Category Archives: adjustment of status

Form I-864: Alternatives to Meeting the Financial Requirement for Permanent Residence and Avoiding a Public Charge Determination

Posted on April 30, 2016 | Comments Off on Form I-864: Alternatives to Meeting the Financial Requirement for Permanent Residence and Avoiding a Public Charge Determination

The Form I-864, Affidavit of Support, is key to meeting the financial requirement for permanent residence and avoiding a public charge determination in most family-based and some employment-based immigrant visa or adjustment cases. Failure to meet the I-864 requirements may cause the U.S. Consulate or USCIS to determine you will likely become a “public charge,” i.e. become primarily dependent on the U.S. government for subsistence. This ground of inadmissibility bars you from receiving an immigrant visa or green card.

The petitioner who filed the immigrant petition on your behalf must also be your sponsor who files a Form I-864 to support your immigrant visa or adjustment application. When the petitioner does not earn enough income to sponsor you, there are alternatives to meeting the financial requirement.

What income requirement must the sponsor meet? 

To qualify as a sponsor, most petitioners must show their current annual household income is at least 125% of the federal poverty level for their household size.

Sponsors who are on active duty in the U.S. Armed Forces, including the Army, Marines, Navy, Air Force, or Coast Guard, and are sponsoring a spouse or minor child, only need to earn an income of 100% of the federal poverty level for their household size. (This exception does not apply to joint or substitute sponsors).

The federal poverty level, per household size, is set once a year and is shown in the Form I-864, Poverty Guidelines.

The household size includes:

  • the sponsor
  • the sponsor’s spouse (even if they are separated or live separately)
  • the sponsor’s unmarried children under 21 (regardless of where they live)
  • any person listed as a dependent on the sponsor’s last tax return
  • the intending (sponsored) immigrant
  • any derivative beneficiaries (i.e. those without a separate I-130 petition being filed on their behalf) who are accompanying the principal beneficiary (i.e. immigrating at the same time or within six months of the principal immigrant)
  • any immigrants previously sponsored with Form I-864 (or Form I-864 EZ), Affidavit of Support.

What are the alternatives if the sponsor does not earn enough income? 

There are situations in which the petitioner does not earn enough income to sponsor the immigrant. Examples include retired U.S. citizen parents,  U.S. citizen spouses who are still attending school and do not work full time, and petitioners with large household sizes.

When the petitioner does not qualify financially as a sponsor, there are other ways to meet the financial requirement for permanent residence and avoid a public charge determination.

1. The Sponsor May Get a Joint Sponsor to File a Separate Form I-864

A joint sponsor may submit a separate Form I-864, Affidavit of Support, when the sponsor (petitioner) does not earn sufficient income. A joint sponsor does not have to be related to the sponsor or the intending immigrant. But like the sponsor, the joint sponsor must:

  • Be a U.S. citizen or national or a permanent resident.
  • Be at least 18 years old.
  • Be domiciled (live) in the United States or a territory or possession.  (If they live abroad, they may show their residence abroad is temporary and they still have a domicile in the U.S. or will establish a domicile in the U.S. on or before the date of the principal intending immigrant’s admission or adjustment of status).
  • Meet all of the financial requirements.

Joint sponsors must meet the income threshold for their household size, independently. They cannot combine their income with the sponsor’s or another joint sponsor’s income to satisfy the requirement.

Intending immigrants are allowed only one joint sponsor. In family-based preference category cases including a principal beneficiary and at least one accompanying derivative beneficiary, the sponsor may use up to two joint sponsors.

2. The Sponsor May Use the Intending Immigrant’s Income to Overcome the Income Shortage (in Limited Cases)

The sponsor may include the income from the intending immigrant, if that income will continue from the same source after immigration. The intending immigrant must also currently reside with the sponsor, unless he or she is sponsor’s spouse.

The sponsored immigrant whose income is being used to meet the income requirement does not need to submit a Form I-864A, Contract Between Sponsor and Household Member, unless a spouse and/or children is immigrating with the sponsored immigrant. In this instance, the I-864A relates to support for the spouse and/or children.

3. The Sponsor May Include Income from Certain Relatives or Dependents

Sponsors may include income from U.S. citizen or permanent resident relatives (spouse, adult child, parent, or sibling) living in their household, or U.S. citizen or permanent resident dependents claimed in their most recent federal income tax return (regardless of where they live). The relative or dependent must also earn income that meets the federal poverty level for their household size.

The relative or dependent must submit a Form I-864A, Contract Between Sponsor and Household Member, agreeing to be jointly responsible for the sponsored immigrant. They must also be at least 18 years old when they sign the I-864A.

4. The Sponsor May Supplement Income With Assets

To supplement income, the sponsor may use the value of assets that can be converted into cash within one year and without considerable hardship or financial loss to the owner. Examples are money in a bank account, stocks or bonds, the net value of a second automobile, and the net value of a home or other real estate.

The assets used must be owned by (1) the sponsor, (2) the sponsor’s U.S. citizen or permanent resident relative (spouse, adult child, parent, or sibling) who resides with the sponsor and submits a Form I-864A , Contract Between Sponsor and Household Member, or (3) the intending immigrant (regardless of where he or she lives).

The value of the assets must be at least five times the difference between the sponsor’s total household income and the current federal poverty guideline for his or her household size. The exception is when a U.S.  citizen is sponsoring a spouse or minor child.  In that case, the assets must total at least three times the difference.

The sponsor must include evidence of the value of the assets used, such as a bank account record showing the  money has been on deposit for the last 12 months, and real estate appraisals with evidence of the sum of all loans secured by a mortgage, trust deed, or any other lien on the property.

USCIS or the NVC May Issue a Request for Evidence on the I-864 Requirement

U.S. Citizenship & Immigration Services (USCIS), which adjudicates I-485, adjustment to permanent residence applications, may issue a Request for Evidence when it determines the I-864 is deficient. Currently, the National Benefits Center (NBC) — usually through contract employees – do the initial screening of the I-864 based on a checklist.

The National Visa Center (NVC), which processes immigrant visa applications before they are forwarded to the U.S. Consulate abroad, may also issue RFEs concerning the I-864.

When an RFE is issued, USCIS and the NVC stops processing the case. Interim benefits, such as employment authorization and advance parole for I-485 applicants, are also delayed until an RFE response is submitted.

If the NBC determines  the response is inadequate, it will not forward the case to the USCIS Field Office for adjudication and will deny the I-485 due to failure to provide an adequate response. Similarly, the NVC may refuse to forward the immigrant visa case to the U.S. Consulate if it determines the RFE response is insufficient.

At the adjustment interview, USCIS may ask for current evidence that the financial requirement is met. The U.S. Consulate may also ask for additional financial evidence at the immigrant visa interview.  Nevertheless, the proper submission of required forms and documents and timely, full responses to RFEs permit the case to move forward.

Can an RFE Be Issued in Error? 

RFEs are issued for a variety of legitimate reasons, such as lack of evidence of the sponsor’s current income, missing federal tax return and W2s for the most recent tax year, and mistakes in filling out the I-864. But some RFEs are issued in error, such as when USCIS or the NVC overlooks evidence that the income requirement is met.

An RFE can be issued in error when the sponsor’s Current Individual Annual Income  meets the income requirement, but the total income for the most recent tax year is less than the federal poverty level for the household size. Such RFEs ask for evidence of assets or a separate I-864 from a joint sponsor to overcome the perceived income shortage.

The regulations and USCIS policy, however, state that the sponsor’s current annual income – not income on the federal tax return for the most recent tax year – is what really counts. Current income refers to the total earnings the sponsor expects to earn from the start to the end of the calendar year.  Income includes both taxable and nontaxable income, such as certain federal or state benefits (e.g. social security retirement or disability), as well as unemployment or workers compensation.

The sponsor should submit evidence of current income (e.g. pay statements for the last six months and current letter of employment), even though this is not required initial evidence.

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For more information, read our related article, Form I-864: Key to Meeting the Financial Requirements for Permanent Residence and Avoiding a Public Charge Determination.

Consult an immigration attorney to help you meet the financial requirements for permanent residence and avoid a public charge determination. The best time to speak with an attorney is before you file for the immigrant visa or for adjustment, not after you receive an RFE.

A qualified attorney can evaluate whether the sponsor meets the income requirements and, if he or she does not, recommend alternatives to make up for the shortfall.

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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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Form I-864: Key to Meeting the Financial Requirement for Permanent Residence and Avoiding a Public Charge Determination

Posted on April 30, 2016 | Comments Off on Form I-864: Key to Meeting the Financial Requirement for Permanent Residence and Avoiding a Public Charge Determination

Section 212(a)(4) of the Immigration and Nationality Act (INA) prohibits you from receiving an immigrant visa or adjusting to permanent residence if you are likely, at any time, to become a public charge. To show you are not inadmissible on this ground, a Form I-864, Affidavit of Support, filed on your behalf is required in most family-based and some employment-based immigrant visa or adjustment cases.

What Factors are Considered When Determining Whether A Person is Likely to Become a Public Charge? 

“Public charge” means you are likely to become primarily dependent on the U.S. government for subsistence, either through receipt of public cash assistance for income maintenance or institutionalization for long-term care at government expense.

Totality of the Circumstances

U.S. Consulates and USCIS consider certain factors, including your age, health, family status, assets, resources, financial status, education and skills. The officer weighs the positive and negative factors and examines the “totality of the circumstances” when making a public charge determination.

Under the totality of the circumstances test, a person “who is incapable of earning a livelihood, who does not have sufficient funds in the United States for his support, and has no person in the United States willing and able to assure that he will not need public support is excludable as likely to become a public charge.”

Receipt of Cash Benefits

If you have received certainly publicly funded benefits, the officer takes this into account. The types of cash benefits received that could lead the officer to find you will become a public charge include:

  • Supplemental Security Income (SSI) under Title XVI of Social Security Act
  • Temporary Assistance for Needy Families (TANF) cash assistance (part A of Title IV of the Social Security Act–the successor to the AFDC program) (Note: Non cash benefits under TANF such as subsidized child care or transit subsidies cannot be considered and non-recurrent cash payments for crisis situations cannot be considered for evidence of public charge)
  • State and local cash assistance programs that provide benefits for income maintenance (often called “General Assistance” programs)
  • Programs (including Medicaid) supporting individuals who are institutionalized for long-term care (e.g., in a nursing home or mental health institution). (Note: costs of incarceration for prison are not considered for public charge determinations)

Receiving cash assistance for income maintenance and institutionalization for long-term care (e.g nursing home) at government expense is also considered, but in the context of the totality of the circumstances.

Public benefits that one family  member receives are not attributed to other family members, unless the cash benefits amount to the sole support of the family.

This list is not exhaustive. The officer will consider receipt of any cash benefits not listed above by examining the totality of the circumstances. A public charge determination, however, cannot be based solely on previous (or current) receipt of public benefits.

Non-cash or special-purpose cash benefits are generally not taken into account as they are usually supplemental and do not make you primarily dependent on the government for subsistence. Examples are:

  • Medicaid and other health insurance and health services, other than support for long-term institutional care
  • Children’s Health Insurance Program (CHIP)
  • Nutrition programs, including Food Stamps, the Special Supplemental Nutrition Program for Women, Infants and Children (WIC), the National School Lunch and School Breakfast Program, and other supplementary and emergency food assistance programs
  • Housing benefits
  • Child care services
  • Energy assistance, such as the Low Income Home Energy Assistance Program (LIHEAP)
  • Emergency disaster relief
  • Foster care and adoption assistance
  • Educational assistance (such as attending public school), including benefits under the Head Start Act and aid for elementary, secondary, or higher education
  • Job training programs
  • Transportation vouchers
  • In-kind, community-based programs, services, or assistance (such as soup kitchens, crisis counseling and intervention, and short-term shelter)
  • State and local programs that serve similar purposes as the federal programs listed above (e.g. “Medi-Cal” in California).
  • Federal, state, or local programs in which benefits are paid in-kind, by voucher or by any means other than cash

In addition, cash payments that have been earned, such as Social Security benefits, old age survivors disability insurance (OASDI), government pensions, and veterans’ benefits, are not considered. Unemployment compensation is also not taken into account for public charge purposes.

Form I-864, Affidavit of Support

By itself, the absence or insufficiency of an affidavit of support — when required by the law governing certain immigration benefits, such as most family-based immigrant visa and adjustment applications —  can lead the officer to find you are likely to become a public charge.

When is a Form I-864, Affidavit of Support, Required? 

The Form I-864 is required for most family-based immigrants and some employment-based immigrants to show that they have adequate means of financial support and are unlikely to rely on the U.S. government for subsistence.

Normally, you must submit a Form I-864, Affidavit of Support, completed by the petitioner to support your immigrant visa or adjustment of status application if you fall in of any of these categories:

  • Immediate relatives (parents, spouses, and unmarried children under the age of 21, including orphans) of U.S. citizens
  • Relatives who qualify for immigration under one of the family based preferences:
    • First Preference: Unmarried, adult sons and daughters of U.S. citizens (Adult means 21 years of age or older)
    • Second Preference: Spouses of permanent residents and the unmarried sons and daughters (regardless of age) of permanent residents and their unmarried children
    • Third Preference: Married sons and daughters of U.S. citizens, their spouses and their unmarried minor children
    • Fourth Preference: Brothers and sisters of adult U.S. citizens, their spouses and their unmarried minor children
  • Employment based preference immigrants when a U.S. citizen or permanent resident relative (spouse, parent, child, adult son or daughter, brother or sister) filed the immigrant visa petition, or the relative has a significant ownership interest (5% or more) in the entity that filed the petition.
[NOTE: Although the Form I-864 is not required, by law, in a K-1 visa application of a fiance(e) of a U.S. citizen, many U.S. Consulates will request proof of financial support to ensure the applicant will not become a public charge in the United States. In any event, a K-1 visa holder who then enters the U.S. and marries the U.S. citizen will need to submit a Form I-864 and proof of financial support from the citizen petitioner as part of the Form I-485 adjustment to permanent residence application.]

You do not need to submit an I-864, even if you fall in any of the above categories, if you can show you:

  • Already worked 40 qualifying quarters as defined in Title II of the Social Security Act
  • Can be credited with 40 qualifying quarters as defined in Title II of the Social Security Act
  • Are the child of a U.S. citizen and if admitted for permanent residence on or after February 27, 2001, would automatically acquire citizenship under Section 320 of the Immigration and Nationality Act, as amended by the Child Citizenship Act of 2000.

What is the Form I-864, Affidavit of Support, and Who Submits It? 

The I-864 serves to prove you have the financial means to live in the U.S. without needing welfare or financial benefits from the U.S. government.

The U.S. citizen or permanent resident who filed the Form I-130 immigrant petition for you must be the sponsor who signs and submits the I-864 on your behalf. Sponsors are also required to file their federal tax returns for the three most recent years (if required by  law) and submit their last year’s tax returns with the I-864, regardless of their income level. In some situations, a joint sponsor or substitute sponsor is required and allowed.

The I-864 is a legally enforceable contract with the U.S. Government in which the sponsor, joint sponsor or substitute sponsor agrees to support the immigrant at a minimum annual income level. In the contract, they also agree to reimburse any federal or state agency that provides a means-tested benefit to the immigrant.

The sponsored immigrant may sue a sponsor, joint sponsor or substitute sponsor to enforce the contract to provide financial support. If the immigrant ever receives a means-tested benefit, the agency that provided it can also seek reimbursement from the sponsor, joint sponsor or substitute sponsor.

The contractual obligations under the I-864 begins when the immigrant visa or green card is granted. The affidavit of support may be withdrawn only before permanent residence is granted.

The contractual obligations continue until the sponsored immigrant becomes a U.S. citizen, or can be credited with 40 qualifying quarters of work (generally 10 years of work) in the United States. The sponsor, joint sponsor and substitute sponsor’s obligations also end if they or the sponsored immigrant dies or if the sponsored immigrant ceases to be a lawful permanent resident.

What are the Basic I-864 Requirements?

A sponsor, joint sponsor, and substitute sponsor must:

  • Be a U.S. citizen or national or a permanent resident.
  • Be at least 18 years old.
  • Be domiciled (live) in the United States or a territory or possession.  (If they live abroad, they may show their residence abroad is temporary and they still have a domicile in the U.S. or will establish a domicile in the U.S. on or before the date of the principal intending immigrant’s admission or adjustment of status)
  • Meet all of the financial requirements

Sponsor

Normally, sponsors must show their current annual household income is at least 125% of the federal poverty level for their household size.

The federal poverty level, per household size, is set once a year and is shown in the Form I-864, Poverty Guidelines.

The household size includes the sponsor, the sponsor’s spouse (even if they are separated or live separately), the sponsor’s unmarried children under 21 (regardless of where they live), any person listed as a dependent on the last tax return, the intending immigrant, and any derivative beneficiaries who are accompanying the principal beneficiary (i.e. immigrating at the same time or within six months of the principal immigrant).

Joint sponsor

When sponsors do not meet the minimum income requirement, they may use alternatives. The most common way is to submit a separate Form I-864 from a joint sponsor who meets the income requirement independently for his or her household size, which includes the intended immigrant. .

A joint sponsor must meet all the same requirements as the sponsor, except the joint sponsor does not have to be related to the immigrant.

Each immigrant visa or adjustment applicant may have only one joint sponsor. In in family-based preference category cases involving a principal beneficiary and at least one accompanying derivative beneficiary, the sponsor may use up to two joint sponsors.

Lawsuits against joint sponsors to enforce the I-864  do not usually arise unless there is a dissolution of marriage between the sponsor and immigrant or the sponsor is completely unable or unwilling to support the immigrant.

Substitute sponsor

If the petitioner (sponsor) dies after approval of the visa petition, and USCIS agrees to allow the immigrant visa or adjustment process to continue, a substitute sponsor must file a separate Form I-864.

In addition to meeting the same requirements as the sponsor, substitute sponsors must be related to the intending immigrant in one of the following ways:

  • Spouse
  • Parent
  • Mother-in-law
  • Father-in-law
  • Sibling
  • Child (if at least 18 years of age)
  • Son
  • Daughter
  • Son-in-law
  • Daughter-in-law
  • Sister-in-law
  • Brother-in-law
  • Grandparent
  • Grandchild
  • Legal guardian of the beneficiary

Substitute sponsors exist only when the sponsor has died. As such, lawsuits to enforce the I-864 against substitute sponsors arise only in the event of a sponsor’s death.

***

For more information, read our related article, Form I-864: Alternatives to Meeting the Financial Requirements for Permanent Residence and Avoiding a Public Charge Determination.

The proper filing of a Form I-864 is key to meeting the financial requirement for permanent residence and avoiding a public charge determination in most immigrant visa or adjustment cases. The I-864 instructions can be confusing and do not always provide answers to questions you have about the public charge issue.

The Form I-864EZ is a shorter version of the Form I-864 and is used only if three conditions are met: (1) The sponsor is the person who filed or is filing a Form I-130, Petition for Alien Relative, for the sponsored immigrant; (2). The sponsored immigrant is the only person listed on the Form I-130; and (3) The income being used to qualify is based entirely on the sponsor’s salary or pension and is shown on one or more Internal Revenue Service (IRS) Form W-2s provided by employers or former employers.

Consult an immigration attorney to receive full guidance on the financial aspects of becoming a permanent resident or sponsoring an immigrant. While immigration attorneys offer dual representation to both the petitioner (sponsor) and intending immigrant, many will not provide advice to joint sponsors and other third parties whose income is being used, due to a potential conflict of interest.

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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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I-601 waiver or I-601A waiver for unlawful presence?

Posted on February 29, 2016 | Comments Off on I-601 waiver or I-601A waiver for unlawful presence?

question markBoth the I-601 waiver and I-601A waiver are used to overcome the 3 year/10 year unlawful presence bar. I-601 waiver and I-601A waiver applicants must have a qualifying relative who will suffer extreme hardship if they are not granted re-entry to the U.S. before the 3 or 10 years pass. But there are key differences between the I-601 waiver and I-601A waiver application.

 

3 Year/10 Year Unlawful Presence Bar

Section 212(a)(9)(B)(i)(I) of the Immigration & Nationality Act (INA) states the 3 year bar to re-entry applies if you were unlawfully present in the U.S. for more than 180 days, but less than one year, and then depart the U.S. prior to commencement of removal proceedings. The U.S. government adds up all the days you were unlawfully present in the U.S. in a single ongoing period or stay (i.e. continuous period of unlawful presence).

The 3-year bar does not apply if you depart the U.S. after the Notice to Appear in removal proceedings is filed with the immigration court, following service of the NTA on you. But leaving the U.S. while you are in removal proceedings or being issued a removal order carries other immigration consequences.

Section 212(a)(9)(B)(i)(II) of the INA states the 10 year bar to re-entry applies if you were unlawfully present in the U.S. for one year or more, and then depart the U.S. The U.S. government adds up all the days you were unlawfully present in the U.S., even if they were from different periods or stays (i.e. the aggregate period of unlawful presence).

You begin to accrue unlawful presence only after April 1, 1997 and once you turn age 18.

The 3/10 year bar to re-entry is triggered only if you leave the U.S. This does not mean you should never leave the U.S. to legalize your immigration status, but you should know there are risks to your departure. (Illegally re-entering or attempting to illegally re-enter the U.S. further complicates your case and triggers a permanent bar under certain circumstances.)

A person who is inadmissible due to the 3 year/10 year bar may not receive an immigrant visa before the 3 year/10 year bar expires without first obtaining an I-601 waiver or I-601A waiver under section 212(a)(9)(B)(v) of the Immigration & Nationality Act. Only certain immigrants qualify for the waiver.

To determine whether to file an I-601 waiver or I-601A waiver to overcome the unlawful presence bar, you need to know the key differences:

1. The I-601 waiver application may be filed by immigrants who are the spouse or son or daughter of a U.S. citizen or permanent resident. The I-601A waiver may be filed only by immediate relatives of U.S. citizens, under current regulations. [UPDATE: On July 29, 2016, DHS published a final rule expanding the I-601A waiver. As of August 29, 2016, the provisional waiver is available to all eligible applicants.]

An immediate relative is the spouse of a U.S. citizen; child (unmarried and under 21) of a U.S. citizen; or parent of a U.S. citizen (who is over age 21). While having a U.S. citizen child allows the person to file for an I-601A waiver, he still needs a qualifying relative to fully qualify for and receive the waiver, just like regular I-601 waiver applicants.

A qualifying relative is a U.S. citizen or permanent resident spouse or parent.  By statutory law, a U.S. citizen or permanent resident child is not a qualifying relative for obtaining the unlawful presence waiver. Furthermore, like regular I-601 waiver applicants, I-601A waiver applicants must prove the qualifying relative will suffer extreme hardships if they are not admitted to the U.S. before the 3 year/10 year bar expires.

2. I-601 applicants file for the regular waiver on the Form I-601. I-601A applicants file for the provisional waiver on the Form I-601A.

Applicants file for the regular I-601 waiver on a Form I-601, Application for Waiver of Grounds of Inadmissibility. There are similar but different I-601 instructions from those of the I-601A.

On March 4, 2013, USCIS introduced the Form I-601A, Application for Provisional Unlawful Presence Waiver to allow certain immigrant visa applicants to obtain the unlawful presence waiver. There are similar but different I-601A instructions from those of the I-601.

3. The Form I-601 application is submitted after the person departs the U.S. The Form I-601A application is submitted before the person departs the U.S.

The I-601 application may be filed only when the person is outside the U.S. I-601 waiver applicants must first depart the U.S. and attend their visa interview at the U.S. Consulate before they may file for the regular waiver. They bear a higher risk of being separated from their family in the U.S. for 3 or 10 years, if they do not receive the waiver following departure from the U.S.  They must wait for the I-601 decision while they are outside of the U.S. and separated from their family.

The I-601A application may be filed only if the person is physically present in the U.S. I-601A waiver applicants file for the provisional waiver while they are still in the U.S, before they depart the U.S. and attend the visa interview at the U.S. Consulate.

Being granted the provisional waiver increases the likelihood that the U.S. Consulate will issue the immigrant visa at or shortly after the interview.  They may wait for the I-601A decision while they are still in the U.S. with their family. The provisional waiver provides several advantages, but has many limitations. For example, if the U.S. Consulate discovers the visa applicant has prior immigration violations or a criminal history, the approved provisional waiver will be revoked and the applicant has to file for the regular I-601 waiver (if available).

4. The I-601 waiver can be filed in conjunction with an immigrant visa or K visa. The I-601A can be filed only in conjunction with an immigrant visa. 

I-601 applicants may be seeking a  K-3 nonimmigrant or K-1 fiancé(e) visa based on an approved I-129F petition, not just an immigrant visa. In contrast, I-601A applicants must first have an approved I-130 (immigrant visa) petition filed on their behalf by a U.S. citizen petitioner. They also have to first pay the immigrant visa fee before they submit the provisional waiver request.

5. The I-601 waiver can be used to waive additional grounds of inadmissibility, such as criminal convictions and immigration fraud. The I-601A waiver waives only the 3/10 year unlawful presence bar.

The Form I-601 allows the applicant to file for multiple grounds of inadmissibility, such as crime-related grounds and fraud or willful misrepresentation to gain immigration benefits, not just unlawful presence.

Meanwhile, the Form I-601A application cannot be used to waive any grounds but unlawful presence in the U.S. If you are subject to other grounds of inadmissibility, such as a prior removal order, illegal re-entries to the U.S., false claims to U.S. citizenship, immigration fraud, or criminal convictions, you may not file the Form I-601A.

If USCIS determines, based on the record, there is reason to believe you are inadmissible on grounds other than unlawful presence, it will deny your Form I-601A.

In January 2014, USCIS clarified that it will not automatically deny the Form I-601A when the applicant has a criminal history. USCIS will review the entire record to determine whether the criminal offense falls within the “youthful offender” or “petty offense” exception, or is not a crime involving moral turpitude. If any exception applies, USCIS will continue to process the I-601A waiver request and approve it, assuming the requirements are met and a favorable exercise of discretion is appropriate.

Consult an Immigration Attorney

Because there are keys differences between the I-601 waiver and I-601A waiver, you should consult an immigration attorney to help you decide which waiver to file. A reliable attorney can also help you determine whether you need to actually depart the U.S. to apply for an immigrant visa, or whether you may apply for adjustment to permanent resident in the U.S. without leaving the country. (This is important to know because the 3 year/10 year is triggered only if you leave the U.S.)

If you are not eligible to adjust status, and you want to gain permanent residence in the U.S., you will need to depart the U.S. to apply for an immigrant visa. If you are inadmissible due only to the 3 year/10 year unlawful presence bar, the I-601A provisional waiver is the more appropriate waiver. But under current regulations, only immediate relatives of U.S. citizens may file for the I-601A waiver. And if you are inadmissible on multiple grounds, the I-601A waiver will not work.

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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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What should you do get an I-601 waiver for unlawful presence?

Posted on February 29, 2016 | Comments Off on What should you do get an I-601 waiver for unlawful presence?

Section 212(a)(9)(B)(i)(I) of the Immigration & Nationality Act (INA) states the 3 year bar to re-entry applies if you were unlawfully present in the U.S. for more than 180 days, but less than one year, and then depart the U.S.  Under section 212(a)(9)(B)(i)(II), the 10 year bar to re-entry applies if you were unlawfully present in the U.S. for one year or more, and then depart the U.S. When you are subject to the 3/10 year unlawful presence bar, you need an I-601 waiver, available under INA § 212(a)(9)(B)(v), to return to the U.S. as an immigrant.

What Must You Submit When Requesting an I-601 [INA § 212(a)(9)(B)(v)] Waiver?

A section 212(a)(9)(B)(v) waiver applicant must submit a completed and signed Form I-601, Application for Waiver of Grounds of Inadmissibility. The Form I-601 filing fee and sometimes a biometrics fee are required.

The Form I-601 instructions include a list of supporting documents you should submit with your waiver request. Examples are affidavits from yourself and third parties describing extreme hardships; expert opinions; medical documentation; and reports of conditions in your home country.

Evidence of extreme hardship 

If you qualify for the waiver on the basis that your U.S. citizen or permanent resident spouse, parent, son or daughter, or K visa petitioner, will suffer extreme hardship if you are denied admission to the U.S., you must present documentary evidence of the “extreme hardship.”

Similarly, if you are a VAWA self-petitioner applying for the waiver, you must show the denial of admission will result in “extreme hardship” to yourself (or qualifying relatives).

The agency considers a variety of factors when determining whether there is extreme hardship. They include:

  • Health: Ongoing or specialized treatment requirements for a physical or mental condition; availability and quality of such treatment in your country, anticipated duration of the treatment; whether a condition is chronic or acute, or long-or short-term; need for applicant to assist with physical or mental conditions.
  • Financial Considerations: Future employability; loss due to sale of home or business or termination of a professional practice; decline in standard of living; ability to recoup short-term losses; cost of extraordinary needs such as special education or training for children; cost of care for family members (e.g. elderly and sick parents).
  • Education:  Loss of opportunity for higher education; lower quality or limited scope of education options; disruption of current program; requirement to be educated in a foreign language or culture with ensuing loss of time for grade or pay level; availability of special requirements, such as training programs or internships in specific fields.
  • Personal Considerations: Close relatives in the U.S.; separation from spouse or children; ages of involved parties; length of residence and community ties in the U.S.
  • Special Factors: Cultural and language barriers; religious and ethnic obstacles; social unrest or civil war in your country; valid fears of persecution, physical harm, or injury; social ostracism or stigma; access to social institutions or structures for support, guidance and protection.

Does Having an Immigration Attorney Make a Difference? 

Filling out the Form I-601 is just the first step. The harder part is convincing the agency that you are eligible for the waiver and deserve it as a matter of discretion.

Although “extreme hardship” is not defined by immigration law, it is more than just the normal emotional hardships or financial difficulties that result from family separation or relocation.  A good lawyer will help you prove your qualifying relatives will suffer extreme hardship if they are separated from you while you are abroad, or if they move overseas to be with you. If you are a VAWA self-petitioner, the lawyer will also help prove you personally would suffer extreme hardship if you are denied admission.

The presence of aggravating factors (e.g. criminal record) and lack of positive factors (e.g. active involvement in community or volunteer organizations) could lead to a denial of your waiver request. Needing another waiver, such as a section 212(h) waiver (for criminal and related grounds) or a section 212(i) waiver (for fraud or willful misrepresentation) also complicates your case. A good lawyer will help you prove the favorable factors outweigh the unfavorable factors in your case.

It’s much harder to get an I-601 unlawful presence waiver when you file it on your own and don’t have the benefit of counsel. You have 30 days to file a motion to reopen/reconsider or an appeal if your waiver request is denied. Otherwise, you may re-file the application with new, material evidence. Federal courts lack jurisdiction to review an agency’s decision on an I-601 waiver.

A diligent, experienced immigration attorney will advise you on the documentary evidence to submit, prepare a legal brief explaining how you qualify for the waiver and why you deserve it, and put together a strong waiver application to maximize the chance of success.

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Any period of unlawful presence prior to April 1, 1997 – the date the law went into effect – does not count toward the 3 year/10 year bars.  In addition, a minor who is unlawfully present while under age 18 does not accrue any time toward the 3 or 10 year bars. Upon turning 18, he begins to accrue unlawful presence toward the bars.

For more information on when the 3/10 year bar applies, who qualifies for the I-601 [INA § 212(a)(9)(B)(v)] Waiver, and the limitations of the waiver, read our related article, When do you need an I-601 waiver due to unlawful presence (and how do you get it)?

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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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When do you need an I-601 waiver due to unlawful presence (and how do you get it)?

Posted on February 29, 2016 | Comments Off on When do you need an I-601 waiver due to unlawful presence (and how do you get it)?

no entryWhen a non-citizen (other than a permanent resident) leaves the U.S. after accruing unlawful presence in the U.S. for more than 180 days, the 3 year/10 year bar to re-entry is triggered.  A person who is inadmissible due to unlawful presence may not receive an immigrant, K-3 nonimmigrant, or K-1 fiancé(e) visa before the 3 year/10 year bar expires without first obtaining an I-601 waiver under section 212(a)(9)(B)(v) of the Immigration & Nationality Act. Only certain immigrants qualify for the waiver.

The unlawful presence bar begins to apply once you depart the U.S., even if it is to file for an immigrant visa at the U.S. Consulate.

When Are You Inadmissible Due to Unlawful Presence [INA§ 212(a)(9)(B)(i)]? 

You are unlawfully present in the U.S. if you (a) remain in the U.S. after your period of authorized stay expires (e.g. I-94 admission period expires and you have no pending application or petition to extend, change, or adjust status); or (b) enter the U.S. without being lawfully admitted or paroled (e.g. illegally cross the border without proper inspection).

3-Year Bar

Section 212(a)(9)(B)(i)(I) of the Immigration & Nationality Act (INA) states the 3 year bar to re-entry applies if you were unlawfully present in the U.S. for more than 180 days, but less than one year, and then depart the U.S. prior to commencement of removal proceedings.  The U.S. government adds up all the days you were unlawfully present in the U.S. in a single ongoing period or stay (i.e. continuous period of unlawful presence).

The 3-year bar does not apply if you depart the U.S. after the Notice to Appear in removal proceedings is filed with the immigration court, following service of the NTA on you. But leaving the U.S. while you are in removal proceedings or being issued a removal order carries other immigration consequences.

10-Year Bar

Section 212(a)(9)(B)(i)(II) of the INA states the 10 year bar to re-entry applies if you were unlawfully present in the U.S. for one year or more, and then depart the U.S. The U.S. government adds up all the days you were unlawfully present in the U.S., even if they were from different periods or stays (i.e. the aggregate period of unlawful presence).

When Do You Trigger the 3/10 Year Bar?

The 3/10 year bar to re-entry is triggered once you leave the U.S.   This does not mean you should never the U.S. to legalize your immigration status, but you should know there are risks to your departure.

Whenever possible, you should avoid departing the U.S. for consular processing and instead apply for permanent residence within the U.S. [A common example is when a foreign national overstays his authorized period on a visitor visa, but enters into a bona fide marriage to a U.S. citizen and applies for a marriage-based green card within the U.S. Although the 3 year/10 year bar is not triggered unless he leaves the U.S., he would have to file an I-601  [INA § 212(i)] waiver if charged with another inadmissibility ground, i.e. fraud or willful misrepresentation of a material fact to gain immigration benefits by misusing the visitor visa to enter the U.S.]

The unlawful presence waiver is needed only if you are unable to adjust to permanent resident status within the U.S. and trigger the 3/10 year bar by leaving the U.S. for consular processing of the immigrant visa.

Persons in the U.S. who are ineligible to adjust status typically include:

  • undocumented immigrants who entered the United States without being inspected and admitted or paroled (and do not qualify for 245(i) benefits).
  • crew members aboard a ship or airplane who entered the U.S. on a C-1 visa.
  • persons who entered the U.S. with a K-1 fiancé(e) visa, but never married their U.S. citizen petitioner.
  • persons in the U.S. who failed to maintain nonimmigrant status and are not applying for a green card as an immediate relative of a U.S. citizen or as a K-1 beneficiary who married the U.S. citizen petitioner – unless the failure to maintain status was through no fault of their own or for technical reasons.
  • a J-1 or J-2 exchange visitor who is subject to the 2-year foreign residence requirement and has not met or been granted a waiver of this requirement.

When Do You Need an I-601 [INA § 212 (a)(9)(B)(v)] Waiver Due to Unlawful Presence?

You need to file for and obtain an I-601 waiver under section 212(a)(9)(B)(v) of the INA when you seek to immigrate to the U.S. – through consular processing – before the 3/10 year unlawful presence bar expires.  Getting this waiver allows you to lawfully re-enter the U.S. with an immigrant visa or K-visa without waiting outside the U.S. for 3 or 10 years.

There are certain exceptions to the unlawful presence rules. First, any period of unlawful presence prior to April 1, 1997 – the date the law went into effect – does not count toward the 3 year/10 year bars.

In addition, section 212(a)(9)(B)(iii) of the INA excludes the following persons from accruing unlawful presence:

Minors who are under age 18. A minor who is unlawfully present while under age 18 does not accrue any time toward the 3 or 10 year bars. Upon turning 18, he begins to accrue unlawful presence toward the bars.

Asylees. No period of time in which the applicant has a bona fide asylum application counts toward the unlawful presence bars, unless he worked without employment authorization in the U.S. during this period.

Beneficiary of Family Unity Protection (FUP) under section 301 of the Immigration Act of 1990. If the FUP is approved, unlawful presence does not accrue as of the date of filing.  The mere filing of the FUP application does not stop the accrual of unlawful presence.

Qualified battered spouses and children. A Violence Against Women Act (VAWA) self-petitioner who has been battered or subjected to extreme cruelty by a U.S. citizen/permanent resident spouse or parent may be exempted from the 3 year/10 year bar when there was a substantial connection between the abuse and the unlawful presence.

Victims of severe form of trafficking in persons. A trafficking victim does not accrue unlawful presence toward the 3 year/10 year bar if he demonstrates the trafficking was at least once central reason for the unlawful presence.

Tolling for good cause. By statute, foreign nationals do not accrue unlawful presence, for up to 120 days, toward the 3 year bar, while their application for extension of status (EOS) or change of status (COS) request is pending with USCIS. Certain conditions must also be met: (1) they must have been lawfully admitted or paroled into the U.S.; (2) they must have filed a nonfrivolous EOS or COS request before the authorized stay expired; (3) they did not engage in unauthorized employment.

Through a May 2009 policy, USCIS has extended this statutory exception to cover the entire period during which an EOS or COS application is pending, and to the 10 year bar.

If USCIS approves the EOS or COS request, it will be backdated to when the authorized stay expired so no unlawful presence accrues. If the request is denied, unlawful presence accrues from the date of denial. But if a timely-filed EOS or COS request is denied because it was found to be frivolous (e.g. applicant was never eligible for benefit) or because the applicant engaged in unauthorized employment, unlawful presence accrues as of the date the authorized stay expires.

Being Out of Status Doesn’t Necessarily Mean You Accrue Unlawful Presence

There are situations where you are out of status (i.e. have no lawful nonimmigrant status), but still have authorized stay and therefore do not accrue unlawful presence. For example:

F-1 students or J-1 exchange visitors who are admitted for their duration of stay, and fall out of status, do not begin to accrue unlawful presence toward the 3 year/10 year bar until USCIS (DHS), an Immigration Judge or the Board of Immigration Appeals (BIA) finds they violated their status, in which case unlawful presence will only start to accrue the date after the formal finding is made.

According to a 2009 USCIS policy, adjustment of status applicants do not normally accrue unlawful presence — due to being out status –while their I-485 application is pending. The I-485 must have been filed properly according to regulatory requirements, before removal proceedings began. If the adjustment application is accepted by USCIS and thus technically filed, the applicant is in authorized stay and unlawful presence is tolled (stopped) while the application is pending.

Persons with Temporary Protected Status (TPS) have authorized stay beginning on the date the TPS application is filed, assuming the application is approved. If the TPS application is denied, unlawful presence begins accruing on the date the previous authorized stay expired.

What are the Limitations of the I-601 [INA § 212(a)(9)(B)(v)] Waiver?

The I-601 waiver under section 212(a)(9)(B)(v) of the INA has several limitations:

It does not waive prior removal orders and multiple illegal entries. The I-601 waiver does not cover the 5-year, 10-year, and 20-year bar due to prior removal orders. It also does not cover permanent bars caused by multiple unlawful entries into the U.S. To overcome such grounds of inadmissibility, you need to qualify for, seek and obtain an I-212 waiver by filing a Form I-212, Application for Permission to Reapply for Admission into the United States after Deportation or Removal .

It is not a stand-alone application. The section 212(a)(9)(B)(v) waiver request is normally filed in conjunction with an  immigrant, K-3 or K-1 visa application. The waiver request is submitted after the U.S. Consulate determines you are inadmissible due to the unlawful presence bar. The waiver, by itself, confers no immigration benefits, such as permanent residence or employment authorization.

Who Qualifies for the I-601 [INA § 212(a)(9)(B)(v)] Waiver?

You qualify for the I-601 [§ 212(a)(9)(B)(v)] waiver if you are the spouse or son or daughter of a U.S. citizen or permanent resident (or the fiance(e) of a U.S. citizen K-visa petitioner) who will suffer extreme hardship if you are not admitted to the U.S. Being a parent of a U.S. citizen or permanent resident child does not make you eligible for the unlawful presence waiver.

If you have no qualifying relative, i.e. U.S. citizen or permanent resident spouse or parent, to meet the extreme hardship requirement, you are ineligible for the I-601 immigrant waiver.

NOTE TO APPLICANTS WHO QUALIFY FOR SECTION 204(l) BENEFITS: If the qualifying relative has died, and section 204(l) applies,  USCIS treats the qualifying relative’s death as the equivalent of a finding of extreme hardship. The deceased relative must have been a U.S. citizen or LPR at the time of death.

NOTE TO NONIMMIGRANTS: A 212(d)(3)(A) nonimmigrant waiver for unlawful presence, however, is available even if you have no qualifying relative.  Current USCIS and U.S. Department of State policy further allows the 3/10 year bar to run even if the person returns to the United States in nonimmigrant status with a 212(d)(3) waiver.)

Being eligible for the I-601 waiver does not necessarily mean you will get it.  As with other waivers available under the INA, the §212(a)(9)(B)(v) waiver is granted in the exercise of discretion. In addition to meeting the statutory requirements, you must present evidence showing the positive factors outweigh the negative factors in their case. Even if you eligible for the waiver, the agency may still deny the request as a matter of discretion.

Where Do You File An I-601 [INA § 212(a)(9)(B)(v)]  Waiver Application? 

The §212(a)(9)(B)(v) waiver request is filed on a Form I-601.  The current filing addresses are as follows:

A VAWA self-petitioner seeking an immigrant visa must file the waiver request with the USCIS Vermont Service Center.

An immigrant visa or nonimmigrant K visa applicant must file the waiver request with the USCIS Phoenix Lockbox.

Because direct filing addresses for the I-601 are subject to change, you must verify this information on the USCIS website.

NOTE:  If the unlawful presence bar is your only ground of inadmissibility and you are applying for an immigrant visa, it’s better to file for an I-601A, Provisional Unlawful Presence Waiver, before you leave the U.S., instead of the regular I-601 waiver. You need to know the key differences between the I-601 waiver and I-601A waiver to decide which is more appropriate.

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Obtaining an I-601 unlawful presence waiver requires more than just submitting the form and documents listed in the instructions. You must also explain to USCIS how the documentary evidence shows you qualify for the waiver and deserve to get it. Experienced counsel can help you prepare a legal brief and present a strong, approvable waiver application.

For more information on what to submit with your application and why seeking counsel helps, read our related article, What should you do get an I-601 Waiver for unlawful presence?

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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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