Provisional Waiver Approved

In a celebration of the new year (in my opinion) Secretary Napolitano has announced that the provisional waiver, discussed previously by myself and others, to allow close relatives of US citizens who are applying for permanent residence based on that familial relation, but are in the US currently and entered illegally, to await the adjudication of his/her waiver in the US. It does not work for those who were previously deported or have a criminal record. The applicant still has to leave the US in order to officially immigrate, and the ultimate decision is still made by the consulate, but this is a huge benefit for families facing long-term separation during this wait time.

For more information from the USCIS, please see here.

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Reauthorizing VAWA

Nothing is more important to me in my job than the rights of my clients – particularly those who have been victimized in some way. I work with a lot of survivors – those who have experienced some sort of sexual or domestic violence or trauma and are dealing with the consequences. Of course, as an immigration attorney, my expertise in the area is limited to the immigration eligibility that may stem from such victimization and cooperation with law enforcement.

One huge piece of legislation that has provided a path to recovery to countless victimized women is VAWA, the Violence Against Women Act. Recently, Congresswoman Adams, a Republican from Florida, introduced a VAWA reauthorization bill, H.R. 4970. Although by its title it would seem crazy to oppose reauthorization of such a landmark and effective law, this bill does more harm than good. I would like to spread the word so that victims are kept protected and this bill is reauthorized intelligently.

Please, if you are interested, read the following:

Full text of H.R. 4970

HR 4970 Empowers Abusers, Not Victims (article in the Huffington Post)

AILA Talking Points on HR 4970 (American Immigration Lawyers Association opposed this bill)

Letter sign-on against HR 4970 posted by AILA and signed by many organizations

Information about the protections that VAWA currently provides in the immigration context:

Violence Against Women Act (VAWA) Provides Protections for Immigrant Women and Victims of Crime from the Immigrant Legal Resources Center

Release on ISAP

Last week I was again reminded of ICE’s autonomy and esoteric logic. I was thrilled to learn that my client’s criminal attorney had successfully reduced her 16-month sentence to 364 days, thus eliminating the aggravated felony that barred her from our ideal affirmative relief. With this knowledge, I informed our judge’s clerk that we would be submitting an alternative application for relief for which she became eligible. For this we agreed to keep the same previously-set deadlines and hearing date. That night, my client was instructed to pack up her things in custody. It was not until morning that she learned that she was being released, which I learned also after a frantic 7am call from her brother. She was in fact taken to the courthouse and processed through BI, the contractors for the Intensive Supervised Appearance Program and released within 24 hours of my phone call. We received no explanation or warning, but count our blessings. Our best guess is that the judge requested the release from ICE custody based on her brother’s continuous appearances in his US Navy uniform at her hearings. 

Having several other clients in ICE custody for long stretches, I wanted to enroll them in the same program. Not knowing where to make such a request, I sought the advice of other attorneys. I contacted my client’s deportation officer, who instructed me to submit a form request in writing with supporting documentation to make the argument. My research has indicated that there are still arguments about whether ISAP is considered “custody” under ICE and therefore is still considered a part of mandatory detention. For now, I presume it is not considered “custody” but the San Francisco Field Office will consider requests for release. Outcome is still TDB. 

DOJ Releases ‘Know Your Rights’ Document About E-Verify Program

E-Verify is an Internet-based program run by the U.S. Government. Employers use E-Verify to check if employees can legally work. When you apply for a job with an employer that uses E-Verify, the employer should notify you that it uses E-Verify. If your employer uses E-Verify, you have certain rights.

Click here to see the release.

Lawful Permanent Residents: Cancellation v. Waiver

DISCLAIMER: The information contained in this web site and its associated web sites is provided as a service to the Internet community, and does not constitute legal advice. We try to provide quality information, but we make no claims, promises or guarantees about the accuracy, completeness, or adequacy of the information contained in or linked to this web site and its associated sites and we make no claim that any of the free forms contained in this web site are appropriate for your particular needs.

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Many of my clients are permanent residents, meaning they are green card holders. Unbeknownst to many green card holders, they can and are subject to (potential) deportation. If you have a green card, you are not a US citizen can you can be deported!!! The most common scenario I see is an LPR adult who came to the US as a young child with his/her parents and has lived here with this status ever since (in some of my cases almost 30 years). If your parents naturalized (became US citizens) while you were still a minor (under 18), you may have been automatically naturalized. If they did not, then it is up to you to naturalize. If you think you may be a US citizen, you should call an immigration attorney. If you or someone is detained by ICE, you should contact the new hotline operated by ICE – (855) 448-6903 – and an immigration attorney.

For LPRs who find themselves in removal proceedings, there are many ways that she can seek relief from removal. This blog covers two types of relief that have similar requirements but very different application – a prime candidate for confusion: Cancellation of Removal for LPRs and a Waiver of Inadmissibility as applied to LPRs. Both of these provisions are much broader than discussed here, but I have limited this to LPRs.

Any reference to statutes is to the Immigration and Nationality Act (INA) unless otherwise stated, which can be found on the USCIS website.

§ 240A(a) Cancellation of Removal for LPRs
– lawfully admitted for permanent residence for not less than 5 years,
– resided in the United States continuously for 7 years after having been admitted in any status, and
– not been convicted of any aggravated felony

§ 212(h) Waiver of Inadmissibility (for LPRs)
– resided continuously in the United States for a period of not less than 7 years immediately preceding the date of initiation of proceedings,
– not been convicted of (or who has admitted committing acts that constitute) murder or criminal acts involving torture, or an attempt or conspiracy to commit murder or a criminal act involving torture,
– not been convicted of an aggravated felony, and
– denial of admission would result in extreme hardship to the United States citizen or lawfully resident spouse, parent, son, or daughter
NOTE: this section may also apply to aliens who are only inadmissible based on a conviction of prostitution or are VAWA petitioners and to non-LPR aliens

Waiver of Certain Issues
Each of these sections “waives” certain problems with the alien’s status (which the alien necessarily has if she is in removal proceedings). § 240A(a) is simply a cancellation of the proceedings, which does not actually waive the issues, but rather gives the alien a “get out of jail free” card (though it is more of a “get out of trial free” card). The issues remain on the person’s record, but are overlooked at the time to give her a second chance.

Alternatively, § 212(h) actually waives the issues for future proceedings. However, § 212(h) only waives certain criminal activities and does not cover other potential issues, such as unlawful presence. There are other waivers for other issues, which will likely show up in later posts. § 212(h) only waives crimes involving moral turpitude (immoral crimes), prostitution and commercialized vice, and serious criminal activity where the alien has asserted immunity. (Needless to say, the CIMT issues are the most common.)

Criminal Convictions
The easiest similarity first – both forms of relief require that the applicant not have been convicted of an aggravated felony. These are the crimes that are considered more serious and are listed at § 101(a)(43). The § 212(h) waiver additionally requires that the alien not have been convicted of, or admitted to committing, murder or torture. These will most likely also be aggravated felonies, so we forgive the redundancy.

Permanent Residence
One confusing similarity is the requirement of 7 years of residence in the United States. § 240A(a) requires that the 7 years be continuous from the date of first entry into the US without becoming inadmissible or deportable (see Stop-Time Rule below). § 212(h) requires that the 7 years be continuous immediately prior to the date of proceedings. While these requirements seem similar, they have this large difference, often a determining factor for eligibility.

Stop-Time Rule
The Stop-Time Rule applies to § 240A(a) only, which says that although the alien may have been present in the US as an LPR for many years, she may not reach the 7 year requirement if she committed any criminal offenses listed under § 212(a)(2) because such a conviction stops the clock. Oddly, this applies only to the 7 year requirement, but not the 5 year requirement. Receiving a Notice to Appear (the initiation of removal proceedings) also stops the clock.

With § 212(h), only the Notice to Appear stops the clock because the residence requirement is for the 7 years immediately preceding the Notice and necessarily the alien committed the crimes in that time or before.

Qualifying Relative/Hardship
Another major difference between these forms of relief is § 212(h)’s requirement that the LPR have a qualifying relative that would suffer extreme hardship if he or she is not allowed to remain in the US. Qualifying relatives are parents, children, and spouses of the LPR who are either US citizens or LPRs themselves. Proving extreme hardship is is exceptionally difficult because the DHS has since raised the bar to “exceptional or extremely unusual hardship” thus requiring more than simply the loss of companionship and secondary income. To make matters worse, in my experience, the adjudication of extreme hardship is arbitrary and somewhat of a lottery based on which immigration officer reads your petition.

Deportability v. Inadmissibility
Perhaps the most important difference between these two forms of relief is their applicability to LPRs. § 212(h) can apply to non-LPRs, for which there is a slightly different set of rules (arguably easier). For a non-LPR to apply for Cancellation of Removal, she would apply under § 240A(b) with an entirely different set of requirements.

§ 212(h) and § 240A were likely set up as mirroring forms of relief applicable to different circumstances (although my legislative history knowledge is weak at best). § 212(h) is applicable only as a waiver of inadmissibility, meaning that it can only be applied to a person applying for status or reentry. It is not available to an LPR who is charged with deportation. Rather, it can only be applied to an LPR if (1) the LPR travelled outside the US and is requesting reentry at the border but is thereafter charged with being inadmissible based on a crime committed prior to her departure from the US (thus retroactively waiving the prior offense, also called nunc pro tunc), or (2) the LPR is deportable but is attempting to re-adjust to a new LPR status based on another form of eligibility (such as a family petition).

For LPRs who are simply in deportation proceedings and do not have an opportunity to re-adjust, their option is only § 240A(a) Cancellation of Removal. Cancellation is only available when the alien is in removal proceedings, whereas the § 212(h) waiver can be applied for by anyone seeking admission, whether inside or outside the US. § 212(h) applications are generally filed concurrently with a petition for Adjustment of Status (to get a green card) but can be filed alone when the LPR is applying for reentry to the US and is charged as inadmissible.

Sources:
Huffington Post: U.S. Immigration And Customs Enforcement Launches Hotline For Detained Undocumented Immigrants
USCIS: Biological or Adopted Children Residing in the United States
NLADA: 7-Year Cancellation of Removal: INA § 240A(a)
NLADA: Waiver of Inadmissibility under INA § 212(h)

601 Waiver Proposed Rule Change

DISCLAIMER: The information contained in this web site and its associated web sites is provided as a service to the Internet community, and does not constitute legal advice. We try to provide quality information, but we make no claims, promises or guarantees about the accuracy, completeness, or adequacy of the information contained in or linked to this web site and its associated sites and we make no claim that any of the free forms contained in this web site are appropriate for your particular needs.

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Last week, the USCIS announced that it is going to propose a new rule for 601 waivers. For those of you who don’t know what this is, here is a little background information:When an alien (non-citizen) tries to get a visa or green card to the US, s/he must first prove that s/he is eligible for the visa and that s/he is admissible. This is one of the reasons that you may be eligible for a visa (like you are married to a US citizen) but you cannot get a green card. Inadmissibility issues are covered under INA § 212. The 601 waiver is a way for these aliens, who are otherwise eligible, to have their inadmissibility overlooked based on the hardship his/her absence would cause to (some of) his/her US citizen or LPR family members (spouse or parent). The 601 Waiver will only excuse certain forms of inadmissibility: health-related grounds, some criminal grounds, membership in a totalitarian party, immigration fraud, smugglers, and unlawful presence.Unlawful presence is the only inadmissibility ground addressed by this rule change. Unlawful presence in the US can trigger a 3- or 10-year bar to reentry. Put another way, if a person enters illegally, or overstays a valid temporary visa, s/he begins to accrue unlawful presence. If s/he has between 180 to 365 days, then s/he is subject to a 3-year bar to reentry. If s/he has more than one year, then s/he is subject to a 10-year bar. The catch is that the bar is triggered when the person leaves the US. So, this waiver is used to excuse the bar to reentry.

If an alien is eligible for a visa or green card (for example, based on his/her marriage to a US citizen), but is here illegally, then s/he would need to apply for the green card from outside the US and be processed through the consulate in his/her home country (thus triggering the bar and necessitating the waiver). This process can take months or years to complete, all the while keeping the family separated.

This proposed rule change will allow qualified family members (spouses, children, and parents) of US citizens to apply for a provisional 601 waiver from within the US. This allows the undocumented family member to remain in this US with his/her family while the waiver is adjudicated. If/when the alien gets the provisional waiver, s/he still must leave the US to process the green card in his/her home country. But, s/he will already have the provisional waiver. Assuming the consulate finds no additional grounds of inadmissibility, the consular processing should be significantly quicker.

There are many questions still unanswered about the logistics of this new provisional waiver. Some of my questions include whether a person with multiple grounds of inadmissibility, one of which is unlawful presence, can get a provisional waiver for that ground and then submit an additional waiver through the consulate; whether the process will be available to qualifying relatives of LPRs (not just US citizens); whether the consulate can overrule the provisional waiver or if they must give deference to the USCIS that granted it; and whether the finding of extreme hardship in a provisional waiver will be given deference, as it is also required to waive other grounds of inadmissibility. Such questions have already been asked, acknowledged and unanswered.

The proposed rule will be published in the Federal Register and opened for 60 days of public comment. The comments will then be digested and any changes to the rule will be included in the Final Rule. The USCIS estimates that the Final Rule will be published by the end of the calendar year and that provisional waivers will begin to be adjudicated. Until then, we wait.

Sources:
USCIS Office of Public Engagement: Provisional Unlawful Presence Waiver Stakeholder Engagement, January 10, 2012 (teleconference)