Category Archives: H-1B

Adjusting to Permanent Resident Status Under INA 245(a): Bars, Exceptions and Exemptions

Section 245 of the Immigration and Nationality Act (INA) allows certain foreign nationals who are physically present in the U.S. to adjust to permanent resident status and avoid filing for an immigrant visa at the U.S. Consulate abroad.

But unless an exception or exemption applies, you are barred from filing for INA 245(a) adjustment if you are in unlawful immigration status at the time of filing a Form I-485 [INA 245(c)(2) bar]; you have violated the conditions of your nonimmigrant status or visa [INA 245c)(2) and INA 245(c)(2)(8) bars]; and/or you failed to maintain lawful nonimmigrant status when you would otherwise be eligible for employment-based immigration [INA 245(c)(7) bar].

Statutory Bars to Adjusting Status Under INA 245(a)

The bars to INA 245(a) Adjustment of Status (AOS) include the following:

1. You Are In Unlawful Immigration Status at the Time of Filing a Form I-485 Application: INA 245(c)(2) Bar

Under INA 245(c)(2), an INA 245(a) Adjustment of Status application will be denied if at the time of the Form I-485 filing, you are not in lawful immigration status. For purposes of the INA 245(c)(2) bar, lawful status includes nonimmigrants (e.g. B1/B2 visitor, F-1 student, H-1B professional worker); refugees; asylees; parolees; and foreign nationals in Temporary Protected Status (TPS​).

You are in unlawful immigration status if you have never had lawful status (e.g. entered the U.S. without inspection and admission or parole) or ​your ​lawful status ​has ended​ (expired or was rescinded, revoked, or otherwise terminated due to violation of nonimmigrant status or other reason).

Having authorized stay is different from having lawful immigration status. The timely filing of a pending application to extend or change status (Form I-129 or Form I-539), or a pending application for adjustment (Form I-485), generally provides authorized stay, but does ​not​ provide lawful immigration status.

​A person who has a timely-filed pending Extension of Status (EOS) or Change of Status (COS) application may file a Form I-485 application after his or her nonimmigrant status expires. But if USCIS denies the EOS or COS application, you are generally considered to be in unlawful immigration status as of the expiration of your nonimmigrant status and on the date the adjustment application is filed. The INA 245(c)(2) bar would then apply, unless an exemption is available.

2. You Failed to Continuously Maintain Status and/or Violated the Terms of Your Nonimmigrant Visa: INA 245(c)(2) and INA 245(c)(8) Bars

You are not eligible to file a Form I-485, Application to Register Permanent Residence or Adjust Status, under ​INA 245(a)​ if, other than through no fault of your own or for technical reasons,​you have ever:

Failed to continuously maintain a lawful status since entry into the United States. [You are barred from adjustment of status under INA 245(c)(2) if you are in unlawful immigration status on the date of filing the Form I-485 application.]

OR

Violated the terms of your nonimmigrant status​, such as worked without authorization. [You are barred from adjustment of status under ​INA 245(c)(8) not only if you violated the terms of your most recent nonimmigrant status, but also if you ever violated the terms of your nonimmigrant status at any time during any prior periods of stay in the U.S. as a nonimmigrant.​]

To be eligible for AOS, you only need to maintain your nonimmigrant status until you properly file a Form I-485 adjustment application with USCIS, ​so​ long as you do not engage in unauthorized employment after filing the adjustment application.​ But to protect yourself from being placed in removal proceedings if your Form I-485 is denied, you should continue to maintain your nonimmigrant status (e.g. H-1B) when possible.

When the ​INA 245(c)(2)​ and ​INA 245(c)(8) Bars May Be Excused

For purposes of ​INA 245(c)(2)​ and ​INA 245(c)(8)​, a failure to maintain lawful immigration status or violation of nonimmigrant status may be excused only for the specific period under consideration if: ​

a. The applicant was reinstated to F, M, or J status

If USCIS reinstates F or M student nonimmigrant status or if the U.S. Department of State reinstates J exchange visitor nonimmigrant status, the reinstatement only excuses the particular period of time the nonimmigrant failed to maintain status. The reinstatement does not excuse prior or future failure to maintain status.​

b. The applicant’s failure to maintain status was through no fault of his or her own or for technical reasons

The term  “other than through no fault of his or her own or for technical reasons”​ ​is limited to the following​ ​circumstances:​ 

  • Inaction of another person or organization designated by regulation to act on behalf of an applicant or over whose actions the applicant has no control, if the inaction is acknowledged by that person or organization.
  • Technical violation resulting from inaction of USCIS
  • Technical violation caused by the physical inability of the applicant to request an extension of nonimmigrant stay from USCIS in person or by mail
  • Technical violation resulting from Legacy ​Immigration and Naturalization Service (​INS​)​’s application of the 5-​year​ or 6-year period of stay for certain H-1 nurses, if the nurse was re-instated to H-1 status as a result of the Immigration Amendments of 1988.​

c. The applicant was granted an extension of nonimmigrant stay or a change of nonimmigrant status.

The immigration officer will consider all your current and previous entries into and stays in the United States, including current and previous applications for extension of stay (EOS) or change of status (COS).

If USCIS approves a timely filed EOS or COS application, or excuses and approves an untimely filed EOS or COS application, the approval is effective as of the date of the expiration of the prior nonimmigrant status. In that event, you will be considered to have maintained lawful​ status ​despite the gap in time between the expiration of the prior nonimmigrant admission and the date of the EOS or COS approval.

3. You Are an Employment-Based Applicant Who Is Not in Lawful Nonimmigrant Status: INA 245(c)(7) Bar

If you are an employment-based adjustment applicant who is not in a lawful nonimmigrant status at the time of filing your Form I-485 application, you are barred from adjusting status under INA 245(c)(7). This bar does not apply if you were in a lawful nonimmigrant status at the time of filing for adjustment, subsequently left the United States, and returned using an approved advance parole travel document while the adjustment application remains pending. ​

For purposes of this bar to adjustment, the term “lawful nonimmigrant status” includes a foreign national in a lawful status classified under the nonimmigrant statutory provisions(e.g. B1/B2 visitor, F-1 student, H-1B professional worker) and a foreign national in Temporary Protected Status (TPS).

​Lawful nonimmigrant status does not include parolees, ​asylees​, or certain other foreign nationals who are otherwise authorized to stay in the United States. ​

Exceptions and Exemptions to the Bars to Adjusting Status Under INA 245(a)

The ​INA 245(c)(2)​, ​INA 245(c)(8), and INA 245(c)(7)​ bars to adjustment do NOT apply to: ​

  • Immediate relatives of U.S. citizens [spouses, unmarried children under 21 years of age, and parents (if the U.S. citizen is 21 years of age or older)]
  • ​Violence Against Women Act (VAWA) self-petitioners/VAWA-based applicants
  • ​Certain foreign doctors/physicians and their accompanying spouse and children​
  • ​Certain G-4 international organization employees, NATO-6 employees, and their family members
  • Special immigrant juveniles
  • ​Certain members of the U.S. ​armed forces​ and their spouse​s​ and children​
  • ​Employment-based applicants in the 1st, 2nd, 3rd and certain 4th preference categories who meet the ​INA 245(k) exemption. [The INA 245(k) exemption applies if your failure to maintain a lawful status, engagement in unauthorized employment, or violation of the terms of your nonimmigrant status or nonimmigrant visa lasted only for 180 days or less since your most recent lawful admission.]

​Bars to Adjustment are Different from Grounds of Inadmissibility​

Bars to adjustment should not be confused with the grounds of inadmissibility listed in INA 212.

When you are inadmissible under section 212, you may not adjust status unless you qualify for a limited exception or unless a waiver of inadmissibility is available, you qualify for it, and it is granted to you. Inadmissibility grounds include health concerns (communicable disease of public health significance), criminal activity, national security, public charge, fraud and misrepresentation of material facts to gain immigration benefits, unlawful presence, and prior removals.

Consult an Experienced Immigration Attorney

Because there are various bars and inadmissibility grounds to prevent AOS, as well as exemptions and waivers available, you need to consult an immigration attorney before you file a Form I-485 application to adjust to permanent resident status.

To learn more, read our related article, Who is Eligible (and Not Eligible) for Adjustment to Permanent Resident Status? 

# # #

This article provides general information only. It is based on law, regulations and policy that are subject to change. Do not consider it as legal advice for any individual case or situation. Each legal case is different and case examples do not constitute a prediction or guarantee of success or failure in any other case. The sharing or receipt of this information does not create an attorney-client relationship.

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Photo by: Max Braun

 

212(d)(3) Nonimmigrant Waiver: When Do You Need It and How Do You Get It?

In this video, immigration attorney Dyan Williams discusses the 212(d)(3) nonimmigrant waiver, including answers to 4 frequently asked questions: do I need a visa with the waiver, do I qualify for the waiver, what must I prove to get the waiver, and how do I apply for the waiver?

For more information, read 212(d)(3)(A) Nonimmigrant Waiver: Advantages and Disadvantages

Contact Dyan for advice and guidance on the 212(d)(3) nonimmigrant waiver application process.

This video provides general information and is for educational purposes only. Do not consider it as legal advice for any individual case or situation. Immigration laws, regulations and policies are subject to change. The sharing or receipt of this information does not create an attorney-client relationship.

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The Trump Factor on Immigration: To Fear or Not to Fear?

Donald Trump’s Administration will begin when Barack Obama’s ends on January 20, 2017. The risk of deportation is expected to get higher for unauthorized immigrants, particularly those with illegal entries and certain criminal histories. A Trump Administration could also repeal Obama’s Deferred Action for Childhood Arrivals Program (DACA) and set the stage for H-1B (professional worker) visa reform.

These are just some of the potential changes in U.S. immigration, if you accept Trump’s rhetoric at face value.

Here’s how the Trump Factor could affect immigration if his 10 Point Plan to Put America First and election campaign promises are carried out: 

1. “Begin working on an impenetrable physical wall on the southern border, on day one.”  (#1 on Trump’s 10 Point Plan)

“Build that wall! Build that wall!” was a popular chant at Trump’s campaign rallies. According to Trump, the wall would cover 1,000 miles of nearly 2,000 miles of the southern U.S-Mexico border, with half of that protected by natural barriers.

As of today, there are already 700 miles of border fencing and some of it includes metal wall. There are also U.S. Border Patrol agents, drones, scanners and cameras protecting the border. A record number of removals and returns occurred under Obama.

Between 2000 and 2010, U.S. taxpayers spent $90 billion on border security. The costs involve deploying National Guard troops to the border, paying U.S. Customs and Border Protection (CBP) agents, building barriers, employing drug-sniffing dogs, and using predator drones.

Whether “an impenetrable physical wall” is built will depend on various factors, including who pays for it. Trump says Mexico will foot the bill. Otherwise, it might take an act of Congress to obtain funding for the wall.

A wall is mostly symbolic. It’s not enough to keep out unauthorized immigrants, especially those possessing fraudulent travel documents or those misusing their visas or the visa waiver program. Border security requires constant monitoring by properly trained CBP agents.

2. “End catch-and release.” (#2 on Trump’s 10 Point Plan)

Ending the so-called “catch-and release” policy will bring more serious immigration consequences to noncitizens stopped at the border. Trump’s plan is to detain anyone who illegally crosses the border until he/she is removed from the country.

In November 2014, the Obama Administration issued a Policy Memorandum on the apprehension, detention and removal of undocumented immigrants. The policy divided enforcement priorities into three general categories:

Priority 1: Aliens who pose a threat to national security, border security, or public safety.

Priority 2: Aliens who are misdemeanants and new immigration violators.

Priority 3: All other immigration violators.

The Policy Memorandum instructs the agencies to focus on priority one and priority two offenders. If the Memorandum is withdrawn by Trump, each local ICE agency will have more freedom to decide who it wants to remove from the U.S.

Policy Memorandums are opinion letters from agency heads instructing CBP, U.S. Immigration & Customs Enforcement (ICE) and U.S. Citizenship & Immigration Services (USCIS) how to enforce current law. The Trump Administration may readily revoke Policy Memorandums, and replace them with new, hard-line ones – consistent with laws already passed by Congress

While the Obama Administration prioritized the removal of criminal non-citizens and repeat offenders, Trump has vowed to detain all persons who enter the U.S. illegally and spare no group of unauthorized immigrants. This spells an increase in immigration detention, removal proceedings before immigration courts, and expedited removal at the border or ports of entries.

Resources are limited. If there is no formal prioritization for immigration enforcement, more immigration judges and prosecutors will be needed to prevent increased backlog in the removal system.

3. “Move criminal aliens out day one, in joint operations with local, state, and federal law enforcement.” (#3 on Trump’s 10 Point Plan)

Criminal aliens” is a very broad term. “Aliens” include lawful permanent residents (green card holders) because they are not U.S. citizens. Criminal offenses range from misdemeanors to felonies.  There are various types of crimes, such as DUI, assault, drug possession, theft, fraud, domestic violence, and murder.

Criminal convictions can lead to a non-citizen being deported from the U.S., denied entry (or reentry) into the U.S., and stripped of immigration benefits, including permanent residence. The immigration consequences continue long after the person has already served his sentence.

But under current immigration law, not all non-citizens with criminal offenses are subject to removal or denial of entry on crime-related grounds. For example, a noncitizen is deportable if convicted of a Crime Involving Moral Turpitude (other than a political offense), but only when it was committed within five years after the date of his admission to the U.S., and for which a sentence of one year or longer may be imposed.

In addition, the U.S. Constitution provides due process and equal protection to all persons, including “criminal aliens. ” In a 2001 case, Zadvydas v. Davis, the U.S. Supreme Court reaffirmed that the due process clause applies to aliens whose presence may be or is “lawful, unlawful, temporary, or permanent.”

Existing immigration law also permits defenses against removal and applications for relief from removal before the Immigration Court, if the person is eligible.

Due to Constitutional rights, legal obstacles, and limited cooperation from certain local law enforcement agencies, it will be very difficult for the Trump Administration to move criminal aliens out day one.

Still, Trump will get help from the U.S. Attorney General, who is in charge of the Justice Department’s Executive Office for Immigration Review, including the immigration courts. The office sets standards for hiring and selecting immigration judges, and for training them on how to apply immigration law.

Sen. Jeff Sessions (R-Ala.) has been picked by Trump for Attorney General and, if confirmed, will influence immigration policy. The Attorney General may issue legal opinions to promote executive actions; hire more hard-line judges for federal immigration courts; and challenge the legality of state immigration policies.

4. “End sanctuary cities.” (#4 on Trump’s 10 Point Plan)

Since Trump’s election, many “sanctuary” counties and cities, like New York, Minneapolis-St. Paul, San Francisco and Seattle have vowed to limit their cooperation with federal immigration authorities. They won’t stop immigration authorities from enforcing federal law within their boundaries. But they will focus on local law enforcement so residents don’t avoid talking to the police out of fear of deportation risks.

An “immigration hold” (detainer) is one of the key tools ICE agents use to apprehend individuals who come in contact with local and state law enforcement agencies and place them in the federal removal process.

An ICE detainer is a written request to a local jail or other law enforcement agency to detain persons for an additional 48 hours (excluding weekends and holidays) after their release date to permit ICE to decide whether to take them into federal custody for removal purposes. ICE detainers are not followed in some counties and they have been challenged in federal courts.

Threats to cut federal funding to “sanctuary” counties and cities do not make an effective long-term strategy.

5. “Immediately terminate President Obama’s two illegal executive amnesties.”  (#5 on Trump’s 10 Point Plan)

During his two-term Administration, Obama has never granted “amnesty” – at least not to the extent that President Reagan did when he signed the 1986 Immigration Reform and Control Act that permitted 3 million undocumented immigrants to apply for lawful immigrant status.

Through executive policy, Obama introduced the Deferred Action for Childhood Arrivals (DACA) program on June 15, 2012. DACA was made available to undocumented immigrants who were under the age of 31 and who came to the U.S. before age 16. Certain other eligibility requirements also have to be met, such as no conviction of a felony, significant misdemeanor,or three or more other misdemeanors, and no threat to national security or public safety.

While DACA provides relief from removal, work authorization, and authorized stay in the U.S., it does not offer a path to permanent residence or citizenship or provide lawful immigration status in the U.S. Moreover, USCIS may share the information in a DACA request with national security and law enforcement agencies, including ICE and CBP, for purposes other than deportation, including to identify or prevent fraudulent claims, for national security purposes, or for the investigation or prosecution of a crime.

The expanded DACA and new Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) programs, that were expected to kick in on February 18, 2015 and May 19, 2015, respectively, were put on hold by a federal court injunction.

In a February 16, 2015 decision, U.S. District Court Judge Andrew Hanen in Texas sided with the Texas-led coalition of 26 states that filed a lawsuit to block the implementation of the expanded DACA and the new DAPA. Then in a June 23, 2016 decision, the U.S. Supreme Court affirmed the judgement in a 4-4 decision, effectively blocking the programs from being rolled out.

DACA and DAPA were intended to protect undocumented immigrants in low-priority categories from removal and bring them out of the shadows. But in his 10 Point Plan, Trump notes, “Anyone who enters the U.S. illegally is subject to deportation. That is what it means to have laws in this country.” Taken literally, this statement reveals that even undocumented immigrants who came to the country illegally as children, and who grew up in the U.S., do not have to be considered low priority for removal.

There is a growing fear of detention and removal among DACA recipients, who listed on the DACA applications all their residential addresses from the time they entered the U.S. Locating DACA recipients is easier than finding undocumented immigrants who never applied for the relief.

Some immigration attorneys are advising DACA recipients to avoid filing for renewals at this time, until the future of the program is decided after Trump takes office. Others recommend DACA renewals be filed while the program is still intact.

During his campaign, Trump promised to rescind such executive actions and orders by Obama. He may revoke DACA altogether or issue an order preventing new DACA applications or renewals. Whether the Trump Administration will use the addresses on the DACA applications to initiate removal proceedings is a concern. But for practical, political and financial reasons, Trump will likely prioritize removal of unauthorized immigrants with serious criminal records, just like Obama.

A repeal of Obama’s executive actions does not prevent immigrant relief passed by Congress. On December 9, 2016, Sen. Dick Durbin (D. Ill.) and Sen. Lindsey Graham (R-S.C.) introduced legislation called the Bar Removal of Individuals who Dream and Grow Our Economy (BRIDGE Act), to protect persons who would otherwise qualify for DACA.

6. “Suspend the issuance of visas to any place where adequate screening cannot occur, until proven and effective vetting mechanisms can be put into place.” (#6 on Trump’s 10 Point Plan)

The President sets the number of refugees who will resettle in the U.S. each year. The Obama Administration met its target of settling at least 10,000 Syrian refugees in the U.S. by the end of fiscal year 2016. On the other hand, Trump expressed his intent to halt the Syrian refugee program and “suspend immigration from terror-prone regions where vetting cannot safely occur.” The regions include Syria, Afghanistan and Somalia, which produce half of the world’s refugees.

The Trump Administration could also implement additional security protocols to make it harder for applicants who are Muslim, believed to be Muslim, or from Muslim-majority countries to obtain visas, especially tourist/visitor visas and other nonimmigrant visas. Trump may issue an executive order to temporarily suspend or cancel entry to the U.S. on nonimmigrant visas from target countries. Even if such a policy is eventually struck down by the courts, it will slow down visa processing for all applicants.

The processing of I-130 (family-based) and I-140 (employment-based) immigrant petitions, which is the first step in obtaining an immigrant visa at the U.S. Consulate, is unlikely to be affected by a Trump Administration. Filing fees, not tax dollars, provide funding for USCIS’ review of immigrant petitions. The availability of immigrant petitions in the family-based and employment-based categories is also governed by statutory law, not by the President.

Immigrant-based visas such as the F-1 fiance visa and CR immigrant visa already have strict requirements. Nevertheless, the Trump Administration could suspend the issuance of such visas until more vetting mechanisms are implemented.

6. “Reform legal immigration to serve the best interests of America and its workers, keeping immigration levels within historic norms.” (#10 on Trump’s 10 Point Plan)

Legal immigration is governed by regulations and legislation, not by a President’s executive action. The President’s immigration policy must operate within the bounds of existing law. The President has limited power to regulate and deregulate. Only Congress has power to introduce and pass immigration laws.

Regulation

A regulation is much harder to rescind than an executive order. The Administrative Procedure Act requires all regulations to be published in the Federal Register, undergo public notice-and-comment, receive financial consideration by the Office of Management and Budget, and be finalized for rulemaking. The I-601A Provisional Unlawful Presence Waiver is one example of a regulation.

Under statute passed by Congress, a person is generally barred from reentering the U.S. for 3 years if he accrued more than 180 days to less than 1 year of unlawful presence before leaving the U.S. The bar to reentry is 10 years if the unlawful presence lasted 1 year or more. The 3/10 year bar is triggered when the person departs the U.S. (without advance parole) to apply for an immigrant visa. The unlawful presence waiver, which is available under statutory law, excuses certain eligible persons from the 3/10 year bar.

On March 4, 2013, the Obama Administration introduced the I-601A regulation modifying the process for applying for the unlawful presence waiver. It allows eligible immigrant visa applicants to file for the waiver while they are still in the U.S. if the 3/10 year bar is the only ground that prohibits reentry to the U.S. The final rule expanding the I-601A waiver to all statutorily eligible applicants went into effect on August 29, 2016.

A new President may suspend the effective date of regulations that have yet to take effect. During the suspension, the Administration decides whether to begin a regulatory process to repeal the regulation and prevent it from taking effect. For regulations passed in approximately the last eight months of the prior Administration, the new Administration may ask Congress to use the Congressional Review Act to overturn a recently issued regulation. The Act, however, may not be used on any regulations issued before May 2016.

If Trump wants to change or cut the I-601A waiver process, he will have to introduce a new regulation, have the regulation go through public notice-and-comment, make adjustments, and then have the final rule published. While elimination of the I-601A process is possible, this does not seem to be a high priority for Trump.

Legislation

Legislation, passed by Congress, is the toughest to repeal and replace. Comprehensive Immigration Reform has been discussed extensively, but no new broad bills have been enacted for decades. Although the House and Senate are controlled by Republicans, they do not all agree with Trump’s proposed plans.

Permanent changes to the Immigration and Nationality Act, which governs legal immigration, including which persons are eligible for permanent residence, naturalization, or relief from removal,  requires an act of Congress. Legislative changes require approval of bills by both the House and Senate.  The President has limited veto power.

Trump’s 10 Point Plan promises to return U.S. jobs to U.S. workers. He vowed to suspend the North American Free Trade Agreement (NAFTA), a three-country accord negotiated by the governments of Canada, Mexico, and the U.S., which went into effect on January 1994. The treaty contains the TN visa category for professionals from Mexico and Canada.  If Trump suspends NAFTA, the TN visa could also go away.

Trump has also criticized the H-1B professional program. With an annual cap of 65,000 per year, plus an additional 20,000 for foreign workers with a U.S. master’s degree or higher, the H-1B program is subject to legislative changes by Congress.

With U.S. business interests at stake, and general support of the H-1B program from both Republicans and Democrats in Congress, the nature of H-1B reform (if any) is uncertain. An expansion of the H-1B visa program is unlikely if the Republican-controlled Congress falls in line with Trump’s promises. Instead, Congress could introduce an American-worker-first element that requires recruitment of U.S. workers prior to filing an H-1B petition for a foreign worker.

To Fear or Not to Fear? 

Trump’s 10 Point Plan and campaign promises are a legitimate source of fear for immigrant communities. But campaign talk is not always followed by action. U.S. Presidents lack unfettered power, fail to carry out plans, and do the opposite or a watered-down version of what they said they would do.

No one can fully predict the impact of a Trump Administration on immigration. Uncertainty breeds fear. But the fear is not necessarily based on reality.

If you are an undocumented immigrant or noncitizen with concerns about removal from the U.S. or being denied entry into the U.S., your best step is to consult an immigration attorney about your options under current law, regulation or policy. An experienced and attentive attorney can also guide you through immigration changes under a new Administration.

This article provides general information only. It is based on law, regulations and policy that are subject to change. Do not consider it as legal advice for any individual case or situation. Each legal case is different and case examples do not constitute a prediction or guarantee of success or failure in any other case. The sharing or receipt of this information does not create an attorney-client relationship.

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Photo by: BBC World Service

Why hire an immigration lawyer when immigration consultants and online immigration services offer lower rates?

The current political climate and 2016 election of Donald Trump for U.S. President have fueled fear among immigrant groups. Amidst the anti-immigrant rhetoric, it’s important to discuss your options in legalizing your status or securing the appropriate visa with an experienced immigration lawyer.

Why hire a lawyer when there is lower-cost help available through immigration consultants and online immigration services? The reasons are many, from ensuring you receive accurate advice to avoiding unnecessary delays.

The main advantages of hiring a reputable and trusted immigration lawyer, instead of depending on an immigration consultant or online immigration service are:

1. You receive guidance on which forms and documents to submit

A lawyer is not required to fill out application forms for immigration benefits. Anyone can complete the forms, which are, along with the instructions, available for free on U.S. Citizenship & Immigration Services and the U.S. Department of State’s websites.

But U.S. government agencies are not your advocates and do not consider your individual situation when providing resources and information to you. Only an immigration lawyer, who truly understands the eligibility requirements, can give you the most reliable advice on which forms and documents to submit to receive immigration benefits.

Legitimate immigration consultants and online immigration processors can certainly help you complete forms and submit the paperwork to USCIS and DOS at a much lower cost than what lawyers charge.

Nevertheless, your knowing which forms and documents to submit is not always clear by just reading instructions or doing your own research. Immigration consultants and online immigration services are prohibited from giving any legal advice concerning your immigration case, including which forms and documents to submit. Rather, you yourself have to make this determination before they then fill out the forms with your answers and prepare the documents you have given them for filing with the appropriate U.S. government agency.

Even qualified immigration consultants and highly-rated online immigration services are just document preparers. While they are distinguishable from shady Notarios who prey on vulnerable immigrant groups and engage in immigration scams, they provide limited service that does not always meet your immigration needs.

Questions on applications forms and questions from immigration or consular officers might seem simple, but often relate to legal issues that can result in denials and setbacks in your case. Immigration consultants and online immigration processors cannot counsel you on how to best answer a question or cross-check or verify your answers on the forms. All they can do is replicate and type out your responses to the questions asked on the forms.

When non-lawyer immigration consultants or online immigration processors advise you on which immigration benefit to apply for and how to prove you qualify for it, they essentially engage in unauthorized practice of law.

In contrast, immigration lawyers advise you on which exact forms and documents to submit for a particular immigration benefit. They will cross check your answers on application forms with your biographic and immigration records to help ensure accuracy and completeness. They will also counsel you on the implications of your answers to questions, as well as the effects of providing or not providing certain documents.

2. You get legal advice on how to best present your case

A good lawyer will counsel you on eligibility standards and evidentiary requirements, including those that are not spelled out in the instructions for forms or are otherwise readily known.

For instance, while an immigration consultant or online immigration service will accept your marriage certificate and divorce decrees for prior marriages as sufficient in an I-130 spousal immigrant petition, a lawyer will counsel you on additional documents to submit to prove your marriage is valid and bona fide.

A lawyer might be unnecessary in very simple cases, where the bare minimum is all that’s required to get the case approved. But in many cases, a high volume of documentary evidence, as well as credible testimony, are needed to achieve a favorable outcome.

One of the fastest growing online immigration processors, RapidVisa, states specifically that it does not give legal advice or representation, but offers a service similar to TurboTax for visa applications. At a low price, they provide online processing of K-1 fiancée visas, spousal visas, parent visas, green cards (adjustment of status), removal of conditions, citizenship (naturalization), joint sponsorship, and deferred action (Deferred Action for Childhood Arrival, under President Obama).

RapidVisa boasts an approval rate of 99.7% and 4-hour turnaround time. But it’s fair to say that these cases most likely had no complications to require the work of a lawyer, and could have been handled just as well by an applicant who was willing and able to deal with the paperwork alone.

Reputable immigration lawyers, who have the expertise to deal with the worst types of cases, are best equipped to help you present the strongest case possible. They can steer you away from pitfalls that lead to complications in your case, such as USCIS issuing a Request for Evidence or a Notice of Intent to Deny Petition. They are trained to spot issues and weaknesses that can tank your case. Unlike immigration consultants and online immigration processors, they do not merely rely on generic templates and checklists that do not account for unique situations.

3. You obtain verification on whether you actually qualify for the benefit sought

An immigration lawyer will gather facts and review your record to confirm whether you are eligible for the immigration benefit you seek. For example, under current law, you cannot apply for a marriage-based green card within the U.S. if you were not lawfully admitted to the U.S. with inspection, and you do not qualify for 245(i) benefits. If your immigrant petition is not in the immediate relative category, you may not file for adjustment to permanent residence unless you are maintaining lawful nonimmigrant status after entry as an F-1 student, H-1B worker, etc. or certain narrow exceptions apply.

Immigration consultants and online immigration processors are not equipped or authorized to verify your eligibility for a benefit sought. They cannot give advice as to which immigration status you should seek. These are legal issues that requires a lawyer’s guidance, especially when there are complications in your case.

Complications include marriage/divorce complications, visa overstays, unlawful presence, prior removal orders, illegal entries and re-entries to the U.S., immigration fraud or willful misrepresentation, false claims to U.S. citizenship, a criminal record, and being from a high-fraud country.

In June 2016, the State of Colorado passed a law that forced RapidVisa to relocate out of Colorado Springs, Colorado to Las Vegas, Nevada, where regulations related to the document-preparation industry are favorable. Known as Immigration Consultants Deceptive Trade Practice, the Colorado law targets deceptive “notarios”, which are small operations common in Hispanic communities, but it further forbids any person from offering any immigration service, regardless of whether it involves practicing law, unless that person is a lawyer.

In a press release, Ben Ives, President of RapidVisa, stated “this was simply a case of lawyers protecting their income.” He noted, “Petitioning for a family visa is a benefit request, not a legal issue. Do you hire a lawyer to apply for your driver’s license?”

Contrary to Mr. Ives’ claim, applying for an immigration benefit involves many legal issues that determine whether a person can live, study or work in the U.S., and even visit the country. Filing for an immigration benefit has a much more serious and broader impact than applying for a driver’s license.

A U.S. citizen’s decision to bring a fiancée, spouse,  or parent to the U.S. , for example, affects the fate of the family and their reunification.  An applicant’s mistake in filing for an immigration benefit, such as a green card or citizenship, for which he does not qualify can sometimes lead him into removal proceedings and get him deported from the United States.

4. You have comprehensive counseling from start to finish

In the initial evaluation of your case, and during the course of representation, an immigration lawyer can identify your priorities and pinpoint issues to help you achieve your objectives. They can lay out your various options and describe the pros and cons of pursuing each path.

An immigration lawyer can guide you on how to avoid complications or address them as they arise, such as responding to a Request for Evidence, a Notice of Intent to Deny, a Notice of Intent to Revoke, or a denial decision. He or she can intervene on your behalf to resolve problems.

An immigration lawyer can also prepare you for interviews before USCIS and the U.S. Consulates by describing what questions to expect and which issues are likely to arise, and how to best address them. They can appear with you at green card interviews and naturalization interviews to help protect your rights, present documentary information, and ask clarifying questions. They can further prepare and submit a legal brief to stave off concerns and persuade the officer to approve your case.

Lawyers must keep up with changes in the law, the risks (not just the benefits) of applying for immigration relief, and the nuances in the immigration process, and advise you accordingly.

A non-lawyer immigration consultant or online immigration processor cannot perform these vital services.

5. You get legal help from a licensed professional who is held to the highest ethical standards

When an immigration consultant or online immigration processor overlooks critical pieces of information or documents, which results in an avoidable denial or delay, there is generally no recourse. You typically have to rectify the harm through their channels or file a consumer complaint with the state attorney general.

Lawyers, on the other hand, are held to ethical standards set forth in their state rules of professional conduct. They can face disciplinary action, such as a suspension or disbarment, for failing to perform duties owed to clients. As a licensed professional, a lawyer has obligations and responsibilities that go above and beyond those of a non-lawyer immigration service.

Consult an immigration attorney at the very least 

Some states, such as California, Minnesota, and New York regulate the conduct of immigration consultants, instead of forbid them from performing any immigration service. While they may provide document preparation, they cannot offer legal advice in any situation.

Legitimate immigration consultants and online immigration processors can ease the stress that comes with handling the immigration paperwork yourself. But realize they do nothing more than document preparation. A complete reliance on non-lawyer immigration services gives you a false sense of security and could open you up to making mistakes and bungling your immigration matter.

Reliable legal representation may be more affordable than you assume. There are solo practitioners and small firm lawyers who charge reasonable fees for high-quality, comprehensive service. There are also non-profit legal service providers and pro-bono attorneys who will accept your case for sliding scale or reduced fees or no fees.

Almost everyone can gather funds to consult an experienced immigration lawyer at least once, or retain unbundled legal service to address the complicated parts of the case. Before you file for an immigration benefit, talk to a reputable immigration lawyer about the eligibility standards, documentary requirements and filing process. Relying on immigration consultants and online immigration processors can save you money upfront, but cost you a lot more in the long run.

This article provides general information only. It is based on law, regulations and policy that are subject to change. Do not consider it as legal advice for any individual case or situation. Each legal case is different and case examples do not constitute a prediction or guarantee of success or failure in any other case. The sharing or receipt of this information does not create an attorney-client relationship.

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212(d)(3)(A) Nonimmigrant Waiver: Advantages and Disadvantages

Section 212(a) of the Immigration & Nationality Act lists the grounds on which a foreign national is barred from entering the United States. Inadmissible persons may not obtain a nonimmigrant visa (e.g. B-1/B-2 visitor, F-1 student, H-1B worker) or enter the U.S. as a nonimmigrant without a section 212(d)(3) waiver. Visa-exempt persons (e.g. most Canadian citizens) and persons who already have travel documents also need the waiver if they are inadmissible to the U.S.

Although the 212(d)(3) nonimmigrant waiver provides several advantages, it also has disadvantages.

What are the Advantages of the Section 212(d)(3) Nonimmigrant Waiver?

1.  The waiver is broad

For non-immigrants, the 212(d)(3) waiver overcomes almost every ground of inadmissibility listed in section 212(a). This includes health-related grounds, criminal offenses, prostitution, smuggling, fraud or willful misrepresentation of material fact to gain immigration benefits, false claims to U.S. citizenship to gain benefits under federal, state or immigration law, and unlawful presence in the U.S.

2. The waiver is available to almost all non-immigrants

Inadmissible persons who do not qualify for an immigrant waiver often still qualify for a 212(d)(3) waiver.

For example, a foreign national who is inadmissible due to a crime involving moral turpitude within the last 15 years and who has no U.S. citizen or permanent resident spouse, parent, son or daughter for the 212(h) immigrant waiver may enter the U.S. as a nonimmigrant with a 212(d)(3) waiver.

212(d)(3) waiver applicants do not need to show family ties in the U.S. or prove hardships will result if they are not admitted to the U.S. The standards are much higher for 212(a)(9)(B)(v) (unlawful presence) waiver applicants, for example, who must demonstrate a U.S. citizen or permanent resident spouse or parent will suffer extreme hardship if they are not admitted as an immigrant.

3. The waiver allows certain persons with illegal re-entries and prior removal orders to return to the U.S. temporarily

Under INA section 212(a)(9)(C)(i)(I),  a person is permanently inadmissible if he reentered or attempted to reenter the U.S. illegally after accruing unlawful presence in the U.S. for an aggregate period of more than one year (on or after April 1, 1997).

Immigrant visa applicants who are barred for this reason must be outside the U.S. and wait ten years abroad before filing the I-212 waiver request (Form I-212, Application for Permission to Reapply for Admission into the United States after Deportation or Removal) to return to the U.S. as an immigrant.

In contrast, nonimmigrants who are barred for this same reason may file for a 212(d)(3) waiver at any time. Unlike immigrant visa applicants, they do not have to wait outside the U.S. for 10 years to be excused from the lifetime bar under 212(a)(9)(C)(i)(I). With a 212(d)(3) waiver, they may re-enter the U.S. as a nonimmigrant before the 10 years pass.

Persons with prior removal orders who are subject to the 5, 10 or 20-year bar to re-entry under INA sections 212(a)(9)(A)(i) and (ii) may also file for a 212(d)(3) waiver. A temporary stay in the U.S. under section 212(d)(3) does not interrupt the 5, 10 or 20-year absence requirement.

4. The waiver has flexible eligibility standards

The criteria that applicants must meet to get the 212(d)(3) waiver is not defined by statute. In Matter of Hranka, however, the Board of Immigration Appeals listed three factors that must be considered in deciding whether to grant or deny the waiver. They are:

  • The risk of harm to society if the applicant is admitted to the U.S.
  • The seriousness of the applicant’s prior immigration law or criminal law violations, which caused the inadmissibility.
  • The importance of the applicant’s reasons for seeking to enter the U.S.

When reviewing a 212(d)(3) waiver application, the decision-maker applies a balancing test involving these three factors.

The Board stated there is no requirement the applicant’s reasons for wishing to enter the U.S. be “compelling.” The 212(d)(3) waiver is not only for exceptional, humanitarian or national interest cases. It may be granted for any legitimate purpose such as medical treatment (even if available abroad), family visits, school attendance, and tourism. Even applicants with serious criminal convictions, including aggravated felonies, may file for the waiver.

What are the Disadvantages of the Section 212(d)(3)(Nonimmigrant Waiver?

1.  The waiver does not overcome every ground of inadmissibility and is not available to all non-immigrants

The 212(d)(3) waiver does not overcome inadmissibility grounds related to:

  • Security-related grounds (e.g. espionage, sabotage) [INA section 212(a)(3)(A)(i)(I), (3)(A)(ii), (3)(A)(iii)];
  • Foreign policy considerations [INA section (3)(C)];
  • Participation in Nazi persecutions [INA section 3(E)(i)]; or
  • Participation in genocide [INA section 3(E)(ii)]

Persons who are inadmissible under any of these grounds do not qualify for the 212(d)(3) waiver.

2. The waiver alone is not enough to overcome prior removal orders

Persons who have been previously removed from the U.S.  and are subject to a 5, 10 or 20 year-bar to re-entry [under INA section 212(a)(9)(A)(i) and (ii)] must file a Form I-212, Application for Permission to Reapply for Admission into the United States after Deportation or Removal,  in addition to the 212(d)(3) waiver request.

Compared to 212(d)(3) waiver applicants, Form I-212 applicants must meet higher eligibility standards and evidentiary requirements. For example, close family ties in the U.S. and unusual hardship to U.S. citizen or permanent resident relatives are considered strong favorable factors in an I-212 application. These factors are not so important in a 212(d)(3) waiver application and might even work against a person seeking to visit the U.S. temporarily.

3. The grant of the waiver is completely discretionary

It is within the complete discretion of the Admissibility Review Office (ARO), which is part of the U.S. Customs & Border Protection (CBP), to grant the waiver. Qualifying for the waiver doesn’t necessarily mean you will get it. The adjudications officer who weighs the 3 Hranka factors may find the negative factors outweigh the positive factors and deny the waiver request.

There is no formal appeal process. Typically, the only recourse it to file for the waiver again when circumstances change or when more supporting evidence is gathered.

Although the eligibility standards are flexible, the 212(d)(3) waiver is still hard to get, especially when the person is inadmissible due to serious criminal convictions and/or egregious immigration violations. The more recent the violation(s), the higher the obstacles in receiving the waiver.

4. The waiver is valid for a limited period

The 212(d)(3) waiver may be issued for a maximum period of 5 years at a time. Normally, the waiver is valid for 1 year, especially for first-time applicants. [UPDATE: In April 2016,  the ARO announced it will generally approve 212(d)(3) waivers for a 5-year period, in both initial and renewal applications filed at the border entry points and at the U.S. Consulate, as of January 2017.  The one exception is for crewmembers whose granted waivers will be valid for two-year periods.] Once the waiver expires, the person must file for a renewal to re-enter the U.S. as a nonimmigrant.

The authorized period of stay as a nonimmigrant — not the validity period of the waiver — determines when the person must leave the U.S. without violating immigration law.

Filing the 212(d)(3) Nonimmigrant Waiver  

The 212(d)(3) waiver application is filed either with the U.S. Consulate or with the CBP at a U.S. port of entry or preclearance office.

Waiver application at the U.S. Consulate

Applicants who need a nonimmigrant visa must file the 212(d)(3)(A)(i) waiver with the U.S. Consulate. When the 212(d)(3) waiver request is filed with the U.S. Consulate, no filing fee and no Form I-92 are required.

After the consular officer reviews your nonimmigrant visa application and makes an initial finding of inadmissibility, you may submit your waiver application on the day of the interview or days after the interview.

The consular officer will review your waiver application. If the officer believes the waiver should be granted, he or she will make a favorable recommendation and forward the case to the CBP’s Admissibility Review Office (ARO) in Herndon, Virginia, for a final decision. (NOTE: The waiver application is not forwarded at all to the ARO if the consular officer determines the waiver request should be denied.)

If the ARO grants the waiver, the U.S. Consulate then decides whether to actually issue the nonimmigrant visa. Even when the 212(d)(3) waiver is granted, the U.S. Consulate may deny the visa for other reasons, e.g. the B-1/B-2 applicant failed to overcome the presumption of immigrant intent under INA 214(b). Therefore, a waiver grant doesn’t guarantee you will receive the nonimmigrant visa to enter the U.S.

Waiver application at the U.S. Port of Entry

Applicants who are visa-exempt (e.g. most Canadian citizens), are citizens of a Visa Waiver Program (VWP) country and have authorization under ESTA, or who already have appropriate travel documents, must file the 212(d)(3)(A)(ii) waiver with the CBP. Either way, the ARO adjudicates the waiver request.

When the 212(d)(3) waiver request is filed with the CBP, a Form I-192, Application for Advance Permission to Enter as a Nonimmigrant , plus the $585 filing fee,  are normally required. The Form I-192 and accompanying documents should be filed in person with the CBP, months in advance of travel, at a U.S. Port of Entry or preclearance office.

The CBP will forward the I-192 application and supporting documents to the ARO for further processing.

Exception

Inadmissible persons who are applying for T nonimmigrant status or U nonimmigrant status file the Form I-192 (waiver request) with U.S. Citizenship & Immigration Services (USCIS).

Processing Times

When the 212(d)(3) waiver request is filed with the U.S. Consulate, you can expect a minimum processing time of 30 to 60 days (which is very rare), but it could be up to 90 to 180 days before the ARO issues a final determination.

When the 212(d)(3) waiver request is submitted directly to the CBP, you can expect a minimum processing time of 90 to 120 days, but it could be up to 150 to 180 days before the ARO issues a final determination.

Processing times are merely estimates and there can be long delays.

 

Work with an Immigration Attorney

The 212(d)(3) waiver, by itself, does not allow you to enter the United States. You still need the proper travel documents, including appropriate visa, to seek admission to the United States.

A 212(d)(3) nonimmigrant waiver request must include a cover letter/legal brief, affidavits and supporting evidence demonstrating why you are eligible for the waiver and deserve it as a matter of discretion. Having an experienced immigration attorney guide you through this process will make a positive difference.

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This article provides general information only. It is based on law, regulations and policy that are subject to change. Do not consider it as legal advice for any individual case or situation. Each legal case is different and case examples do not constitute a prediction or guarantee of success or failure in any other case. The sharing or receipt of this information does not create an attorney-client relationship.

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Photo by: Hernán Piñera