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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.


USCIS Seeks to Unify Families Facing Separation through Revised Waiver Process

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

From Immigration Impact

Today, the administration took another important step toward fixing one of the most notorious problems with our broken immigration system—the 3 and 10 year bars. The U.S. Citizenship and Immigration Services (USCIS) announced today that it was filing a notice of intent to change a rule which would streamline the application process for many relatives of U.S. citizens currently eligible for permanent resident status, thereby minimizing the amount of time that applicants would have to be away from their families before being admitted into the United States.

Under current rules, thousands of people who qualify for legal status must leave the U.S. to obtain their permanent resident status, but as soon as they leave, they are immediately barred from re-entering the U.S. for 3 or 10 years because of their unlawful presence in the United States. Many are eligible for a family unity waiver (which waives the bar to admission if extreme hardship to a spouse or parent can be established), but the way the law is currently implemented, the waiver can only be applied for from overseas That process can often take many months or even years, deterring otherwise eligible applicants from applying for legal status who instead remain unauthorized in the U.S. rather than risk separation from their families. (For more information on 3 and 10 year bar, see this fact sheet by the Immigration Policy Center.)

Under the proposed “in-country processing” rule change, spouses and children of U.S. citizens who apply for residence, but need a family unity waiver to re-enter the United States, will be allowed to apply for the waiver without leaving the U.S. The new rule seeks to help only spouses and children of U.S. citizens, not spouses and children of legal permanent residents, and does not alter or revise the eligibility standards for green cards or waivers. The proposed new rule would only affect persons whose sole need for a waiver is based on having lived in the U.S. without authorization (persons seeking a waiver on other humanitarian grounds must still leave the U.S.)

This “in-country processing” proposal means that USCIS could grant a provisional waiver here in the U.S, and many applicants would not face the same waiting period outside the country.  It is important to note that applicants would still be required to depart from the U.S. before receiving final approval and legal status.  But eligible immigrants will be encouraged to go through the process rather than remain unlawfully in the U.S.

Although the actual rule change will not go into effect for several months—a “notice of intent” to change the rules governing the adjudication of waivers for the 3 and 10 year bars was published in today’s Federal Register and will be followed by a call for comments and a comment period—the revision will make a huge difference in the lives of many U.S. families.

Applicants currently face long separations from their U.S. citizen family members as well as dangerous situations while they wait.  Many waivers are processed in Ciudad Juarez, Mexico, a city wracked with violence over the last several years.  This small step of allowing these family members to apply for and receive waivers inside the U.S. may save them from long, potentially dangerous separations from their families.

Some may argue that this rule change is an example of the president overstepping boundaries and bypassing Congress to reform the immigration system. These claims are wrong. While Congress writes the laws—including the 3 and 10 year bars—the executive branch decides how to execute the laws through rules and regulations which align with their priorities and current agency resources.  The waivers are currently processed overseas because of an administrative rule, and the current administration has every right to change that rule, just as all administrations before them.

The Obama administration is proposing a rule change that will partially ameliorate one of the most contradictory rules of immigration law, thereby encouraging legal immigration and helping to keep U.S. families together.


Proposed Rule Change Will Unify Families Subject to 3 and 10 Year Bars

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

From American Immigration Council

 
January 6, 2012 

Washington D.C. – Today, U.S. Citizenship and Immigration Services (USCIS) announced a proposal to streamline the application process for the spouses and children of U.S. citizens currently eligible for legal permanent resident status, minimizing the amount of time that applicants would have to be separated from their families.  Under current procedures, thousands of persons who qualify for legal status must leave the U.S. to obtain their permanent resident status, but as soon as they leave, they are immediately barred from re-entering for 3 or 10 years if they have been unlawfully present in the U.S. for more than 180 days.  Many are eligible for a family unity waiver, but under current rules (not law), the waiver can only be applied for from overseas.  Because that process can often take many months and even years, it is believed that many otherwise eligible applicants do not apply for legal permanent resident status, remaining unauthorized in the U.S. rather than risk lengthy separation from their families.

Published in the Federal Register today, the proposal—or, at this point, a “notice of intent to issue a rule”— recognizes this Catch-22 by revising the procedures for determining the family unity waivers for spouses and children of U.S. citizens. However, the rule change will not cover spouses and children of legal permanent residents. Under this “in-country processing” proposal, which must still go through the formal rule-making process, spouses and children of U.S. citizens who apply for legal permanent residence and need a family unity waiver to re-enter the U.S. will be allowed to apply for the waiver without first leaving.  This process does not alter or revise eligibility standards and only affects persons whose sole need for a waiver is based on having been in the U.S. without authorization.

This “in-country processing” proposal would permit USCIS to grant a provisional waiver, eliminating the often prolonged wait that many applicants currently face when they seek a waiver outside the U.S.  Although applicants would still be required to depart from the U.S. before receiving final approval on their application, pre-processing of the family unity waiver will encourage applicants to come forward and create a faster and safer means for processing applications.

The emphasis on safety is particularly important, given the large number of applications processed in Ciudad Juarez, Mexico, a city that has been wracked with violence in recent years.  Numerous cases of violence against persons waiting for their waivers have been reported, increasing the urgency of implementing the new rule quickly.  For other applicants, the streamlined process will minimize the time away from family members, reducing the possibility of economic and other hardships caused by long separations.

Our current immigration laws are riddled with inconsistent and conflicting provisions which have the absurd result of discouraging legal immigration.  Some of the most notorious are the bars to returning to the U.S. after a period of unlawful presence, even if a person has a legitimate relationship to a U.S. citizen.   Today’s announcement does not eliminate the bars, but it recognizes that there is no practical reason for forcing the spouses and children of U.S. citizens to wait outside the country for months or even years while their application for a waiver is pending.

According to Benjamin Johnson, Executive Director of the American Immigration Council, “By proposing new rules for processing waiver applications for spouses and children of U.S. citizens, USCIS has shown a commitment to addressing one of the most notorious implementation problems in our current immigration system.  Improving this system, within the framework of the law, is the legitimate role of any administration.  We commend USCIS for embarking on this rule change and its other attempts to bring efficiencies and fairness to the immigration system.”


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.


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


Here are the 10 Things You Should Know about DHS’s Announcement:

Posted on by Ruby Powers in DREAM Act, Immigration Law, Immigration Trends, Interior Enforcement, Legislative Reform Leave a comment

Great list brings the info down to 10 key points, from Reform Immigration for America blog posting:

 

Here are the 10 Things You Should Know about DHS’s Announcement:

  1. All 300,000 cases currently in deportation proceedings will be reviewed by senior DHS officials. Immigration judges and ICE trial attorneys will also be reviewing their cases on a daily and weekly basis to make sure that any case that goes forward is consistent with DHS enforcement priorities.
  2. This announcement is DHS’s attempt to “unclog” the deportation case log by removing “low-priority” cases in order to focus on individuals who pose serious dangers to our communities and our country.
  3. “High-priority” individuals include, but are not limited to, those who pose a serious threat to national security, are serious felons and repeat offenders, are known gang members, or have a record of repeated immigration violations.
  4. “Low-priority” individuals include, but are not limited to, veterans; long-time, lawful residents; DREAMers and others brought to the US as children; pregnant women; victims of domestic abuse and other serious crimes; and spouses, including LGBT spouses.
  5. Individuals in deportation proceedings who are deemed “low-priority” will get a letter from DHS stating their case has been administratively “closed”.
  6. Those whose cases are closed can apply for a work permit program. Decisions about work permits will be made on a case-by-case basis. Undocumented immigrants not in deportation proceedings cannot seek work permits.
  7. Individuals SHOULD NOT attempt to be placed in deportation proceedings in order to apply for a work permit.
  8. If implemented properly, these individuals will not be placed into deportation proceedings in the future so long as this policy is in place.
  9. The announcement does not change programs such as 287g and Secure Communities.
  10. This is not “back-door amnesty” as our opponents will claim. This is a procedural change in the implementation of DHS’s enforcement policies to target only those who pose serious threats to the US and those with long criminal records.

House Unanimously Amends Immigration and Nationality Act

Posted on by Ruby Powers in Immigration Law, Legislative Reform Leave a comment

The New York Times reports that the House passed, by a 426-0 vote, HR 398, to amend the Immigration and Nationality Act to toll, during active-duty service abroad in the Armed Forces, the periods of time to file a petition and appear for an interview to remove the conditional basis for permanent resident status.

http://politics.nytimes.com/congress/bills/112/hr398


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