on a visa, or they may have come on a visa but that visa expired, or they may have entered the U.S. without proper documentation.

If the applicant for a family-based green card is the spouse, parent, or child under age 21 of a U.S. citizen (immediate relatives) AND if the applicant entered the U.S. with a valid visa (such as a visitor or student visa), that applicant may, in most cases, get their green cards in the U.S. through a process called “adjustment of status.”

However, all other people applying through the family-based system must go abroad and apply for their visa at a U.S. consulate in a procedure known as “consular processing.”    The adult children and siblings of U.S. citizens, as well as the spouses and children of legal permanent residents, must leave the country to get their green cards, whether they initially entered on a legal visa or not.

Are Waivers of the Three- and Ten-year Bars Available?

A waiver of the three- or ten-year bar is available only where extreme hardship to an applicant’s citizen or permanent resident spouse or parent can be established.  Hardship to the immigrant himself is not a factor, and hardship to the immigrant’s children is not a factor (even if the children are U.S. citizens).

The current system for processing and adjudicating these waiver requests requires immigrants to leave the U.S. and receive a formal determination of inadmissibility by a U.S. consular officer before a waiver application can even be submitted. Then the immigrants must apply for waivers of the three- or ten-year bar from outside the United States. In Ciudad Juarez, Mexico, one of the busiest consulates handling green card applications and waivers, there is currently a two to three month wait between submitting an application to the State Department and receiving a waiver interview with a USCIS representative.  Approximately half of those applications can be decided immediately while the rest are sent to the United States for further review; the waiting time for that review can vary significantly, but averages at least another twelve months.  Of course, not all waivers are granted, and those immigrants may not reunite with their family members for years. An appeal of a denied waiver can take up to 28 months or longer before the Administrative Appeals Offices adjudicates the appeal. This means longer periods of separation for family members.

What is wrong with the waiver process?

The current process is filled with inefficiencies and uncertainties.  It prevents a portion of the unauthorized population from getting legal status.  It breaks up families—often for a prolonged period of time.  It also exposes thousands of people to violence and danger because most waivers are filed in Ciudad Juarez (approximately 75% of the 22,000 I-601 waivers filed in 2009 were processed through Ciudad Juarez), a consulate located along the U.S.-Mexico border.  The city is wracked by drug violence, and the Department of State has issued travel advisories urging citizens to avoid Ciudad Juarez.

Other critical weaknesses in the system include:

  • Requiring adjudication of the I-601 waiver only AFTER departure from the United States.  The three- and ten-year bars to admissibility take effect only after an individual has left the United States.  But USCIS officers may not consider waiver applications while an individual is in the U.S.—even if available evidence clearly establishes that departure from the United States will, in fact, make a waiver application necessary.
  • Processing delays even in the best of circumstances.  Approximately 49% of waivers are adjudicated and granted within seven days at Ciudad Juarez.  The rest have to remain in Mexico for up to 12 months or until the waiver is approved.  Overseas processing is enormously complicated and bureaucratic.  An applicant must first meet with a consular officer from the Department of State (DOS), be told that a waiver is required, wait for the case to be referred, obtain and wait for the appointment with USCIS, wait for the adjudication, and then get a new appointment with DOS if the adjudication is granted.  Current wait times for the initial appointment with USCIS are 2 to 3 months, meaning that even under the best of circumstances, an applicant will have to be outside the U.S. for at least 3 months.
  • Uneven application of the extreme hardship standard.   Extreme hardship in the waiver context is determined by an analysis of the totality of the circumstances affecting the U.S. citizen or permanent resident relative who filed the petition.  Over the years, case law has led to a series of generally considered factors, including family ties, age, health, financial impact and country conditions.  Because the standard is subjective, it is open to a wide range of interpretations, making it difficult for applicants to know what materials or arguments should be submitted. This can extend the process significantly if you don’t “get it right” the first time the waiver is submitted.
  • Inefficiency and high costs.  Posting additional U.S. officers overseas to adjudicate cases and shuttling applications for waivers between agencies costs the government money and time.   The State Department currently charges USCIS $131 simply to receive and transfer each application for a waiver to USCIS.

What can be done?

  • Repeal three- and ten-year bars.  Congress can repeal the portions of the INA that created the bars in 1996, and this would eliminate the catch-22 inherent in obtaining a green card.
  • Allow applicants who entered as minors to adjust status within the U.S.  Immigrants who entered the U.S. as minors were often brought by their parents, due to no fault of their own.  They may never have visited the country of their birth, have no support networks there, and may not even speak the language.  These applicants should not be forced to return to a country they do not know and face the possibility of separation from their family members.
  • Adjudicate hardship waivers in the U.S.  It is possible to create a process that would minimize the length of time an immigrant would have to spend outside the U.S. and minimize the risk of being barred from re-entry.  Hardship waivers could be processed in the U.S.  Once the I-130 petition for a green card has been approved, the applicant could submit a hardship waiver application for pre-adjudication.  USCIS could review, request additional evidence, and issue a recommended approval that would be transmitted to DOS for final adjudication.  That way, when the immigrant leaves the U.S. to go to the consulate, he would already know whether the hardship waiver has been conditionally approved.
  • Expand guidance on the extreme hardship standard.   USCIS is already engaged in a review of the extreme hardship standard based on complaints that it is not consistently applied.  The agency should share the results of that review and solicit public feedback and comment and should then establish clear guidelines for making extreme hardship decisions.  Centralizing all waiver adjudications within the U.S. could have the added benefit of ensuring greater quality control and a more consistent standard, especially if waiver adjudications were consolidated into a special unit within USCIS.

Conclusion

Critics of the three- and ten-year bar find the penalties themselves unnecessarily harsh, but the existence of a waiver for spouses and children means that many families can be re-united.  The real issue involves the ease with which waivers can be processed.  While there may be disputes about how far the agency can go to address the impractical and harsh consequences of the three-and-ten-year bar, numerous legal experts believe that the agency has the authority to determine waiver requests while the applicant is still within the United States.  Taking this action promotes both family unity and government efficiency.

Revisiting current interpretations of laws like the three- and ten-year bars will not change the need for comprehensive immigration reform, but it will allow more people who are already eligible to obtain a green card the chance to do so without undermining existing laws.


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