Category Archives: waiver

Form I-751: Removing Conditions on Permanent Residence When Marriage is on the Rocks

Posted on August 29, 2015 | Comments Off on Form I-751: Removing Conditions on Permanent Residence When Marriage is on the Rocks

Your permanent residence is “conditional” if it is based on a marriage that was less than two years old on the date you were granted this status.  The conditional residence – which begins on the date you lawfully enter the U.S. on an immigrant visa or the date you adjust to permanent residence – is valid for two years.

Failing to file a timely joint Form I-751 petition to remove the conditions results in the automatic termination of your status and subjects you to removal from the U.S.

In the best-case scenario, you and your U.S. citizen or lawful permanent resident (LPR) spouse would file a joint Form I-751 petition to remove the conditions during the 90 days before your two-year green card expires.

Then USCIS would approve the petition, remove the conditions, and issue the 10-year green card, based on documentary evidence showing the marriage is bona fide (i.e. entered into with the purpose of establishing a married life, and not for the purpose of obtaining immigration benefits). USCIS may approve the petition without interviewing you, if the documentary evidence is very strong.

But when the marriage is on the rocks, it becomes much harder to file a timely joint I-751 petition and to get the conditions on your residence removed.

Joint Filing When Parties are Separated or Initiated Divorce or Annulment

If the parties are separated but are on relatively good terms, they may submit a joint I-751 petition to the USCIS Service Center. The joint petition must be filed during the 90 days preceding the expiration of the two-year conditional residence. Otherwise, the conditional resident must establish “good cause and extenuating circumstances” for the late filing. Examples of good cause include hospitalization, long term illness, death of a family member, legal or financial problems, having to care for someone, bereavement, serious family emergency, and work commitment, or a family member on active duty with the U.S. military.

The couple must also appear for an in-person interview at a USCIS Field Office, if one is scheduled. In addition, they must meet a four-part test as follows: 1) the marriage was legal where it took place; 2) the marriage has not been terminated; 3) the marriage was not entered into for the purpose of procuring permanent resident status; and 4) no fee (other than to an attorney for filing assistance) was paid for the filing of the Form I-130 or Form I-129F petition.

If USCIS finds that the joint petitioners are legally separated and/or have initiated divorce or annulment proceedings, it will issue a Request for Evidence. The RFE will instruct the conditional resident to submit a copy of the divorce decree or annulment within 87 days, along with a written request to treat the joint petition as a waiver request petition.

If the conditional resident submits the divorce decree or annulment, USCIS will amend the joint petition to indicate it is a waiver request petition based on termination of marriage. USCIS will determine whether there is sufficient evidence to approve the petition on the merits or whether to transfer the case to a Field Office for an in-person interview.

If the conditional resident does not respond to the RFE, or the response does not sufficiently show the marriage has been terminated, USCIS will assess evidence of the bona fides of the marriage. USCIS will decide whether to approve the petition, deny it, or transfer it to a Field Office for an in-person interview.

USCIS may not deny a  joint petition solely because the parties are separated and/or have initiated divorce or annulment proceedings. But legal separation or initiation of divorce or annulment proceedings could suggest that the conditional resident entered into marriage solely for immigration benefits.

As long as the parties prove they married in good faith and the marriage has not been terminated or annulled, USCIS will approve the joint petition (even when the marriage is no longer viable).

Waiver of the Joint Filing Requirement

Conditional residence was introduced in 1986, when Congress passed the Immigration Marriage Fraud Amendment to discourage individuals from entering into sham marriages to circumvent U.S. immigration law. In the 1990’s, Congress passed laws that allow conditional residents, in certain situations, to individually file the I-751 petition so they do not have to stay in  bad or abusive marriages to keep immigrant status.

If the parties file for a divorce or annulment, or the U.S. citizen or LPR spouse is not willing to sign a joint I-751 petition, the conditional resident must then qualify for a waiver of the joint filing requirement.

To receive a waiver of joint filing,  conditional residents must show at least one of the following:

1. The U.S. citizen spouse subsequently died.

2. They entered the qualifying marriage in good faith, but the marriage was terminated (other than by death), and they are not at fault in failing to file a joint petition.

3. They entered the qualifying marriage in good faith, but during the marriage, they or their conditional resident child was battered or subjected to extreme cruelty committed by the U.S. citizen or permanent resident spouse or parent, and they are not at fault in failing to file a joint petition.

4. Extreme hardship would result if they were removed from the U.S.

Waiver petitions can be filed at any time prior to a final removal order, and do not require proof of “good cause and extenuating circumstances” for a late filing.

Waiver Based on Divorce (Good Faith/Divorce Waiver)

You may file your I-751 by yourself and request a waiver of the joint filing requirement if you are divorced from your U.S. citizen or LPR spouse. When there’s a divorce, an in-person interview at the USCIS Field Office is likely.

Current USCIS policy states that if you file a waiver request petition because you are separated from your spouse or because you are in divorce or annulment proceedings, USCIS will issue a Request for Evidence, giving you 87 days to submit a copy of the divorce decree or annulment.

If you submit the divorce decree or annulment, with a request for a waiver of the joint filing requirement based on termination of marriage, USCIS will continue processing your petition and adjudicate it on the merits.  If you do not submit the divorce decree or annulment, USCIS will deny the waiver request petition and issue a Notice of Termination of Conditional Residence.  USCIS may also serve you with a Notice to Appear (NTA) in removal proceedings before the Immigration Court.

After your divorce becomes final, you may refile your waiver request petition with USCIS if you are not in removal proceedings. Or you may apply for the waiver before the Immigration Court if you are placed in removal proceedings.

A divorce raises suspicion that the marriage was not entered in good faith. To get the waiver request petition approved, you must submit bona fide marriage documents such as birth certificates of your children;  joint mortgages or leases; records of shared bank accounts and credit cards; joint tax returns; photographs of the two of you together and with friends and relatives; correspondences you shared; and affidavits from marriage counselors, therapists, relatives and friends who know about your relationship.

Waiver Based on Battery or Extreme Cruelty by Spouse (Battered Spouse Waiver)

You may individually file the I-751 petition when you are in an abusive marriage that subjects you or your conditional resident child to battery or extreme cruelty perpetuated by the U.S. citizen or LPR spouse. This waiver is available regardless of whether you are still married to or still living with the spouse.

Battery or extreme cruelty is defined as “any act or threatened act of violence, including any forceful detention, which results or threatens to result in physical or mental injury.” Acts of violence include “psychological or sexual abuse or exploitation, including rape, molestation, incest (if the victim is a minor), or forced prostitution.”

Battery involves physical violence committed against you by your spouse. This can include slapping, shoving, punching or any other infliction of bodily injury.

Extreme cruelty includes nonviolent abuse inflicted on you by your spouse to control or punish you. This includes refusing to jointly file the I-751 unless you give in to unreasonable demands; threatening to report you to authorities and have you deported from the U.S.; threatening to physically harm you;  forbidding you from contacting friends and family; withholding food, transportation and other basic necessities; and searching through or destroying your personal property, including important documents.

To establish battery, you should present “expert testimony in the form of reports and affidavits from police, judges, medical personnel, school officials and social service agency personnel.” You may also submit evidence that you sought an order of protection against the abuser or present photographs of injuries you suffered.

To support claims of extreme cruelty, you should provide objective evidence from professionals recognized as experts in the field; namely, licensed clinical social workers, psychologists, and psychiatrists.

A detailed affidavit describing the abuse you suffered is also helpful.

Waiver Based on Extreme Hardship (Extreme Hardship Waiver)

You may self-petition to remove the conditions on your residence if termination of your permanent residency and removal from the United States would result in extreme hardship. The immigration statute is silent about who must suffer the extreme  hardship, but USCIS normally considers the hardships to the conditional resident and to the children of the marriage.

USCIS considers only factors that arose after you became a conditional permanent resident.  One example is when the political or economic conditions in your home country have deteriorated, and you have publicly criticized its government, since you became a conditional resident.

The term “extreme hardship” is not defined by immigration law. Rather, USCIS generally applies case law regarding applications for suspension of deportation or waivers of inadmissibility. USCIS will consider factors such as your age,  health condition, ability to obtain employment in the home country, length of residence in the U.S. and family ties in the U.S. Other factors include the financial difficulties and emotional hardships you would suffer if you were removed from the U.S., as well as the current political and economic conditions in your home country.

Although the statute itself does not require you to prove a good faith marriage, you must prove extreme hardship if you are removed from the U.S. Such hardship is significantly greater than the hardship that one would ordinarily experience upon being removed from the U.S.

Choosing the Appropriate Form I-751 Waiver

The most recent version of the Form I-751, dated 04/11/13, does not indicate that the waivers are mutually exclusive or that the conditional resident must select only one of the possible grounds for a waiver. Some USCIS officers or immigration judges, however, might instruct you to choose one waiver.

If the U.S. citizen or LPR spouse dies during the two-year conditional period, a separate waiver is available on that basis.  A copy of the death certificate and proof of the bona fide nature of the marriage must be submitted.

Consult an Immigration Attorney

An experienced immigration attorney can help you file a well-documented Form I-751 petition, as well as choose an appropriate waiver, if necessary. The attorney can also prepare you for the interview and attend it with you, if USCIS schedules one.  A denial of petition to remove conditions or a termination of conditional residence subjects you to removal from the U.S., so seeking accurate legal advice is crucial.

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-601A, Provisional Unlawful Presence Waiver: Advantages and Limitations

Posted on June 12, 2015 | Comments Off on I-601A, Provisional Unlawful Presence Waiver: Advantages and Limitations

Most undocumented immigrants who entered the U.S. illegally must depart to apply for an immigrant visa at their U.S. Consulate overseas. Unless they qualify for 245(i) benefits, they cannot file a Form I-485 to adjust to permanent resident status while they are in the U.S.

If the person accumulated more than 180 days of unlawful presence prior to departing the U.S., it is much harder to obtain the visa overseas. To get the visa, the person first needs to receive a waiver of inadmissibility for the unlawful presence.

The Provisional Unlawful Presence Waiver, which was introduced on March 4, 2013, may be obtained before the immigrant visa applicant departs the U.S.  It reduces the uncertainty and risk that come with consular processing, but has many limitations.  To get this waiver, applicants must file the Form I-601A with USCIS while they are still in the U.S.

When is the Unlawful Presence Waiver Required? 

In 1996, Congress passed a law that bars foreign nationals from lawfully re-entering the U.S. for 3 or 10 years, if they accumulated a certain period of unlawful presence in the U.S. before they left the country.  Persons are unlawfully present if they:

(1) entered the U.S. without inspection (e.g. crossing the U.S.-Mexico border illegally or stowing away in a car crossing from Canada to the U.S.); or

(2) entered the U.S with inspection but failed to leave on time (e.g. entering the U.S. lawfully on a visitor’s visa or Visa Waiver program and overstaying the authorized period, in which case unlawful presence normally begins to accrue after the authorized stay expires).

Persons who accumulate more than 180 days but less than 1 year of unlawful presence after the age of 18 and after April 1, 1997 (for a continuous period), and then leave the U.S., are barred from re-entering the U.S. for 3 years. Persons who accumulate one year or more of unlawful presence after age 18 and after April 1, 1997 (for an aggregate period) and then leave the U.S., are barred from re-entering the U.S. for 10 years. This is commonly known as the 3/10 year bar.

Being in unlawful status does not necessarily mean you are unlawfully present for purposes of the 3/10 year bar. Some examples include:

1) A minor under 18 years old. Minors do not accrue unlawful presence until the day after their 18th birthday.

2) F-1 students who are admitted for the duration of their status. F-1 students do not begin to accrue unlawful presence until USCIS or an immigration judge finds they violated their status.

3) Adjustment of status applicants.  Persons with a properly filed Form I-485, application for adjustment of status, do not accumulate unlawful presence while the application is pending. The accrual of unlawful presence is tolled until USCIS denies the application.

When the 3/10 year bar applies, the person must obtain an unlawful presence waiver to lawfully re-enter the U.S. before the bar expires. For example, if you accumulated 190 days of unlawful presence and then depart the U.S. on June 4, 2015, you must obtain the waiver to receive an immigrant visa prior to June 4, 2018 (3-year bar).  If the unlawful presence lasted 10 years, you must obtain the waiver to receive an immigrant visa prior to June 4, 2025 (10-year bar).

Because the waiver is difficult to get, persons with unlawful presence should stay in the U.S. and apply for adjustment of status, instead of apply for an immigrant visa overseas, whenever possible. For instance, if you overstayed after entering the U.S. lawfully on a temporary visa (e.g. B-2, F-1 or H-1B visa), you may file for adjustment of status if you marry a U.S. citizen who files an immigrant visa petition for you.  The 3/10 year bar is not triggered unless you depart the U.S.

Advantages of the Provisional Unlawful Presence Waiver

Many undocumented immigrants are unwilling to take the risk of departing the U.S. to legalize their status, especially when they do not know whether a waiver of the 3/10 year bar will be granted. The provisional waiver provides two main advantages:

1. Higher likelihood that immigrant visa will be granted by 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.

Applicants who do not qualify for the provisional waiver must file the regular Form I-601, Application for Waiver of Grounds of Inadmissibility, after they attend the visa interview. In contrast, Form I-601A applicants already have the provisional waiver at the time of the interview. Unless there are other grounds of inadmissibility, the U.S. Consulate typically grants the visa when USCIS has provisionally waived the unlawful presence.

2. Shorter wait time abroad and separation from family in the U.S.

Regular Form I-601 applicants must wait abroad, after attending their visa interview, while USCIS reviews their waiver request. Because USCIS normally takes at least six months to process the waiver, applicants must plan to wait outside the U.S. for this time period or longer.

If USCIS grants the waiver, the U.S. Consulate could take at least another month to contact the applicant to send in more documents to finish processing or attend a second interview to update the case and make sure the applicant is eligible for the visa.  The wait time abroad and separation from family often last at least six months and, in some cases, one year or more.

The provisional waiver process allows applicants to obtain the waiver ahead of time, before they depart the U.S. to attend the visa interview. You get to stay in the U.S. with your family while USCIS processes the waiver request, which reduces the time you are separated from your family. After the waiver is approved, you then depart the U.S. to attend the interview at the U.S. Consulate. Instead of waiting abroad for months like regular Form I-601 applicants, you normally get the visa within days to resume your life in the U.S.

Limitations of the Provisional Unlawful Presence Waiver

The Provisional Unlawful Presence Waiver is not available to all immigrant visa applicants and waives only inadmissibility due to unlawful presence.

1. Applicant must be an immediate relative of a U.S. citizen

The March 2013 regulations allow only immediate relatives of U.S. citizens to apply for the provisional waiver.

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). NOTE: Some persons over age 21 may still be classified as a “child” under the Child Status Protection Act (CSPA).

In November 2014, the Obama Administration directed USCIS to issue new regulations expanding the Form I-601A waiver to other applicants, but USCIS has yet to take this step. Until such time,  all applicants except immediate relatives of U.S. citizens must file the regular Form I-601.

[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.]

2. Applicant must be physically present in the U.S.

You may apply for the provisional waiver only if you are already in the U.S. and are still in the U.S.

If you are living overseas or if you already departed the U.S., you must file the regular Form I-601 with USCIS after you attend the immigrant visa interview.

3. Applicant must prove that the qualifying relative will suffer extreme hardship if the waiver is denied

Applicants for the provisional waiver must meet the same standards under the regular Form I-601. You still must prove that your “qualifying relative” will suffer “extreme hardship” if you are not admitted to the U.S. before the 3/10 year bar expires.

Qualifying relatives are your U.S. citizen or permanent resident spouse or parent. U.S. citizen or permanent resident children are not qualifying relatives under immigration law.

The qualifying relative and the immediate relative need not be the same person. For example, when the undocumented immigrant’s spouse is a permanent resident, and the couple has an adult U.S. citizen son, the spouse is the qualifying relative and the son is the immediate relative. Although the son files the immigrant petition in the immediate relative category, the visa applicant must prove that the spouse will suffer extreme hardship if the 3/10 year bar is not waived.

Meeting the “extreme hardship” standard is challenging. “Extreme hardship” is more than just the normal hardships that arise when families are separated.

USCIS considers a variety of factors when determining whether your qualifying relative will suffer extreme hardship either by staying abroad with you or remaining in the U.S. without you. 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.

USCIS considers the totality of the circumstances and weighs all the factors in the aggregate. USCIS will grant the waiver only if determines that the qualifying relatives will suffer extreme hardship if they remain in the U.S.  without the applicant or if they joined the applicant abroad, due to a combination of factors. 

4. Applicant cannot be inadmissible to the U.S. on other grounds

You may apply for the provisional waiver if you are inadmissible only on account of your unlawful presence in the U.S. If you are subject to other grounds of inadmissibility, such as illegal re-entries, 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.

Illegal re-entries or attempts to illegally re-enter the U.S. following one year or more of unlawful presence or following a removal order, after April 1, 1997,  is a permanent bar.  This cannot be waived by the filing of a Form I-601A. Rather, the applicant must wait outside the U.S. for 10 years and then request permission to be admitted to the U.S. by filing a  Form I-212.

There is no waiver for false claims to U.S. citizenship to obtain benefits under immigration law or federal or state law.  Rather, applicants must prove that no such claim was made or that they timely retracted the false claim.

In some cases, grounds of inadmissibility due to fraud or willful misrepresentation of a material fact to obtain immigration benefits, or due to criminal convictions, may be waived through the filing of a regular Form I-601 waiver application.

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 waiver request and approve it, assuming the requirements are met and a favorable exercise of discretion is appropriate.

5. Applicant must not be in removal proceedings or subject to a removal order

If you are in removal proceedings, you may not apply for the provisional waiver unless the Immigration Court administratively closes your removal proceedings and does not place your case back on the calendar to continue removal proceedings as of the date of filing the Form I-601A.

You do not qualify for the provisional waiver if you (a) have been ordered removed, excluded, or deported from the U.S. or (b) are subject to reinstatement of a prior order of removal.

6. Applicant does not receive any lawful status or protection from removal

Applying for the provisional waiver does not give you any lawful status in the U.S., does not grant any immigration benefits such as employment authorization, and does not protect you from removal.

Although USCIS does not intend to place Form I-601A applicants in removal proceedings, it must still follow Department of Homeland Security (DHS) and USCIS Notice to Appear (NTA) guidance related to initiation of removal proceedings. So, if you mistakenly apply for the provisional waiver when you are removable or inadmissible for reasons other than unlawful presence, e.g. criminal convictions, you are alerting USCIS and could end up in removal proceedings.

How to Apply for the Provisional Waiver

To apply for the provisional waiver, you must:

(a) Be the beneficiary of an approved I-130 immigrant visa petition classifying you as an immediate relative of a U.S. citizen;

(b) Intend to pursue an immigrant visa at the U.S. Consulate abroad instead of apply for adjustment to permanent residence within the U.S.;

(c) Have an immigrant visa case pending with the U.S. Department of State (DOS);

(c) Pay the immigrant visa processing fee to the DOS; and

(d) File a Form I-601A, Application for Provisional Unlawful Presence Waiver, with USCIS. Make sure your application is complete, signed, and submitted with the correct application and biometrics fees. You must also include supporting documents and information showing how your qualifying relative would suffer extreme hardship if you are not granted the waiver.

If USCIS denies your Form I-601A, you may not appeal the decision or file a motion to reopen or reconsider the decision. You may, however, file a new waiver application with additional evidence and pay the fees again.

In some cases, even when you are not eligible for the provisional waiver, you may seek a waiver for the 3/10 year bar and other grounds of inadmissibility through the regular Form I-601 waiver process. This means you first need to depart the U.S. and attend the immigrant visa interview at a U.S Consulate abroad, which would then instruct you to file the Form I-601 if you qualify for a waiver.

* * *

Consult an experienced immigration attorney to help you determine whether you must apply for an immigrant visa instead of file for adjustment of status; whether you are inadmissible due to unlawful presence or other grounds; and whether you qualify for the provisional waiver (or the regular waiver).

Working with an attorney is critical to presenting a strong waiver application with the necessary information and documents showing you meet the extreme hardship standard.

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-601A, Provisional Unlawful Presence Waiver: Expansion Possible

Posted on May 30, 2015 | Comments Off on I-601A, Provisional Unlawful Presence Waiver: Expansion Possible

luggage 5-31-15Back in November 2014, the Obama Administration proposed an expansion of the Form I-601A, Provisional Unlawful Presence Waiver, to a larger pool of immigrant visa applicants.

If USCIS issues new regulations for this proposed change to take effect, the sons and daughters of U.S. citizens (regardless of their age) and spouses and children of lawful permanent residents will be able to apply for the Provisional Unlawful Presence Waiver (assuming they meet the other requirements).

What is the Provisional Unlawful Presence Waiver?

Unless they qualify for 245(i) benefits, persons who entered the U.S. illegally may not apply for adjustment to lawful permanent resident status, but must travel abroad to a U.S. Consulate to apply for an immigrant visa.

Persons who accumulate more than 180 days to less than one year of unlawful presence after age 18 and after April 1, 1997, and then leave the U.S., are barred from re-entering the U.S. for 3 years. Persons who accumulate one year or more of unlawful presence after age 18 and after April 1, 1997, and then leave the U.S., are barred from re-entering the U.S. for 10 years. This is commonly known as the 3/10 year bar.

To re-enter the U.S. on an immigrant visa before the 3/10 year bar expires, applicants must receive a waiver of inadmissibility for their unlawful presence.

On March 4, 2013, USCIS introduced the  Form I-601A, Application for Provisional Unlawful Presence Waiver to allow certain immigrant visa applicants to obtain a waiver of inadmissibility for their unlawful presence before they depart the United States. The provisional waiver provides several advantages, but has many limitations.

Previously, such applicants could only file the Form I-601, Application for Waiver of Grounds of Inadmissibility, after they departed the U.S. and attended their visa interview at the U.S. Consulate abroad.

Like I-601 applicants, I-601A applicants must show their absence from the U.S. will cause extreme hardship to their qualifying relative, i.e. a U.S. citizen or permanent resident spouse or parent. (NOTE: U.S. citizen or permanent resident children are not qualifying relatives.)

What Does the Proposed Expansion Include? 

The 2013 regulations extended the Provisional Unlawful Presence Waiver only to the spouses, minor children (under age 21), and parents of U.S. citizens.

On November 20, 2014, the Secretary of Homeland Security directed USCIS to issue new regulations expanding the waiver to all statutorily eligible applicants, i.e. the spouses and children of lawful permanent residents and the adult children of U.S. citizens (assuming they meet the other criteria to obtain the waiver).

USCIS was also directed to clarify the meaning of “extreme hardship,” which is hardship that is unusual or beyond what would normally be expected. The term is not specifically defined by statute or by case law. Additional guidance on the definition could make it easier to determine what documents and information to present with the waiver application.

What Process Will USCIS Use to Expand the Provisional Unlawful Presence Waiver Program? 

Expanding the Provisional Unlawful Presence Waiver Program requires new or amended regulations. This means the agency must follow the notice-and-comment rulemaking process under the Administrative Procedures Act (APA).

Public notice is issued when a US government agency wishes to add, remove or change a rule or regulation.

On April 2, 2012 — before introducing the Form I-601A in March 2013 –  USCIS published a Notice of Proposed Rule that described the provisional unlawful presence waiver process. After gathering and reviewing public comments, the Homeland Security Department published the final rule on January 3, 2013.

The agency’s discretionary authority to waive the ground of inadmissibility for unlawful presence is based on an immigration statute passed by Congress in 1996. The new regulations did not change the law or the substance of the legal standards. Rather, they changed the process for seeking the unlawful presence waiver when the applicant is in the U.S. and is the spouse, minor child, or parent of a U.S. citizen petitioner.

USCIS Expected to Take Steps to Expand Program 

Compared to the expanded Deferred Action for Childhood Arrivals (DACA) and the new Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA), the expansion of the waiver program stands a better chance of being implemented because it will arise from changes in regulation, not by changes in policy.

The Obama Administration came under fire when it attempted to roll out the expanded DACA and new DAPA by new policies related to the use of deferred action. A Texas-led coalition of 26 states filed a lawsuit challenging the implementation of these programs.  In response, Judge Andrew S. Hanen of the U.S. District Court for the Southern District of Texas issued a preliminary injunction stopping the expanded DACA and new DAPA from going into effect. The judge found that the agency should have used the notice-and-comment rulemaking process of the APA, but did not.

In contrast, USCIS was directed to issue new regulations that would expand the waiver program and clarify the factors it considers when determining whether the “extreme hardship” is met.  This means the agency must complete the rulemaking process before it can expand the program.

Although no timeline or deadline has been set, USCIS is expected to issue public notice on the proposed changes. The agency also stated that applications under the expanded program may be filed after it completes the rulemaking process and issues new regulations and guidelines.

If USCIS adopts the proposed changes, a larger pool of immigrant visa applicants will be able to apply for the Provisional Unlawful Presence Waiver before they depart the U.S. for consular processing.  Applicants will also have a better understanding of the factors USCIS considers in deciding whether they meet the extreme hardship standard.

[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.]

The grant of a provisional waiver gives applicants some assurance they will be able to return to the United States on immigrant visas, despite being subject to the 3/10 year bar for unlawful presence.

While pre-approval of the “extreme hardship” waiver before departing the U.S. does not guarantee the applicant will receive the visa, it increases the likelihood that they will. It further reduces the uncertainty that comes with consular processing, as well as shorten the time applicants will be separated from family members living in the U.S.

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If you do not qualify for the Form I-601A waiver under the existing regulations, watch out for new regulations expanding the program. Otherwise, you might qualify for the regular Form I-601 waiver, which you can request after you depart the United States and attend your immigrant visa interview at the U.S. Consulate.

Consult an experienced immigration attorney to help you determine whether you are eligible for the Provisional Unlawful Presence Waiver and what information and documents to submit with your application.

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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Defenses to INA 212(a)(6)(C)(ii) Inadmissibility (False Claim to U.S. Citizenship)

Posted on February 9, 2015 | Comments Off on Defenses to INA 212(a)(6)(C)(ii) Inadmissibility (False Claim to U.S. Citizenship)

Several elements must be met for an applicant to be permanently inadmissible to the United States under INA 212(a)(6)(C)(ii), i.e. false claim to U.S. citizenship. A 212(d)(3) waiver may be requested if you are barred on this ground and seek to enter the U.S. as a nonimmigrant. There is no immigrant waiver for this inadmissibility bar.

What are the Potential Defenses to a False U.S. Citizenship Claim? 

A person who is charged with INA 212(a)(6)(C)(ii) may raise a defense as follows:

1) The false claim was made prior to September 30, 1996

False U.S. citizenship claims made before September 30, 1996, when the immigration laws changed, does not permanently disqualify you from obtaining a green card or immigrant visa.

If your false claim to U.S. citizenship was made to a private entity, such as an employer or a bank, prior to September 30, 1996, the lifetime bar does not normally apply.

False U.S. citizenship claims before this date must have been willfully made to a U.S. government official in connection with a visa application, a request for admission to the U.S,. or an attempt to obtain immigration benefits, for you to be deemed inadmissible or removable on this ground. (NOTE: You might still, however, need a waiver for the fraud or willful misrepresentation.)

2) The false claim was not for a “purpose or benefit”  under immigration law or any other federal or state law 

One could argue that the potential benefit is not directly linked to a false U.S. citizenship claim (i.e. the outcome would have been the same regardless of the person’s citizenship status).

One could also argue that the false U.S. citizenship claim was made to avoid a negative outcome, and not to obtain a benefit.

An example is lying about being a U.S. citizen to a police officer to avoid being reported to the immigration authorities (where the arrest would have been made despite citizenship status and where avoiding deportation is not a “benefit”).

3) The false claim was made by someone else 

False claims made by someone else on your behalf, when you were not aware of and did not participate in the claim, should not disqualify you from getting a green card or immigrant visa.

For example, you might have signed the I-9 form, but did not check the box indicating your immigration status or eligibility to work. Rather, the employer checked the box on your behalf without your knowledge (even though, by law, they are not supposed to do this).

USCS may initiate efforts to obtain the I-9 records, whether through a Request for Evidence to you or through a request (subpoena to produce records) to the employer. If your signature appears in the Employee Information and Attestation section of any I-9 form, USCIS could ultimately hold you responsible for the US citizenship box being checked. Typically, it will come down to the adjudicating officer’s discretion, including whether the officer believes your explanation based on your testimony and the underlying circumstances of your unauthorized employment.

4) The false claim was timely and voluntarily retracted

If you timely and voluntarily retract your false U.S. citizenship claim, you will probably not be found inadmissible or removable. For this defense to work, you would have to timely and voluntarily take back your false claim and correct the error before the lie is exposed or is about to be exposed. The retraction has to be in the same proceeding and not in a different proceeding, for example.

What would qualify as a timely retraction depends largely on the facts, but must be done at the first opportunity.

5) The false claim falls under a specific exception

There is a narrow exception to being deportable — due to a false claim to U.S. citizenship — if you were under age 18 when you made the false claim, you permanently resided in the U.S. (with a green card) before you turned 16, each of your natural or adopted parents were U.S. citizens or are U.S. citizens, and you reasonably believed you were a citizen when you made the claim.

6) The false claim referred to being a U.S. national, not a U.S. citizen

There is ambiguity in old versions of Form I-9 (prior to April 3, 2009), which combined a “citizen or national of the United States” into one box. In this situation, the person may argue that the I-9 doesn’t show clearly whether he claimed to be a citizen or national. Immigration law punishes false claims to U.S. citizenship, but not false claims to U.S. nationality.

In these cases, applicants must show they were claiming to be a non-U.S. citizen national as opposed to a U.S. citizen when they completed the I-9.  This inquiry is not necessary when an April 3, 2009, edition or later edition of the I-9 was used because these editions clearly distinguish between a “citizen of the United States” and “non-citizen national of the United States.”

[UPDATE, JUNE 2019] – Different Interpretations of the Law: Does It Matter if the False Claim was Not Intentionally or Knowingly Made? 

In prior guidance, immigration officers, immigration judges, and DHS counsels generally agreed the false U.S. citizenship claim must have been intentionally or knowingly made. Mental capacity and English language skills could be relevant to whether you intentionally or knowingly made a false claim.

But in Matter of Zhang, 27 I&N Dec. 569 (BIA 2019), the Board of Immigration Appeals found the plain language of the statute, INA 237(a)(3)(D)(i), does not require an intent to falsely claim citizenship to trigger this ground of removability. The BIA noted the statute does not contain a “knowing” or “willful” requirement for false claims to citizenship. Following this decision, USCIS began to interpret this to mean the applicant need not intend to falsely claim citizenship to be found inadmissible under INA 212(a)(6)(C)(ii).

The U.S. Department of State’s Foreign Affairs Manual (version 03-27-2018), however, still contains a limited exception based on a December 6, 2014 opinion from the DHS Office of the General Counsel. The FAM states:

(1)  Only a knowingly false claim can support a charge that an individual is ineligible under INA 212(a)(6)(C)(ii).  The individual claiming not to know that the claim to citizenship was false has the burden of establishing this affirmative defense by the appropriate standard of proof (“clearly and beyond doubt”).

(2)  A separate affirmative defense is that the individual was (a) under the age of 18 at the time of the false citizenship claim; and (b) at that time lacked the capacity (i.e., the maturity and the judgment) to understand and appreciate the nature and consequences of a false claim to citizenship.  The individual must establish this claim by the appropriate standard of proof (“clearly and beyond doubt”).

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There is no immigrant visa waiver available under current law for an applicant who is ineligible under INA 212(a)(6)(C)(ii). If you seek to immigrate to the United States, it is especially important to verify whether the bar was properly made. You should raise any potential defenses to prevent adverse consequences due to a false claim to U.S. citizenship.

For more information, read:

Why Lying About Being a U.S. Citizen Can Stop You from Becoming a Permanent Resident (and what you can do to overcome this obstacle)

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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