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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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Applying for a Green Card Following Entry Into the U.S. as a Visitor

Posted on July 31, 2015 | Comments Off on Applying for a Green Card Following Entry Into the U.S. as a Visitor

Foreign nationals who enter the U.S. on a B-1/B-2 visitor visa or on the Visa Waiver Program (VWP) may file for their green card within the U.S. – instead of apply for their immigrant visa aboard – if they fit in the Immediate Relatives category. A common example is when the person enters into a bona fide marriage to a U.S. citizen following entry to the U.S. as a visitor. But the green card applicant’s true intentions when he applied for the visitor visa (or ESTA) or requested entry in visitor status may be called into question.

The visitor visa and VWP program allow foreign nationals to enter the U.S. for tourism or business for a temporary period. Using the visitor visa or VWP to enter the U.S. with the specific intent of immigrating to the U.S. carries risks and consequences.

Overstaying their non-immigrant status in the U.S., in and of itself, does not prevent immediate relatives from adjusting to permanent resident status. Immediate relatives include the U.S. citizen’s spouse, children under age 21, and parents (if the U.S. citizen is 21 or older). In addition, a general desire to immigrate is generally fine. Problems, however, arise when there is willful misrepresentation about the purpose of the trip.

What are the risks and consequences of the visitor-to-green card holder option? 

1. Foreign national may be charged with fraud or willful misrepresentation to obtain immigration benefits

Immigration authorities expect fiancé(e)s of U.S. citizens to apply for a K-1 visa and spouses, parents and minor children of U.S. citizens to apply for an immigrant visa at the U.S. Consulate abroad, rather than enter the U.S. as a visitor and then apply for a marriage-based green card.

The U.S. Department of State adopted a 30/60 day rule when a foreign national violates his nonimmigrant status.  When a foreign national marries a U.S. citizen and takes up residency in the United States within 30 days of entry, the DOS presumes that he misrepresented his intent in seeking a visitor visa or entry. If the marriage or green card application occurred after 30 days but within 60 days of entry, the DOS does not presume there was misrepresentation. But if the facts provide a reasonable basis to believe the foreign national misrepresented his intent, the DOS allows him to present rebuttal evidence. If the marriage or green card application occurred after 60 days, the DOS does not consider such conduct to constitute fraud or willful misrepresentation to obtain immigration benefits.

USCIS is a separate agency from the DOS and the Board of Immigration Appeals has held that immediate relatives are exempt from the 30/60 day rule. In other words, immediate relatives of U.S. citizens who wish to apply for adjustment of status may do so at any time, even within 30 days of entry into the U.S.

[See updates below regarding the switch from 30/60 day rule to 90 day rule.]

Nevertheless, USCIS is often persuaded by and frequently follows the DOS policy. During the adjustment of status process, USCIS may find that the applicant misused the visitor visa or VWP by claiming to be a mere visitor at the U.S. port of entry, when in fact he intended to remain in the U.S. and file for a marriage-based green card.

USCIS might be especially suspicious if you get married or apply for a green card within 30 to 60 days of entering the U.S. They might overlook this conduct or you might be able to convince the USCIS officer that you decided to marry or apply for a green card only after you arrived in the U.S.

If USCIS is not convinced by  your explanation, it will deny your marriage-based green card application on the basis of immigration fraud or misrepresentation, unless you qualify for and receive an I-601 waiver of inadmissibility.  (To obtain an I-601 waiver, applicants must show a qualifying relative  – i.e. U.S. citizen or permanent resident spouse or parent – would suffer extreme hardships if  they are not granted the green card and allowed to stay in the U.S.)

At the U.S. port of entry, the U.S. Customs and Border Protection (CBP) officer may also question the visitor visa holder or VWP entrant about the purpose of his visit.  If you truthfully inform the customs officer that you are coming to the U.S. to get married or visit your U.S. citizen fiancé(e), he could find that you have no intent to leave the U.S. before your authorized stay expires.  The officer may then issue an expedited removal order or request that you withdraw your application for admission into the U.S. In some cases, your visitor visa may be cancelled or revoked and you may be barred from using the VWP.

It can be tempting to just tell the U.S. Consulate or customs officer that you are only coming to the U.S. for a temporary visit, when in fact you intend to engage in other conduct that reflects immigrant intent. While preconceived intent to immigrate to the U.S. does not bar immediate relatives from adjusting to permanent resident status, fraud or willful misrepresentation to obtain immigration benefits does.

2. Foreign national is subject to removal from the U.S.

Although overstaying the B-1/B-2 or VWP authorized period does not bar adjustment of status, it does make the foreign national removable from the U.S. The maximum period of stay in B-1/B-2 status is typically 6 months.  The maximum period of stay on the VWP is 90 days.

When the foreign national remains in the U.S. following expiration of the B-1/B-2 authorized period, he is subject to being placed in removal proceedings due to the overstay. Because VWP entrants waive their right to contest any action for removal, except when applying for asylum, they may be ordered removed without being referred to an Immigration Judge.

The filing of an I-485 application tolls unlawful presence, but does not provide any lawful status. If the adjustment application is denied and the person is not maintaining any nonimmigrant status, he is not only subject to removal, but also begins to accrue unlawful presence.

Departure from the U.S. after accruing more than 180 days to less than 1 year of unlawful presence in the U.S. triggers a 3-year bar from the U.S. The bar is 10 years if the unlawful presence lasted for 1 year or more. To obtain an immigrant visa prior to when the  3/10 year bar expires, the foreign national must first receive an I-601 waiver of inadmissibility. A foreign national who was ordered removed from the U.S. would also need to obtain advance permission to re-enter the U.S. by filing a Form I-212 application (unless the 5, 10 or 20-year bar, resulting from the removal order, has passed).

Visa fraud (misusing the visitor visa or VWP to gain entry into the U.S.) is also grounds for removal from the U.S. Instead of being granted a green card, the foreign national who entered on a visitor visa may end up in removal proceedings, and the VWP entrant may be issued an expedited removal order, if they are found to have committed visa fraud.

When does the visitor-to-green card holder option work best?

1. Foreign national met the U.S. citizen spouse or began committed relationship after he entered the U.S.

In many cases, foreign nationals meet their U.S. citizen spouses-to-be or enter into a committed relationship or get engaged only after they arrive in the U.S. on a visitor’s visa or on the VWP, either during the authorized stay or after the authorized stay expired.

A bona fide marriage between the U.S. citizen and foreign national allows the couple to file a one-step application with USCIS (i.e. US citizen files I-130 immigrant petition and foreign national files I-485 application for adjustment of status, concurrently.)  Upon entry, the foreign national might have a general desire to remain in the U.S., but no specific plans to immigrate because he had yet to meet or become engaged to the U.S. citizen spouse.

The longer the time period between the visitor visa or VWP entry and the filing of the green card application, the easier it is for the foreign national to prove he did not commit fraud or willful misrepresentation to gain entry into the U.S.

2. Foreign national is undecided about immigrating to the U.S. at the time of entry to the U.S.

Entering the U.S. on a visitor visa or on the VWP to spend time with a U.S. citizen petitioner is a permissible activity. It is possible for a person to enter the U.S. in visitor status to maintain a long-distance relationship with a U.S. citizen fiancé(e), or to get married to the U.S. citizen – as long as the intent is to timely depart the U.S. before the authorized stay ends.

Not all foreign nationals want to immigrate to the United States. Some are from developed countries or run successful businesses or hold lucrative professions in their home countries that they do not want to relinquish.

Fraud or willful misrepresentation occurs when you intend to remain in the U.S. permanently, but you tell the consular officer or customs officer that you are coming to the U.S. for a temporary visit. In general, silence or failure to volunteer negative information that is not specifically requested does not amount to fraud or willful misrepresentation.

Due to the 30/60 day rule, it is best to wait to file the marriage-based green card application at least 91 days after entry on a visitor visa or on the VWP.  If the application is made after 90 days, USCIS normally assumes the foreign national acted in good faith and was undecided about immigrating to the U.S.

[UPDATE, August 1, 2017: The DOS replaced the 30/60 day rule with the 90-day rule, which establishes a presumption of willful misrepresentation “if an alien violates or engages in conduct inconsistent with his or her nonimmigrant status within 90 days of entry.” If such actions occur within 90 days of entry, a consular officer “may presume that the applicant’s representations about engaging in only status-compliant activity were willful misrepresentations of his or her intention in seeking a visa or entry.]

[UPDATE, September 10, 2021: The DOS updated its policy on the 90-day rule: If an individual engages in conduct inconsistent with their nonimmigrant status within 90 days of visa application or admission to the United States, the officer may presume the applicant made a willful misrepresentation. The officer must provide the applicant with the opportunity to rebut the presumption of misrepresentation. Inconsistent conduct includes the visitor marrying a United States citizen or LPR and taking up residence in the United States.  Examples of taking up residence are applicant signing a long-term lease or mortgage, having utility bills, and obtaining a local driver’s license.]”

Keep in mind that USCIS considers other evidence when determining your true intentions upon entry into the U.S. For example, to prove the bona fide nature of your marriage, you may submit letters, emails and other correspondences proving your premarital courtship. If any of these correspondences show you planned to marry and remain permanently in the U.S. following entry as a visitor, USCIS could find that you misused the visitor visa or VWP and thus deny your green card application.

Consult an Immigration Attorney to Help You Determine Your Best Immigration Option

Although filing for a marriage-based green card following entry to the U.S. as a visitor is quite common, there are risks and consequences involved in this process.

Applying for a K-1 fiancé(e) visa, K-3 nonimmigrant visa, or immigrant visa at the U.S. Consulate abroad  instead of entering the U.S. on a visitor visa – when the intent is to immigrate to the U.S. – is normally more appropriate.

If you are already in the U.S. and have concerns about proving your good faith non-immigrant intent upon entry into the U.S., you could leave the U.S. before your authorized stay expires and apply for the appropriate visa abroad. And if you leave the U.S. after your authorized stay expires, and you accumulated at least 180 days of unlawful presence prior to your departure, you will trigger the 3/10-year bar. In that event, you will need to obtain an I-601 waiver of inadmissibility to obtain the immigrant visa before the 3/10-year bar expires.

Consult an experienced immigration attorney to help you determine your best visa option and immigration route based on marriage to a U.S. citizen.

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.

* * *

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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Risks of H-1B layoff or job loss (and how to overcome them)

Posted on December 12, 2014 | Comments Off on Risks of H-1B layoff or job loss (and how to overcome them)

Corporate restructuring and downsizing are not unusual in today’s business climate.

H-1B employees who face layoffs or job loss can change employers to keep their status and avoid departing the U.S. to apply for a new visa overseas.

Below are the main risks and consequences of an H-1B layoff or job loss and the steps the employee and employer can take to overcome them:

Risks and Consequences

Falling Out of Status

H-1B status through the sponsoring employer ends on the employee’s last day of work. Upon termination, employers must send a Notice of H-1B termination to U.S. Citizenship & Immigration Services (USCIS). USCIS may then decide to revoke the H-1B approval. The employee loses H-1B status upon termination of employment, not upon revocation.

There is no grace period following the layoff. Employees are out of status the day following their last day of work.  [UPDATE: November 18, 2016 – DHS published a final rule, effective January 17, 2017, granting a 60-day grace period allowing a terminated H-1B employee to leave the U.S. or find a new employer to file an extension petition, without violating their nonimmigrant status.]

Even if the employee receives severance pay following termination of employment, he is still out of status because he is not working under the terms of the H-1B petition. Receiving paychecks beyond the termination date is different from negotiating an extended termination date. Loss of lawful H-1B status means the employee is subject to removal from the United States.

Extension of status or change of status

In general, the employee must be in valid status to qualify for an extension of status (EOS) or change of status (COS). This means USCIS must receive the request to extend or change nonimmigrant status on or before the final day of the H-1B employment.

In limited circumstances, USCIS may exercise favorable discretion and overlook short gaps between the loss of status and filing of the EOS or COS request, especially if the layoff or job loss was unexpected.

Accumulating Unlawful Presence

Unlawful presence begins when the employee’s authorized period expires (i.e. the expiration date of the I-94 or upon USCIS’ issuance of notice ending the status, whichever is earlier). The timely filing of a new H-1B petition or request for change of status (e.g. to F-1 student or B-1/B-2 visitor) can also extend the authorized period.

3-year/10-year bar of inadmissibility

Foreign nationals who accumulate 180 days to 1 year of unlawful presence after April 1, 1997, and then depart the U.S., are barred from re-entering the U.S. for 3 years (unless they qualify for a waiver).

Foreign nationals who accumulate 1 year of more of unlawful presence after April 1, 1997, and then depart the U.S., are barred from re-entering the U.S. for 10 years (unless they qualify for a waiver).

Steps the Employee and Employer Can Take

1. Employee: File a new sponsoring employer and qualifying job

Advance notice of the layoff provides time to look for a new job prior to termination of employment. The job must qualify as a specialty occupation and the employer must be willing to file the Form I-129, H-1B extension petition.

If a new employer files a new H-1B petition prior to the H-1B revocation or prior to termination of employment, the employee will be in an “authorized period of stay” while the new petition is pending.

H-1B portability allows the employee to change to a different job with a new employer without the risk of being out of status.

2. Employer: File the H-1B extension petition as quickly as possible, preferably before the employee is terminated from the old job

Normally, an application to change status (e.g. H-1B to F-1 student or B-1/B-2 visitor) or extend status (e.g. transfer or porting of H-1B to a different employer) must be filed while the foreign national is still in lawful status.

To obtain an H-1B extension, the new H-1B petition with approved labor condition application must be filed with USCIS before expiration of status, revocation of status, or termination of employment (whichever is earliest). USCIS typically requests paystubs to verify when employment with the prior employer ended.

An employee can have multiple H-1B visas, so the new employer does not have to wait until the old job is lost.

The regulations, however, indicate that USCIS may, in its discretion, excuse a late filed petition when there are extraordinary circumstances beyond the employee’s control or the petitioning employer’s control.

The delay in filing must be commensurate with the circumstances; the foreign national must not have otherwise violated his nonimmigrant status; the foreign national must be a bona fide nonimmigrant; and the foreign national must not be in removal proceedings.

NOTE: USCIS may approve the new H-1B petition even if it denies the extension of status. In that case, the employee would need to depart the U.S. to consular process the H-1B visa overseas. If the 3-year/10-year bar applies, the visa applicant will also need to obtain a 212(d)(3) waiver.

3. Employer: Request Premium Processing of H-1B petition

The employee does not officially have H1B status and work authorization until USCIS actually approves the new petition. The employer may request premium processing (i.e file Form I-907) to receive a quicker decision.

4. Employee: Start working only after USCIS receives the new H-1B petition or, better yet, after USCIS approves it

H-1B portability generally allows  the employee to work for a new employer without needing to depart the U.S. for a new H-1B visa.

The H-1B portability criteria are: (1) the foreign national was lawfully admitted; (2) the new H-1B petition is “nonfrivolous”; (3) the new H-1B petition was filed before the date of expiration of authorized stay period (as stated on the I-94 card); and (4) subsequent to lawful admission, the foreign national has not been employed without authorization before the filing of the petition.

When the H-1B change of employer petition is timely filed, the employee is generally eligible to work when USCIS issues the receipt notice. But the employee should wait for the H-1B approval rather than rely on H-1B portability when the new petition is untimely (i.e. filed after the employee is terminated by the prior employer and falls out of H-1B status).

If the H-1B extension request is denied, the denial is retroactive to the date the petition was filed. Although portability allows the employee to work for the new employer until the date of denial, once the petition is denied, the employment is no longer authorized and the employee is out of status.

If USCIS approves the H-1B extension petition, the “interim” work authorization ends. USCIS may do one of two things:

(1) use its discretion and approve an extension of status, permitting the employee to stay in the U.S. in H-1B status and continue working for the new employer; or (2) deny the extension of status request and require the employee to depart the U.S., and obtain an H-1B visa at the U.S. Consulate.

(If the employee already has a valid H-1B visa from the old employer, he may present that visa with the new Form I-797, H-1B approval notice to request re-entry into the U.S. But it’s better to get a new visa with a new expiration date. )

* * *

H-1B extensions beyond the normal 6 years require the employee and employer to consider other risks and take additional steps. Look out for a future article on this issue.

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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