Immigration | Brian D. Lerner Immigration Attorney & Deportation Lawyer Blog

The New Stateside Provisional Waiver is Here Finally!

Posted on January 4, 2013 by Brian D. Lerner, Immigration Lawyer & Deportation Attorney

Finally! We can apply for a Stateside Provisional Waiver.

Question: I have heard that the regulations for the Stateside Waiver are final. Is that true?

Answer: Well, first you musty realize that an applicant for an immigrant visa, adjustment of status, or a K or V nonimmigrant visa who is inadmissible under any provision of section 212(a) of the Act for which a waiver is available. However, the Stateside Waiver regulations are now final. Certain immigrants may apply for a provisional unlawful presence waiver of inadmissibility.

Question: Who will provide the decision on the Provisional Waiver?

Answer: USCIS will provide a written decision and notify the applicant and his or her attorney or accredited representative and will advise the applicant of appeal procedures if denied.

Question: Where must I file the Provisional Waiver?

Answer: All applications for a provisional unlawful presence waiver, including an application for a provisional unlawful presence waiver made by an alien in removal proceedings before the Executive Office for Immigration Review, must be filed with USCIS. USCIS may adjudicate applications for a provisional unlawful presence waiver of inadmissibility. The decision whether to approve a provisional unlawful presence waiver application is discretionary and does not constitute a grant of a lawful immigration status or a period of stay authorized by the Secretary. Thus, do not think at this point that only because it is being filed with USCIS that it is easy to get or that the burden of proof has changed. In fact, the Provisional Waiver must be prepared with all of the supporting documents, declarations and other evidence to show the hardship to the United States relative.

Question: Since the approval of the Provisional Waiver is inside the United States, can I get a work permit while I’m waiting for my interview at the U.S. Consulate?

Answer: No, a pending or an approved provisional unlawful presence waiver does not authorize any interim immigration benefits such as employment authorization or advance parole. Any application for a travel document or request for employment authorization that is submitted in connection with a provisional unlawful presence waiver application will be rejected.

Question: Who exactly is eligible to apply for the Provisional Waiver?

Answer: A foreign national may be eligible to apply for and receive a provisional unlawful presence waiver for the grounds of inadmissibility when he or she is unlawfully present. An alien may be eligible to apply for or receive a waiver if he or she:

(i) Is present in the United States at the time of filing the application for a provisional unlawful presence waiver, and for biometrics collection at a USCIS ASC;
(ii) Upon departure, would be inadmissible only because of unlawful presence at the time of the immigrant visa interview;
(iii) Qualifies as an immediate relative (spouse of United States Citizen, unmarried child of United States Citizen, or parent of United States son or daughter over 21 years old);
(iv) Is the beneficiary of an approved immediate relative petition;
(v) Has a case pending with the Department of State based on the approved immediate relative petition and has paid the immigrant visa processing fee as evidenced by a State Department Visa Processing Fee Receipt;
(vi) Will depart from the United States to obtain the immediate relative immigrant visa; and
(vii) Meets the requirements for the Waiver and that the foreign national must show extreme hardship to his or her U.S. citizen spouse or parent.

Question: Who is ineligible to do this Provisional Waiver?

Answer: A foreign national is ineligible for a provisional unlawful presence waiver if:
(i) USCIS has reason to believe that The foreign national may be subject to grounds of inadmissibility other than unlawful presence at the time of the immigrant visa interview with the Department of State;
(ii) The foreign national is under the age of 17 (since they would not be subject to the 3/10 year bar);
(iii) The foreign national does not have a case pending with the Department of State, based on the approved immediate relative petition, and has not paid the immigrant visa processing fee;
(iv) The Department of State initially acted to schedule the immigrant visa interview prior to January 3, 2013 for the approved immediate relative petition on which the provisional unlawful presence waiver is based, even if the interview has since been cancelled or rescheduled after January 3, 2013;
(v) The foreign national is in removal proceedings, unless the removal proceedings are administratively closed and have not been recalendared at the time of filing the Form I-601A;
(vi) Th
e foreign national is subject to a final order of removal ;
(vii) The foreign national is subject to reinstatement of a prior removal order; or
(viii) The foreign national has a pending application with USCIS for lawful permanent resident status. Thus, you would not file the Waiver UNTIL the USCIS has approved the I-130 and it has been sent to the National Visa Center.

Question: How do I file the Provisional Waiver?

Answer: An application for a provisional unlawful presence waiver of the unlawful presence inadmissibility bars , including an application by an alien in removal proceedings that are administratively closed and have not been recalendared at the time of filing the Form I-601A, must be filed on the form designated by USCIS. The prescribed fee supporting documentation must be submitted in accordance with the form instructions. An application for a provisional unlawful presence waiver will be rejected and the fee and package returned to The foreign national if The foreign national :
(A) Fails to pay the required filing fee for the provisional unlawful presence waiver application or to pay the correct filing fee;
(B) Fails to sign the provisional unlawful presence waiver application;
(C) Fails to provide his or her family name, domestic home address, and date of birth;
(D) Is under the age of 17;
(E) Does not include evidence of an approved petition that classifies The foreign national as an immediate relative of a U.S. citizen;
(F) Fails to include a copy of the fee receipt evidencing that The foreign national has paid the immigrant visa processing fee to the Department of State; or
(G) Has indicated on the provisional unlawful presence waiver application that the Department of State initially acted to schedule the immigrant visa interview prior to January 3, 2013, even if the interview was cancelled or rescheduled after January 3, 2013.

Question: Am I required to give my fingerprints?

Answer: All aliens who apply for a provisional unlawful presence waiver under this section will be required to provide biometrics. If an alien fails to appear for biometrics capture, the provisional unlawful presence waiver application will be considered abandoned and denied. The foreign national may not appeal or file a motion to reopen or reconsider an abandonment denial.

Question: What is the burden of proof on this Waiver to get it approved?

Answer: You, the foreign national has the burden to establish eligibility for the provisional unlawful presence waiver, including that the foreign national merits a favorable exercise of the Secretary’s discretion. USCIS will adjudicate the provisional unlawful presence waiver application except The foreign national must show extreme hardship to his or her U.S. citizen spouse or parent. USCIS also may require The foreign national and the U.S. citizen petitioner to appear for an interview. If USCIS finds that The foreign national does not meet the eligibility requirements for the provisional unlawful presence waiver, or if USCIS otherwise determines in its discretion that a waiver is not warranted, USCIS will deny the waiver application. USCIS may deny an application for a provisional unlawful presence waiver without prior issuance of a request for evidence or notice of intent to deny. Thus, do not give it your best shot and then get an attorney to help you. Get it done right the first time.

Question: How will I get the decision?

Answer: USCIS will notify the foreign national and the foreign national ‘s attorney of record or accredited representative of the decision. USCIS also may notify the Department of State. Denial of an application for a provisional unlawful presence waiver is without prejudice to The foreign national filing another provisional unlawful presence waiver application, provided The foreign national meets all of the requirements, and that the foreign national ‘s case must be pending with the Department of State. An alien also may elect to file a Form I-601, Waiver of Grounds of Inadmissibility, after departing the United States, appearing for his or her immigrant visa interview at the U.S. Embassy or consulate abroad, and after the Department of State determines The foreign national ‘s admissibility and eligibility for an immigrant visa. Accordingly, denial of a request for a provisional unlawful presence waiver is not a final agency action.

Question: If I want, can I withdraw my request for a Waiver?

Answer: Yes, you may withdraw your request for a provisional unlawful presence waiver at any time before USCIS makes a final decision. Once the case is withdrawn, USCIS will close the case and notify the foreign national and his or her attorney or accredited representative. The foreign national may file a new Form I-601A, in accordance with the form instructions and required fees. The foreign national ‘s case must be pending with the Department of State and The foreign national must notify the Department of State that he or she intends to file a new Form I-601A.

Question: Can I appeal or make a Motion to Reopen the Provisional Waiver if it is denied?

Answer: There is no administrative appeal from a denial of a request for a provisional unlawful presence waiver. You may not file, a motion to reopen or reconsider a denial of a provisional unlawful presence waiver application.

Question: What happens when the Waiver is approved?

Answer: A provisional unlawful presence waiver granted:
(i) Does not take effect unless, and until, The foreign national who applied for and obtained the provisional unlawful presence waiver:
(A) Departs from the United States;
(B) Appears for an immigrant visa interview at a U.S. Embassy or consulate; and
(C) Is determined to be otherwise eligible for an immigrant visa by a Department of State consular officer in light of the approved provisional unlawful presence waiver.

Question: Does the Waiver waive any other grounds of inadmissibility?

Answer: No.

Question: How long is the Waiver valid for if approved?

Answer: Until the provisional unlawful presence waiver takes full effect. Note that USCIS may reopen and reconsider its decision at any time. Once a provisional unlawful presence waiver takes full effect, the period of unlawful presence for which the provisional unlawful presence waiver is granted is waived indefinitely.

Question: Can the Waiver be automatically revoked?

Answer: The approval of a provisional unlawful presence waiver is revoked automatically if:
(i) The consular officer determines at the time of the immigrant visa interview that The foreign national is ineligible to receive a visa ;
(ii) The immigrant visa petition approval associated with the provisional unlawful presence waiver is at any time revoked, withdrawn, or rendered invalid but not otherwise reinstated for humanitarian reasons or converted to a widow or widower petition;
(iii) The immigrant visa registration is terminated and has not been reinstated in accordance with section 203(g) of the Act; or
(iv) The foreign national , at any time before or after approval of the provisional unlawful presence waiver or before an immigrant visa is issued, reenters or attempts to reenter the United States without being inspected and admitted or paroled.

Thus, it is very important to comply with all the different provisions of the Provisional Waiver and to have it done professionally. 

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Filed under: waiver | Tagged: expanded provisional waiver, Immigration, Immigration Attorney, Immigration Lawyer, Law Offices of Brian D. Lerner, leaving the U.S., Provisional Waiver, stateside waiver, unlawful presence, waiver | 9 Comments »

The Immigration Bond

Posted on December 12, 2012 by Brian D. Lerner, Immigration Lawyer & Deportation Attorney

Question: My husband is in detention and deportation proceedings. Can he get out?

Answer: For noncitizens and their families, nothing is more important than the noncitizen’s release from jail. These concerns can sometimes seemingly dwarf the larger issues of removability and relief. Every day, or every second, of detention only serves to increase the anxiety, stress, and impatience of the detainee and his or her family. Some noncitizens are ineligible for bond, either as a matter of law or discretion. Others, at first glance, might seem ineligible for bond but, through creative and persistent lawyering, may one day secure their freedom. This would be through getting an immigration bond.

Question: When my husband was in criminal jail, they stated there was an immigration detainer or an immigration hold. What is this?

Answer: First, immigration detainers prolong the detention of many criminal defendants. A detained noncitizen facing criminal charges is more likely to plead guilty in hopes of getting out of jail. This “rush” to plead could have serious short and long-term immigration and criminal consequences. The immigration detainer remains widely misunderstood by the defense bar. It is a preliminary step in the removal process and does not mean that the noncitizen can or will be removed.

The detainer is a surprisingly feeble legal instrument. Most defense counsel would be surprised to learn that a detainer is a non-binding “request.” The applicable regulation provides that a detainer “serves to advise another law enforcement agency that the Department seeks custody of an alien presently in the custody of that agency, for the purpose of arresting and removing the alien.” The regulation provides that a “detainer is a request that such agency advise the Department, prior to release of the alien, in order for the Department to arrange to assume custody, in situations when gaining immediate physical custody is either impracticable or impossible.”

The regulation derives its authority from the Immigration and Nationality Act “pursuant to sections 236 and 287 of the Act and this chapter 1.” The statutory language limits detainers to controlled substance violations. There are also due process concerns when an administrative agency unilaterally prolongs detention without statutory authority or legal standards.

Question: What options exist for someone with a detainer?

Answer: Many federal noncitizen defendants do not receive the benefit of pretrial release. The conventional wisdom among federal defense counsel is that an immigration detainer prevents release and renders any pretrial release futile since the noncitizen will remain detained. Federal law provides a specific mechanism to address detention of noncitizens, and in fact, requires that a noncitizen defendant be treated like any other defendant.

Question: How long can the State facility hold you while the detainer is pending?

Answer: ICE has 48 hours, excluding Saturdays, Sundays, and holidays, to take custody of a noncitizen upon his or her release from criminal custody. If ICE fails to do so, the custody becomes unlawful and the noncitizen can challenge the detention by filing a petition for writ of habeas corpus. If the custodian is a state or local official, the petition will have to be filed in state court pursuant to state procedures.

Question: When my husband was transferred to immigration detention, I did not know where he was. How could I find out?

Answer: If you know his country of birth and name or alien number, you can use ICE’s Online Detainee Locator System at https://locator.ice.gov/odls/homePage.do. If he is housed in a state or local jail, another useful online service is www.vinelink.com.

Question: Some people have said that there is mandatory detention and that some people will not qualify for bond. Can you elaborate and explain?

Answer: Three primary classes of noncitizens are ineligible for bond: (1) certain criminals and terrorists ; (2) “arriving aliens”; and (3) individuals with administratively final orders of removal. For the criminal activity, those who are inadmissible for criminal activity pursuant to INA §212(a)(2);

those who are deportable for committing one crime of moral turpitude if the sentence included a term of imprisonment of a year or more; multiple crimes of moral turpitude; aggravated felonies; controlled substance offenses ; certain firearms offenses , or certain espionage and sabotage crimes or those who are inadmissible or deportable for terrorist activities. ²⁶

Mandatory detention only applies to those who were last released from criminal custody after the expiration of the Transition Period Custody Rules (TPCR) on October 8, 1998.

Question: If the person is under mandatory detention, can the Immigration Judge release him?

Answer: No. However, although the Immigration Judge lacks jurisdiction to release noncitizens subject to mandatory detention, they do retain jurisdiction to determine whether the person is properly included in the mandatory detention provisions. Noncitizens can challenge the mandatory detention classification by requesting a Joseph hearing. In a Joseph hearing, the noncitizen bears the burden of establishing that it is substantially unlikely that the charge of removability, triggering mandatory detention, will be upheld. If the Immigration Judge agrees, the judge will entertain a bond hearing immediately.

Thus, even though ICE may claim there is mandatory detention, creative lawyering may be able to show the person in detention is not under mandatory detention.

Question: If he is not under mandatory detention, what happens?

Answer: First, ICE will set a bond. Usually it is much higher than the Immigration Judge will set. Therefore, if you cannot pay what ICE is requesting, he should stay in detention for another few days until the first court hearing. There, a bond redetermination hearing will be conducted and most of the time the Immigration Judge will give a bond 5 to 10 times less than what was issued by ICE.

Question: What do you have to show in a bond redetermination hearing?

Answer: You should show the person in detention is not a flight risk and that he has every intention of going to his hearings. Next, show that he will not be a danger to society if he is bonded out.

Question: When the bond is set, what do I do?

Answer: You will go to the designated deportation department at Immigration, pay the bond and get the receipt. Then you will bring that to the detention facility and he will be released and the case should be transferred to a non-detained calendar.

Question: Will I ever get the money back?

Answer: Yes, you will get it back if he goes to all his hearings. If he does not goto a hearing, you just gave Immigration a present.

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Filed under: Immigration Bond | Tagged: bond redetermination, bond redetermination hearing, fianza, Immigration, Immigration Attorney, immigration bond, Immigration Law, Immigration Lawyer | Leave a comment »

Can you get the Green Card even if your over 21 years old?

Posted on October 17, 2012 by Brian D. Lerner, Immigration Lawyer & Deportation Attorney

Question: My auntie petitioned my mother when I was 3 years old. However, the visa process is so slow that it took 22 years for the visa number to become current. I was over 21 when my mother got her Green Card and the U.S. Embassy said that I aged out and could not come. Is there something that can be done without me having to wait another 10-15 years for a petition from my mother to become current?

Answer: Normally, in that case, once the child ages out, they cannot qualify to come as a derivative. There are, however, certain instances under the CSPA (Child Status Protection Act) whereby the derivative can show he or she is under the age of 21 (under immigration law.) However, in this case, that would not be applicable. Given that, the question then becomes whether you can still fall under any particular provision of the CSPA.

In this case, there was the BIA case Matter of WANG which specifically denied the priority date retention provision of the CSPA. However, the 9th Circuit Courts of Appeal has just come out with a decision which overruled the BIA and has stated essentially that this provision of the CSPA does stand and needs to be followed.

Question: What is this case and what does priority date retention mean?

Answer: First, it is necessary to understand basic immigration family petitions. You have a petitioner which is either the U.S. Citizen, or a Lawful Permanent Resident petitioning the beneficiary (which is the person who wants to come into the U.S.) Once the petition is filed (assuming it is not an Immidiate Relative) will be put into a visa line and only when the visa becomes current (sometimes many years later), can they immigrate to the U.S.

In many of these cases, the child is eligible to immigrate as a derivative at the time that the petition is filed, but once the visa number becomes current, they “age-out”. This can also occur as a direct occurrence for example from a Lawful Permanent Resident petitioning a child under 21.

Question: What exactly is the provision of the CSPA that was ruled on in the 9th Circuit case?

Answer: Well, first you have to try to do the age reduction calculation to see if the beneficiary is actually under 21 for immigration purposes. This means that even if their real age might be over 21 years their immigration age would be under 21 and they can immigrate. However, for purposes of this new case, it is only for those derivative beneficiaries and beneficiaries that have not only aged out, but cannot have their age determined to be under 21.

The CSPA in those cases under the particular provision of the CSPA, will have a petition that is automatically converted to the appropriate category. In other words, let’s say that in your example that an aunt petitioned your mother and you aged out and you cannot reduce your ‘immigration age’ to under 21. In that case, their application is automatically converted for a petition from your mother to you. This would be a Lawful Permanent Resident petitioning a son/daughter over the age of 21. This would be preference F2B.

Then the next part is the key. The CSPA allows you to then recapture or use the priority date of the petition from your auntie’s petition to your mother. As you stated, you were 3 years old when the petition was filed and you were about 24 years old when the visa number became current. This means, that under the CSPA (and now the 9th Circuit Class Action suit that agreed with the provision of the CSPA) that the priority date of the now automatically created petition is the SAME as the one your auntie filed for your mother. Therefore, the priority date will be basically over 20 years old the very moment the petition is automatically created. Since that number is now current, you can then come into the United States under this petition now. You have the petition and the visa number is current. Therefore, you can process right now to get the Green Card.

Question: So, what did the Ninth Circuit case do?

Answer: In fact, USCIS and other government agencies were denying this provision of the CSPA. They basically stated it was not supposed to do what was clearly in the law. Thus, now with the affirmation of the Ninth Circuit case, we can proceed forward with all of these CSPA cases.

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Filed under: Green Card | Tagged: Brian D. Lerner, brian lerner, california immigration lawyer, child status protection act, cspa, Family Petition, Immigration, Immigration Lawyer, Law Offices of Brian D. Lerner | 10 Comments »

The CSPA new case and how to apply for the Green Card even if you aged out

Posted on October 17, 2012 by Brian D. Lerner, Immigration Lawyer & Deportation Attorney

Can you get the Green Card even if your over 21 years old?

Question: What is this case and what does priority date retention mean?

Question: What exactly is the provision of the CSPA that was ruled on in the 9th Circuit case?

Question: So, what did the Ninth Circuit case do?

Filed under: Immigration Attorney | Tagged: Brian D. Lerner, brian lerner, california immigration lawyer, child status protection act, cspa, Family Petition, Immigration, Immigration Lawyer, Law Offices of Brian D. Lerner | 10 Comments »

Immigration questions

Posted on May 16, 2012 by Brian D. Lerner, Immigration Lawyer & Deportation Attorney

Can I become a U.S. Citizen?

Question: I would like to become a U.S. Citizen. What can I do and what are the basic requirements?

Answer: These are the basic requirements: Be 18 or older; Be a green card holder for at least 5 years immediately preceding the date of filing the Form N-400, Application for Naturalization; Have lived within the state, or USCIS district with jurisdiction over the applicantâ€™s place of residence, for at least 3 months prior to the date of filing the application; Have continuous residence in the United States as a green card holder for at least 5 years immediately preceding the date of the filing the application; Be physically present in the United States for at least 30 months out of the 5 years immediately preceding the date of filing the application; Reside continuously within the United States from the date of application for naturalization up to the time of naturalization; Be able to read, write, and speak English and have knowledge and an understanding of U.S. history and government (civics); and be a person of good moral character, attached to the principles of the Constitution of the United States, and well disposed to the good order and happiness of the United States during all relevant periods under the law.

Question: When does my time as a Permanent Resident begin?

Answer: Your time as a Permanent Resident begins on the date you were granted permanent
resident status. This date is on your Permanent Resident Card (formerly known as an Alien
Registration Card or â€œGreen Cardâ€). The sample cards on this page show where you can find
important information such as the date your Permanent Residence began.

Question: If I have been convicted of a crime but my record has been
expunged, do I need to write that on my application or tell a
USCIS officer?

Answer: Yes. You should always be honest with USCIS about all:
Arrests (even if you were not charged or convicted);
Convictions (even if your record was cleared or expunged); Crimes you have committed for which you were not arrested or convicted; and any countervailing evidence, or evidence in your favor concerning the
circumstances of your arrests, and/or convictions or offenses that you would like
USCIS to consider.

Even if you have committed a minor crime, USCIS may deny your application if you
do not tell the USCIS officer about the incident. Note that unless a traffic incident was
alcohol or drug related, you do not need to submit documentation for traffic fines and
incidents that did not involve an actual arrest if the only penalty was a fine less than
$500 and/or points on your driverâ€™s license.

However, if you have any of the above, you should definitely get the help of an immigration attorney to best protect you in this situation.

Question: Will USCIS help me, or make accommodations for me, if I have a
disability?

Answer: USCIS will make every effort to make reasonable accommodations for applicants with
disabilities who need modifications to the naturalization process in order to demonstrate
their eligibility. For example, if you use a wheelchair, we will make sure you can be
fingerprinted, interviewed, and sworn in at a location that is wheelchair accessible. If
you are hearing impaired, the officer conducting your interview will speak loudly and
slowly, or we will work with you to arrange for an American sign language interpreter.
If you require an American sign language interpreter at the oath ceremony, please
indicate that in your Form N-400 in the section where you are asked if you need
accommodation for a disability. If you use a service animal such as a guide dog, your
animal may come with you to your interview and oath ceremony.

Question: How long will it take to become naturalized?

Answer: The time it takes to be naturalized varies by location. USCIS is continuing to
modernize and improve the naturalization process and would like to decrease the
time it takes to an average of 6 months after the Form N-400 is filed.

Question: What can I do if USCIS denies my application?

Answer: If you think that USCIS was wrong to deny your naturalization application, you may
request a hearing with an immigration officer. Your denial letter will explain how to
request a hearing and will include the form you need. The form for filing an appeal is
the â€œRequest for Hearing on a Decision in Naturalization Proceedings under Section
336 of the INAâ€ (Form N-336). You must file the form, including the correct fee, to
USCIS within 30 days after you receive a denial letter.
If, after an appeal hearing with USCIS, you still believe you have been wrongly denied
naturalization, you may file a petition for a new review of your application in U.S.
District Court.

Question: Can I reapply for naturalization if USCIS denies my application?

Answer: In many cases, you may reapply. If you reapply, you will need to complete and resubmit
a new Form N-400 and pay the fee again. You will also need to have your fingerprints
and photographs taken again. If your application is denied, the denial letter should
indicate the date you may reapply for citizenship.
If you are denied because you failed the English or civics test, you may reapply for
naturalization as soon as you want. You should reapply whenever you believe you have
learned enough English or civics to pass both tests.

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Los Angeles Immigration Attorney gets big win

Posted on May 7, 2012 by Brian D. Lerner, Immigration Lawyer & Deportation Attorney

Los Angeles Immigration Attorney gets big win

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How can I save 15 years of waiting for my Green Card?

Posted on March 21, 2012 by Brian D. Lerner, Immigration Lawyer & Deportation Attorney

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DOS press release announcing that in January 2012, U.S. Mission Brazil processed more than 86,000 visa applications

Posted on February 29, 2012 by Brian D. Lerner, Immigration Lawyer & Deportation Attorney

DOS press release announcing that in January 2012, U.S. Mission Brazil processed more than 86,000 visa applications, an increase of 60% over January 2011. Visa interview wait times in Sao Paulo, the Department’s busiest NIV processing post, are less than 30 days.

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