Illegal immigrants who have family in the United States can now remain on U.S. soil as they wait for their visa interview, thanks to provisional unlawful presence waivers.
Select immigrant visa applicants who are immediate relatives of U.S. citizens can now reduce the amount of time they must spend away from family members as they wait to become lawful citizens themselves. The Department of Homeland Security recently announced that, as of March 4, 2013, applicants can now apply for provisional stateside waivers (provisional unlawful presence waivers) while they are still in the United States.
Immigration Process Changes
Before March 4, applicants who were not able to adjust their status in the U.S. had to travel abroad while waiting for their immigrant visa. This often meant spending years away from their family members in the U.S.
The process of obtaining a visa remains the same, with applicants required to leave the U.S. for their immigrant visa interview in their home country. And, although this process is a convenient opportunity for applicants who are approved, the provisional nature of this waiver means that the process is extremely selective. Many applicants will be denied with no chance to appeal or reconsider. Submitting completed forms is extremely important to decrease the chance of denial. If their application for visa is still pending at the point of their denial, they may submit a new provisional statewide waiver application.
Waiver Eligibility Requirements
Applicants must be 17 years of age or older and an immediate relative of a U.S. citizen (spouses, children and parents)
Applicants must be able to prove that their immediate family member with U.S. citizenship would experience hardship in the case that they would not be admitted into the U.S.
As immigration attorneys, we’re here to help with every step of the process
To review all of the eligibility requirements for a provisional unlawful presence waiver, visit the U.S. Citizenship and Immigration Services website. If you would like more information on this process, to find out if it fits your needs or to begin this process, please email us at firstname.lastname@example.org.
On June 15, 2012, the Department of Homeland Security (DHS), the U.S. agency that oversees all immigration enforcement, announced that certain people who came to the United States as children would be eligible to apply for something known as deferred action, so long as they met other requirements as well. Deferred action means that even if you are in the United States illegally, DHS will not try and deport you and send you home for two years. If you are given deferred action, it will be valid for two years, and you would be eligible to apply to work legally in the United States as well.
There are a few rules that cover whether you are eligible for this new policy. The following list are some of the factors that you need to look at when determining if you would fall under this policy, and our office can help you determine whether or not you have a good case for this type of application.
Were you younger than 31 years old on June 15, 2012?
Did you come to the United States before you turned 16 years old?
Have you resided in the United States since June 15, 2007 and still live here today?
Were you in the United States on June 15, 2012? Will you be in the United States when you file your application?
Did you enter without having a U.S. immigration officer give you permission?
Did you have permission and a legal status, but it expired and you stayed longer?
Are you currently in school?
Have you graduated, or have you obtained a certificate of completion from a high school in the United States?
If you did not finish high school, have you gotten your GED?
If you did not finish school, and you also do not have your GED, are you an honorably discharged veteran of the U.S. Coast Guard or another branch of the Armed Forces?There is one more step, and these answers need to be “No” to be eligible:
Have you been convicted of a felony?
Have you been convicted of a significant misdemeanor?
Have you been convicted of three or more misdemeanors?
Do you pose a threat to national security or public safety?
Our firm is prepared to assist individuals who believe they are eligible for the new deferred action explained in this letter. There are many factors that need to be reviewed, to make sure that you fit each specific rule for this program. We can assist with things such as whether you have continuous residence, what documents should be submitted, etc.
We never charge someone to come and talk to us about his or her issues, so there is no risk is calling us. We will do our best to help you apply for this program, but if you are not eligible, we will help you determine what else you may be eligible for, so that you can still apply for legal status in the United States.
US Supreme Court Rejects BIA Deportation Waiver Policy As Arbitrary and Capricious
Last week, the US Supreme Court’s unanimous decision in Judulang v. Holder struck down the Board of Immigration Appeals (BIA) approach for deciding when non-citizens are eligible for a discretionary waiver of deportation under section 212(c) of the Immigration and Nationality Act.
Mr. Judulang had been in proceedings to be removed from the United States on the ground that he had committed an “aggravated felony” involving a “crime of violence.” The BIA ruled that a “crime of violence” was not “comparable” to any ground for exclusion, rendering Mr. Judulang ineligible for Section 212(c) relief. The Ninth Circuit Court of Appeals affirmed this decision before it was accepted by the Supreme Court.
In its unanimous decision written by Justice Kagan, the Supreme Court held that the BIA policy for deciding when resident aliens may apply to the Attorney General for relief from deportation under INA section 212(c) is “arbitrary and capricious.” The Court highlighted that:
“The comparable-grounds approach does not rest on any factors relevant to whether an alien (or any group of aliens) should be deported. It instead distinguishes among aliens – decides who should be eligible for discretionary relief and who should not – solely by comparing the metes and bounds of diverse statutory categories in which an alien falls. The resulting Venn diagrams have no connection to the goals of the deportation process or the rational operation of the immigration laws.”
In conclusion, the Court ruled,
“We must reverse an agency policy when we cannot discern a reason for it. That is the trouble in this case. The BIA’s comparable-grounds rule is unmoored from the purposes and concerns of the immigration laws. It allows an irrelevant comparison between statutory provisions to govern a matter of the utmost importance—whether lawful resident aliens with longstanding ties to this country may stay here. And contrary to the Government’s protestations, it is not supported by text or practice or cost considerations. The BIA’s approach therefore cannot pass muster under ordinary principles of administrative law.
Goldstein & Associates, LLC applauds this decision of the US Supreme Court, which marks the end of a policy that turned many deportation cases into a sport of chance. As practitioners that work with complex deportation and removal cases, the attorneys at Goldstein & Associates know the importance of just decisions such as this one. As the case law develops with regard to deportation defense and litigation, we strive to uncover ways to apply new precedent decisions so that they may benefit our existing clients. In Judalong, the Supreme Court strengthened the framework of our immigration laws in a way that will allow for fair hearings on discretionary waiver of deportation cases under former section 212(c) of the INA.
On January 6, 2012, U.S. Citizenship and Immigration Services (USCIS) announced its intention to change its current process for certain applications for waivers of inadmissibility filed in connection with an immediate relative immigrant visa application. Specifically, USCIS proposed policy changes which will allow certain immediate relatives of U.S. citizens (ie: individuals unlawfully present in the United States who entered the U.S. without inspection) to request provisional waivers under section 212(a)(9)(B)(v) of the Immigration and Nationality Act, prior to departing the United States for consular processing of their immigrant visa applications.
Under current procedures, an immediate relative of a U.S. citizen with an approved Petition for Alien Relative (I-130), must depart the United States and file their permanent resident application and waiver of inadmissibility application at the appropriate U.S. consulate or embassy in their home country. This process causes the foreign national to remain outside the United States while the waiver application is being processed, which frequently takes more than a year. U.S. citizens are often separated from their family members during this long wait.
The proposed new process is intended to reduce the time that U.S. citizens are separated from immediate relatives during the lengthy process of obtaining a waiver of inadmissibility. Under the new procedures, an immediate relative with an approved I-130 will be able to remain in the United States while the waiver of inadmissibility is processing. The spouses and children of U.S. citizens who are eligible for a visa to immigrate legally to the United States, but who need a waiver of inadmissibility for unlawful presence in order to obtain that visa expeditiously, would apply for a provisional waiver before leaving the United States to have their immigrant visa application processed at a U.S. embassy or consulate abroad.
The attorneys and staff at Goldstein & Associates have successfully obtained numerous waivers of inadmissibility for our clients. This new policy will not change the way we prepare the substance of a waiver application; it will still be based on proving that the U.S. citizen qualifying relative will suffer extreme hardship if the waiver application is not approved. The change, and the main benefit of this new process for adjudicating waivers, will be that our clients will not be separated for lengthy periods of time during this difficult process. Goldstein & Associates applauds USCIS for proposing this change, and eagerly awaits its implementation.