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New Provisional Waiver Rule Goes into Effect Today

3/4/2013

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By Laura Jacobson

Today marks the beginning of USCIS’s new provisional waiver program, an effort to limit the amount of time a family must be separated while their immigrant visa application is processing. Under the immigration laws, many family members of U.S. citizens and lawful permanent residents (LPRs) must finish their application process by attending an interview at the U.S. consulate in their country of origin, a system known as consular processing. If the applicant has been living in the United States without legal status, he or she must then ask for a waiver in order to come back from this interview. This new rule is designed to limit the amount of time an applicant is outside of the U.S. waiting for a decision on the waiver.

What is a waiver and who needs it?

In order to qualify for an immigrant visa, an applicant must not be inadmissible. Several inadmissibility grounds exist under current immigration law – some make an immigrant inadmissible forever, and some punish an immigrant with a certain number of years he or she must spend outside the United States. For some inadmissibility grounds, an applicant may ask for a waiver to “forgive” whatever it is that makes the person inadmissible.

Many intending immigrants face the inadmissibility ground of unlawful presence, which comes with a bar of a certain number of years they must stay out of the country before coming back lawfully. When a person has been in the United States without legal status for more than 180 days, the bar is three years; when they’ve been unlawfully present more than a year, the punishment is ten years.

The waiver exists as a way to avoid this punishment. In a waiver application, the applicant must show that his or her U.S. citizen or LPR spouse or parents would suffer extreme hardship if the applicant was not allowed to return to the United States. The suffering can be physical, emotional, financial, and otherwise, but it must be extreme. Additionally, an applicant must show the suffering would be to a U.S. citizen or LPR spouse or parent. If the applicant doesn’t have one of these relatives – for example, if the only relatives are U.S. citizen children – then the applicant won’t qualify for a waiver.

Note that, in general, only applicants who entered without inspection will need to apply for a waiver. If an applicant is an immediate relative of a U.S. citizen and came to the United States on a visitor visa, for example, they may be able to adjust status here without having to leave the country. Under that process, a waiver for unlawful presence is not needed. This option is not available to family members of LPRs.

How is the new provisional waiver different than the old process?

In the past, an applicant was not able to apply for a waiver until after he or she had already left the country. The process would begin by the applicant’s U.S. citizen or LPR relative filing a family petition for the applicant. Once the family petition was approved, the applicant would receive instructions for submitting his or her documents to the National Visa Center, and then ultimately be scheduled an interview with the U.S. consulate in his or her home country. When the applicant left the United States to attend this interview, the 3- or 10-year bar would kick in. At the interview, the applicant would be informed of the need for a waiver. Only then could the waiver application be submitted, and the applicant would have to wait in the home country several months or more than a year waiting for a decision on the waiver. All this time, the applicant would be separated from his or her family in the United States.

The new provisional waiver rule does not change the normal process for getting an immigrant visa. An applicant for a family petition who entered the U.S. unlawfully will still need to return to his or her home country for an interview with the U.S. consulate to complete the process.

The benefit of the provisional waiver is that the applicant will be allowed to apply for the waiver here in the United States and receive a provisional decision on the waiver before leaving the country. The decision is only provisional, which means that the officer in the consulate still has the last say and can choose to deny. However, the idea is that the new provisional waiver will give USCIS an opportunity to review an applicant’s waiver application ahead of time. If the waiver is approved provisionally and again at the consulate interview, an applicant should be able to return to the United States much more quickly, without the delay caused by processing the waiver application. This is good news for many families who have put off applying for years, in fear of being separated for such a long time.

Who qualifies for the new provisional waiver?

Not everyone who qualifies for a waiver will be able to use the new provisional waiver rule. The provisional waiver is only for applicants whose only inadmissibility ground is unlawful presence. If an applicant is inadmissible for unlawful presence and for visa fraud, for example, he or she will not be able to file a provisional waiver and will have to use the normal process instead. The provisional waiver is also only available for immediate relatives – spouse, children, or parents – of a U.S. citizen. Though a spouse or child of an LPR may qualify for a waiver, they have to apply through the normal process as well. Also, a person cannot apply for the provisional waiver if his or her consulate interview was scheduled before January 3, 2013. An applicant also does not qualify if he or she has a pending I-485 adjustment of status application, as the waiver is only for those who must consular process.

Will I still have to leave the United States to get my visa?

Yes. The new provisional waiver rule does not change the standard process for obtaining an immigrant visa. If an applicant does not qualify for adjustment of status (explained briefly here), then he or she will still have to go through consular processing, attending an interview at the U.S. consulate in his or her home country, in order to get their immigrant visa.

How do I apply?

To apply for the provisional waiver, an applicant must already have an approved I-130 family petition and a case pending with the Department of State. At that point, an applicant can submit an I-601A provisional waiver application, with the filing fee, to the appropriate Lockbox.

Waivers are complicated and difficult applications. An applicant must show not only that his or her family members would suffer, but that they would suffer extremely. Significant proof must be included to back up this argument. It is highly recommended that an applicant consult with an immigration attorney who can help prepare a complete, detailed, and organized waiver application.

Legal Disclaimer: The information offered is general in nature and not meant to be relied upon as legal advice. No client-attorney relationship is created through providing this information. Please consult an attorney prior to making legal decisions.

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What Does New Proposal Mean for Immigration Reform?

1/28/2013

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By Laura Jacobson

A bipartisan Senate group released its proposal for comprehensive immigration reform today. The proposal’s principles will serve as a blueprint for legislation intended to be introduced in March.

The announcement comes on the heels of an interview this weekend in which Sen. John McCain, one member of the group, proclaimed the “time is right” to provide a solution for the estimated 11 million undocumented immigrants “living in this country in the shadows.” It also comes a day before President Obama is slated to unveil his own ideas on immigration reform from Las Vegas tomorrow. 

The brief framework, which can be found here, outlines principles upon which comprehensive immigration reform will be based. Perhaps the most refreshing part for some, however, will be the bipartisan acknowledgement of truths long understood by many immigration advocates. Common sense statements like, “It makes no sense to educate the world’s future innovators and entrepreneurs only to ultimately force them to leave our country,” that “substantial visa backlogs incentivize illegal immigration,” and that the “overwhelming majority of illegal entrants are coming to work” and require a “humane and effective system…to enter,” have long been missing from the debate. Simply acknowledging the problems that require solving is a small victory itself.

The proposal is broken down into four “legislative pillars” that recognize and address these issues, with a mix of old and new solutions. The first pillar provides an answer to the question most think of when they think of comprehensive immigration reform: what to do about the enormous population of undocumented immigrants already within our borders. Not surprisingly, this pillar starts with a focus on border enforcement, which has long held up hopes of reform with the attitude of “let’s talk about fixing the laws after we secure our border first.” The new proposal finally recognizes that the solution cannot be “either-or,” that part of securing our borders means addressing what draws people here so strongly that they would risk their lives to get here. 

The proposal calls for new enforcement mechanisms, the feasibility of which will probably vary. Providing Customs and Border Protection (CBP) with the technology needed “to prevent, detect, and apprehend every unauthorized entrant” does sound like a great idea, but it does not remain unachieved for lack of trying. Other solutions presented include a system to better track visa overstays and, one of the more innovative ideas, a means of inviting feedback from border communities – those who see firsthand the effect of illegal crossings and increased CBP presence in their daily lives.

In exchange for increased border enforcement, the relief offered to undocumented immigrants within our borders would be a “probationary legal status.” The details of this probationary status will certainly be among the most highly-debated provisions of immigration reform. If the past is any indication, the status will involve work authorization and protection from deportation, without the other benefits of lawful permanent residence, like the ability to petition for family members and a clear route to citizenship. The new status will require undocumented people to fulfill certain requirements, including registering with the government, passing background checks, learning English, and paying fines and back taxes. Many undocumented people have been doing the latter for years, using individual tax identification numbers (ITINs), in preparation for reform. Another member of the Senate group, Sen. Dick Durbin, described the requirements in this afternoon's press conference as requiring time and determination, noting, "But were it not for that determination, they wouldn't be here in the first place."

The framework leaves open just how “probationary” this status will be. It provides that proposed enforcement measures must be completed before an immigrant can move from probationary status to a green card. Exactly where “completed” falls on the spectrum between rolling out new enforcement programs to apprehending every unauthorized entrant remains to be seen. The proposal also provides that those on probationary status will have to go to the “back of the line” before getting their green card, a common feeling that those here unlawfully should not be rewarded over those who have waited patiently in line. But just how feasible is this when the “line” stretches back more than 20 years in some instances due to visa backlogs, as addressed below? The proposal does, however, promise a less cumbersome path to a green card for those who came here as children, a group long passed over by failure to pass the DREAM Act, and for agricultural workers, for whom a new program is proposed.

The second legislative pillar proposes to fix the existing system of immigration laws that has made it so difficult to immigrate to this country legally. The principles focus on two traditional avenues of immigration, through employment and through family relationships. In employment-based immigration, the framework proposes to offer green cards for those who get Ph.D. and Master’s degrees in science, technology, engineering, and math (STEM) from U.S. universities, something long seen as a priority to stay competitive in the global marketplace. New reform would also address backlogs in family-based petitions, which create the bulk of the “line” often mentioned. Under current immigration laws, a limited quantity of visas exists for family members of U.S. citizens and lawful permanent residents to come to the U.S. every year, creating a backlog that is handled by the State Department’s monthly visa bulletin. This backlog can be between 2½ and 20 years depending on the category of family relationship and also on the immigrant's country of origin, with a longer wait time in countries with a higher number of immigrants to the U.S. For example, next month, visas will finally be available for adult children of U.S. citizens from Mexico whose petitions were filed in March 1993. A Filipino sibling of a U.S. citizen whose petition was filed in June 1989 is finally at the front of the line. Meaningful immigration reform will have to address this backlog, which the Senate group’s new framework recognizes as an incentive to illegal immigration. But if more visas are added, where will they come from? In recent votes, for example, some lawmakers were only willing to add more visas for STEM graduates by eliminating visas in other programs, like the diversity visa lottery for applicants from countries with fewer immigrants to the U.S. 


These first two legislative pillars provide the majority of the new framework’s substance, with the third and fourth pillars more focused on maintaining the integrity of the system hoped to be achieved. The third pillar would provide for a more effective employment verification system to ensure that employers can easily confirm their workers have permission to work in the U.S. The fourth would create a temporary worker program that can be adjusted based on current economic needs to promptly fill openings in areas like the agricultural industry, providing a more flexible system than the current one.

Comprehensive immigration reform and other immigration solutions have been proposed before, and this afternoon's announcement was rife with references to failed attempts, most recently the late Sen. Ted Kennedy's 2007 proposal. However, there was a spirit of optimism and an encouraging display of bipartisanship among the members of the Senate group. 
The proposal is a good start, with common ground being found on several principles important to reform. The weeks and months ahead are sure to be filled with discussion of the best way to carry out these principles. To finally achieve reform of a broken system, lawmakers must follow this bipartisan group’s lead in finding enough agreement to solve the important issues. Their success will affect all who live and work in this country, regardless of where we were born.
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