News and Notes in the World of Waivers #9

USCIS has proposed to allow individuals applying for permanent residence through US citizen family members to apply for waivers of inadmissibility and seek approval before leaving the U.S. for their interview at a U.S. Embassy or Consulate overseas. This is a very interesting development.  Even though it is limited to family members of USCs it is definitely a step in the right direction.
 
The text of the announcement follows:
 
U.S. Citizenship and Immigration Services (USCIS) posted a Notice of Intent in the Federal Register outlining a proposed change to its current process for the filing and adjudication of waivers of inadmissibility relating to unlawful presence. The proposed process would allow certain individuals seeking permanent residence through their U.S. citizen immediate relatives to apply for waivers of inadmissibility before leaving the U.S. for their interview at a U.S. Embassy or Consulate overseas.The proposal reflects the Administration’s steadfast commitment to maintaining the integrity of immigration law, promoting family unity and improving overall efficiency in the immigration system. This change would decrease the time eligible individuals are separated from their U.S. citizen relatives and would only apply in cases where U.S. citizens would suffer extreme hardship as a result of prolonged separation.

If you’d like to purchase “AILA’s Focus on Waivers Under the Immigration & Nationality Act” by Julie C. Ferguson, go to http://aila.stores.yahoo.net/waivers1.html.

 News and Notes in the World of Waivers #8
AAO Approves §212(i) Waiver for Mexican Wife of USC 
AILA Infonet Doc. No 11090132 

News and Notes in the World of Waivers #7
 

Filing Form I-601 Applications for Waiver of Grounds of Inadmissibility in London
 

The London Field Office has jurisdiction for adjudicating I-601 applications filed in the following countries: Denmark, Finland, Iceland, Republic of Ireland, Norway, Sweden, and the United Kingdom.
 

Applicants residing in Denmark, Finland, Iceland, Republic of Ireland, Norway, and Sweden file their I-601, Extreme Hardship Statements with the Consular Officer at the Embassy at which the beneficiary of the petition applied for the Immigrant visa. After reviewing the waiver application and supporting documentation, the Consular Office will forward it to the USCIS London Field Office for adjudication.
 

Applicants who live in the United Kingdom must mail their I-601 application and supporting documentation to the London Field Office.
 

Forms necessary for the application include: Application for Waiver of Grounds of Inadmissibility (Form I-601), Application for Permission to Reapply for Admission into the United States After Deportation or Removal (I-212), E-notification of Application/Petition Acceptance, Biographic Information (G-325A), Extreme Hardship Statements, Credit Card Payment Form (only for U.S. Consulate in London). All of these forms can be found on the Embassy’s website.
 

After receiving an I-601, the London Field Office will send a postcard as a receipt confirming the filing of the I-601 application. Once the postcard is received, applicants can monitor their pending application online by using their Immigrant Visa Case number at this link found on the London Embassy’s website:
 
http://photos.state.gov/libraries/unitedkingdom/164203/dhs/i601_status-web.pdf
 

The Field Office asks that applicants refrain from contacting the office while their I-601 is pending, the status of which can be viewed at the above link. It advises that if a waiver is granted USCIS will send the approval notice to the applicant’s Embassy in order for the visa to be issued. In the case that the waiver is denied, applicants will be notified in writing and the desired immigrant visa will not be issued.

News and Notes in the World of Waivers #6

USCIS Denys AILA’s Request to Hold Adjustment Denials in Abeyance While I-601s are Appealed 

When I-601 applications are denied, the USCIS field office typically denies the underlying I-485 application as well.  Applicants have the right to appeal the I-601 application, but not the underlying adjustment (which has no right of direct appeal).  Since the denial of the adjustment is premised on the fact that the waiver has been denied, AILA had requested that the underlying adjustment application not be denied, but rather, remain pending and held in abeyance while the appeal of the waiver is pending at the AAO.  This would allow applicants to obtain EADs and to remain in the United States while the appeal is pending.

USCIS reviewed the policy and confirmed that it expects field officers to continue to deny the underlying Form I-485 application when the Form I-601 is denied.  USCIS noted that, if it issues a Notice to Appear, the applicant can generally seek review of the adjustment claim before the immigration judge. 8 CFR 1245.2(a).  The immigration judge has jurisdiction to adjudicate a waiver application, even if the applicant has appealed the USCIS denial to the AAO.  8 CFR 1240.11(a)(2).

News and Notes in the World of Waivers #5

USCIS Issues Draft Policy Memorandum on Requests to Expedite Adjudication of Forms I-601 Filed Overseas

In January 2011, USCIS issued a draft policy memorandum outlining the guidelines it expects all USCIS employees to follow when considering requests to expedite adjudication of Forms I-601 filed by individuals outside the United States.

Requests to expedite Forms I-601 overseas present unique challenges.  Almost all Form I-601 applicants outside the United States have an interest in expeditious processing.  This reason is that most are required to establish extreme hardship to a qualifying family member in order for USCIS to consider whether to exercise its discretion to waive the bar to the applicant’s entry into the United States.  However, some applicants’ extraordinary circumstances may present the kind of compelling and urgent, time-sensitive reasons that merit expedited processing of a Form I-601.

USCIS managers overseas may, in extraordinary circumstances, exercise discretion to decide on a case-by-case basis whether to approve or deny a request to expedite adjudication of a Form I-601.  The strong desire to immediately immigrate to the United States is not by itself “extraordinary.”  On the other hand, time-sensitive and compelling circumstances that require the applicant’s presence in the United States sooner than would be possible under normal processing times may merit expedited processing of a Form I-601.

Those situations that may be raised include, but are not limited to, situations in which the applicant establishes one or more of the following:

 
- The applicant has urgent and critical medical needs that cannot be addressed in the applicant’s country;
- An applicant’s family member in the United States has a life-threatening medical condition and has immediate needs related to that condition for the applicant to assist the family member in the United States;
- The applicant is faced with urgent circumstances related to the death or terminal illness of a family member;
- The applicant or qualifying family member is a particularly vulnerable individual due to age or disability;
- The applicant is at risk of serious harm due to personal circumstances distinct from the general safety conditions of those living in the applicant’s country;

It would be in the national interest of the United States to have the applicant in the United States (for example, the applicant’s presence in the United States is urgently required for work with a U.S. government entity); or As described in a request from or for a member of the Armed Forces of the United States:

- The applicant’s qualifying family member is a member of the military who is deployed or will soon be deployed; and
- The applicant demonstrates that, in light of the deployment there are compelling reasons to expedite the request due to the impact of the applicant’s absence from the United States on the applicant, the qualifying family member, or their children, if any.

 
Requests must include sufficient evidence to support the claimed need for expedited processing or an explanation of why that evidence is not available.

 
Overseas Field Office Directors will provide instructions for expediting requests on Department of State and USCIS web pages.  All requests to expedite will be reviewed within 5 business days of receipt of the request and, if the decision is to approve the request to expedite, the applicant will be notified within 10 business days of receipt of the request.  The field offices will not be sending negative responses.  If applicants have not received a response to their request to expedite within 15 days of filing, they may presume their request to expedite has been denied.

 
The guidance set forth in the policy memorandum applies to any applications for waiver of inadmissibility filed by an applicant who is outside the United States, including both applications adjudicated by Overseas Field Offices and applications filed from Canada and adjudicated by the Vermont Service Center.

News and Notes in the World of Waivers #4

Board of Immigration Appeals Holds Permanent Residents Are Eligible for Nonpermanent Resident Cancellation of Removal

Matter of Martinez, 25 I&N Dec. 66 (BIA 2009)

On September 21, 2009, the BIA issued a decision holding that, notwithstanding the heading of the section which refers only to nonpermanent residents, a lawful permanent resident who qualifies as a battered spouse may also be eligible to apply for relief under the section regarding nonpermanent resident cancellation of removal. Matter of Martinez, 25 I&N Dec. 66 (BIA 2009)

The facts of the case are as follows: A 41-year old woman, native and citizen of Mexico, married her husband who was a lawful permanent resident and eventually came to live with him in the United States. They had four children together, one of whom is a United States citizen. The record contained extensive documentation that the respondent’s ex-husband abused her both physically and mentally for a number of years. The couple eventually separated in 1996 and the respondent has not seen her husband since 1998. After their separation, she filed a self-petition under the Violence Against Women Act (VAWA) to adjust her status to that of a lawful permanent resident. The former Immigration and Naturalization Service approved the self-petition in 2001. The respondent divorced her ex-husband and remarried in March 2006.

In 2004 the respondent was caught attempting to enter the United States from Mexico with two children who were not her own. She agreed to drive the children as a favor to their mother. The Department of Homeland Security placed her in removal proceedings charging her as an arriving alien inadmissible for alien smuggling. The respondent requested several forms of relief including special rule cancellation for battered spouses under §240A(b) of the Act based on the abuse she suffered at the hands of her ex-husband. The parties stipulated that the ex-husband is a lawful permanent resident. Respondent testified about the hardship that her United States Citizen son, who is now 16 years old, would suffer if she were removed. At the time of the individual hearing, she met the 3 years of continuous physical presence and good moral character. The Department of Homeland Security argued that respondent was ineligible for cancellation of removal as a battered spouse because she was a lawful permanent resident and only nonpermanent residents could apply for relief under section 240A(b)(2).

The Department of Homeland Security appealed and reiterated its contention that the respondent is a lawful permanent resident and that permanent residents are not eligible for cancellation of removal under §240A(b) because the heading of that section is “Cancellation of Removal and Adjustment of Status for Certain Nonpermanent Residents.” The BIA disagreed. While the heading of the section refers only to nonpermanent residents, it is at odds with the statutory text of §240A(b) which does not specifically prohibit lawful permanent residents from applying for special rule cancellation of removal. The Board of Immigration Appeals analyzed the evolution of §240A(b) and seemed impressed by the fact that one of the initial purposes of VAWA was to eliminate immigration laws preventing battered spouses and children from leaving abusive relationship or from seeking help from law enforcement because they were afraid of being deported or that the abusers would withdraw sponsorship or report them. Turning to statutory interpretation, it looked first at the plain language of the statute, its context and design. It noted that difference between INA 240A(a) in which the heading – “Cancellation of Removal for Certain Permanent Residents” – accurately describes §240A(a), which by its language is only applicable to lawful permanent residents. In contrast, while the heading of §240A(b) refers only to nonpermanent residents, nothing in the text of the status precludes lawful permanent residents from establishing eligibility. The title of a statute and heading of a section cannot limit the plain meaning of a statute’s text. In this case the BIA found no ambiguity within the statutory text. The language is clear and in no way prohibits lawful permanent residents form applying for relief under §240A(b)(2). Section 240A(a) creates a form of relief from removal for which only aliens who have lawful permanent resident status are eligible, while §240A(b) provides relief for which both permanent and nonpermanent residents may be eligible. The Board of Immigration Appeals concluded that the respondent was eligible to apply for cancellation of removal under §240A(b)(2). It ultimately found that relief was not warranted as a matter of discretion and remanded for consideration of other forms of relief.

News and Notes in the World of Waivers #3

On February 4, 2011 the Eleventh Circuit issued a critical federal court decision with respect the 212(h) bar to relief for aggravated felons. Certain people are barred from seeking a discretionary waiver under 212(h), which states in relevant part: 

            
            No waiver shall be granted under this subsection in the case of an alien who

            has previously been admitted to the United States as an alien lawfully admitted

            for permanent residence if . . . since the date of such admission the alien has been

            convicted of an aggravated felony . . . .
 

INA §212(h).   In Lanier v. U.S. Attorney General, _F.3d_ (11th Cir. February 4, 2011), the Court analyzed whether adjusting to lawful permanent residence status while living in the U.S. qualifies as “having previously been admitted to the United States as an alien lawfully admitted for permanent residence” so as to trigger the 212(h) to bar relief based on the commission of an aggravated felony.   The Court followed Martinez v. Mukasey, 519 F.3d 532 (5th Cir. 2008), and held that the 212(h) bar to relief does not apply to persons who adjust to LPR status while already living in the U.S. The term “admitted” has expressly been defined by Congress as the “lawful entry of the alien into the United States after inspection and authorization by an immigration officer.”  This definition is limited, and does not encompass a post-entry adjustment of status, even if the applicant has entered EWI.  Thus, when the statutory provision is read as a whole, the plain language of§ 212(h) provides that a person must have physically entered the United States after inspection, as a lawful permanent resident in order to have “previously been admitted to the United States as an alien lawfully admitted for permanent residence.”  Based on this unambiguous language, the court found that the statutory bar to relief does not apply to people who, like Lanier, adjusted to lawful permanent resident status while already living in the United States.

News and Notes in the World of Waivers #2

Revised Form I-212 As of January 6, 2011, US Citizenship and Immigration Services (USCIS) will only accept the November 23, 2010 version of Form I-212, Application for Admission into the United States After Deportation or Removal. This form is used by individuals who are inadmissible under section 212(a)(9)(A) or (C) of the Immigration and Nationality Act (INA) to obtain permission to lawfully return to the United States.

INA section 212(a)(9)(A) makes individuals who seek admission to the United States after having been removed from the United States, inadmissible. They are inadmissible for the for a period of 5, 10 or 20 years depending on the basis of the prior removal and on how many times they have been removed. Departure while a removal order is in effect also makes someone inadmissible under INA section 212(a)(9)(A).

INA section 212(a)(9)(C) makes individuals who return or attempt to return to the United States without admission inadmissible if they: were removed from the United States, or had been unlawfully present in the United States for more than a year, in the aggregate. 

News and Notes in the World of Waivers #1

Welcome to the inaugural issue of the Waiver Wire, a monthly post designed to provide breaking news, case law, tips and insights of interest to legal professionals doing waiver work.  In addition to the monthly posts, I hope that, with your help, the waiver wire will become an exchange of information and collection of waiver related resources from around the world.  If you have information you would like to share, please forward it to me at jferguson@carltonfields.com with the subject heading “Waiver Wire” and I will make sure the information gets posted.  If you wish to join the waiver wire, please send your name and email address to  tara@jcfimmigration.com. If you wish to opt of these monthly postings out please click the link below and asked to be unsubscribed.

This month’s developments in the world of waivers.

As many of you know, I recently traveled to Ciudad Juarez to be with a client who was attending his immigrant visa interview and requesting an appointment to present his application for an I-601 waiver.  For this inaugural issue of the Waiver Wire, I thought I would share some of my experiences and the things I learned.

Security in Ciudad Juarez.

The anxiety level in Ciudad Juarez is high, even around the Consulate.  My client started getting anxious even before leaving the United States when he read the preparation instructions on the embassy web site which state “NOTICE FOR YOUR PROTECTION” and announce that there are have been frequent assaults and robberies near the consulate general and the clinics where the medical exams are conducted.  Indeed, many people were afraid to go anywhere on foot and traveled only by taxi.  I inquired about safety at my hotel, and the staff indicated it was relatively safe to walk around during the day.   I walked from my hotel to the consulate on several occasions.  There were hundreds of people waiting for applicants on the street outside the consulate and at the commercial center next door and there was a heavy security presence that kept street vendors and hawkers at bay.  However, as the sun set and the consulate started to close, the vibe changed significantly.  A few brave souls ventured out to the movie theatre in the mall across the street, but I passed having heard there was an armed robbery at the mall that Monday.  My take  … the strip where the consulate is located is relatively safe during the day if normal safety precautions are taken. Advise your clients not to wear expensive-looking jewelry or to carry large amounts of cash.  They can pay for all consular service including the medical exams and waiver applications with credit cards.  They should also only use taxis associated with the airport, hotels or organized taxi stands.

IV Interviews.
The consulate apparently has seen a high incidence of fraud involved marriage-based cases coming through the office.  The officers are requiring many marriage-based visa applicants to bring concrete evidence of their relationship to the interview, even if the I-130 has already been approved.  Fortunately, applicants asked to bring in additional documents do not have to reschedule their interview.  They can simply drop off the requested items at the information window (open 7:30 am to 1:00 pm) or mail them to the consulate by regular or courier delivery service.  Whether the consulate approves the IV or issues a finding of inadmissibility, it will take about three days for the decision to be delivered by DHL.  The applicants must remain in Ciudad Juarez until they can pick up the decision.  My client had to wait an additional 6 days before his package was ready.  In most instances your clients must plan on being in Ciudad Juarez for at least one week to complete the medical exams and get through the IV interview.

Medical Exams.
Most medical exams are completed in one day.  No advanced appointment is necessary.  One exception is for children between the ages of 2-14 years.  They must complete their medical appointment at least 4 days before the interview because they are given a skin test for tuberculosis and it takes from 2 to 3 days to read the results.  Because the clinics are closed on Sunday, skin tests are only administered Monday through Wednesday.

Also, the rules with respect to admission of controlled substance use have changed. Until recently, if an applicant admitted during a medical exam to the nonmedical use of a controlled substance within the past three years, the examiner would indicate “drug abuse” and the applicant’s immigrant visa application would be denied.  Apparently, the Center for Disease Control has issued new technical instructions regarding drug abuse determinations.  The new instructions provided that only drug use within the last year will constitute a bar to admission.

Update on Waivers.
When applicants are eligible to submit a waiver, as my client was, they are instructed to phone the Teletech Call Center beginning the following day to schedule a time and date for dropping off the waiver application.  When we called, the agent advised that he was unable to provide “on the spot” confirmation of an interview, but he took down my information and promised that we would receive an appointment by email within 72 hours.  As promised, within 72 hours I did received an appointment notice — for January 21, 2010 – about two months from the date of my client’s interview. 

Shortly after we received the appointment, my client’s wife was hospitalized and we filed an expedite based on compelling health-related hardships.  We have yet to hear on the expedite request and hope to report good news in the next issue.

On the date of the appointment, the applicant will pay the waiver application fee and drop off his or her waiver packet.  A consular employee may briefly question the applicant, but they will not conduct an interview.  The waiver application will be passed directly to the USCIS officer who will make a determination within 3 – 5 days.  The office will either approve the waiver or refer it to the backlog.   The adjudicators each read between 30 to 35 applications a day.  For this reason, it is imperative to highlight the strengths of your client’s waiver application in a cover letter and organize the packet well.  Include an index or table of contents and separate documents using tabs on the bottom or side of the packet.  The first document should be the declaration from the qualifying relative.

This is The Waiver Wire: A monthly post for legal professionals doing waiver work. For more information visit: http://www.jcfimmigration.com or call Julie C. Ferguson: 305-539-7263.