I originally posted on this subject in January of this year, before immigration began accepting provisional waivers. Here is an update on how things are going since the program began in March:
On March 4, 2013, United States Citizenship and Immigration Services (USCIS
or "Immigration") began accepting applications under a program that reduces the time U.S.
citizens are separated from their immediate relatives (spouse, children and parents), who are in
the process of obtaining visas to become lawful permanent residents of the United States under
certain circumstances. The new policy allows qualifying applicants to apply for a provisional
unlawful presence waiver (I-601A) before they leave the United States for their immigrant
visa interviews in their home countries.
This is for people who have a US Citizen immediate relative to petition for them, but who
are not eligible to apply for residency within the U.S. For people in this situation, they have
to Consular Process, which involves returning to their country of origin and applying for an
immigrant visa to reenter the United States as a lawful permanent resident - i.e. green card
holder. The problem that most people have in this situation, is that they have been in the US
without permission for over 180 days, so when they exit the US they trigger a bar to their return.
Most commonly, people trigger what is called the 10-year bar because they have been in the US
without permission for over one year.
Once an applicant triggers a bar, in addition to applying for their visa to return to the US,
they also need to file a waiver for the time they present in the US without permission. This is
basically asking immigration to waive or "pardon" the time they were here when they shouldn't
have been. BEFORE the March 4, 2013 policy change, people would file the waiver in their
home country and wait for a decision. Decisions could take months or even years, and the
applicant would be required to wait outside the country for that entire time. The new policy,
allows certain individuals to file their waivers HERE in the US and wait for the decision HERE.
That way, before they go to attend their visa interview in their home country, their waiver will
have already been approved (hopefully) and instead of waiting months/years for a decision,
they are merely out of the country for the amount of time it takes to obtain their visa -- usually a
matter of weeks.
Please note: this only applies to people who have ONE entry into the US, and when they leave
for their visa appointment it will be their FIRST exit. If you have more than one entry or exit,
depending on how long you were in the country on each visit, you are likely NOT eligible to
consular process.
In order to be eligible for the waiver under the new rule the applicant must:
(1) be an IMMEDIATE RELATIVE of a US Citizen (this means Spouse, Parent or Child - sorry,
siblings don't count)
(2) be the beneficiary of an approve immediate relative petition (Form I-130 filed by one of the
above listed relatives
(3) be 17years of age or older
(4) be present in the US at the time of filing the application for a provisional waiver and
for biometrics (fingerprints) their local application support center
(5) have a case pending with the Department of State based on the approved I-130 petition and
have paid the immigrant visa processing fee
(6) show extreme hardship to US citizen spouse or parent
PLEASE NOTE #6 - this is where it gets a little tricky: while your US Citizen over 21 CHILD
can petition for you as your immediate relative, you cannot base the waiver on them -- i.e. the
hardship your adult child will face if you are not allowed to return to the United States does not
count. The only people that the waiver can be based on are US Citizen Spouse or Parent. This
requirement is complicated and often escapes people, so please make sure you seek competent
counsel before filing.
Additionally, there are clear factors that render you ineligible for a provisional waiver. Those
are:
(1) You are subject to another ground of inadmissibility, other than the fact that you were
present in the US without permission. This can range from criminal grounds that render you
ineligible, to multiple entries and exits as I mentioned above.
(2) You filed prior to the enactment of this policy, and the Department of State scheduled your
Immigration Visa (IV) appointment on or before January 3, 2013. USCIS has said that the
scheduling of the interview is a hard and fast rule and even if your interview was rescheduled, or
you simply did not appear for it, as long as it was scheduled for January 3, 2013 or earlier, you
are not eligible for this new policy. This rule can be worked around, but would like require a re-
filing of all of the paperwork, including new filing fees, which can be costly.
(3) You are in removal proceedings that have not been administratively closed, or proceedings
were previously closed but have since been placed back on the Immigration Court calendar.
The grounds of ineligibility are complex and require legal analysis. If you even think that one of
the above grounds applies to you, seek legal counsel before filing.
There are a couple of this regarding timing that every applicant should know: (1) if Immigration
needs more information to process your waiver, they will issue you a Request for Evidence
(RFE). You will have 30 days to respond to that request (33 if it is mailed to you). That means
that you MUST respond within 30 days or your waiver will be denied for lack of response. (2)
There is currently no timeline regarding processing times for provisional waiver. Immigration
estimated approximately 6 months for those who filed on the first day of eligibility -- March 4,
2013. Nothing official has been released regarding the current processing times.
As always, immigration law is difficult to navigate and every case is unique. This blog is meant
to provide general information, and cannot address every avenue of relief that may be available.
Additionally, immigration law is always changing and that can change options available to you.
You should always consult with an immigration lawyer before filing for anything.
Wednesday, April 17, 2013
Thursday, March 14, 2013
"Parole in Place" - special procedures for active duty military families
As I have written in previous blogs, generally, if you entered the United States without permission (i.e. just crossed the border) and you do not have an I-130 petition from before April 30, 2001, you have to exit the country to complete the green card process -- also known as consular processing. This may not be the case, however, for the immediate relatives (usually spouses) of active duty family members.
Parole in Place is a process that, if granted, allows immediate relatives of active duty military servicemen and women to remain in the United States for the entire green card application process. It basically grants the applicant the same status as a person who entered the US with permission.
Due to the fact that this is a relatively new process, there are no official guidelines, however, applicants are advised to file the following forms and documentation with their local USCIS (immigration) office:
Now this is a DISCRETIONARY request, and therefore, the applicant has to understand that they are alerting immigration to their presence in the U.S. If the I-131 is not granted, there is always a possibility (although very slim) that the applicant will be placed in removal (deportation) proceedings. Due to the risk, it is imperative that the applicant seek out legal counsel, to make sure that they have the strongest possible case to present to immigration. Also, if the applicant has ANY type of criminal record, no matter how minor, or if the applicant has entered and exited the US multiple times without permission, that can also affect their eligibility.
As with any "new" form of relief that is filed with local offices, the procedures and adjudication rates vary from place to place. For example, in some offices, they prefer the applicant to file everything together - Form I-131 and all of the forms associated with permanent residency. In other offices, they only want the I-131 and once that is approved, they will request the rest of the applications/documentation. The applicant's attorney, or the applicant, should check with their local office regarding their specific procedures for Parole in Place.
All in all, this is a great way for the immediate relatives of active service members to remain in the US while they apply for permanent residency, thus eliminating the risk and uncertainty that accompanies having to return to their home country to consular process.
Parole in Place is a process that, if granted, allows immediate relatives of active duty military servicemen and women to remain in the United States for the entire green card application process. It basically grants the applicant the same status as a person who entered the US with permission.
Due to the fact that this is a relatively new process, there are no official guidelines, however, applicants are advised to file the following forms and documentation with their local USCIS (immigration) office:
- Form I-131, Application for Travel Document with the filing fee of $360 and $85 in biometric (fingerprint) fees.
- Suggested supporting documentation:
- A letter from the active service member stating the hardship they would suffer if their family member is not allowed to adjust status to lawful permanent resident
- Marriage certificate & proof that the marriage between the service member and applicant is valid - e.g. bills, lease agreements, photos, mailings, etc.
- Birth certificates for both the service member and the applicant
- Birth certificates for children of the service member and applicant
- The applicant's military family member identification car
- A copy of Defense Eligibility Enrollment Reporting System enrollment documentation for the applicant
- Two original passport photos of the applicant
- A copy of any deployment orders for the service member
- Any additional documents substantiating the case for hardship
Now this is a DISCRETIONARY request, and therefore, the applicant has to understand that they are alerting immigration to their presence in the U.S. If the I-131 is not granted, there is always a possibility (although very slim) that the applicant will be placed in removal (deportation) proceedings. Due to the risk, it is imperative that the applicant seek out legal counsel, to make sure that they have the strongest possible case to present to immigration. Also, if the applicant has ANY type of criminal record, no matter how minor, or if the applicant has entered and exited the US multiple times without permission, that can also affect their eligibility.
As with any "new" form of relief that is filed with local offices, the procedures and adjudication rates vary from place to place. For example, in some offices, they prefer the applicant to file everything together - Form I-131 and all of the forms associated with permanent residency. In other offices, they only want the I-131 and once that is approved, they will request the rest of the applications/documentation. The applicant's attorney, or the applicant, should check with their local office regarding their specific procedures for Parole in Place.
All in all, this is a great way for the immediate relatives of active service members to remain in the US while they apply for permanent residency, thus eliminating the risk and uncertainty that accompanies having to return to their home country to consular process.
Wednesday, February 20, 2013
Falling in love very PERMANENTLY with a US Citizen while on a very TEMPORARY visa
There are certain types of visas where you cannot have a "dual intent" - as in you can't intend to remain in the U.S. permanently when you very clearly entered for temporary reasons. Those visa categories include B-1/B-2 Visitors, F-1 Students, J-1 Exchange Visitors, E-3 Visa Holder, Q Cultural Exchange Visitors, TN Visa Holders, and ESTA Visa Waiver Visitors. So what happens when you meet the love of your life who happens to be a US citizen and who happens to want to marry and petition for you to remain in the country permanently? Immigration has adopted the “30/60/90 Day Rule” used by the Department of State in their Foreign Affairs Manual (9 FAM 40.63 n4) when looking at changes to a visa that are made shortly after arriving in the United States. Here is what you need to know about that rule:
(1) If this was love at first sight, my advice would be...SLOW DOWN. If you marry within 30 days of your arrival, and then file for your residency also within that 30 days, your marriage is PRESUMED to be a fraud. Immigration officers are not romantic. They do not believe you fell in love 5 days after arriving and you just couldn't wait to get married. This presumption is virtually impossible to overcome.
(2) If you get married between 31 and 60 days of your arrival, and you file for your residency within that time as well, that takes you out of the PRESUMED fraud category, but there will still be a strong presumption that the marriage was entered into "in bad faith," i.e. just because you want a green card. This means that the application will be looked at very closely, and that when the interview comes around, you will be scrutinized. This would likely include being separated during the interview and being asked everything from which side of the bed you sleep on, to where your spouse keeps their socks. It could also mean what immigration likes to call "bed checks," which involves them showing up at your house unannounced at an ungodly hour in the morning or night to check and see that both of you are actually living together.
(3) If you marry and file 61 days or more after your entry into the country, the presumption will be that your marriage is real. Even though case law indicates that your intent when you entered the country (i.e. the fact that you inteded to stay here for longer than your visa allowed) shouldn't be a grounds for a denial of your residency, it is always best to wait (if you can) and file for your residency at least 61 days or more after you entered the US.
(4) All of the above does NOT apply if you entered the country on a Visa Waiver - that would mean that you are from what immigration likes to call a "preferred country" where you do not need to obtain a visa before entering the US, but rather you just fill out a little card on the plane that states you aren't going to stay beyond your authorized 90 days. Generally, people who entered on a visa waiver cannot apply for residency UNLESS they have an IMMEDIATE RELATIVE who is applying for them, in this case, a US Citizen husband or wife. In this situation, you want to marry AND file everything BEFORE the expiration of your 90 day visa. This cut off date is VERY IMPORTANT because while filing after the 90 days has expired is possible, it is much more risky.
As always, I have tried to describe all of this in the most simple terms and you should seek competent legal advice if you think any of the above applies to you.
(1) If this was love at first sight, my advice would be...SLOW DOWN. If you marry within 30 days of your arrival, and then file for your residency also within that 30 days, your marriage is PRESUMED to be a fraud. Immigration officers are not romantic. They do not believe you fell in love 5 days after arriving and you just couldn't wait to get married. This presumption is virtually impossible to overcome.
(2) If you get married between 31 and 60 days of your arrival, and you file for your residency within that time as well, that takes you out of the PRESUMED fraud category, but there will still be a strong presumption that the marriage was entered into "in bad faith," i.e. just because you want a green card. This means that the application will be looked at very closely, and that when the interview comes around, you will be scrutinized. This would likely include being separated during the interview and being asked everything from which side of the bed you sleep on, to where your spouse keeps their socks. It could also mean what immigration likes to call "bed checks," which involves them showing up at your house unannounced at an ungodly hour in the morning or night to check and see that both of you are actually living together.
(3) If you marry and file 61 days or more after your entry into the country, the presumption will be that your marriage is real. Even though case law indicates that your intent when you entered the country (i.e. the fact that you inteded to stay here for longer than your visa allowed) shouldn't be a grounds for a denial of your residency, it is always best to wait (if you can) and file for your residency at least 61 days or more after you entered the US.
(4) All of the above does NOT apply if you entered the country on a Visa Waiver - that would mean that you are from what immigration likes to call a "preferred country" where you do not need to obtain a visa before entering the US, but rather you just fill out a little card on the plane that states you aren't going to stay beyond your authorized 90 days. Generally, people who entered on a visa waiver cannot apply for residency UNLESS they have an IMMEDIATE RELATIVE who is applying for them, in this case, a US Citizen husband or wife. In this situation, you want to marry AND file everything BEFORE the expiration of your 90 day visa. This cut off date is VERY IMPORTANT because while filing after the 90 days has expired is possible, it is much more risky.
As always, I have tried to describe all of this in the most simple terms and you should seek competent legal advice if you think any of the above applies to you.
Tuesday, January 22, 2013
New SHORTER Procedure for Applying for a Green Card Outside of the U.S.
On January 2, 2013, the Secretary of Homeland Security Janet Napolitano announced the posting of a final rule in the Federal Register that reduces the time U.S. citizens are separated from their
immediate relatives (spouse, children and parents), who are in the process of
obtaining visas to become lawful permanent residents of the United States under
certain circumstances. This rule allows qualifying applicants to apply for a provisional unlawful presence waiver before they leave the United States for their immigrant visa interviews in their home countries.
This is for people who have US Citizen immediate relatives applying for them, but will need to leave the U.S. to complete the process in their home country. This is called Consular Processing and involves applying for an immigrant visa to reenter the United States as a lawful permanent resident - i.e. green card holder. The problem that most people have in this situation have usually been in the US for a long period of time, so when they exit the US they trigger a bar to their return. Most commonly, people trigger what is called the 10-year bar because they have been in the US without permission for over one year. This only applies to people who have ONE entry into the US and when they leave for their visa appointment it will be their FIRST exit. If you have more than one entry or exit, depending on how long you were in the country on each visit, you are likely NOT eligible to consular process.
Now, once an applicant triggers the bar, in addition to applying for their visa to return to the US, they also need to file an I-601 waiver for the time they were here without permission. This is basically asking immigration to waive or "pardon" the time they were here when they shouldn't have been. BEFORE this new rule, people would file their waiver in their home country and wait for a decision. Decisions could take months or even years, and the applicant would be required to wait outside the country for that entire time.
This new rule, allows certain individuals to file their waivers HERE in the US and wait for the decision HERE. That way, before they go to attend their visa interview in their home country, their waiver will have already been approved (hopefully) and instead of waiting months/years for a decision, they are merely out of the country for the amount of time it takes to obtain their visa -- usually a matter of weeks.
In order to be eligible for the waiver under the new rule the applicant must:
(1) be an IMMEDIATE RELATIVE of a US Citizen (this means Spouse, Parent or Child - sorry, siblings don't count)
(2) be the beneficiary of an approve immediate relative petition (Form I-130 filed by one of the above listed relatives
(3) be 17years of age or older
(4) be present in the US at the time of filing the application for a provisional waiver and for biometrics (fingerprints) their local application support center
(5) have a case pending with the Department of State based on the approved I-130 petition and have paid the immigrant visa processing fee
(6) show extreme hardship to US citizen spouse or parent
PLEASE NOTE #6 - this is where it gets a little tricky: while your US Citizen over 21 CHILD can petition for you, the extreme hardship cannot be BASED on them. So basically, you have to be married to a US citizen or you have to have a US citizen parent that you can base the hardship on. This part is complicated, I know, so make sure you seek competent counsel before filing.
The new rule will take effect on March 4, 2013. It will definitely benefit so many people who had not yet filed because they did not want to take the risk of being stuck outside the US for an extended period of time. That being said, it has very SPECIFIC eligibility requirements and you should seek legal counsel to determine your own eligibility.
This is for people who have US Citizen immediate relatives applying for them, but will need to leave the U.S. to complete the process in their home country. This is called Consular Processing and involves applying for an immigrant visa to reenter the United States as a lawful permanent resident - i.e. green card holder. The problem that most people have in this situation have usually been in the US for a long period of time, so when they exit the US they trigger a bar to their return. Most commonly, people trigger what is called the 10-year bar because they have been in the US without permission for over one year. This only applies to people who have ONE entry into the US and when they leave for their visa appointment it will be their FIRST exit. If you have more than one entry or exit, depending on how long you were in the country on each visit, you are likely NOT eligible to consular process.
Now, once an applicant triggers the bar, in addition to applying for their visa to return to the US, they also need to file an I-601 waiver for the time they were here without permission. This is basically asking immigration to waive or "pardon" the time they were here when they shouldn't have been. BEFORE this new rule, people would file their waiver in their home country and wait for a decision. Decisions could take months or even years, and the applicant would be required to wait outside the country for that entire time.
This new rule, allows certain individuals to file their waivers HERE in the US and wait for the decision HERE. That way, before they go to attend their visa interview in their home country, their waiver will have already been approved (hopefully) and instead of waiting months/years for a decision, they are merely out of the country for the amount of time it takes to obtain their visa -- usually a matter of weeks.
In order to be eligible for the waiver under the new rule the applicant must:
(1) be an IMMEDIATE RELATIVE of a US Citizen (this means Spouse, Parent or Child - sorry, siblings don't count)
(2) be the beneficiary of an approve immediate relative petition (Form I-130 filed by one of the above listed relatives
(3) be 17years of age or older
(4) be present in the US at the time of filing the application for a provisional waiver and for biometrics (fingerprints) their local application support center
(5) have a case pending with the Department of State based on the approved I-130 petition and have paid the immigrant visa processing fee
(6) show extreme hardship to US citizen spouse or parent
PLEASE NOTE #6 - this is where it gets a little tricky: while your US Citizen over 21 CHILD can petition for you, the extreme hardship cannot be BASED on them. So basically, you have to be married to a US citizen or you have to have a US citizen parent that you can base the hardship on. This part is complicated, I know, so make sure you seek competent counsel before filing.
The new rule will take effect on March 4, 2013. It will definitely benefit so many people who had not yet filed because they did not want to take the risk of being stuck outside the US for an extended period of time. That being said, it has very SPECIFIC eligibility requirements and you should seek legal counsel to determine your own eligibility.
Citizenship Immigration Clinic
I will be volunteering at the below event, giving consultations on DACA (Dreamers) and in some cases, on green card applications. Call the number below to make an appointment!
Citizenship/Immigration
Clinic
Saturday, Feb. 2,
2013
9:00 a.m. – 2:00
p.m.
Office of Samoan
Affairs
20715 So. Avalon
Blvd, (2nd Floor)
Carson, CA
90745
Citizenship – DACA – One
Parent National Law
FREE APALC Consultation
Services!
For More Information & to make a
consultation appointment:
(you will be provided with a list of
documents to bring with you
during your appointment).
Call Kawen T. Young at 310-766-3196 or 310-516-8312
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