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Adjustment Applicant with Advance Parole Not Inadmissible

On April 17, 2012, the Board of Immigration Appeals ruled in a precedent decision that adjustment applicants who have accrued more than 180 days of unlawful presence and have a pending adjustment of status application and who leave the United States under advance parole will not be barred from returning to the U.S. because of such unlawful presence.

The decision has special significance for applicants who apply for adjustment of status under Section 245(i) or who are adjusting on the basis of marriage to a U.S. citizen.

The case was about a husband and wife who entered the U.S. temporarily but overstayed their visas by several years. The husband became the beneficiary of an approved employment-based immigrant petition filed before April 30, 2001, making him and his wife eligible for adjustment of status under Section 245(i).

In 2004, they filed their I-485 applications which remained pending for several years because of visa unavailability. They needed to go back to their home country to visit their aging parents but, since they did not want their adjustment applications to be deemed abandoned, they sought an advance parole from the USCIS. Their application for advance parole was granted and they were able to visit their parents several times.

They were of course shocked to find out that the USCIS denied their adjustment applications because of their trips to their home country, even though they had an advance parole. The reasoning of the USCIS was apparently that, since they had both been unlawfully present in the U.S. for one year or more, and they departed the United States within the last ten years, they were inadmissible because of the 10-year bar.

Removal proceedings were eventually brought against the spouses. They sought relief from the judge in the form of adjustment of status, but to no avail. The spouses were issued a deportation order.

On appeal, the BIA agreed with the spouses and said that a departure under a grant of advance parole was not the sort of departure that renders aliens inadmissible for prior unlawful presence of one year or more.

Generally, a valid visa is necessary before an alien may enter a U.S. port of entry. However, for humanitarian reasons or significant public benefit the immigration authorities may “parole” into the U.S. an alien without a valid visa.

In the case of advance parole, the parole is requested beforehand by the adjustment applicant, with the alien establishing his eligibility and worthiness for the benefit. It is then granted by the USCIS in advance, precisely with the expectation that the alien will be entering the U.S. for inspection without a valid visa in the future.

The advance parole is a discretionary humanitarian measure which tells the alien hat he can leave the United States without fear that his adjustment application will be deemed abandoned and that he will be paroled back into the United States.

This ruling may have far-reaching effects, particularly for those who were denied adjustment because a trip abroad under an advance parole triggered the unlawful presence bar. If they are still in the United States, it might be possible to have their applications reopened.

The BIA ruling, however, is limited only to the inadmissibility ground of unlawful presence, and only in cases where the adjustment applicant obtained advance parole. It is important to consult with an experienced immigration attorney before leaving the United States.

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.

Demand for H-1B Visa on the Rise

As of April 9, 2012, the USCIS received a total of 25,600 cap-subject H-1B petitions for employment beginning October 1, 2012. This is double the petitions it received for the entire month of April last year.

Some 17,400 of these filed petitions are subject to the regular cap and 8,200 are advanced degree petitions. Under the law, a maximum of 65,000 H-1B petitions are allowed to be filed each fiscal year. There is a separate 20,000 cap for petitions for individuals with a master’s degree or higher from a U.S. university.

This fast pace of H-1B filing is viewed by many as a sign of an improving economy. The H-1B visa is used to employ workers in specialty occupations, such as teachers, therapists, accountants, engineers and computer programmers.

While the demand for H-1B numbers is unpredictable, it can be said that the demand fluctuates with the economy. H-1B demand dropped in the last few years as the economy slowed down.

To illustrate, for fiscal year 2008 the 65,000 cap was reached on the first day of filing or on April 2, 2007. The next fiscal year, it took one week or until April 7, 2008 for the cap to be reached. For fiscal years 2010, 2011 and 2012, the cap remained open until December 21, 2009, January 26, 2011, and November 22, 2011, respectively.

In this year’s first week of filing (April 2 to April 6), the USCIS received more than 22,000 petitions. Last fiscal year, the first week of filing saw a total of 10,400 petitions.

If employers continue filing cap-subject H-1B petitions at this rate, there is no doubt that the quota will be filled very soon, perhaps before the end of summer.

In case the USCIS receives applications that exceed the numerical cap, it will select at random the number of petitions required to reach the cap from the pool of petitions received on the final receipt date. Cap-subject petitions that were received but not selected in this “H-1B lottery” would be rejected, along with those received after the final receipt date.

Not all H-1B petitions are subject to the numerical limits. Among those exempt are petitions for H-1B workers employed by institutions of higher education or a related or affiliated nonprofit organization and nonprofit research organizations.

Also excluded from the cap are individuals who have been counted previously against the cap within the last 6 years. This includes petitions extending the H-1B employment of current H-1B workers, changing the terms of employment for current H-1B workers, transferring employment from one cap-subject H-1B employer to another H-1B employer, and allowing current H-1B workers to work concurrently in a second H-1B petition.

Preparatory to the actual filing with the USCIS, the H-1B employer must obtain a certified labor condition application (LCA) from the Department of Labor before filing the petition. It must also have documentary evidence of the beneficiary’s educational background and work experience to make him/her eligible for H-1B classification.

Students on optional practical training (OPT) are eligible for continued work authorization, even after their OPT ends and before their H-1B employment begins, if they benefit from the so-called “cap gap rule”. Qualified students who are beneficiaries of timely-filed H-1B petitions requesting change of status to H-1B automatically get an extension of their “duration of status” and OPT employment authorization until October 1st.

Given the high demand for the H-1B cap, employers who currently have or are planning to hire employees who need H-1B sponsorship must initiate the H-1B petition process as soon as possible.

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.

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