Bustos Law Firm

Obama Administration Implements Common Sense Change in Immigration Law

In Immigration on January 14, 2013 at 5:10 PM


After months of waiting, the final rule on the provisional waiver was published in the Federal Register last week on January 3, 2013, and it will become effective on March 4, 2013. The “Provisional Unlawful Presence Waiver of Inadmissibility for Certain Immediate Relatives” rule, often referred to as the new family unity rule, allows immediate relatives  of U.S. citizens, who entered the country without permission, to apply for a waiver of their unlawful entry while still in the United States.  DHS initially proposed the change in procedure last April, as a solution to a growing problem—families were facing months, and in some cases, years of separation because of two conflicting provisions of U.S. immigration law.

BACKGROUND – Under the Immigration and Nationality Act (INA), a person seeking to get a green card must first be admitted or paroled into the country, if they wish to have their case decided in the U.S. If they entered the country unlawfully, however, they are deemed inadmissible and the law requires them to go to a U.S. embassy or consulate abroad for processing of their visa application, and to get a waiver for their unlawful presence, before they can return to the United States.

People are deemed inadmissible if they are “unlawfully present” in the U.S. for six months after April 1, 1997, subsequently leave the U.S., and then seek admission by applying for an immigrant or nonimmigrant visa from abroad. Such persons are subject to a three year bar to re-entering the country, which requires the unlawful presence waiver, before they can return to the U.S. The bar to reentering the country is ten years if they were unlawfully present for one year or more after April 1, 1997.

Under past practice, an individual applied for their unlawful presence waiver with U.S. Citizenship and Immigration Services (USCIS), only after having been found inadmissible by a consular official abroad.  This process was generally time consuming, inefficient, and often costly, particularly because it lengthened the amount of time families were apart by several months, and even years, while USCIS made a decision on the waiver — and, of course, sometimes these waivers are not approved at all, and people become permanently separated from their families in the United States. As a result, many couples who need this waiver have chosen to lay low in the United States, rather than go through the waiver process abroad and risk facing the ten year ban.

NEW PROCESS – Under the new provisional waiver process, eligible immigrants will now be able to apply for their waivers in the United States (only as to certain unlawful presence inadmissibility grounds), and if approved, they will receive their waiver before leaving the United States. Having the waiver in hand, before leaving the United States, will allow immigrants to depart the United States for the green card process, knowing they will almost certainly be allowed to return home to the United States to be with their families. In other good news, USCIS is also seeking to cut down on the amount of time immigrants will have to wait abroad to pick up their green card….from the current wait time of several months, to a much more manageable wait time of about two weeks.

ELIGIBILITY – In order to be eligible to apply for the new provisional waiver, the applicant must be:

  • An immediate relative of a U.S. Citizen (spouse, child, parent);
    The beneficiary of an approved immediate relative petition ( Form I-130);
    17 years of age, or older;
  • Upon departure from the U.S. – will be subject to the unlawful presence ground of inadmissibility only. (If additional waivers for other grounds of inadmissibility are required, the applicant will not be eligible to use the provisional waiver process);
  • Present in the U.S. at the time of filing the application for the provisional waiver and for biometrics collection at a USCIS Application Support Center;
  • Has a case pending with the Department of State (DOS), based on the approved immediate relative petition, and has paid the immigrant visa processing fee; and
  • Show extreme hardship to their U.S. citizen spouse or parent, if the applicant cannot return to the United States, or if they have to relocate outside the U.S. to be with the applicant.“Extreme hardship” is vaguely defined as greater than the normal hardship a qualifying relative can be expected to experience if the immigrant is denied admission. It is important to prove BOTH why the qualifying relative cannot move abroad AND why the qualifying relative cannot simply live in the US without the Alien. It is not enough to merely assert that the qualifying relative will miss the immigrant’s company, as this is considered a “normal” hardship, not extreme hardship.

Arguments for Extreme Hardship in the United States

Some of the more common arguments for extreme hardship when your relative remains in the United States include, but are not limited to:

  • Your relative has a medical condition and depends on you for care.
  • Your relative is financially dependent on you and you will not be able to provide adequate support from abroad.
  • Your relative has financial debts in the United States and cannot pay them without your support.
  • Your relative has a sick family member and will be unable to care for that person without your support.
  • You are the caregiver for your relative’s children and he or she cannot afford childcare in your absence.
  • Your relative is experiencing clinical depression as a result of your immigration situation.

 Arguments for Extreme Hardship Abroad

Some of the more common arguments for extreme hardship when your relative accompanies you to your home country include, but are not limited to:

  • Your home country is in or on the verge of war and/or political upheaval.
  • Your relative has a serious medical condition that cannot be adequately treated in your home country.
  • Your relative will be discriminated against in your home country.
  • Your relative does not know the language of your home country.
  • Your relative is a primary caretaker for a sick family member in the United States.
  • Your relative will be unable to secure gainful employment in your home country.
  • Your relative’s educational progress will come to a halt.
  • Your relative has children from a previous relationship who will not be allowed to live or visit your home country due to custody issues.
  • Your home country has a high rate of violence.
  • Your relative has financial debt in the United States that cannot be paid from your home country.

In addition to these eligibility requirements, the Department of State must also not have acted to schedule the immigrant visa interview for the applicant before the publication of date of the final rule in the Federal Register, January 3, 2013. Those ineligible to file under this rule, however, may still be able to file a provisional waiver if, for example, a new I-130 relative petition is filed with USCIS by a different petitioner on their behalf.

How Many Waivers Does USCIS Typically Approve?

In Fiscal Year 2011, USCIS received 23,262 I-601 waiver applications, and approved 17,790 of them…. roughly a 76 percent approval rate. According to USCIS, however, the approval rate in Ciudad Juarez, Mexico last year was even higher….closer to 90 percent.

What Happens if My Wavier is Denied?

Individuals whose waivers are denied will be subject to USCIS guidance and law enforcement priorities for issuing Notices to Appear (NTA) in immigration court.  For example, convicted criminals, public safety threats, and those suspected of fraud, among others, will receive NTAs to appear in Immigration Court for removal proceedings.

However, anyone else who is denied an I-601 waiver will have the choice to either abandon the process (while still remaining in the United States) or appeal the denial — while staying in the United States for the two or three years it typically takes to adjudicate the appeal.

Of course, the I-601 waiver does not guarantee admission into the United States, as the U.S. Consulate can always, after the initial consular interview, discover new grounds of inadmissibility, which may not have an applicable waiver to cure the specific ground of inadmissibility.

The bottom line is that those who abandon the waiver process, or who have their waiver appeals denied, if not priority cases for ICE, will be back to square one—undocumented and married to U.S. Citizens. But at least they will be with their families in the United States, rather than separated from them, or forced to move under duress.

EFFECTIVE DATE – The new process will become effective on March 4, 2013. The filing fee is $585 for the I-601A provisional waiver form. No filings will be accepted by USCIS before this date. The projected processing time for the waivers will be approximately four months.

Please see here for the final rule: http://tinyurl.com/as4fld8.

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