Tuesday, December 13, 2011

CISOMB Recommendation Update: USCIS Processing of Waivers of Inadmissability

"On June 10, 2010, the Citizenship and Immigration Services Ombudsman recommended enhancements to the administration of Form I-601, Application for Waiver of Grounds of Inadmissibility. While specifically focused on the USCIS Ciudad Juarez Field Office, many of the recommendations applied to all overseas posts: (1) Centralize I-601 processing; (2) Allow applicants to concurrently file Form I-601 and Form I-130, Petition for Alien Relative; (3) Prioritize the finalization of the overseas case management system, already under development, to ensure accurate statistical reporting on Forms I-601, to allow processing times to be posted, and to enable customers to track a Form I-601 application via the "My Case Status" feature on the USCIS website; (4) Publish clear instructions for customers seeking expedited waiver processing; (5) Increase coordination between Department of State (DOS) and USCIS officers who work with I-601 waivers; and (6) Allow USCIS employees to request digitized A-Files upon receipt of interview schedules. This Recommendation update provides the status of recommendations made by the Ombudsman at least twelve months after the recommendations were issued." -CISOMB, updated Dec. 8, 2011.

Article posted by Daniel M. Kowalski


Ombudsman Recommendation Update: USCIS Processing of Waivers of Inadmissability


On June 10, 2010, the Citizenship and Immigration Services Ombudsman recommended enhancements to the administration of Form I-601, Application for Waiver of Grounds of Inadmissibility. While specifically focused on the USCIS Ciudad Juarez Field Office, many of the recommendations applied to all overseas posts: (1) Centralize I-601 processing; (2) Allow applicants to concurrently file Form I-601 and Form I-130, Petition for Alien Relative; (3) Prioritize the finalization of the overseas case management system, already under development, to ensure accurate statistical reporting on Forms I-601, to allow processing times to be posted, and to enable customers to track a Form I-601 application via the "My Case Status" feature on the USCIS website; (4) Publish clear instructions for customers seeking expedited waiver processing; (5) Increase coordination between Department of State (DOS) and USCIS officers who work with I-601 waivers; and (6) Allow USCIS employees to request digitized A-Files upon receipt of interview schedules. This Recommendation update provides the status of recommendations made by the Ombudsman at least twelve months after the recommendations were issued.

Read more: http://www.ilw.com/immigrationdaily/news/2011,1209-inadmissibility.shtm

Wednesday, November 30, 2011

Government by Waiver - Immigration Edition

 By now it is well known that President Obama's big government model disproportionately relies on "waivers" to exempt certain companies and unions—disproportionately located in friendly political districts—from the generally applicable requirements of Obamacare. Whether or not the president's new "government by waiver" effort is unconstitutional—as law professor Philip Hamburger argues—it certainly is pernicious. As professor Richard Epstein urged in his excellent National Affairs essay, "government by waiver" is "among the most serious challenges to the rule of law in our time."(...)
Read more: http://www.weeklystandard.com/blogs/government-waiver-immigration-edition_575897.html

Unlawful Presence

This is an important issue and very relevant to people, who have entered the United States unlawfully and later on want to marry a US citizen or gain some kind of other immigration benefit.
What is unlawful presence?(...)
The article is divided in 4 parts. Let's start with part 1 http://www.ranchodlaw.com/blog/marriage-green-cards/unlawful-presence-part-1/ 

Monday, March 7, 2011

INADMISSIBILITY

INADMISSIBILITY

COUNTING UNLAWFUL PRESENCE TOWARD 3/1 0 YEAR BARS

Unlawful presence time not counted toward 3/1 0 year bars (though alien may have been unlawfully present):

· before April I, 1997, • under age 18 (except that time under age 18 DOES count toward 9C),

· asylum "claim pending as long as no unauthorized employment,

· 1-485 pending or timely filed application to extend/change nonimmigrant status (forget about the 120 limit in the statute),

· Duration of Status (admitted Canadians without 1-94 presumed to be in D/S),

· application for family unity benefits pending (this is an old section of law) and certain VA WA applicants

INADMISSIBLE, WAIVER AVAILABLE


Title: section regarding inadmissibility; section regarding waiver. Description and details.

Unlawful pres: 212a9BiI, IT; 212a9Bv. More than 180 days, but less than one year is a 3-year bar. If placed in removal proceedings and VD before one year, no 3-year bar. More than one year or more is a 10-year bar. Time not counted in the aggregate. Bar runs while alien is anywhere in the world, including US. QR: USC or LPR spouse or parent.

Misrep: 212a6Ci; 212i. Fraud or willfully misrepresenting a material fact, seeks/sought to procure a visa, other documentation, or admission to US. Oral or written. Outside US, 30/60 day rule: violates status or applies for green card within 30 days of nonimmigrant entry is non-rebuttable fraud, within 60 days is rebuttable. Within US, Matter of Cavazos: absent aggravating factors, ADS approved without waiver. QR: USC or LPR spouse or parent.


Prior Removal: 212a9Ai, ii; 212a9Aiii. Prior expedited removal at point of entry is 5-year bar. Other removal/deport is 10 years. Catch-and- release (voluntary return program) and VD are not removal/deportation, No relative required for waiver.

Criminal: 212a2AiI, B, D; 212h. Prostitution/pimping (even iflegal where done) or crime of moral turpitude, except a single conviction for which maximum possible penalty one year or less and actual sentence six months or less. Juvenile convictions excepted unless tried as adult. our, hiring prostitute not CIMTs. Permanent inadmissibility, except prostitution/pimping is 10 years. QR LPR/USC spouse, child, parent. No QR required after 15 years when rehabilitation only is ok. For very violent crimes, must prove exceptional and extremely unusual hardship.

Medical: 212alA; 212g. (a) TB, a few other communicable diseases. QR: VA WA or USCILPR child, spouse or, if alien is unmarried, parent. Don't need extreme hardship. Waiver is about health insurance and public safety. (b) No vaccinations. No QR needed K visa excepted. Prove alien can't vaccinate for medical reasons (e.g. pregnant) or against religious/moral beliefs. (c) Mental disorder that poses danger to alien or others. Waiver: case-by-case.

Smuggling: 212a6E; 212dll. Knowingly has encouraged, induced, assisted, abetted, or aided any other alien to enter or to try to enter the
United States in violation of law. Waiver if alien
smuggled is spouse, parent, child. Family unity standard.

Jl 2-year return: 212e; 212e. On Jl this visit or prior visit and subject to 212e (not all Jls subject, must view visa) and has not spent 2 years in home country. Time in other countries doesn't count. QR not always needed; waivers complex.


INADMISSIBLE, NO WAIVER AVAILABLE EITHER TEMPORARILY OR PERMANENTL
Y


Skipped Hearing 212a6B; no waiver. Failed to attend a removal hearing when NTA
issued after April 1, 1997. 5 year bar after departure
.


9CiI 212a9CiI; 212a9Cii, iii. Unlawfully present more than one year in the aggregate after April I, 1997, departed and returned or attempted to return without inspection. All exceptions from the top of the page apply except unlawful presence under age 18. Waiver for VA WA people immediately. Waiver after ten years for all others, no QR.


9CiII 212a9CiII; 212a9Cii, iii. Deported at any time, even before Apr I, 1997, followed by EWI or attempted EWI after April I, 199
Waiver for VA WA people immediately
. Waiver after ten years for all others, no QR.


False claim of cit 212a6Cii; no waiver. False claim of citizenship made on or after Sep 30, 1996. Claims made before then are simply misrep. w/waiver. No exception for minors. Claim made for 'any purpose' under INA or StatefFederallaw.

Drug crimes 212a2AiII; no waiver. Any drug conviction except < 30 g marijuana. No intent requirement. No moral turpitude. Convictions under age 18 don't count. Expungements only good if happened in 9th circuit under Fed 1rst Offender.


Gang member 212a3Aii; no waiver. Any prior gang membership at any age, anywhere. Reason to believe only.


Drug trafficking 212a2C; no waiver. Any prior drug sale/trafficking and spouses and kids. Reason to believe only.


LPR deported for Ag Fel 212a2Ai1, B, D; no waiver under 212h. This group doesn't qualify for 212h waiver.


Drug abuser 212alAiv; no waiver. Virtually any drug use in the past three years. Must show three years 'remission'.


Fake asylum 208d6; no waiver, Bar to all future benefits. Asylum filed after Apr I, 1997. Attorney General finds it "frivolous".

Fake marriage 204c; not exactly waivable, Bar to all future I-130s. If IV application not based on 1-130, waiver under 212i.

Other Lots of other rare situations, e.g. terrorists, attempt on President's life, communists, Nazis, genocide, etc.



Nonimmigrant waiver and Parole People who are not eligible for an immigrant waiver are still eligible for a nonimmigrant waiver under 212d3

to enter temporarily and can get Humanitarian Parole to enter temporarily usually for medical treatment or to attend a funeral.


BARS TO ADJUSTMENT OF STATUS/CHANGE NONIMMIGRANT STATUS

BARS TO ADJUSTMENT OF STATUS/CHANGE NONIMMIGRANT STATUS



RULE #1: If your most recent entry was without inspection, you cannot adjust status (apply for a green card) nor acquire nonimmigrant status. 245a

Primary Exceptions: 245i, Cancellation of Removal, asylum, VAWA, TIU, TPS.

RULE #2: If you enter in valid nonimmigrant status and you fail to maintain status, you cannot adjust status, nor change, acquire or extend nonimmigrant status. 245c
Primary Excepctions:245i, 245k, Immediate Relative of a US Citizen, Cancellation of Removal, asylum, VA WA, T/U, TPS.

RULE #3:
If your most recent entry was on a K visa (KI, K2, K3, K4), you can only adjust status through the K visa
petitioner and you cannot change nonimmigrant status. 245d

Primary Excepctions:Cancellation of Removal, asylum, V A WA, T/U, TPS. Note that 245; is not on this list!!!

RULE #4:
EXCEPTIONS TO THE IMMEDIATE RELATIVE EXCEPTION. Even if you last entered in valid
nonimmigrant status and are now married to a US citizen, you cannot adjust status if you last entered as an
alien crewman (D visa) or entered in transit without a visa
. 245c

Primary Excepctions: 245i, Cancellation of Removal, VA W A, TIU, TPS.

RULE#5:
If you last entered on the Visa Waiver Program, even if you do not violate status, you cannot change or
extend nonimmigrant status and you cannot adjust status. 2
~5c

Primary Excepctions:Immediate relative of a US citizen, 245i, Cancellation of Removal, asylum, VA WA, TIU visas, TPS.


THE EXCEPTIONS ON BARS TO ADJUSTMENT - DESCRIBED

245i:

Either (a) had an 1-130
, I-140 or Labor Cert pending on !before April 30, 2001 AND were present since at
least December 2000, OR (b) had an 1-130, 1-140 or Labor Cert pending on/before January 14, 1998
.
Derivatives ok.The 1-130, 1-140 or Labor Cert must have been approvable on its face at the time it was
filed. Even if you can't use the 1-130 or 1-140 to adjust under 245a, you can use it to qualify under 245i,
and use a new petition to adjust under 245a. 245i excuses problems under 245a and 245c only
. NOT
245d!!! Courts split on whether 245i 'trumps
' 9C.

Cancellation:
(1) In removal proceedings. (2) Present in the us at least 10 years prior to commencement of proceedings.(3) Good moral character for ten years. (4) Exceptional and extremely unusual hardship to USC or LPR spouse, parent or child. Regardless of inadmissibility, except 212a9Cii because of stop-time provision.

VAWA:
(1) Married to LPR or USC, bona fide belief you were married to LPR or USC, or child of LPR or USC, and (2) abused physically or emotionally by that LPR or USC. Emotional abuse must be extraordinary to qualify. Fiance(e)slboyfriends don't count.

T/U:
Trafficked/exploited and/or victim of crime. T
: The trafficker and exploiter must be the same
person/organization. PolicelFB1 must prosecute and T applicant must be witness. PolicelFBI must
cooperate in the T visa process
. U: victim of specific violence crimes, domestic violence, assault, etc.
Crime must be reported, and victim may not unreasonably refuse cooperation with investigation and / or
prosecution. Police must cooperate in visa process

Asylum/Withholding:
Must be member of a protected group and must of credible fear of persecution because of membership in
that group. Gov't must participate, acquiesce or be unable to stop persecution. "Women" are not a
protected group. "Victims of non-government criminal activity" are not protected
.

245k:
Entered in lawful status. Out of status less than 180 days
. Highly skilled workers only. Labor cert already
approved or exempt
. Visa priority date must be current.

TPS:
Present in the US in any status or no status when gov't
puts them on TPS list. Not a path to green card.

Immediate USC Relative: Spouse. Child under age 21. Parent if child is at least 2]. Category does not allow derivatives.


Some other exceptions:

NACARA (certain Central Americans who filed asylum claims in the 80s), Cuban Adjustment Act (Most Cuban EWls, even now), Registry (here since 1972), Amnesty (here since 80s and filed stuff then), Family Unity Act (filed stuff long ago), certain Haitans (not many), and a few other obscure sections of law.

PROCEDURAL WALK- THROUGH FOR 1-601 FILED ABROAD FOR SPOUSE OF CITIZEN

PROCEDURAL WALK- THROUGH FOR 1-601 FILED ABROAD FOR SPOUSE OF CITIZEN

File Petition with CIS. USC spouse is Petitioner (P). Alien spouse is Beneficiary (B).

1. Forms: G-28, 1-130, G-325A for P, G-325A for 'B';

2. Supporting Docs: 'P's US birth cert or naturalization cert, marriage cert., proof prior marriages terminated for both 'P' and
'B' (divorce decree
s, annulment, death cert.), passport-style photo of'P' and 'B', filing fee. Vital records can be
photocopies, rather than certified/official
. Translations required.

3. Send to Chicago. Look at form instructions for current address and fee. www.uscis.gov Click on 'forms'.

4. Note that any alien children of alien spouse will need their own 1-130 (not covered here)

5. On question #22, only list the city abroad where 'B' will consular process. Don't list local CIS office in US.

Processing time: approx 5 months from 1-130 filing to 1-130 approval. Subject to change.



File Application Part I with NVC. USC spouse is Petitioner/Sponsor (PIS), Alien spouse is Applicant (A).

1. Must wait about 30 days after 1-130 approval before NVC sends the visa bill. Pay visa bill online according to instructions

sent by NVC. You cannot do this until you receive the bill.

2. After paying visa bilI, follow the online instructions to print out the Bar Code Sheet unique to the case.

3. Forms: DS-230 Parts I and II, 1-864

4. Supporting Docs: Bar Code Sheet, 'PIS's US birth cert or natz cert., 'A's birth cert, marriage cert for 'PIS' and 'A', proof of
termination of prior marriages, police certificates (not from US, Mexico or select other countries), all court/police records for
criminal history, relevant removal records, copy ofID pages of
'A's passport valid at least 6 months into future, 2 passport-
style photos of 'A', most recent tax return and W-2 for 'PIS', most recent paystub for 'PIS'. Vital records must be
certified/official
. Translations not required if in language of country.

5. RFEs are common at NVC.

6. After NVC is done, it may be another 1-2 months or so before consular interview.

Processing time: approx 3-5 months from 1-130 approval to consular interview. Subject to change.



File Application Part II with consulate. USC spouse is PetitionerlSponsor (PIS), Alien spouse is Applicant (A).

I. 'A' will receive an instruction packet from the consulate. These packets are also usually available online from consulate
website
. They have instructions on the medical exam and what NOT to bring in consulate.

2. 'A' must have medical exam at least 2 days before consular interview and must do so at medical office designated by
consulate in same city as consulate. 'A' mayor may not have to schedule the medical appointment himlherself. This will be
described in packet
. 'A' must bring vaccination records.

3. At consular interview, consulate will check for medical grounds of inadmissibility, real marriage, whether sponsor meets
income requirement, identity of' A', and other grounds of inadmissibility

4. 'A' should bring to interview: copies of everything submitted with 1-130 and NVC processing, certified copies of all vital
records, proof of real marriage (especially photos and birth certs of kids in common!!)

5. If alien needs a waiver, consulate will usually make that determination at the consular interview and give' A' a notice listing
the section of law making him inadmissible and providing instructions on filing a waiver
.

6. Sometimes consulate asks for additional items or wants a few days to issue the formal denial notice. 'A' should be prepared
to spend 3-10 days in the city where the consulate is located. Get a refundable ticket
.

Processing time: two days to two weeks from medical exam to denial notice with waiver instructions



File waiver application with consulate. use spouse is Qualifying Relative (QR), Alien spouse is Applicant (A).

1. Sometimes you can file the waiver at the consular interview. Sometimes you need an appointment to come back (e.g. Ciudad
Juarez). Rarely you can mail it in after the interview. Consulate will provide instructions to 'A' at the interview
.

2. Forms: G-28, 1-601, G-325A for 'A', sometimes G-325A for 'QR'. sometimes there's a consular questionnaire that is not
available online in advance

3. Supporting documents: Filing fee, letter from the qualifying relative, whatever else you need to prove extreme hardship, any
criminal records. In London you must have letter from 'A'. I
n Central and South America you must have all the vital
records and police certificates you submitted to the NVC plus English translations of those documents. If you have
additional qualifying relatives other than petitioner, you need proof of their LRP or USC status and proof ofrelationship (e.g.
'A's birth certificate if 'QR' is parent).

Processing time: One week to 18 months from 1-601 filing to decision, but usually 6-9 months. Subject to change. Note that
Mexico has the Pilot Program - in one week 'A' either approved or referred, if referred it will then be a year for final decision.



Post approval visa pickup. USC spouse is Petitioner/Sponsor (PIS), Alien spouse is Applicant (A).

I. If it is Mexico and' A' has Pilot Program approval, the immigrant visa will be in the passport in the DHL packet.

2. If the waiver is approved and visa can be issued under one year from Jast interview, 'A' will not need a new medical exam or
new DS-230, but may need a recent paystub and tax returnlW-2 from 'PIS'. Need consular appointment
.

3. Ifwaiver approved and visa cannot be issued under a year from Jast interview, 'A' will need a new medical exam, new DS-
230 and a new consular interview. No new IV fees required, but must pay for new medical
. Need consular appointment.

Processing time: unless it is Mexican Pilot Program approval, it can take 30 days for the consulate to receive CIS' approval
notice and another 30+ days to have the consular interview and issue the visa.

Friday, March 4, 2011

Immigration Waivers Information, News & Issues: Application for Waiver of Grounds of Inadmissibility - Unlawful Presence

Immigration Waivers Information, News & Issues: Application for Waiver of Grounds of Inadmissibility - Unlawful Presence

Application for Waiver of Grounds of Inadmissibility - Unlawful Presence

Application for Waiver of Grounds of Inadmissibility - Unlawful Presence


"Inadmissible for having procured admission to the United States by fraud or willful misrepresentation of a material fact and pursuant to section 212(a)(9)(B)(i)(II) of the Act, 8 U.S.C. $ 11 82(a)(9)(B)(i)(II), for having been unlawfully present for a period of one year or more. The applicant is the spouse of a U.S. citizen and the beneficiary of an approved Petition for Alien Relative. She seeks a waiver of inadmissibility pursuant to sections 212(a)(9)(B)(v) and 212(i) of the Act, 8 U.S.C. $ 9 1 182(a)(9)(B)(v) and (i), in order to return to the United States and reside with her husband."

Application for Waiver of Ground of Inadmissibility - Misrepresentation

Application for Waiver of Ground of Inadmissibility - Misrepresentation


"an alien who has procured a visa or admission into the United States through fraud or misrepresentation. The applicant is a beneficiary of an approved relative visa petition based on his marriage to a U.S. citizen, and he seeks a waiver of inadmissibility pursuant to section 212(i) of the Act, 8 U.S.C. 5 1182(i), in order to remain with his wife in the United States."

Application for Waiver of Grounds of Inadmissibility - Criminal

Application for Waiver of Grounds of Inadmissibility - Criminal

"The record reflects that on September 18, 2000, the applicant was convicted in the District Court of Maryland for On August 28, 2005, the applicant Rockville/Montgomery
filed County of an "CDS: Application to Poss Paraphernalia" Register Permanent - Residence or Adjust Status (Form 1-485) based on an underlying Petition for Alien Relative (Form 1-130). On July 6, 2007, the applicant filed an Application for Waiver of Grounds of Inadmissibility (Form 1-601)."

Application for Waiver of Grounds of Inadmissibility under Section 212

Application for Waiver of Grounds of Inadmissibility under Section 212


The record reflects that the applicant is a native and citizen of Colombia and the beneficiary of an approved Petition for Special Immigrant (Form 1-360). The district director found the applicant inadmissible to the United States pursuant to section 212(a)(l)(A)(i) of the Immigration and Nationality Act (INA, the Act), 8 U.S.C. 4 1182(a)(l)(A)(i), as an alien determined to have a communicable disease of public health significance, to wit: human immunodeficiency virus (HIV).

The applicant filed an application for a waiver of inadmissibility in order to reside in the United States.

The district director found that the applicant had failed to establish eligibility for waiver in that he failed to show the requisite relationship to a U.S. citizen or LPR as required in the statute authorizing waiver. The district director therefore denied the application.

Inadmissibility under Section 212(g) of the Immigration and Nationality Act, 8 U.S.C.

Inadmissibility under Section 212

May 18th, 2010

I-601 Waivers - CIS Ombudsman Teleconference

I-601 Waivers - CIS Ombudsman Teleconference


1. Why do some I-601 waivers of inadmissibility take so long to adjudicate?

2. Why are processing times for I-601 waivers of inadmissibility not posted on the USCIS website?

3. What are the current processing times?

4. How can a customer find out where his/her case is being adjudicated?

5. Where should additional evidence be sent?

6. How can a customer find the status of his/her case?

7. Once a case is denied, what are a customer’s options?

8. Once an Appeal or Motion to Reopen or Reconsider is filed, is there anything else a customer can do to have his/her case resolved?

9. What is USCIS protocol if an I-601 waiver of inadmissibility is denied, the case is appealed, and it is determined that the USCIS adjudicator did not follow proper procedures?

10. After the USCIS office in Ciudad Juarez, Mexico reopened following their H1N1-related closing, it seemed that a high volume of cases were denied or referred. Is this accurate, and if so, is there reasoning behind this?

11. USCIS will oftentimes issue boilerplate letters and/or requests for evidence, which are not specific enough to be helpful to the applicant. In fact, this often results in the applicant re-sending much of the same information. Does USCIS plan to issue more detailed, case-specific requests for evidence in the future?

12. Many applicants are under the impression that they can file an I-601 waiver of inadmissibility without any supporting documentation and provide additional information during the interview. However, it seems as though a high volume of cases have been denied because of insufficient information. Is there a preferred way of submitting supporting documentation?

13. Oftentimes, notarios erroneously file I-601 waivers of inadmissibility, leading to denials or detailed requests for evidence to clients. Is there a way that USCIS can specially handle these types of cases?

14. Is there a formal process for inquiring into pending Forms I-212 at local USCIS offices?

15. A customer requested expedited processing of an I-601 waiver of inadmissibility case due to complications with her pregnancy. The expedite request was denied; however, there still continues to be other types of hardship that are not related to her medical condition. What can she do?

16. Are I-601 waiver applicants eligible for fee waivers?

17. How would the removal of HIV from the list of communicable diseases of public health significance affect I-601 waiver of inadmissibility processes and procedures?

18. Do different consulates have different criteria for adjudicating I-601 waivers of inadmissibility?

19. Will USCIS be reviewing and/or revising its criteria for extreme hardship?

20. There seems to be little communication between USCIS and the Center for Disease Control and Prevention for cases involving medical waivers. Is anything being done to address this issue?

21. Would USCIS consider expediting the adjudication of I-601 waivers of inadmissibility for individuals who are overseas over individuals who are in the U.S.?



Followed by the USCIS Responses!!