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A Giant Step Towards Immigration Reform

After years on the back burner, immigration reform is now one of the top priorities of Congress. What used to be the subject of political gridlock has brought influential members from both parties in the Senate to come together and come up with a framework for comprehensive immigration reform, one which seeks to provide a permanent fix to the present broken immigration system.

The proposed reform will allow most of the estimated 11 million undocumented immigrants in the country to gain lawful status which will ultimately create for them “a path to citizenship.” This is, however, conditioned on the government’s success in securing its borders and the effective implementation of a system for tracking temporary visitors.

Measures to secure the border include intensifying efforts of the Border Patrol and increasing unmanned aerial vehicles and surveillance equipment. A commission will be created which will determine whether the border is already secure. The government will start issuing green cards to undocumented immigrants only when the border is secure and a system ensuring that people on temporary visas leave the country when required is already in place.

Meantime, under the plan, undocumented immigrants will be required to register with the government. Before they can be granted “probationary legal status” that will allow them to live and work legally, undocumented immigrants will have to go through a background check and pay a fine. They will also be required to pay back taxes. Once they are granted probationary legal status, they may apply for their green cards.

Undocumented immigrants who have committed serious crimes and are a threat to national security will not benefit from the program and may be subject to deportation.

Applying for lawful permanent residence will require the undocumented immigrant to go through another background check, pay taxes, learn English and civics and comply with other requirements. However, unless every intending immigrant who went through the legal process and are currently waiting in line are issued their green cards, no undocumented immigrant may be issued a green card. Less stringent rules will apply to childhood arrivals and agricultural workers.

The plan seeks to significantly reduce the wait time for family and employment immigrant visas. It will allow foreign nationals receiving advanced degrees in science, technology, engineering and mathematics (STEM) from U.S. universities to obtain green cards. It puts strong emphasis on an effective employment verification system.

In order to address the agricultural needs of the country, the proposed reform will create a program which will allow farm workers to enter the country and take on jobs which Americans are unwilling to fill. It also recognizes the need of businesses for lower-skilled workers allowing them to recruit immigrant workers while protecting its own labor force.

The bipartisan framework is said to be consistent for the most part with President Obama’s immigration plan. Although differing in some major points with President Obama’s plan and more heated debates expected in Congress, this is seen by many as a good start. With the President’s support of the bipartisan efforts of these senators, a comprehensive immigration reform may be realized sooner than we think.

Travel Guidelines for DACA Applicants

More than 407,000 requests have been received by the USCIS since the deferred action program for childhood arrivals (DACA) was implemented on August 15, 2012. As of January 17, 2013, over 371,000 biometric appointments have been scheduled, 154,404 requests approved and more than 13,000 applications rejected. About 142,000 applications are currently under review.

Mexico leads the top ten countries of origin of childhood arrivals that filed for deferred action (290,019), followed by El Salvador (16,824), Honduras (10,882), Guatemala (9,904), Peru (5,974), South Korea (5,354), Brazil (5,098), Colombia (4,503), Ecuador (4,386) and the Philippines (3,019).

California is the state of residence of the highest number of the applicants (110,230), followed by Texas (63,455) and New York (23,389). The other states included are: Illinois, Florida, North Carolina, Arizona, Georgia, New Jersey and Colorado.

The USCIS recently released guidelines clarifying a number of issues on policy and procedure including questions on brief departures and travels outside the U.S. The guidelines state that the continuous residence from June 15, 2007 will not be interrupted if the absence from the U.S. on or after June 15, 2007 and before August 15, 2012 was brief, casual and innocent.

The guidelines further clarified that in order to be considered brief, casual and innocent, the absence must be short and reasonably calculated to accomplish the purpose for the absence. Activities outside the U.S. must not be contrary to law.

Absence from the U.S. because of an order of exclusion, deportation or removal will interrupt continuous residence. Similarly, absence resulting from an order of voluntary departure or an administrative grant of voluntary departure before being placed in exclusion, deportation or removal proceedings will also disrupt continuity of residence.

Travels outside the U.S. made after August 15, 2012 will result in a denial of the application. The applicant must remain in the U.S. while the application is under review. Once the USCIS has approved the request for deferred action, the applicant may apply for advance parole in order to travel outside the U.S. The application for advance parole is Form I-131 and the filing fee is $360. Applicants may not file for advance parole until the Department of Homeland Security decides the application for deferred action.

Advance parole will generally be granted only for humanitarian, educational and employment purposes. Medical treatment, academic research and employment are valid basis for advance parole but travel for vacation is not.

When there is already an order of deportation or removal and the USCIS approves the applicant’s request for deferred action, the applicant may still request advance parole if he wishes to travel outside the U.S. However, the applicant must make sure to reopen his/her case before the Executive Office for Immigration Review and have the proceedings terminated, otherwise, he may be considered deported or removed.

The updated guidelines also clarified that an individual who left the U.S. for some period of time before he turned 16 and returned to establish residence in the U.S. may still be considered for deferred action. He must, however, demonstrate that he established residence in the U.S. before his 16th birthday and that he meets the continuous residence requirement from June 15, 2007 until the present.

Evolving Policy on Drug Inadmissibility

Many people think that for drug use to be a bar to admissibility in the United States, a person must first be convicted of a crime. However, many visa applicants with no arrest or no criminal conviction were still denied an immigrant visa because of their admission of a one-tine experimentation with drugs in their younger years.

The “admission” usually occurs at the applicant’s medical examination. The medical examination is required of everyone who immigrates to the U.S. and is conducted by an authorized panel physician, who usually forwards the results of the exam directly to the Embassy or consulate.

Some of the questions asked by the panel physician will be about the applicant’s history of substance use. Under the regulations, controlled substances include marijuana and shabu or methamphetamine.

A visa applicant knows, or should know, that lying or knowingly providing wrong information in order to get a visa is a serious offense that could lead not only to denial but also to a finding of visa fraud.

As a result, the applicant casually admits his past drug use, especially since the use was only an experimentation that took place many years ago, probably when he was still a minor. He might also be thinking that anyway he is speaking with a doctor and not a consular officer.

Later at the consular interview, however, he is refused a visa. He finds out that he faces a lifetime ban from the U.S., although a waiver may be possible. Many applicants, much to their shock, have found themselves in exactly this harsh situation.

How would a single experimental drug use result in a lifetime ban? U.S. immigration law makes a person inadmissible if has been convicted of, or admits having committed acts which constitute the essential elements of a violation of any law or regulation of the U.S., any of the States, or any foreign country, relating to a controlled substance.

In the 2002 case of Pazcoguin v. Radcliffe, a federal appeals court found a Philippine national excludable from the U.S. for having admitted to drug use which was a crime under Philippine law. In that case, the foreign national during his psychiatric examination admitted to using marijuana until he was 21 years old. He had been issued an immigrant visa but was denied admission at the port of entry.

However, many things have changed since that case was decided. For instance, unlike the old law the new Philippine drug law only imposes rehabilitation as a penalty for a first-time offender for the crime of drug use. Furthermore, the Administrative Appeals Office (AAO), in deciding appeals of waiver denials, has stated that it is not bound by the Pazcoguin decision.

The cases decided by the AAO involved applicants from the Philippines who were found inadmissible for admitting to past drug use during their medical examinations and whose waiver applications were subsequently denied.

The AAO followed a precedential ruling of the Board of Immigration Appeal and said that to be a valid admission of a crime for immigration purposes, the alien must be given adequate definition of a crime, including all essential elements, and it must be explained in understandable terms.

In those cases, the AAO said, the admission during the medical examination did not meet the legal standard for it to give rise to the applicant’s inadmissibility. Since the applicants have not made any other sworn statement or admission and they were not charged with or convicted of any drug related crime, the AAO ordered the processing of their visa applications.

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.

New Waiver Rule Shortens Family Separation

Beginning March 4, 2013, certain individuals will be allowed to apply for a provisional waiver of unlawful presence before departing the United States to attend their immigrant visa interview abroad.

The Department of Homeland Security (DHS) made the announcement regarding the provisional waiver of unlawful presence on January 2, 2013 as it posted the final rule in the Federal Register.

Under the new procedure, immediate relatives (i.e., spouses, children and parents) of U.S. citizens who are present in the U.S. may request a provisional waiver of their unlawful presence prior to departing the U.S. for consular processing of their immigrant visa application.

Existing regulations would require them to leave the U.S. to apply for an immigrant visa abroad, appear at the visa interview, wait for the denial of their visa application because of their inadmissibility due to unlawful presence – which was itself triggered by their very departure – and then file the unlawful presence waiver application from outside the U.S. and wait for its approval there.

This existing process could take anywhere from a several months to well over one year. Because of the risks, costs and hardships involved, many individuals chose to remain undocumented in the U.S.

The new provisional waiver process was designed to alleviate the hardships caused by the lengthy separation of U.S. citizens from their immediate relatives by reducing the amount of time that they are separated.

The provisional waiver applicant must be an immediate relative of a U.S. citizen, inadmissible solely because of unlawful presence, and demonstrate that the denial of the waiver would result in extreme hardship to the qualifying U.S. citizen relative.

Those who do not qualify for the provisional waiver, perhaps because the required showing of extreme hardship was not made or because they were inadmissible for other or additional grounds such as fraud or misrepresentation or prior removal, may still avail of the existing process which requires departure from the U.S. and filing of the waiver application abroad.

The application will be made on a form yet to be released, I-601A Application for a Provisional Unlawful Presence Waiver, along with a filing fee of $585 and a biometrics fee of $85. More information about the filing process will come out in the coming weeks.

Before publishing the final rule, the DHS considered more than 4,000 comments received in response to the proposed rule released in April last year, a large majority of which were in support of the new process.

To address the concern of those who commented that the process provides a “backdoor amnesty”, the DHS reiterated that the provisional waiver is discretionary and does not guarantee admission into the U.S., and that it does not grant any lawful immigration status, create a period of authorized stay or authorize any interim benefits like employment authorization or advance parole.

One of the important changes in the final rule pertained to the ability of applicants to apply again in case of a denial. Unlike the proposed rule which provided that aliens denied the provisional waiver must go through the existing process, the final rule now allows them to file another Form I-601A based on the original approved immigrant visa petition and if their cases are still pending with the Department of State (DOS). They would need to notify the DOS of their intent to file a new Form I-601A.

Under the final rule, an alien in removal proceedings may apply for the provisional waiver if his proceedings have been administratively closed and not recalendared at the time of filing the I-601A; if the proceedings were terminated or dismissed; or if the Notice to Appear was cancelled by the Immigration and Customs Enforcement.

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