Seguritan US Immigration Articles

Tracking Overstaying Aliens

A biometric system that can track individuals who have overstayed their visas is expected to be presented to Congress very soon, according to news reports. The planned system will enable the Department of Homeland Security (DHS) to keep track of when immigrants leave the United States.

The DHS has been working to develop a system that can track immigrants coming into and exiting the United States, using technologies that recognize physical traits and behaviors. An exit system would help identify which individuals have not departed the United States and who have overstayed their visas.

While the enforcement priorities of the current administration are directed to criminal aliens and public safety threats, the government notes that 36 individuals who have been implicated in terrorism-related crimes since 2001 were visa overstays.

The arrest a few months ago of a suspected terrorist who allegedly plotted to bomb the U.S. Capitol building renewed the government’s interest in visa overstays. Amine El Khalifi, a Moroccan native, entered the U.S. on a visitor visa in 1999 and resided here since without a valid visa.

It is estimated that 40% of the country’s undocumented immigrant population entered the U.S. through a port of entry and overstayed their visas, such as tourist visas and student visas. Between 2009 and 2011, about 37,000 overstays were removed from the United States.

In 2011, the DHS undertook a review of 1.6 million cases of visa overstays who came into the country since 2004. Using automated means, the DHS determined that 843,000 already left the United States or changed their immigration status. More than 2,000 cases were recommended for further review, possibly after being flagged as an enforcement priority. For the remaining 757,000, their overstay status was noted in the electronic files in case they become a priority for deportation someday.

The former Immigration and Naturalization Service operated a database that tracked border crossings before 2001, but law enforcement officials had no access to it. Another problem that compounded the overstay situation was the lack of a biometrics collection system prior to 2004. As a result, unless an undocumented immigrant committed a crime, immigration authorities usually found it difficult to locate him/her.

Under the proposed plan, law enforcement authorities would be able to pull up any immigrant’s records and biometric markers. The individual’s immigration status would be one of the things checked if he/she is arrested for any type of offense, whether serious or minor.

In other words, the system could be used to track undocumented immigrants who do not have criminal records and are not public safety threats.

There is therefore a danger that the planned biometric system could become unduly invasive. While the goal of thwarting terrorist attacks is undeniably reasonable, the acts of 36 terrorists are in no way representative of the rest of the undocumented population.

Not only does it have civil liberties implications, but an overreaching system could be an “overkill” and an unwise use of limited resources.

Nevertheless, if an individual is found to have overstayed, it does not mean that he/she would be automatically deported. The enforcement arm of the DHS, the Immigration and Customs Enforcement (ICE), will determine what action is appropriate. As previously discussed in this column, the agency has been directed to use prosecutorial discretion and the action it takes must be in line with the government’s enforcement priorities.

USCIS to Issue Provisional Waiver Rule This Year

The final rule for provisional waivers of unlawful presence will be released later this year, according to the USCIS in a Question and Answer guidance that accompanied its notice of proposed rulemaking dated March 30, 2012. The agency is requesting the public to submit comments on the proposed rule.

The rule would allow certain immediate relatives of U.S. citizens to be granted a provisional waiver of unlawful presence while in the United States.

Aliens who have been unlawfully present for more than 180 days but less than 1 year are subject to the 3-year bar to reentry in the U.S., while those unlawfully present for 1 year or more are subject to the 10-year bar. Before they can become lawful permanent residents, these aliens need to obtain a waiver of their unlawful presence.

Current procedures require the unlawful presence waiver application to be filed outside of the United States. However, the act of departing the U.S. triggers the bar.

Back in January 2012, the USCIS announced its intent to allow stateside processing in order to alleviate the hardships faced by U.S. citizens and their families due to the separation caused by the waiver process.

Many individuals who would otherwise be eligible for a waiver are discouraged by the risks, costs and hardships of applying for the waiver abroad, so instead of applying for a green card, they opt to remain undocumented.

As documented recently by the American Immigration Lawyers Association, extreme dangers in their home countries have claimed the lives of several individuals waiting for their waivers. Despite these risks, in some cases the U.S. citizen spouse chose to join the waiver applicant instead of enduring the separation, which could take years.

The proposed provisional waiver covers unlawful presence and no other ground of inadmissibility. Only immediate relatives who can demonstrate extreme hardship to a U.S. citizen spouse or parent and who warrant a favorable exercise of discretion are eligible for this waiver.

The application would be made on a new form, Form I-601A Application for Provisional Unlawful Presence Waiver. There will also be a biometrics fee of $85 in addition to the $585 filing fee for the I-601.

Individuals who are not eligible for the provisional waiver would still be able to apply under the current procedure, i.e. depart the U.S. 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 U.S., appears at his visa interview, and is found by the consular officer as otherwise admissible to the U.S. The time that the individual would have to spend abroad is significantly less compared to that under the current procedure.

The provisional waiver does not guarantee visa issuance or admission to the United States. It is important to remember that only unlawful presence is waived under the proposed rule.

A filed or approved provisional waiver application also does not grant any interim benefits such as employment authorization or advance parole. Neither does it give lawful status, stop the accrual of unlawful presence or provide protection from removal.

If provisional unlawful presence waiver is denied, the applicant may not appeal or file a motion to reopen or reconsider the denial, although he may still apply for a waiver through the current I-601 waiver process.

Since the rule is not yet in effect, individuals who are already scheduled for immigrant visa interviews need to keep their appointments because failure to attend may result in termination of their immigrant visa registration.

Meanwhile, those who believe that they can qualify for the provisional waiver should seek legal advice at the soonest to find out, among others, if other inadmissibility grounds apply to them and whether they can meet the criteria for extreme hardship. As in other types of waivers, sufficient documentation is critical to a successful unlawful presence waiver application.

Waiving Inadmissibility for Nonimmigrants

An alien may be barred from reentering the U.S. if he or she had been unlawfully present, committed a misrepresentation on a visa application, or has a criminal conviction.

One way to overcome these and other grounds of inadmissibility is the general waiver found under section 212(d)(3) of the Immigration and Nationality Act.

This type of waiver is available to nonimmigrants or those seeking to enter the U.S. for a temporary period. Examples are visitors for business or pleasure, students, H-1B workers and other temporary workers.

Unlike most waivers for immigrant visa applications, the 212(d)(3) waiver may be used for many inadmissibility grounds, including health reasons, drug offenses, public charge grounds, immigration violations, and even certain types of involvement in terrorist activities.

This waiver is not available to those who are inadmissible due to terrorism or national security-related grounds or foreign policy grounds. It may also be denied to K-visa applicants who are ineligible for an immigrant visa waiver, and those who are not qualified for admission under the category applied for. For example, an applicant for a visitor (B1/B2) visa may not use this waiver to overcome a negative finding of immigrant intent.

An application for this waiver may be made at a U.S. consulate at the same time that the visa application is submitted. If applied for at the consulate, there is no separate fee for the waiver. The consular officer reviews the waiver application and forwards it to the Admissibility Review Officer of the Customs and Border Protection (CBP) if the waiver is granted. In case of a denial by the ARO, the applicant may request an advisory opinion from the Department of State.

An alien may also apply for the waiver at the port of entry by presenting the CBP officer with a Form I-192 (Application for Advance Permission to Enter as Nonimmigrant) and the filing fee.

Consular officers have wide discretion when recommending the grant of this type of waiver. The criteria to be followed were laid down in the leading case of Matter of Hranka, decided by the Board of Immigration Appeals in 1978. Under the Hranka standard, three factors must be balanced: the risk of harm in admitting the applicant, the seriousness of the acts that caused the inadmissibility, and the importance of the applicant’s reason for seeking entry.

The Foreign Affairs Manual instructs consular officers to consider the following factors, which mirror those in Hranka: the recency and seriousness of the activity or condition causing the ineligibility, the reasons for the proposed travel to the United States, and the positive or negative effect, if any, of the planned travel on the public interests of the United States.

Consular officers are reminded in the FAM that they may recommend waivers for any legitimate purpose such as family visit, medical treatment, business conferences, tourism and other purposes. The applicant need not have a qualifying family relationship nor show humanitarian or exceptional circumstances.

The 212(d)(3) waiver, while it could be the broadest type of waiver available, remains discretionary. Aliens interested in applying for this waiver in conjunction with their nonimmigrant visa application must ensure that their waiver packet meets the standard of eligibility.

Authorized to Work but Status is Unlawful

May an alien be considered to be in unlawful status even though he or she is authorized to work? In the recent case of Bokhari v. Holder, the Court of Appeals for the 5th Circuit said yes.

The decision has been criticized by some immigration lawyers as an “immigration absurdity” and one that “defies logic.”

In this case, Bokhari entered the United States on April 9, 2001 as a B-2 nonimmigrant. His B-2 status was extended through October 9, 2002. On June 11, 2002 his status changed to L-1A nonimmigrant worker (intracompany transferee).

His employer applied for an extension of his L-1A status on June 09, 2003, one day before its expiration. The application was denied on March 19, 2004. His employer appealed but the appeal was denied.

On June 8, 2004 his employer filed an I-140 (employment-based) visa petition on his behalf and simultaneously, Bokhari filed for adjustment of status. The I-140 petition was approved but the adjustment of status was denied. The denial was based on the ground that Bokhari had failed to maintain lawful immigration status for more than 180 days before filing the application. Section 245k of the Immigration and Nationality Act allows an alien who is out of status to file an adjustment application if his or her unlawful status lasted less than 180 days.

Because of the denial of his adjustment application, Bokhari was placed under deportation proceedings. During the hearing, Bokhari claimed that he was eligible for adjustment but the Immigration Judge ruled that he was not eligible because the application was filed more than 180 days after his L-1A status expired on June 10, 2003.

Bokhari appealed to the Board of Immigration Appeals. He argued that he was in lawful status until his extension application was denied on March 19, 2004. He asserted that he was in lawful status from the expiration of his L-1A on June 10, 2003 through March 19, 2004 because immigration regulations allowed him to work during that period. The regulation that he cited authorizes an alien to continue working for 240 days while the extension application is pending.

The Board of Immigration Appeals denied his appeal and stated that although he had been authorized to work, the work authorization did not provide him lawful immigration status.

In his appeal to the Court of Appeals he argued that the Board of Immigration Appeals misinterpreted the immigration regulation and the statute. He claimed that the automatic employment authorization provided by the regulation logically gave him lawful immigration status.

The Department of Homeland Security (DHS) on the other hand contended that employment authorization is not a grant of lawful immigration status. It said that they are two different issues and that the extension application did not confer lawful status.

The Court of Appeals agreed with the DHS. It held that the employment authorization provided to Bokhari under immigration regulations did not provide him with lawful status. The Court pointed out that the term “lawful immigration status,” is granted to nonimmigrants “whose initial period of admission has not expired or whose nonimmigrant status has been extended,” Bokhari, said the Court, was in unlawful status after June 10, 2003 and was thus ineligible to have his status adjusted to that of a permanent resident.

Accrual of Unlawful Presence

Unlawful presence in the U.S. may have horrible consequences to an alien who is applying for a green card. If he/she is required to go abroad to process his/her visa, he/she may not be able to return for years.

What constitutes unlawful presence and when does it accrue? Are all aliens who are out of status considered to be unlawfully present?

A comprehensive guidance memo released by the United States Citizenship and Immigration Services (USCIS) provides some answers to the above questions.

Unlawful presence generally starts accruing when a person overstays his/her authorized stay in the U.S. as indicated on the date stamped on the I-94 card. The I-94 is the arrival/departure record issued to the individual at the port of entry based on the underlying non-immigrant visa. But there are instances when unlawful presence does not begin to accrue until a determination is made by the USCIS.

An F-1 student whose I-94 card is marked D/S or duration of status does not begin to accrue unlawful presence even if the student failed to maintain F-1 status, either by dropping out of school or enrolling in less than the required credits, until the USCIS makes an adverse determination on his/her status. This may happen if the F-1 holder later applies for a change of status or for an employment authorization but is denied. An overstaying Canadian TN visa holder will also not start accruing unlawful presence until there is an adverse determination on his/her status by the government.

Also, unlawful presence does not accrue while a timely and non-frivolous application for change of nonimmigrant status or extension of status is still pending, provided that the applicant did not engage in unauthorized employment.

An H-1B holder who was terminated from the job but remains in the U.S. within the date stamped on the I-94 while considered out of status still has not accrued unlawful presence until after the expiration date on the I-94.

There are persons who are in unlawful status but do not accrue unlawful presence. They include minors under 18; asylees with a bona fide application for asylum unless they are employed without authorization; certain battered spouses, parents and children and victims of severe trafficking.

If a person is unlawfully present for more than 180 days but less than one year, he/she would be barred from re-entering the U.S. for three (3) years. If the unlawful presence is for one year or more, he/she would be barred for ten (10) years.

If a person is unlawfully present for an aggregate period of more than one (1) year and he/she re-enters or attempts to re-enter without being admitted, he/she would be barred permanently.

For the three-year bar to take effect, a person must have voluntarily left the U.S. prior to the commencement of removal proceedings and sought admission within three years from such departure. If his/her departure from the U.S. occurs after removal proceedings are commenced, he/she would not be subject to the bar.

The three-year period could refer to stays outside or inside the U.S. In one case, an applicant for adjustment of status who departed the U.S. and then came back with an advanced parole was no longer inadmissible at the time of the adjudication of his/her adjustment of status application because three years had already passed since his last departure.

In the case of the ten-year bar due to unlawful presence of one year or more, the inadmissibility requirements are different. The bar applies even if the person leaves the U.S. after the commencement of removal proceedings. His/her departure from the U.S. does not have to be voluntary and it could be the result of a removal order.

Both the 3-year and 10-year bars to inadmissibility may be waived. A person who is permanently barred may also seek consent to reapply for admission after having been outside the U.S. for at least ten years.

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