For more on the Provisional Waiver, click here.

We are fielding questions about whether someone in removal proceedings or who has been ordered removed (deported) can apply under the new Provisional Waiver Process.

The Answer

If you are currently in removal proceedings, they need to be "administratively closed" so that you can apply for the Provisional Waiver (I-601A). Once the waiver has been approved, you will need to "re-calendar" those proceedings and have them "terminated" or "dismissed." You must make sure they are terminated or dismissed before you depart the United States. You don't want to inadvertantly execute your own removal order.

If you already have an order of removal or deportation against you, then you will first need to seek to have your case re-opened by filing a "Motion to Reopen." If that motion is granted, then when appropriate, you will need to have your proceedings administratively closed while you seek the provisional waiver. After the waiver is approved, you will need the proceedings terminated or dismissed before you depart the United States.

In both above scenairios, you will more than likely need a seasoned and experienced attorney guide you.

Ricky Malik, Esq.

dream@rmlegal.com

Information from USCIS on the New Provisional Waiver Process:

Ricky Malik, Esq.

A lot can be determined by just looking at the category on a Lawful Permanent Resident (LPR) card.

Many people are wondering what to do if they want to apply under the new provisional waiver process that was announced on January 3, 2013, but their visa petitions (130's) have been approved and their case is already at the National Visa Center (NVC)?

If you do not already have a consulate interview notice (dated before January 3, 2013), then you must notify NVC immediately after you have paid the immigrant visa processing fee and before you apply for the provisional unlawful presence waiver and to inform them that you will be applying for a provisional waiver.

Ricky Malik, Esq.

dream@rmlegal.com

The new provisional waiver process that was published in the Federal Register on January 3, 2013 has brought out a lot of questions about what consitutes "extreme hardship." This is after all the standard that must be proven to USCIS. It is important to understand the hardship is not to the foreign national, but rather to the qualifying relative.

While there is no bright line test as to what constitutes extreme hardship, and it is evaluated on a case by case basis, it can include, but is not limited to: family separation, economic hardship, medical issues, country conditions abroad, and any other difficulty or harm faced by the qualifying relative(s).

The lead Immigration Court case from the Board of Immigration Appeals (BIA) isMatter of Cervantes, 22 I&N Dec. 560 (BIA 1999) which lists as factors:

• the presence of lawful permanent resident or United States citizen family ties to this country;
• the qualifying relative’s family ties outside the United States;
• the conditions in the country or countries to which the qualifying relative would relocate and the extent of the qualifying relative’s ties to such countries;
• the financial impact of departure from this country;
• significant conditions of health, particularly when tied to an unavailability of suitable medical care in the country to which the qualifying relative would relocate.

Extreme Hardship is proven differently and uniquely in each case and is personal to each family and can be proven in the absence of severe medical issues. Consider hiring an attorney for a process as complex as a waiver.

Ricky Malik, Esq.

After almost a year of waiting, the new Provisional Waiver rule was relesed on January 3, 2013 with an effective date of March 4, 2013. The new rule allows foreign nationals who have been unlawfully present in the United States for more than 180 days to complete the majority of the process and waiting in the United States. Before the rule, which will take effect on March 4, 2013, spouses, parents and children of US Citizens would often times have to wait months to years outside the United States to ask for a waiver (pardon). Now, the immigrant petition, waiver and national visa center (NVC) processing will all be done while the family can remain together in the United States.

Eligibility to apply:

1. You must be present in the United States at filing and be fingerprinted;

2. Your only immigration violation is that you were unlawfully present (undocumented) for 180 days or more in the U.S.;

3. Your visa petition must be filed by a US Citizen Immediate Relative (spouse, parent or child over 21);

4. You must show extreme hardship to your US Citizen spouse or parent(s), not to your child(ren);

5. You must file Form I-601A with an approved I-130 and proof the immigrant visa fee has been paid to the Deparment of State (NVC).

Below are the regulations as published in the Federal Register. All the reasons you may want to consider hiring an attorney are in those details.

Ricky Malik, Esq.

Immigration Attorney

I am oftentimes asked by people who are ineligble to get Lawful Permanent Residency (LPR/greencard) in the United States about going overseas to complete a waiver process, known commonly as an I-601.

The risk and fear is that it will take too long and may get denied. Both are reasonable concerns and many people feel that if they leave it will take years. While this is true in a few cases, generally, if after consulting with my office we decide to proceed with an overseas petition process, the wait times can be as short as a few months or generally in the 6-12 month range. Below are the latest processing times.

As you can see the majority of cases are completed within 6 months, except for El Salvador which takes just less than a year for 100% completion, Honduras which takes over year, and England where the Consulate clearly takes their time.

Ricky Malik, Esq.

Yes! According to USCIS-NBC in meeting held in October 2011 with AILA, even if your case has been denied by USCIS, and then subsequently denied by an Immigration Judge, you can still apply and get your work permit while your case is on appeal before the Board of Immigration Appeals (BIA) or later if your case is with the Cirucit Court of Appeals in your area.

You must demonstrate proof of the pending appeal in the form of

1. a copy of the file stamped Form EOIR-26 where block 6 indicates that the Form I-485 is at issue in the appeal
2. a file stamped copy of the Petition for Review wherein the alien is appealing the fact that the BIA affirmed the IJ’s denial of the Form I-485,
3. or in cases where an Appeal of an I-485 has been remanded to a lower court, to the BIA or Immigration Court, a copy of the Court Order remanding the matter.

Ricky Malik, Esq.

www.rmlegal.com

Ricky Malik, Esq.

www.rmlegal.com

In the Federal Register on Monday, January 9, 2011 a new proposed provision will be publshed allowing many undocumented immigrants to process their waivers while inside the United States. For many years, certain immigrants were afraid to leave the United States to process their "greencards" because they feared their waivers (pardons) would be denied thereby barring re-entry into the United States for 10 years.

Now the Obama administration is changing the law to allow immigrants to process the waivers inside the United States taking away the risk of going overseas and getting denied. However, the immigrant will still have to leave the U.S. to pick up his/her immigrant visa but will not wait for months or years while the waiver is being processed. This concept of still having to leave will please the Republican oppostion as they have been proponents of legalization only if ther person goes overseas to get their visas. This seems like a good compromise on its face that should please all sides.

Below is the release from USCIS:

Ricky Malik, Esq.

www.rmlegal.com

There is a major proposed announcement changing the Immigration process for many foreign nationals who are illegal in the United States. At present, many people must travel outside the United States and wait months if not years to seek forgiveness (a waiver) to re-enter the U.S.

Now, the Obama administration is proposing to allow certain relatives of U.S. Citizens to apply for the waiver and wait inside the United States. Then once the immigrant petition (I-130) and waiver (I-601) have been approved, the foreign national can go to simply and expeditiously pick up the visa from their home embassy or consulate.

The proposal was preliminary announced this morning and will become official once published in the Federal Register on Monday, January 9, 2012.

Below is the Advance copy of the USCIS notice that would allow certain immediate relatives of U.S. Citizens to request INA 212(1)(9)(B)(v) unlawful presence waivers, prior to departing the U.S. for consular processing of their immigrant visa application.

Ricky Malik, Esq.

Immigration Attorney

Ricky Malik, Esq.

www.rmlegal.com

An Immigraiton Judge should consider new evidence submitted in support of a renewed I-751 with a waiver of the joint filing requirement regardless of whether the evidence was previously considered by DHS. Matter of Herrera Del Orden, 25 I&N Dec. 589 (BIA 2011).

Herrera Del Orden

Ricky Malik, Esq.

www.rmlegal.com

-Supplemental Security Income (SSI)
-Cash assistance from the Temporary Assistance for Needy Families (TANF) program
-State or local cash assistance programs for income maintenance (general assistance programs)

Others that do not lead to a negative determination:
-Medicaid and other health insurance and health services (including public assistancefor immunizations and for testing and treatment of symptoms of communicable diseases, use of health clinics, short-term rehabilitation services, prenatal care and emergency medical services) other than support for long-term institutional care
-Children's Health Insurance Program (CHIP)
-Nutrition programs, including the Supplemental Nutrition Assistance Program(SNAP) commonly referred to as Food Stamps
-the Special Supplemental Nutrition Program for Women, Infants and Children (WIC)
-the National School Lunch and School Breakfast Program, and other supplementary and emergency food assistance programs
-Housing benefits
-Child care services
-Energy assistance, such as the Low Income Home Energy Assistance Program(LIHEAP)    
-Emergency disaster relief    
-Foster care and adoption assistance    
-Educational assistance (such as attending public school), including benefits under theHead Start Act and aid for elementary, secondary or higher education    
-Job training programs
-In-kind, community-based programs, services or assistance (such as soup kitchens,    
crisis counseling and intervention, and short-term shelter)
-Non-cash benefits under TANF such as subsidized child care or transit subsidies
-Cash payments that have been earned, such as Title II Social Security benefits,government pensions, and veterans' benefits, and other forms of earned benefits
-Unemployment compensation



Ricky Malik, Esq.
Law Offices of Ricky Malik

This case tries to close the door on K-1 entrants adjusting through subsequent marriages to US Citizens.

Nonetheless the case does help clarify one issue that we have run into before, namely that "A fiancé(e) visa holder may be granted adjustment of status ... even if the marriage to the fiancé(e) visa petitioner does not exist at the time that the adjustment application is adjudicated, if the applicant can demonstrate that he or she entered into a bona fide marriage within the 90-day period to the fiancé(e) visa petitioner."

This is good news for those K-1 entrants who did marry in good faith within the 90 days but whose relationships may have unfortunately failed. Matter of Sesay.

Sesay K-1
Ricky Malik, Esq.
www.rmlegal.com

United States Citizenship & Immigration Services released final memo guidance for coordination with U.S. Immigration and Customs Enforcement (ICE) on the adjudication of applications and petitions involving individuals in removal proceedings before the Executive Office of Immigration Review (EOIR).



Ricky Malik, Esq.
www.rmlegal.com

U.S. Citizenship and Immigration Services (USCIS) announced that it is now issuing employment and travel authorization on a single card for certain applicants filing an Application to Register Permanent Residence or Adjust Status, Form I-485. This new card represents a significant improvement from the current practice of issuing paper Advance Parole documents.

The card looks similar to the current Employment Authorization Document (EAD) but will include text that reads, “Serves as I-512 Advance Parole.” A card with this text will serve as both an employment authorization and Advance Parole document. The new card is also more secure and more durable than the current paper Advance Parole document.

The Administrative Appeals Office published a postive case that addressed burden of proof. Hopefully, USCIS adjudicators will use this case as their guide when deciding cases.  In Matter of Chawathe, 25 I&N Dec. 369 (AAO 2010) it was held that:

"In most administrative immigration proceedings, the applicant must prove by a preponderance of evidence that he or she is eligible for the benefit sought.

Even if the director has some doubt as to the truth, if the petitioner submits relevant, probative, and credible evidence that leads the director to believe that the claim is "more likely than not" or "probably" true, the applicant has satisfied the standard of proof. Matter of E-M-, 20 I&N Dec. 77, 79-80 (Comm'r  1989), followed.

If the director can articulate a material doubt, it is appropriate for the director to either request additional evidence or, if that doubt leads the director to believe that the claim is probably not true, deny the application or petition."