Category Archives: The Legal Immigrant – Immigration Blog

Immigration Reform Update and I-601 Waiver for 3/10-Year Unlawful Presence Bar

The Biden Administration’s U.S. Citizenship Act of 2021 calls for comprehensive immigration reform. One provision seeks to get rid of the 3/10-year unlawful presence bar. 

This would be a major departure from current law, which requires a special waiver for this inadmissibility ground. Immigrant visa applicants who have this bar must first receive an I-601 or I-601A waiver for the visa to be issued.  Nonimmigrant visa applicants with this bar need a 212(d)(3) waiver to be granted a visa. 

To hear more, click HERE for Episode 7 on The Legal Immigrant podcast or find it on Apple Podcasts.

In this episode, I focus on the immigrant waiver for the unlawful presence bar. I discuss the key differences between the I-601 and I-601A waiver, the qualifying relative and extreme hardship requirements, and the factors that USCIS considers in deciding whether to approve or deny the application. 

For more information on the unlawful presence waiver, see:

Whether any immigration reform or changes in the law will eliminate the unlawful presence bar is uncertain. In the meantime, the 3/10-year bar due to accrual of unlawful presence lasting more than 180 days – prior to departing the U.S. – continues to exist. 

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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 your situation. The sharing or receipt of this information does not create an attorney-client relationship.

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Biden Administration Proposes Immigration Bill to U.S. Congress: The U.S. Citizenship Act of 2021

On January 20th (day 1 of the Biden Administration), the White House announced it is sending a bill to Congress to reform major parts of the U.S. immigration system.

It includes an earned roadmap for certain undocumented immigrants, Dreamers, TPS holders, and immigrant farmworkers to apply for green cards and, eventually, U.S. citizenship. 

Other proposed changes include reducing the backlog in family-based and employment-based immigration; recapturing unused visas; allowing intended immigrants with approved family petitions to join relatives in the U.S. on a temporary basis while they wait for green cards to become available;  and eliminating the 3/10-year unlawful presence bars to re-entry. 

The bill authorizes additional funding to deploy new screening technology at U.S. ports of entry and to address the root causes of migration in the Central American region.

As of the date of this blog post, the bill has not been formally introduced in either the House or the Senate. It will NOT become law unless passed by Congress and signed by the President. 

To hear more about the proposed bill, click HERE for Episode 6 on The Legal Immigrant podcast. And if you want to encourage others to listen to the show, please post a 5-star rating and positive review on Apple Podcasts or other app!

Resource cited:

See also:

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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 your situation. Each case is unique and even cases that seem similar may have different outcomes. The sharing or receipt of this information does not create an attorney-client relationship.

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Form I-129F Approval + K-1 Visa Grant = A True Success Story

A U.S. Consulate issued the K-1 fiancée visa to our client, after it denied her requests for an F-1 student visa renewal. The switch allowed the applicant to avoid the INA 214(b) requirement to establish nonimmigrant intent. The setbacks were overcome with careful documentation to support the Form I-129F, Petition for Alien Fiancé(e), and thorough preparation for the K-1 visa process.

The applicant first consulted me after the U.S. Consulate used INA 214(b) to twice deny her requests for the student visa renewal. She had assumed USCIS’ approval of her application for F-1 reinstatement — after she fell out of status for three years — would automatically lead to the visa issuance.

After one more failed attempt to get the student visa, we agreed to switch to the K-1 visa based on her recent engagement to her U.S. citizen fiancé.

I advised the applicant and her U.S. citizen fiancé on the Form I-129F petition, including the documentary evidence to submit to get an approval. It took four months for USCIS to approve the petition, which is the first step in the K-1 visa process.

Within a month, we received notice from the National Visa Center to proceed with the next step of filing the Form DS-160, K-1 visa application. After receiving all the forms and documents, the U.S. Consulate scheduled her for a visa interview in April 2020.

Unfortunately, due to COVID-19 restrictions that began in March 2020, the Consulate cancelled the interview. At the time, our client was also traveling in Europe and got stuck there for several months.  The K-1 visa interview was eventually rescheduled in December 2020. Our client was also able to return to her home country in time for the visa interview.

I counseled her on submitting the DS-160 visa application, the police certificates, the medical exam report, and the Form I-134, Affidavit of Support.

I confirmed that her prior F-1 visa refusals would not be a problem. She had fallen out of F-1 status for three years, starting in 2015. She departed the U.S. to visit her family abroad, after USCIS approved her Form I-539 application for F-1 reinstatement. USCIS agreed her failure to maintain status was due to circumstances beyond her control.

Her being out of status for three years did not make her inadmissible for 10 years under INA 212(a)(9)(B). No USCIS or Immigration Judge had officially found that she violated her F-1 status, before she filed her Form I-539 application. Under the policy that existed at the time, she did not accrue unlawful presence toward the 3/10 year unlawful presence bar. She also had no other inadmissibility grounds, such as a criminal record or fraud/misrepresentation to obtain a U.S. immigration benefit.

The U.S. citizen petitioner was unemployed and did not meet the income requirement to sponsor her. But her uncle agreed to submit a Form I-134 as a joint sponsor.

I also advised the client on what to expect at the visa interview, including questions on her U.S. visa history, biographic data, and her relationship with her US citizen fiancé.

Despite the obstacles in her case, she was finally issued the K-1 visa in January 2021. She has 6 months to enter the United States on the K-1 visa before it expires.

Upon arrival in the United States on the K-1 visa, she will have 90 days to marry the U.S. citizen petitioner. Following the marriage, she may file a Form I-485 application for permanent residence. If the marriage occurs outside the 90-day timeframe, she may still file for the green card, but the U.S. citizen must file a Form I-130 petition with the Form I-485 application.

When she submits the I-485 application, she may include a request for a work permit and travel authorization. The K-1 visa is for a single entry to the U.S. and does not provide work authorization. While her green card application is pending, USCIS may process her work card and travel document.

If the marriage occurs and the I-485 application is approved, as expected, our client will become a permanent resident of the United States. If the marriage is at least 2 years old at the time of the I-485 approval, she will get a 10-year green card without conditions. Otherwise, she will get a conditional residence card valid for 2 years. She will then need to file a Form I-751 petition to remove conditions and maintain her green card status.

This is a true success story.

Cheers,

Dyan Williams

Founder & Principal Attorney
Dyan Williams Law PLLC
(612) 225-9900
info@dyanwilliamslaw.com

For more details, listen to Episode 5 on The Legal Immigrant podcast.

RESOURCES: 

From K-1 Fiancé(e) Visa to Green Card

K-1 fiancé(e) visas aren’t just for mail-order brides (but still carry strict requirements)

Coming to America to Get Married and Get a Green Card: B-2 or K-1 Visa?

Coming to America to Get Married and Get a Green Card: B-2 or K-1 Visa? – VIDEO

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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 your situation. Each case is unique and even cases that seem similar may have different outcomes. The sharing or receipt of this information does not create an attorney-client relationship.

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The Legal Immigrant Podcast: Episode 4 – Section 204(l) for Surviving Relatives

If the petitioner or principal beneficiary in an immigrant petition dies, may USCIS still approve the case? May the surviving beneficiaries still immigrate to the United States? In some cases, section 204(l) relief is the way.

Section 204(l) of the Immigration & Nationality Act allows certain beneficiaries (and derivative beneficiaries) to continue with an Immigrant Visa request or Adjustment to Permanent Residence application even after the Form I-130 petitioner (or principal beneficiary) has died.

Unlike the survivor benefits for widow(er)s of U.S. citizens, and unlike humanitarian reinstatement for principal beneficiaries of approved petitions, section 204(l) relief protects a broader category of persons if they show they resided in the United States at the time of the death, and they continue to reside in the United States.

Section 204(l) provides benefits not only when the U.S. citizen or permanent resident petitioner dies, but also, in some cases, when the principal beneficiary or principal applicant dies. It allows eligible derivative beneficiaries to continue with the green card process even if the principal beneficiary dies. Derivative beneficiaries are applicants who cannot be directly petitioned for, but may join the principal beneficiary of the petition based on a spousal or parent-minor child relationship.

In episode 4 of The Legal Immigrant podcast, I discuss who may be eligible for 204(l) benefits, the residence and admissibility requirements, the discretionary factors, and how to apply for the relief.

For more information, see:

Section 204(l) Allows Certain Surviving Relatives to Become Permanent Residents Even When Petitioner or Principal Beneficiary Has Died


Section 201(b)(2)(A)(i) Allows Certain Widows or Widowers of U.S. Citizens to Become Permanent Residents Even When the Citizen Has Died

Humanitarian Reinstatement Allows Certain Principal Beneficiaries to Become Permanent Residents Even When Petitioner Has Died

If you like the show, please go to Apple Podcasts, log into your ITunes account, and leave a 5-star rating and positive review. Or share and rate on another app. This extra step will help grow the show and help others find the information they need! 

Many thanks,

Dyan Williams

Founder & Principal Attorney
Dyan Williams Law PLLC
info@dyanwilliamslaw.com
www.dyanwilliamslaw.com

The Legal Immigrant PODCAST is Now Up!

The month of January signals new beginnings and fresh starts. In December 2020 – with the new year approaching – I finally took steps to launch The Legal Immigrant podcast.

Through success stories and Q&As, the show will cover U.S. immigration problems that we help our clients solve.

Episodes 1 and 2 are now up. The podcast is available HERE  on the show’s website. Or find it on podcast apps like Apple Podcasts, SpotifyPlayer FM, and Listen Notes or via RSS feed.

At the start of 2020, I had tentative plans to launch a podcast. As a solo immigration lawyer and a productivity coach, I was conflicted on whether to start one or two podcasts. Over time, this project moved to the backburner while COVID-19, civil unrest, school closures, the November Elections, and other changes were at front and center.

Although the U.S. and other parts of the world are still not back to pre-COVID-19 “normal,” we can still attend to the essentials. We have a unique opportunity to build resilience, show grace to others, and learn new ways to maintain human connection.

Besides launching The Legal Immigrant podcast, I started another podcast, The Incrementalist. This productivity show will discuss how to make big changes or finish a big project in small steps, with the Incrementalist approach.

There’s a content strategy to release new episodes over the coming weeks. It will take systems – not goals – to keep the shows going. Stay tuned!

In the meantime, check out the first two episodes of The Legal Immigrant. If you find the podcast helpful, please share it with others. And subscribe so you don’t miss new episodes. 

And if you’d like to check out my other podcast, The Incrementalist, click HERE for the show’s website.

Your downloads, shares and subscriptions will help to grow the shows. In return, I will aim to provide valuable content and build connection with listeners through podcasting.

Thank you for your support and audience.

All the best in 2021,

Dyan Williams

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