Seguritan US Immigration Articles

What You Need to Know About Deportation

President-elect Donald Trump has softened his stance on immigration. During his campaign, he vowed to deport all the 11 million undocumented immigrants. In a recent interview however, he said that he would prioritize the removal of the 2 to 3 million with criminal records.

Focusing on undocumented immigrants with criminal records has also been the thrust of outgoing president Barack Obama. In 2015, Secretary of Homeland Security Jeh Johnson said that the focus of the agency’s limited resources was in combating threats to national security, public safety and border security rather than expending funding on individuals charged with minor crimes like traffic violations.

Back in 2011, the government deported a record-high of 396,906 individuals, 90% of those removed were criminals and repeat immigration law offenders. Fast forward to fiscal year 2015 and total deportations declined to 235,415, according to a report dated December 22, 2015 from the Department of Homeland Security (DHS). As of July 2016, ICE has completed 168,781 deportations, a slight decline from the same point in 2015.

While this trend and Trump’s latest pronouncements may ease the worries of some people, it must be noted that those who are without lawful immigration status may still be placed under removal proceedings. It is therefore important for them to know what to do when facing deportation. An increase in sweeps or workplace raids may occur in the coming months.

Contrary to popular belief, unless subject to expedited removal an alien is generally entitled to court proceedings before being removed. Removal proceedings typically start with the service of a notice to appear (NTA) upon the alien.

The NTA specifies, among other things, the alleged immigration violation, the charge against the alien and the specific provision/s of the law alleged to have been violated, and the time and place of the hearing. An NTA may be served in person or by mail. As non-citizens are required to notify the USCIS of any change of address within 10 days of the change, in many cases the ICE may simply mail the NTA to the alien’s last addresses and it would be considered valid service.

If served with an NTA, the alien is strongly advised to consult an immigration lawyer because being placed under removal proceedings is a serious matter. An immigration lawyer can tell him whether proceedings can be terminated because of a problem with the NTA on its face or in the way that it was served. The lawyer can analyze the facts of the case, explain what options may be available, and if the alien would be eligible for a relief from removal. Reliefs include voluntary departure, asylum, adjustment of status and cancellation of removal.

The alien must attend the scheduled master hearing, which is a preliminary hearing where the charges are read and the alien is asked to admit or contest the allegations and whether he intends to seek relief from removal. An individual hearing is scheduled if the case will be heard on the merits.

The alien may be represented by an attorney at the master and individual hearings. However, unless provided pro bono services by a volunteer attorney or by a non-profit organization, any legal representation will be at the alien’s own cost because there is no right to government-appointed counsel in immigration cases.

The alien must keep the immigration court updated of any change of address and must attend his hearings. If he fails to notify the court of an address change, and because he did not receive correspondence he fails to attend a hearing, the proceedings may continue and may result in the alien being ordered removed in absentia.

 

DREAMERS’ Dilemma: To File or Not to File for DACA

Young immigrants known as Dreamers are in a dilemma after the election of Donald Trump as president. Should they file for DACA? Should those with DACA status file for renewal or travel under advance parole?

DACA (Deferred Action for Childhood Arrivals) is an executive action which was announced by outgoing US President Barack Obama back in June 2012 following the failure of the DREAM Act’s passage into law. It is lacking the force of law, and operating under the enforcement discretion of the Department of Homeland Security (DHS), USCIS and the Immigration and Customs Enforcement (ICE). It does not guarantee a path to citizenship but rather defers deportation to those who came to the US before turning 16 years old and have continuously resided in the country, gone to school and have no criminal records.

While it has helped a lot of young immigrants obtain work permits and travel authorization and be protected from deportation during Obama’s presidency, the reality is that executive actions can easily be undone by the next president. With Trump’s platform on undocumented immigrants, it is highly likely that he will end this executive action.

If and when Trump decides to totally scrap DACA, there is still uncertainty as to how USCIS will handle the situation. It is possible that if USCIS will terminate DACA completely, those holding valid work permits will no longer be able to renew. It is possible that the employment authorization and advance parole may remain valid until its expiration.

As of now, it is unclear if Trump will scrap the DACA immediately upon his assumption into office. Given that it usually takes about nine months for an initial DACA application to be adjudicated, it is safe to assume that any new application will not be adjudicated prior to his assumption in office on January 20, 2017. On the other hand, renewals of DACA application are processed quicker.

Thus, to avoid paying the DACA fees with no guarantee that it will not be rescinded, it may be best to defer any new initial DACA application until Trump has completely laid down his stand on the matter. On the other hand, those who plan to renew may opt to submit their DACA renewal as soon as practicable.

For DACA recipients who also intend to travel abroad but have not yet applied for their advance parole, any new Form I-131 application may not be adjudicated prior to January 20 given the current processing times. DACA recipients with advance parole should complete their travel and return to the US as soon as practicable and before January 20 to avoid any problems coming back. One should also bear in mind that the grant of an advance parole does not guarantee admission to the US. DHS may revoke or terminate any advance parole at any time.

Those intending to apply for the first time also have to take into consideration the risk they may be putting themselves into. Because DACA was created through an executive action, there is no statutory provision guaranteeing confidentiality. In fact, it somehow encourages people to come out from the shadows and divulge pertinent information like workplace or school location, in exchange for the promise of deferred deportation and protection. While the information disclosed in a DACA request is protected from disclosure to ICE and Customs and Border Patrol (CBP) for immigration enforcement purposes, there is no guarantee that this will remain the same in the coming months.

What is clear is that those who already applied for DACA already have their information in government hands. Thus, it does not appear that if one were to renew his DACA, that he will put himself in any additional risk. On the other hand, the submission of an initial application at this time would require disclosure of pertinent information that could potentially be used in case of sweeps or workplace raids that may be conducted later on.

What To Expect from Trump on Immigration

Donald Trump’s election as president has caused fear and anxiety in immigrant communities across the US.

It is no secret that central to his campaign was his hard-line stance on immigration. He vowed to deport 11 million undocumented immigrants, build a wall on the US-Mexico border and make the Mexican government pay for it, triple the number of ICE agents, end sanctuary cities and suspend the issuance of visas to certain countries.

In a post-election television appearance on the CBS program “60 Minutes”, he reiterated the same promises and vowed to turn his campaign slogan into concrete actions and move forward with an aggressive policy to deport immigrants. He softened his tone a little bit by saying that he would go after two to three million undocumented aliens who are “criminals and have criminal records”.

But he did not elaborate on how he would hunt down his deportation targets. Some fear that a deportation force would be created to conduct sweeps or raids in homes and in the workplace.

He has reportedly started to assemble his immigration team and this includes at least two notorious anti immigrant activists, Kris Kobach, architect of anti immigrant laws in Arizona and Alabama and Danielle Cutrona, Senator Jeff Session’s counsel, who is avowedly anti immigrant.

Now more than ever, undocumented immigrants fear deportation and separation from their families. Immigration lawyers are likewise experiencing a surge of panic-stricken families who are anxious about their future. Even Filipino migrant workers are also worried about their jobs especially since Trump has espoused a more protectionist stance and that includes “bringing jobs back to Americans.” Filipino workers fear that their contracts may abruptly end when the new president assumes office in January. Immigrant workers whose petitions are now pending are likewise anxious that they may not be able to make it here due to Trump’s statement last August 4 in his campaign in Portland, Maine tagging nine countries, including the Philippines, as terrorist nations.

To what extent will he be able to muster his executive might to be able to fulfill his ideas to “make America great again”?

We can expect that Trump will muster his executive might by way of executive actions. He will undo Pres. Obama’s policy on Deferred Action for Childhood Arrivals (DACA).As a result, more than 700,000 young immigrants who came to the US before turning 16 and have stayed here since June 15, 2007 will find themselves in a limbo. It is very unfortunate because they have long ties with the US and have already considered it to be their home and if Trump will push through with scrapping DACA, they will not be able to attend school or find work.

It is also to be expected that Trump will totally scrap Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) which is now on hold following a preliminary injunction placed by the lower Texas court and upheld by the Fifth Circuit Court. This is sad news for those who have no lawful immigration status although they have continuously resided in the US since January 10, 2010 and have a US citizen or LPR son or daughter. Immigrant rights advocates fear that scrapping DACA and DAPA altogether will disrupt family unity and ultimately become economically disadvantageous. This would mean separation of families among affected immigrants. This could also adversely affect businesses and the local economy as certain sectors like agriculture are dependent on the labor force provided by the immigrant population.

Disappointing Ruling on DAPA and DACA+

Without any explanation, the US Supreme Court gave Pres. Barack Obama’s immigration initiatives another blow as it denied last Oct. 3 a petition to rehear United States v. Texas, also known as the DAPA and DACA+ case.

Back on June 23, the High Court came to an even 4-4 decision on the preliminary injunction placed by the lower Texas court and upheld by the Fifth Circuit Court upon DAPA and DACA+ essentially putting a stop to these programs in the whole country. The evenly split decision came about because the High Court was missing its ninth member following the death of Justice Antonin Scalia early this year.

On July 18, the Department of Justice filed with the US Supreme Court a petition to rehear the case and argued that although it was exceedingly rare, the Supreme Court had granted a rehearing in the past where the prior decision was issued by an evenly divided court and that it “appeared likely that upon reargument a majority one way or the other might be mustered.”

It is a disappointing decision for the millions of undocumented immigrants who have been waiting for DAPA and DACA+ to provide them a reprieve from deportation and an authorization to work. Many immigration advocates are also saddened by this news.

However, the American Immigration Lawyers Association (AILA) through its President William A Stock remains optimistic. “This case is far from over. Once a more complete record of the merits of Texas’ claims is created, we are confident that when the case is once again back on the Supreme Court docket, the Court will show appropriate deference to the executive branch and not legislate from the bench by enjoining this program permanently,” said Stock.

DAPA would have temporarily deferred deportation for those who have a US citizen or LPR son or daughter as of November 20, 2014 and who have continuously resided in the US since January 1, 2010 but with no lawful immigration status. As long as they had no criminal convictions and have passed a background check, these undocumented immigrants could benefit from DAPA.

DACA+ eliminated the age requirement of DACA and pushed the arrival date to January 1, 2010. It must be recalled that DACA was first introduced by the Department of Homeland Security (DHS) back in 2012. Under this program, those under 31 years old on June 15, 2012, have arrived in the US before becoming 16, have continuously resided from June 15, 2007 to the present, are either in school, have graduated or completed high school or a general education development (GED) certificate, or are honorably discharged veterans of the US Coast Guard or US Armed Forces and have not been convicted of a felony could have deferred action or deferred deportation.

With immigration policy being among the salient battleground in this year’s presidential elections—with the two parties clutching the opposite ends of the pole, undocumented immigrants cannot rest easy. While Democratic presidential candidate Hillary Clinton promises to continue Pres. Obama’s immigration initiatives, the denial of the rehearing could also affect any further steps she may take. There is also Republican presidential candidate Donald Trump’s incessant vow to put a stop to Pres. Obama’s initiatives because of what he deems as a railroading of the country’s immigration laws.

Expanded Provisional Waiver to Benefit Thousands

The United States Citizenship and Immigration Services (USCIS) announced last July 29 the expansion of the existing provisional waiver program to include all individuals who are statutorily eligible for the waiver of the unlawful presence ground of inadmissibility. The new rule, which will take effect on August 29 will benefit thousands who are not eligible to file for adjustment of status.

Before the first provisional waiver program took effect on March 4, 2013, applicants who had incurred unlawful presence in the US for more than 180 days, and were not eligible to adjust their status, had to go back to their home country to process their visa application there. They included fiances who entered on a K-1 visa but did not marry their petitioner and also crewmen and EWIs (those who entered without inspection) who were not grandfathered under Section 245(i).

Their departure from the US triggered the three or ten year bar. They were allowed to apply for a waiver of their unlawful presence but this took months, if not over a year. They had to appear first at the visa interview, wait for the denial of their visa application and then file for the unlawful presence waiver from outside the US and wait for its approval there. This discouraged many because of the risks, costs and hardship involved so instead of applying for a green card, they opted to remain undocumented.

To alleviate the hardship brought about by the lengthy family separation, the provisional waiver was introduced. It allowed them to apply for the waiver before their departure to process their immigrant visa application abroad.  However, the 2013 rules only applied to immediate relatives (spouses and children of US citizens and parents of adult US citizens) who can show that their separation would cause “extreme hardship” to their US citizen spouse or parent.

The new rule would cover visa applicants who can show extreme hardship to a US citizen or lawful permanent resident spouse or parent whether their visa petition is family-based or employment-based.

The provisional waiver covers unlawful presence and no other ground of inadmissibility. The application would be made on a new form, Form I-601A Application for Provisional Unlawful Presence Waiver.

Individuals who are not eligible for the provisional waiver would still be able to apply under the old waiver procedure, i.e. depart from the US and apply for the I-601 waiver abroad.

Note that the waiver is provisional in that it would not take effect until after the applicant departs the US, appears at his visa interview and is found by the consular officer as otherwise admissible to the US. But the time that the individual would have to spend abroad would be significantly less compared to that under the old procedure.

We have recently represented a fiancée and also a crewmember and we successfully obtained their provisional waiver in only a few months. They went to Manila for their visa interview and came back with their green card after only a few weeks of stay there.

DOJ Petitions For Rehearing of DAPA/DACA+ Case

It may not yet be end of the road for the Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) and the expanded Deferred Action for Childhood Arrivals (DACA+). On July 18, the Department of Justice filed with the US Supreme Court a petition to rehear United States versus State of Texas.

In its petition, the Department of Justice argued that “the Court should grant rehearing to provide for a decision by the Court when it has a full complement of Members, rather than allow a nonprecedential affirmance by an equally divided Court to leave in place a nationwide injunction of such significance.”

The petition underscored that although it is exceedingly rare, it is not a new practice for the Court to grant a rehearing. In the past, it has also granted rehearing in other cases especially when the court was unable to obtain a decision due to a vacancy. It was not also uncommon that upon reargument, a majority vote was arrived at.

The petition highlighted the immediacy of the resolution of the case. With the Supreme Court’s deadlock on the issue, the preliminary injunction issued on February 16, 2015 by US district court Judge Andrew Hanen which was later affirmed on appeal by the Fifth Circuit, stays. And although the Fifth Circuit is only made up of three states— Texas, Louisiana and Mississippi, the injunction nevertheless effectively halted the implementation of the two immigration initiatives introduced by Pres. Barack Obama back in 2014.

“The preliminary injunction prohibits the government from implementing the Guidance anywhere nationwide; there is no reason to expect that the district court would issue a permanent injunction that is narrower. Unless the Court resolves this case in a precedential manner, a matter of ‘great national importance’ involving an ‘unprecedented and momentous’ injunction barring implementation of the Guidance will have been effectively resolved for the country as a whole by a court of appeals that has divided twice, with two judges voting for petitioners and two for respondent States,” the petition stated.

This is a welcome development and one that has given a glimmer of hope to potential recipients. However, the rehearing depends on the confirmation of a ninth judge which may happen after the November US Presidential elections. The Court could dismiss the case for lack of standing of the plaintiff or reverse the decision of the Fifth Circuit thus allowing DAPA/DACA + to be implemented. It could also affirm the Circuit’s decision and uphold the injunction and the case would go back to the district court whose decision could eventually be appealed to the Fifth Circuit and the Supreme Court a second time.

While waiting for this new development to take some steps forward, it must also be noted that the Supreme Court’s ruling did not affect the president’s authority to establish priorities for the enforcement of immigration laws and the grant of deferred action. Shortly after the SC made its decision, Obama clarified that undocumented immigrant who are otherwise qualified under DAPA and DACA+ and have no criminal conviction, are still among the lowest priority for deportation. The Department of Homeland Security (DHS) therefore still has authority to review and grant individual request for deferred action.

The decision also did not affect the DACA which was announced by Obama back in 2012. Those who meet the program’s criteria established in 2012 may continue to apply – both first-time applicants and the DACA recipients who seek to renew their deferred action and employment authorization.

Based on estimates, there are about four million undocumented immigrants who could have benefited from DAPA and DACA+. Of that figure, there are still those who can avail of other forms of deportation relief. In fact, according to the American Immigration Lawyers Association (AILA), 14.3% of DACA-eligible population may qualify for other forms of relief, even more permanent than DACA+ and DAPA.

Consequences of Failing to Maintain Non-immigrant Status

For aliens who entered the U.S. on a non-immigrant visa, it is important for them to maintain their status and to engage only in activities consistent with the status. Aliens who fail to maintain status become deportable. They can neither change to said non-immigrant status nor apply for adjustment of status to permanent residence.

A foreign national who wishes to apply for admission into the U.S. generally applies for a visa at a U.S. consulate overseas. There are several types of visa classifications depending upon their specific purpose. Aliens who wish to come to the U.S. for pleasure are issued a B-2 visa. They are generally allowed three (3) to six (6) months to stay with a possibility to extend their status for another six (6) months.

Once a foreign national is legally admitted into the U.S., it is the date on the I-94 that governs his legal immigration status and the duration of his authorized stay in the U.S. The I-94 card is no longer issued. The foreign national can access the most recent I-94 admission record through the I-94 website. If the alien overstays or remains in the U.S. beyond the date on the I-94, the person becomes out of status.

If they overstay for six (6) months or more, they are subject to the three-year bar. If they overstay one year or more, the bar extends to ten years. The three or ten year bar means that if they leave they cannot reenter the U.S. until after three or ten years of stay abroad.

If a non-immigrant decides to pursue a different purpose or engage in another activity in the U.S., he has to apply for a change of status. An example is a person who entered as a student with an F-1 visa gets a job offer after finishing his/her studies in the U.S. Given the change of purpose of the stay in the U.S. from studying to working, the prospective employer may petition for a change of status on his behalf from F-1 to H-1B.

Likewise, a person who originally came as a tourist with a B-2 visa to visit family and friends may later on want to pursue studies in the U.S. Instead of going back to his country to apply for a new F-1 visa, the person can opt to apply for a change of status to F-1 with the U.S. Citizenship and Immigration Services (USCIS).

An alien on a B-2 visa who files Form I-539 to change status to student, may not start classes prior to its approval. An F-1 student fails to maintain his status if he fails to maintain a full course of study or if he transfers schools without permission.

An F-1 student who decides to work in the U.S. may not begin working before the Form I-129 petition filed by the employer is approved. Also temporary workers fail to maintain status if they change jobs without authorization. Those who work without authorization also fail to maintain their status.

The alien is authorized to engage in activities consistent with the status he is seeking only through the formal USCIS approval of the application to change status. If the alien took on activities not allowed under his current status, the application will most likely be denied. It is therefore important that the non-immigrant not violate the conditions of his non-immigrant visa/status.

Lawful Admission Required for Adjustment of Status

One of the requirements for adjustment of status is the alien’s lawful admission to the United States. This means that the alien must have been inspected, admitted or paroled into the US.The Immigration Nationality Act (INA) defines the terms “admitted” and “admission” as “the lawful entry of a noncitizen following inspection and authorization by an immigration officer.”

For foreign nationals who enter the US by air or sea and who are processed by the U.S. Customs and Border Protection (CBP), lawful admission is generally easier to demonstrate as they are normally issued an I-94 Form upon entry.

Since April 2013, the CBP no longer issued the paper I-94 and created an electronic I-94 Form based on the foreign national’s travel documents. The electronic Form I-94 may be printed by accessing the CBP’s website. Aside from the I-94, the CBP office also makes an annotated admission stamp on the foreign national’s passport which may also serve as proof of lawful admission.

However, for those travelling by land, there have been instances when border officials simply “wave through” foreign nationals who enter the US by car without asking any questions. Was there lawful admission in this case?

In a 1980 case, the BIA held that an alien who was “waved through” and who did not make a false claim to citizenship was “inspected” and “admitted” to the US for purposes of adjustment of status. In that case, the alien was a passenger in a car entering the US. The border official waved them through after questioning the driver. She was not asked any question nor did she volunteer any information.

The BIA reasoned that the noncitizen was “inspected” when she physically presented herself for questioning and did not make a false claim to citizenship and she was “admitted” when the officer permitted her to enter the United States.

In 1996, Congress enacted the Illegal Immigration Reform and Immigration Responsibility Act (IIRIRA) and amended the INA to define the meaning of “admitted” as being “the lawful entry of a noncitizen following inspection and authorization by an immigration officer.”

However, the Board reaffirmed its earlier decision. The Board held that “lawful entry” did not require that the entry be substantially regular; it only had to be procedurally regular. In this case, the noncitizen was also a passenger of a car crossing the US-Mexico border. She was not asked any questions and was waved through by the border official. It held that, just like in an earlier case, the admission was procedurally regular and met the definition of “admission” under the INA.

Thus, if a noncitizen does not make false claim to citizenship, is not asked any questions, does not volunteer any information, and is waved through by a border official, he has been “admitted” even if he did not have valid entry documents.

The noncitizen does not gain lawful status upon entry in the United States and is still removable for being “inadmissible at the time of entry”. However, since the noncitizen was “admitted”, he is eligible for immigration benefits, such as adjustment of status in the US, if the noncitizen later on marries a US citizen, subject to other requirements under the law.

Where primary proof of lawful admission is not available such as in the case of the noncitizen who was waved through, secondary evidence may be submitted. Secondary evidence may include affidavits regarding admission.

A request for evidence (RFE) is expected when secondary evidence of lawful admission is submitted. A timely response to the RFE must be submitted even if the requested documents have already been initially submitted.

Nearly Half a Million Immigrants Overstayed Their Visa

Nearly half a million immigrants from all parts of the world have overstayed their visas, according to the recent Department of Homeland Security (DHS) Report released on January 19, 2015.

According to the report, of the nearly 45 million non-immigrant visitors who were in the United States either for business or vacation (holders of B1, WB, B2 and WT visas) and who were expected to depart the country between October 2014 and September 2015, 527,127 individuals overstayed their admissions. This placed total overstay rate at 1.17 percent which means that almost 98.83% of the non-immigrants followed their allotted visa stay and left the US on time.

Due to continuing departures, as of January 4, 2016, the number of Suspected In-Country overstays or those for whom no departures have been recorded had dropped to 416,500. It is also expected to drop even more as the number of individuals who have departed or adjusted status continues to increase.

An overstay is a nonimmigrant who lawfully came to the United States for an authorized period of time but failed to depart after the lapse of such period. The DHS identifies two types of overstays—Suspected In-Country Overstay or those for whom no departure has been recorded and Out-of-Country Overstay or those individuals whose departure was recorded after their lawful admission period expired.

The report shows that for fiscal year 2015, 226,777 Filipinos were expected to depart but 3,701 overstayed their visas. Out of this figure, there were 436 Out-of Country Overstay and 3,265 Suspected In-Country Overstay placing out total overstay rate at 1.63%.

Countries with a high total overstay rate include Afghanistan (10.86%), Burkina Faso (18.01%), Chad (17.43%), Djibouti (27.67%), Eritrea (19.28%), The Gambia (11.20%), Georgia (12.44%), Laos (18.44%), Liberia (11.93%), Mauritania (13.49%) and Federated States of Micronesia (16.00%). US neighbors Canada and Mexico have a 1.27% and 1.56% overstay rate respectively. However, some of the largest numbers were from countries like Germany with 21,394, Italy with 17,661, United Kingdom with 16,446 and France with 11,973. All of these countries are under the Visa Waiver Program (VWP).

According to the report, the DHS conducts overstay identification by examining arrival, departure and immigration status information. The Customs and Border Protection (CBP) obtains passenger manifest data from commercial air and sea departures from the US and passenger data on land departures into Canada. The report, however, admits that “determining lawful status is more complicated than simply matching entry and exit data”.

Provisional Unlawful Presence Waiver FAQ

The new I-601A provisional unlawful presence waiver comes as good news to immediate relatives of U.S. citizens who are required under the current rule to leave the United States before they can be issued their immigrant visas. They will no longer have to deal with the uncertainties of the existing rule and the hardship of being separated from their families for a long period of time. Here are some frequently asked questions regarding the new provisional waiver:

(1) What is the “I-601A provisional unlawful presence waiver”?

This will allow certain individuals who are unable to adjust status in the United States to apply for waiver of unlawful presence in the U.S. before leaving abroad to obtain their immigrant visa. Individuals who have overstayed their visas or who entered the United States as crewmen or without inspection are ineligible to adjust status in the U.S. These individuals must leave the U.S. and obtain their immigrant visas abroad.

(2) How does this rule differ from the existing regulation?

Under existing rules, qualified individuals must wait for the denial of their visa application abroad and apply for waiver of unlawful presence using form I-601. Adjudication of the waiver is a long process and may take several months or even years.

This new regulation, on the other hand, will allow qualified individuals to apply for the waiver while in the United States before leaving abroad for their immigrant visa interview. An approved waiver of unlawful presence, absent other grounds of inadmissibility, will allow the consular officer abroad to issue an immigrant visa right away. The new regulation will allow U.S. citizens to be reunited with their immediate relatives without having to wait for a long time.

(3) Who are eligible for the new provisional waiver?

Only immediate relatives, namely, the spouse, parents and children, of U.S. citizens who are physically present in the U.S. and are at least 17 years of age at the time of filing are eligible to apply under the new regulation.

The applicant must be a beneficiary of an approved I-130 immediate relative petition.

In order to qualify, the applicant’s inadmissibility must be based on having accrued unlawful presence. Also, the applicant must demonstrate that the qualifying U.S. citizen relative (spouse or parent) will suffer “extreme hardship” if the waiver is denied.

An alien in removal proceedings may still qualify if his proceedings have been administratively closed and have not been re-calendared as of the time of filing of the I-601A. Before the alien departs the U.S. for immigrant visa interview, his removal proceedings should be dismissed or terminated. Aliens ordered removed or deported from the U.S. are not eligible under this rule. They may apply for waiver under the existing procedures using form I-601.

(4) When will the new regulation take effect?

The new regulation on provisional waiver takes effect on March 4, 2013. Only then will the USCIS accept Provisional Unlawful Presence Waiver applications on Form I-601A.

(5) What will an approved provisional waiver of unlawful presence mean?

The approval of the provisional waiver of unlawful presence will not create a lawful status for the alien. It will not grant the alien any benefits such as employment authorization and will not guarantee issuance of an immigrant visa. Absent any other grounds for inadmissibility and subject to other visa requirements, the approved waiver will allow the consular officer abroad to issue the immigrant visa without delay.

(6) What are the available remedies in case of a denial?

If the application is denied, the applicant cannot file an appeal nor can he file a motion to reopen or reconsider the denial. The applicant may, however, file a new Form I-601A showing additional evidence of the applicant’s eligibility for the provisional waiver so long as his immigrant visa case is still pending with the Department of State.

(7) Will the applicant for provisional waiver be deported if the USCIS denies the waiver?

The USCIS has stated that it does not envision the initiation of removal proceedings if the waiver request is denied or withdrawn. Referral to the ICE will be done only if the individual has a criminal history or has committed fraud or is a threat to national security.

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