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USCIS Policy Memo on Accrual of Unlawful Presence and F, J, and M Nonimmigrants

USCIS Policy Memo on Accrual of Unlawful Presence and F, J, and M Nonimmigrants 

So it would seem that F and J status people out of status may start accruing unlawful presence.

The New Provisional Waiver

http://www.californiaimmigration.us
Coffee talk with Immigration Attorney Brian D. Lerner, A Professional Corporation on Immigration and Naturalization Law and specifics on how you can find solutions to immigration problems, visas, work-permits, deportation and other areas of immigration law. Find out about the Provisional Waiver to be filed Stateside for Unlawful Presence. Immigration Lawyer Brian D. Lerner explains this area of immigration law so that it is clear and in normal and plain English. The Law Offices of Brian D. Lerner is happy to give you a free 10 minute consultation at http://www.blerner.checkappointments.com/. Additionally, call us at 562-495-0554 or send a Skype to ‘briandlerner’.

The New Stateside Provisional Waiver is Here Finally!

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.

Unlawful Presence for Minors

Unlawful Presence for Minors

Question: I am 17 years old and do not know if I will be subject to being unlawfully present. Can you clarify?

Answer: There has been a significant change in the interpretation of unlawful presence as it relates to minors by the U.S. Consulate in Ciudad Juarez, Mexico (“CDJ”) and perhaps other U.S. consulates, with devastating results. Accordingly, the Visa Office has directed the consulate at CDJ to cease applying the “minor exception” of INA §212(a)(9)(B)(iii)(1) to unlawful presence findings under INA §212(a)(9)(C)2, resulting in denial of immigrant visas to children under the age of 18, as well as denial of immigrant visas to adults who had unlawful presence and a re-entry as a minor. This action may need Federal Court action in order to best determine how to proceed as it was not previously applied in this manner and it subject to interpretation.

Question: What is the background of this provision?

Answer: INA §212(a)(9)(B)(i)3 imposes three- and ten-year bars upon foreign nationals who have accrued specific periods of time in the U.S. INA §212(a)(9)(B)(iii) provides a series of statutory exceptions to the period of time which can be counted toward an alien’s unlawful presence. The so-called “minor exception” is found there, and exempts from unlawful presence periods of time when the alien is under 18 years of age.In practice at CDJ, the “minor exception” has been applied to the INA §212(a)(9)(C) permanent bar for aliens who have been unlawfully present for an aggregate period of one year, or who have been ordered removed under INA §235(b)(1) and INA §240, or any other provision, who then returned to the U.S. without inspection. Previously, if an alien minor was in the U.S. unlawfully for one year, was then taken home, for example, to Mexico to see his grandparents, and was brought back into the U.S. without inspection, the permanent bar of INA §212(a)(9)(C) has not been applied. This makes sense because INA §212(a)(9)(B) defines unlawful presence for “this paragraph,” and states the exceptions.Recently CDJ has been taking the position that the unlawful presence exception for minors does not apply to the permanent bar of INA §212(a)(9)(C), because the statutory exception is only listed under INA §212(a)(9)(B). As noted above, INA §212(a)(9)(C) does not include a definition of unlawful presence, but CDJ continues to “import’ that definition from §212(a)(9)(B) without applying the exceptions found therein. This by itself could be a violation of due process considering there is no notice that it would be applied in this manner.

Until a resolution is reached, minors, or those who had been unlawfully present in the U.S. as a minor, and thus, who fall under the newly-interpreted INA §212(a)(9)(C) bars, should not consular process, at least through CDJ, and perhaps at all. It is not known at this time if other U.S. consulates are applying this interpretation of the law, and if the same issue is present with theother exceptions to the unlawful presence bars found at INA §212(a)(9)(B)(iii).

Therefore, what we have is an agencies interpretation of a particular law without any guidance, caselaw or statutory provisions mandating the proper procedure. It simply does not make sense that the unlawful presence does not apply to a minor EXCEPT if it supposedly falls under the above scenerio. Congress enacted this provision and specifically excluded minors. Why would they exclude minors under this provision only to have CDJ apply it completely against minors by referring to another section? This will have to go to Court to protect those who need its protection the most – the minors.

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