It is important to understand that 245i eligibility extends to foreign nationals who may have not even been physically present in the United States when the application(s) were filed, and grandchildren may benefit.  However, the law is very complex and requires experienced Immigration legal counsel. We explain a real case situation below where a grandchild was able to benefit from 245i eligibility from an Immigrant petition that was filed prior to April 30^th, 2001.

Section 245(i) allows certain persons, who have an immigrant visa immediately

available but entered without inspection or otherwise violated their status and thus are

ineligible to apply for adjustment of status in the United States, to apply if they pay a

$1,000 penalty. The LIFE Act temporarily extends the ability to preserve eligibility for

this provision of law until April 30, 2001. Use of Section 245(i) adjustment of status

previously was limited to eligible individuals who were the beneficiary of a visa petition

or labor certification application filed on or before January 14, 1998. USCIS Q & A

Facts from a Real Case:

Abe as a young child enters the US with inspection (“EWI”) by walking across the border with his family in 1989.  Abe’s USC grandparents filed an I-130 for their son Bob(Abe’s Dad) on April 18^th 2001.  The petition includes listing Bob’s children, including Abe. Abe then still being a minor child would have been a derivative beneficiary of this petition.  The I-130 Petition was approved in May of 2002.

Immigration Legal Issue and Problem

Abe, now an adult, later marries a United States Citizen (USC).  As a derivative beneficiary of the 2001 petition is Abe 245i eligible and therefore able to adjust status to a U.S. Permanent Resident without risking having to leave the U.S. and consular process?

Solution and Discussion:

The category in which the son Bob (Abe’s Dad) was sponsored by Abe’s USC grandparent is critical and makes all the difference here. If Abe’s Dad was sponsored as an immediate relative, then Abe is not eligible for 245i since there are no derivative beneficiaries in this category. He would have to leave the United States. BUT,  if one of the other family based categories was the basis for the I-130 petition filed for Bob by USC Grandmother, then Abe is 245i eligible and can adjust status in the United States based on his marriage to his USC wife.

The good news is that based on these set of facts, Abe was 245i eligible since the family based category his Dad was sponsored in was a married child (not as an immediate relative of a USC) which had derivative beneficiary “privileges”.

To understand if you or someone you know qualifies for 245i eligibility in general or as a derivative, you may contact us at info@scottcclaw.com. Our telephone numbers are conveniently listed for you at www.scottcclaw.com.

ScottMond Law Firm

www.scottcclaw.com

The purpose of this blog article is not to discuss all the triggers that may cause a U.S. Permanent resident or non-immigrant visa holder to be suddenly placed in removal proceedings.  Rather, the focus is that if such a situation arises it is important to have experienced immigration counsel aggressively fight the matter, even where a past criminal history may exist.

If you or someone you know finds themselves in deportation or removal proceedings he or she will be asked by the Immigration official verbally or in writing whether you have a fear of returning to your home country.  It is very easy to say “no” or “yes”.  However, it is important not to state either answer unless one consults with a U.S. Immigration attorney.  In U.S. Immigration legal terms, a fear of returning to one’s home country is called “Asylum, Withholding of Removal and/or CAT”.  These are very legal definitions and not only factually driven. Under pressure, our clients, who in fact had a fear, quickly gave CBP officials an answer (without legal counsel) in hopes that the pressure of being questioned by U.S. Immigration authorities would go away.

Even if one has a criminal history, as long as the crime is NOT a Particularly Serious Crime. (“PSC”), this will not bar one’s right to fight and defend oneself in U.S. Immigration Proceedings based on fear of returning to your home country. An Immigration lawyer has to review the following PSC bars, to determine whether a particular crime could bar a non-citizen’s ability to claim Asylum or Withholding of Removal.

INA §208(a)(2)(A)(ii): This section precludes eligibility for asylum if the alien, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of the United States.

 INA § 208(a)(2)(B)(i): … an alien who has been convicted of an aggravated felony shall be considered to have been convicted of a particularly serious crime.

Unless a determination is made by legal counsel that one’s prior criminal history does or does not amount to a Particularly Serious Crime (“PSC”), as legally defined above, it is critical that a non-citizen with a past criminal history not deny away this very important legal relief and defense option.

If you have any questions or concerns you may contact our firm by emailing us at info@scottcclaw.com or visit us at www.scottcclaw.com where our telephone numbers are conveniently listed for your convenience.

ScottMond Law Firm

www.scottcclaw.com

However, little did the non-citizen know that by pleading guilty to a crime, they would now be faced with the immigration consequence of being “trapped in the U.S.”.  In other words, if they travelled overseas as a non-U.S. citizen they would be faced with being detained and deported by Customs Border and Patrol (“CBP”) upon their return from even a brief trip overseas.

The U.S. Supreme Court in Padilla v. Kentucky, a case not discussed here, is one of the most significant cases decided in 2009 that started providing relief to clients who face these harsh consequences for past criminal actions.  Recently, the U.S. Supreme Court went a step further to assist clients who plead to criminal charges prior to 1997.

The brief background is that Congress passed a law in 1996 which has been retroactively applied, up until now, in an adverse way to prevent all Legal Permanent Resident “LPRs” with certain criminal convictions from leaving the country.  Specifically, non-citizens with certain convictions who travelled overseas upon return risked detention and deportation (Removal) upon attempting to reenter the United States.

The great news is that on March 28^th, the U.S. Supreme Court held in Vartelas v. Holder, that a LPR who temporarily leaves the country cannot be denied readmission on account of criminal convictions that occurred before the law took effect in 1996.

If you or someone you know has a prior criminal conviction and is a non-citizen, it is important to get the counsel of a U.S. Immigration lawyer on how this new U.S. Supreme Court case, and other court decisions such as Padilla can provide relief from the harsh immigration consequences such as Removal, Deportation or Exclusion from the United States.

Please note: Even applying for U.S. Citizenship will not solve the problem of a prior criminal conviction, as this can also result in a non-citizen being placed in removal proceedings. All non-citizens with any criminal charge or conviction are strongly encouraged to seek counsel before travelling out of the United States.

If you have any further questions or concerns, you may contact our law firm at info@scottcclaw.com or visit our website at www.scottcclaw.com where all our telephone numbers are conveniently listed.

ScottMond Law Firm

www.scottcclaw.com

For Immediate Release
Office of the Press Secretary

“In light of the deteriorating conditions in Syria, I am announcing that DHS will be designating Syria for Temporary Protected Status (TPS) for Syrians currently present in the United States. Conditions in Syria have worsened to the point where Syrian nationals already in the United States would face serious threats to their personal safety if they were to return to their home country. Early next week, the Department will publish a notice in the Federal Register that will provide further guidance about TPS eligibility requirements and registration procedures. All applicants must undergo full background checks and while Syrians in the United States are encouraged to apply, they should not submit their applications before the notice is published.”

For more information you may contact one of our attorneys at info@scottcclaw.com or our telephone numbers are conveniently located at www.scottcclaw.com.

ScottMond Law Firm

www.scottcclaw.com

A unique issue arises, however, when a foreign national has worked in the United States and has exceeded 40 quarters under the Social Security Act (SSA). An exemption occurs which is briefly explained in this blog post.

The USCIS Website Instructions state the following:

The Form I-864 is legally required for many family-based immigrants and some employment-based immigrants to show that they have adequate means of financial support and that

they are not likely to become a public charge.  Certain classes of immigrants are exempt from the I-864 requirement and therefore must file Form I-864W instead of Form I-864 or Form I-864EZ. 

You must use this form instead of Form I-864 with your application for an immigrant visa or adjustment of status if any of the following apply:

You have earned (or can be credited with) 40 quarters of coverage under the Social Security Act (SSA).  If you  have 40 quarters or SSA coverage, you are exempt from the requirement to file Form I-864.  You can acquire 40 qualifying quarters in the following ways: By being credited under section 213(a)(3)(B) of the Immigration and Nationality Act with quarters worked by your spouse during the marriage or a parent during the time you were under 18 years of age; or Working in the United States for 40 quarters in which you received the minimum income established by the Social Security Administration.

Example: 

An example of the above is where a family member sponsors his or her spouse and is filing an I-130 and I-485 concurrently.  The foreign national spouse has worked for many years on an

H-1B visa prior to apply to adjust status to a U.S. Permanent Resident.  Can an I-864W (the exemption) be filed in this case rather than the I-864 in this instance?  How does one determine whether he or she has the required 40 qualifying credits?

The answer is:  The couple would need to get a statement from their local Social Security office as to the quarters which have been credited. He or she would also get credits for any quarters earned by the spouse while married in addition to those he or she earned on their own.

For more information you may contact us at info@scottcclaw.com or call us at our numbers conveniently listed at www.scottcclaw.com.

ScottMond Law Firm

www.scottcclaw.com

The purpose of this short article to briefly lay out the standards that an employer must show before he or she can hire a non- U.S. Citizen or U.S. Permanent Resident worker.  All hope is certainly not lost, but U. S. workers cannot be displaced. The goal of keeping a foreign national worker on your staff permanently, and at the same time not displacing U.S. workers to the satisfaction of the Department of Labor (DOL), is explained below.

Employers are permitted under U.S. Federal Regulations to sponsor anyone from around the world for a permanent green card status in theUnited States.  The first major hurdle the employer must overcome is successfully filing and getting approved a PERM Labor Certification with the Department of Labor. (Exception if theU.S.worker is pre-certified). Essentially there are 3 steps to complete for a foreign national to become a U.S. Permanent Resident based on the efforts of employer. Step 1-PERMLabor Certification. Step 2- I-140 Petition byU.S.Employer for Foreign National Worker with USCIS. Step-3-  I-485 filed by the Foreign National Worker to adjust his or her status to that of a U.S. Permanent Resident.

The most difficult of the steps is the PERM Labor Certification Process which is the exclusive focus of this article.

PERMconsists of a very detailed recruitment process with the DOL that is different from any recruitment process an employer may have seen before. At first the employer may not believe their  attorney as to how detailed, specific and odd the process may be. But believe it! The quicker you just go along with your experienced immigration attorney’s advice on abandoning traditional notions of recruitment and just letting your attorney guide you step by step, the faster one can get through the process successfully;  without wasting the employees, employers, and attorneys valuable time and money.

Under the PERM rules, an employer is expected to conduct recruitment during a 30 to 180 day period prior to filing an application.  This is a VERY strict rule.  Before the PERM application is filed with the DOL, not more than 180 may have passed, and there is a 30 day quiet period where no recruitment can occur just before the PERM filing with DOL.

You and your attorney must draft recruitment ads as if it is a science.  Depending on if the position is professional or a non-professional position governs how extensive recruitment will be based on the DOL guidelines.  Professional positions require a minimum, of 6 types of different media advertisement along with posting ad with the state. In contrast, a non-professional position requires a minimum of 2-3 different mediums of advertising.  Even the medium of advertising is governed by the Federal Regulations.  Whether a position is professional or nonprofessional is also a legal question.

Minimum information that must be listed in the ads are as follows: Name of employer, direct applicants to report to or send resumes to the employer (depending on what is appropriate for the occupations); provide a job description specific enough to apprise U.S. workers of the job opportunity; and indicate the geographic location of the job opportunity clearly enough to permit applicants to under the commute. Wage and salary does not have to be included.

Despite email and fax being the standard way  in today’s modern society as the way to request the resumes or applications to be returned, use only a P.O. Box or physical address to avoid a possible audit or problem  with DOL.

It should be noted that audits are random, and the way that DOL ensures thatU.S.employers have really searched theU.S.market place for qualified candidates who are alreadyU.S.citizens or Permanent Residents.

It is important to post all jobs with the local State Workforce Agency (SWA).  The posting of the job is required for 30 days, and the ad must stop running 30 days before thePERMapplication is submitted to DOL.

Finally, it is essential to maintain a recruitment report to demonstrate and track the employers response to resumes and applications received from the general public in response to the various ads posted in the various recruitment mediums.  The employer may use the telephone to contact interestedU.S.workers but must be sure to maintain detailed notes memorializing the attempts and/or responses. If telephone is used to contact applicants, the recruitment report must indicate the attempts the employer made to contact the applicants and include details such as: when or how many times it attempted to contact the applicants by phone; whether the attempted contacts were to applicants’ place of business or home; with whom a message was left, if any, and what the message was; and whether the employer attempted alternative means of communication, such as a letter.

An important tip is to advertise as multiple job openings whenever possible. The idea is that you MUST hire any qualified and availableU.S.worker who responds to the position, and you may still hire your foreign national worker if still needed after you have found aU.S.worker that meets your needs as well.

This process absolutely requires the guidance of an experienced U.S. Business and Immigration attorney.  For further information you may contact us at info@scottcclaw.com or call us at our telephone number(s) conveniently listed on our website at www.scottcclaw.com

 ScottMond Law Firm

www.scottcclaw.com

If you or someone you know has a conditional Permanent Resident Card set to expire in 2 years or less with U.S. Citizenship and Immigration Services (“USCIS”), this short post will discuss possible options.

First, if your case has not yet been sent to a U.S. Immigration judge,  filing an I-751 waiver with immigration attorney representation may allow you to still receive your final Permanent Resident status without your spouse.  An I-751 waiver must meet certain criteria to result in the releasing of any conditions on your Green Card even if you have divorced your spouse.

If the case has been handed over to an immigration judge to initiate removal proceedings due to break down of the marriage, this may be a good thing. A judge has a “de novo” review of the I-751 so one can get a second bite at the apple.  The judge will decide independent of USCIS whether to issue the individual a Green Card.  The judge can readjust with a new I-130/I-485, and the outcome would be receipt of Permanent Resident Status.

If you have questions you may email our attorneys at info@scottcclaw.com, or call us at one of our office numbers conveniently listed at www.scottcclaw.com

ScottMond Law Firm

www.scottcclaw.com

The purpose of this blog is to briefly outline when a foreign national may be eligible to take advantage of self petitioning, where a United States sponsor is not needed to become a U.S. Permanent Resident.  The following categories are the main individuals who are eligible to self petition:

1. Extraordinary Workers (EB-1 Priority Workers )
2. National Interest Waivers (EB-2)
3. Religious Worker
4. Abused Spouse- VAWA (Domestic Abuse)
5. U visa – Victim of a Crime
6. Death of U.S. Spouse before the application process is complete.
7. Special Immigration Juvenile Visa

The first three categories are based on an individual’s work, occupation and/or contribution to the National interest. The last four are based on particular facts and circumstances. Below are simplified definitions that if you believe you or your family meet the criteria, it is important to consult with an experienced immigration lawyer as you may be eligible to self petition for U.S. Permanent Status.

EB-1 Category:

A foreign national individual with extraordinary ability in sciences, arts, education, business or athletics which has been demonstrated by sustained national or international acclaim and whose achievements have been recognized in the field through extensive documentation may self petition. INA Sec. 203(b)(1)(A), 8 U.S.C. Sec. 1153(b)(1)(A).

Outstanding Professors and Researchers

If one is recognized internationally as outstanding in a specific academic area, has 3 years experience in teaching or research in the academic area,(experience in teaching or research while working on advanced degree may be counted if degree is acquired), and the person had full responsibility for the class taught, or the research has been recognized as outstanding in the academic field, he or she may be eligible. 8 C.F.R Sec. 204.5(i)(3)(ii).

Multinational Executives and Managers

INA Sec.203 (b)(1)(C); 8 U.S.C. Sec1153(b)(1)(C) states if you are employed abroad for one year (in last 3 years) by a corporation in a Multinational Executive or Managerial role and ownership and control meets the Federal Regulation guidelines you may be pre-certified and eligible to self petition.

 

EB-2- National Interest Waiver

If the U.S. government believes it is in the National Interest to waive the mandatory requirement of applicants having a labor certification and job offer, USCIS may do so. This category has stringent requirements to demonstrate that an applicant’s skills, education, experience and talents are in the national interest to waive the needed for a U.S. Sponsor. INA Sec. 203(b)(2)(B); 8 U.S.C. Sec.1153(b)(2)(B).

Special Immigrant Religious Worker

A U.S. Employer or foreign national may file a self petition for one who seeks to enter the United States to be employed full time by a bona fide nonprofit religious organization in the United States (or a bona fide organization that is affiliated with the religious denomination in the United States) to work solely as a minister, religious vocation either in a professional or nonprofessional capacity, or in a religious occupation either in a professional or nonprofessional capacity.

Self-Petitioning Battered or Abused spouse or Child of a U.S. Citizen or Lawful Permanent Resident

One may also self petition for immediate relative or family sponsored immigrant classification if you or someone you know is the spouse of a Permanent Resident or U.S. citizen and have been battered or the subject of extreme cruelty.

U VISA

Generally speaking, U nonimmigrant status is an immigration option for even undocumented immigrant adults or children who have been victims of certain serious crimes and  cooperate in reporting the crime. Eventually, adjustment to a U.S. Permanent Resident Status may occur.

Widow/Widower of a U.S. Citizen

If a foreign national was married to a U.S. citizen who is now deceased and who was a U.S. citizen at the time of death, and the spouse died within the last two years, he or she may eligible to self petition.

Special Immigration Juvenile Visa

If a child is present in the U.S., unmarried and less than 21 years of age, has been declared a dependent upon a juvenile court, or is under the custody of an agency, department of state or juvenile court and it is in the best interest that the minor child not be returned to his or her last habitual residence of his or her parent’s country, the child may self petition.

If you believe that you or someone you know is eligible to self petition you may contact our firm with your questions at info@scottcclaw.com or call us at one of our office telephone numbers conveniently listed at www.scottcclaw.com.

ScottMond Law Firm

www.scottcclaw.com

PROPOSED LAW:

Provisional Waivers of Inadmissibility For Certain Immediate Relatives of U.S. Citizens

AGENCY:  U.S. Citizenship and Immigration Services, Department of Homeland Security.

ACTION:  Notice of intent.

SUMMARY:  U.S. Citizenship and Immigration Services (USCIS) intends to change its current

process for filing and adjudication of certain applications for waivers of inadmissibility filed in

connection with an immediate relative immigrant visa application.  Specifically, USCIS is

considering regulatory changes that will allow certain immediate relatives of U.S. citizens to

request provisional waivers under section 212(a)(9)(B)(v) of the Immigration and Nationality

Act of 1952, as amended (INA or Act), 8 U.S.C. 1182(a)(9)(B)(v), prior to departing the United

States for consular processing of their immigrant visa applications.  An alien would be able to

obtain such a waiver only if a Petition for Alien Relative, Form I-130, is filed by a U.S. citizen

on his or her behalf and that petition has been approved, thereby classifying the alien as an

“immediate relative” for purposes of the immigration laws, and he or she demonstrates that the

denial of the waiver would result in extreme hardship to the alien’s U.S. citizen spouse or parent

“qualifying relative.”  The qualifying relative for purposes of the waiver is not necessarily the

immediate relative who filed the immigrant visa petition on the alien relative’s behalf.

FOR FURTHER INFORMATION CONTACT:  Roselyn Brown-Frei, Office of Policy and

Strategy, U.S. Citizenship and Immigration Services, Department of Homeland Security, 20

Massachusetts Avenue, NW., Washington, DC 20529-2099, telephone (202) 272-1470 (this is 2

not a toll free number).

SUPPLEMENTARY INFORMATION:

I. Background

A. Overview

The proposed process is intended to reduce the time that U.S. citizens are separated from

immediate relatives who are required to remain outside the United States for immigrant visa

application processing and during the adjudication of waivers of inadmissibility.   Through this

change, USCIS does not intend to modify the standard for assessing eligibility for these waivers,

including whether the denial of the waiver would result in extreme hardship to a U.S. citizen

spouse or parent (“qualifying relative”).  For purposes of the waiver under section

212(a)(9)(B)(v) of the Act, a “qualifying relative” is a U.S. citizen spouse or parent or a lawful

permanent resident spouse or parent who would suffer extreme hardship if their relative were not

allowed to immigrate.  For purposes of this provisional waiver program, DHS intends to limit

who may participate in this program to immediate relatives who can demonstrate extreme

hardship to a U.S. citizen spouse or parent.  Even if they obtain a provisional waiver, eligible

aliens who are required to obtain a visa through consular processing would still be required to

depart from the United States to apply for an immigrant visa.  The purpose of the new process is

to reduce the time that U.S. families remain separated while their relative proceeds through the

immigrant visa process.

Certain grounds of inadmissibility can bar aliens from being admitted to the United States

or obtaining an immigrant visa, preventing U.S. citizens from reuniting with their immediate

relatives.  However, the Secretary of Homeland Security, through USCIS, may waive some of

those grounds.  An alien who is subject to one or more grounds of inadmissibility must obtain a 3

waiver, if available, from USCIS before he or she may be issued an immigrant visa by a

Department of State consular officer at a U.S. embassy or consulate overseas.

The bars to admission under section 212(a)(9)(B)(i)(I) and (II) of the INA, 8 U.S.C.

1182(a)(9)(B)(i)(I) and (II), based on accrual of unlawful presence in the United States, comprise

one such ground.  Typically, under current processes, aliens who are immediate relatives of U.S.

citizens applying for immigrant visas at Department of State consular posts must apply for

waivers of unlawful presence while outside the United States after a finding of inadmissibility is

made by a Department of State consular officer in conjunction with their immigrant visa

applications.  As a result, U.S citizen petitioners are often separated for long periods of time

from their immediate relatives who are applying for immigrant visas and have accrued a certain

period of unlawful presence in the United States.  This revised process, which eliminates the

time-consuming interchange between the Department of State and USCIS, would significantly

reduce the amount of time that American families will be separated from their immediate

relatives.  USCIS also believes that efficiencies can be gained through this revised process for

both the U.S. Government and most applicants.

USCIS intends to limit consideration for the provisional waiver to aliens who qualify for

classification as immediate relatives of U.S. citizens, who have a U.S. citizen spouse or parent

who would suffer extreme hardship if the waiver were denied, and for whom the sole basis for

inadmissibility is unlawful presence in the United States of more than 180 days.  USCIS would

grant a provisional waiver if the alien meets the eligibility requirements described in this Notice,

including demonstrating that the applicant’s qualifying U.S. citizen spouse or parent would

suffer extreme hardship and that the applicant warrants a favorable exercise of discretion.  The

provisional waiver would be granted before the alien leaves the United States to attend his or her 4

immigrant visa interview with a consular officer.  The provisional waiver, however, would not

become effective unless and until the alien departs from the United States.  If the alien is

otherwise eligible for the immigrant visa, the consular officer may then approve the issuance of

the visa so that the alien may proceed to immigrate to the United States for permanent residence.

This notice of intent generally describes the proposal that USCIS is considering.  USCIS

will further develop, and ultimately finalize, this proposal through the rulemaking process.  This

effort is consistent with Executive Order 13563’s call for agencies to “consider how best to

promote retrospective analysis of rules that may be outmoded, ineffective, insufficient, or

excessively burdensome, and to modify, streamline, expand, or repeal them in accordance with

what has been learned.”  Do not send an application requesting a provisional waiver under the

procedures under consideration in this notice.  Any application requesting this new process will

be rejected, and the application package returned to the applicant, including any fees, until a final

rule is issued and the change becomes effective.

B. Authority

The Homeland Security Act of 2002, Public Law 107-296, section 102, 116 Stat. 2135, 6

U.S.C. 112, and section 103 of the INA, 8 U.S.C. 1103, charge the Secretary of Homeland

Security with administration and enforcement of the immigration and naturalization laws.  The

Secretary would effectuate these proposed changes under the broad authority to administer the

Department of Homeland Security and the authorities provided under the Homeland Security Act

of 2002, the immigration and nationality laws, and other delegated authority.

C. Grounds of Inadmissibility

U.S. immigration laws provide mechanisms for U.S. citizens to petition for certain family

members for admission to the United States for purposes of family reunification.  At the same 5

time, however, the immigration laws prescribe acts, conditions, and conduct that bar aliens,

including immediate relatives of U.S. citizens, from being admitted to the United States or

obtaining an immigrant visa.  Such acts, conditions, and conduct include certain criminal

offenses, public health concerns, fraud, misrepresentation, failure to possess proper documents,

accrual of more than 180 days of unlawful presence in the United States, and terrorism.  The

grounds of inadmissibility are set forth in section 212(a) of the INA, 8 U.S.C. 1182(a).

The Secretary of Homeland Security has the discretion to waive certain inadmissibility

grounds, upon the filing of a request by an alien who meets the relevant statutory requirements.

If the Secretary, through USCIS, grants such a waiver, the waived ground will no longer bar the

alien’s admission, readmission, or immigrant visa eligibility based on that specific ground of

inadmissibility.

One of the inadmissibility grounds is described in section 212(a)(9)(B)(i) of the Act, 8

U.S.C. 1182(a)(9)(B)(i).  Under part (I) of this provision, an alien who was unlawfully present in

the United States for more than 180 days but less than one year, and who then departs voluntarily

from the United States before the commencement of removal proceedings, will be inadmissible

for three years from the date of departure.  Under part (II) of the same provision, an alien who

was unlawfully present for one year or more and then departs before, during, or after removal

proceedings, will be inadmissible for ten years from the date of the departure.

The three- and ten-year unlawful presence bars do not take effect unless and until an alien

departs from the United States.  By statute, aliens are not considered to be accruing unlawful

presence for purposes of section 212(a)(9)(B)(i) if they fall into certain categories.  For example,

aliens do not accrue unlawful presence while they are under 18 years of age.  See INA section

212(a)(9)(B)(iii)(I), 8 U.S.C. 1182(a)(9)(B)(i)(iii)(I).  Similarly, individuals with pending asylum 6

claims generally are not considered to be accruing unlawful presence while their applications are

pending.  See INA section 212(a)(9)(B)(iii)(II), 8 U.S.C. 1182(a)(9)(B)(i)(iii)(II).  Battered

women and children and victims of a severe form of trafficking in persons are not subject to the

section 212(a)(9)(B)(i) ground of inadmissibility at all if they demonstrate that there was a

substantial connection between their victimization and their unlawful presence.  See INA

212(a)(9)(B)(iii)(IV)-(V), 8 U.S.C. 1182(a)(9)(B)(i)(iii)(IV)-(V).  Aliens who are subject to the

unlawful presence bars must apply for and be granted a waiver in order to receive an immigrant

visa and be admitted to the United States.

The Secretary of Homeland Security has the discretion to waive the three- and ten-year

unlawful presence bars if the alien is seeking admission as an immigrant and if the alien

demonstrates that the denial of his or her admission to the United States would cause “extreme

hardship” to the alien’s qualifying relative.  See INA section 212(a)(9)(B)(v), 8 U.S.C.

1182(a)(9)(B)(v).  The qualifying relative for purposes of the waiver is not necessarily the

relative who filed the immigrant visa petition on the alien relative’s behalf.  For example, an

alien applicant’s U.S. citizen spouse may have filed the immigrant visa petition on the

applicant’s behalf, but the applicant’s unlawful presence waiver application may be based on

extreme hardship to the applicant’s U.S. citizen parent.  Because the granting of a waiver is

discretionary, the alien also must establish that he or she merits a favorable exercise of

discretion.

D. Current Process and Problems

An alien who must apply for permanent residence through consular immigrant visa

processing outside the United States must appear for an interview with a Department of State

consular officer abroad.  Currently, if the consular officer determines that the alien is subject to 7

the three- or ten-year bar, the consular officer advises the alien that he or she is eligible to apply

for a section 212(a)(9)(B)(v) waiver by filing a Form I-601, Application for Waiver of Grounds

of Inadmissibility, with USCIS.  Under current rules, an individual is not permitted to apply for

the section 212(a)(9)(B)(v) waiver before the consular officer has made the inadmissibility

determination.

Once the Form I-601 is filed, in most cases, the file is transferred from the Department of

State to USCIS.  USCIS adjudicates that waiver request while the alien remains outside the

United States and awaits a decision.  If USCIS approves the waiver, USCIS notifies the

Department of State, and the Department of State may then issue the immigrant visa if the

applicant is otherwise eligible.  If the waiver is denied, the alien may appeal the decision to the

USCIS Administrative Appeals Office and, if the denial is upheld, the alien must remain outside

the United States for three or ten years before being able to reapply for an immigrant visa.

However, a denial does not preclude the alien from filing another Form I-601 in the future.

The three- and ten-year unlawful presence bars under section 212(a)(9)(B)(i)(I) and (II)

of the Act do not apply unless and until the applicant departs from the United States.  At the

same time, many aliens who would trigger these bars if they depart from the United States are,

for other reasons, statutorily ineligible to apply for adjustment of status to lawful permanent

residence while remaining in the United States.  Consequently, they must depart to regularize

their immigration status by applying for their immigrant visas at a U.S. embassy or consulate

abroad.  The action required to regularize the status of an alien, departure from the United States,

therefore is the very action that triggers the section 212(a)(9)(B)(i) inadmissibility that bars that

alien from obtaining the immigrant visa.

II. Proposed Waiver Process 8

A. Proposed Process

The proposed change would create a more streamlined and efficient process for waiver

applicants whose sole inadmissibility ground is unlawful presence, while simultaneously

minimizing family separation.  If the waiver determination, with respect to unlawful presence,

were made in advance of the immigrant visa interview and the applicant otherwise were eligible

for the immigrant visa, the consular officer could simply issue the immigrant visa at the time of

the visa interview.  The new process thus will reduce the movement of the case back and forth

between the Department of State and USCIS, which significantly prolongs the overall process

and increases the time that U.S. citizens are separated from their immediate family members.

Additionally, the new process would reduce U.S. Government costs associated with the

movement of cases, and provide a more efficient visa process overall.

B. Affected Visa Categories

USCIS intends to limit this process change to aliens who are immediate relatives of U.S.

citizens, as defined in section 201(b)(2)(A)(i) of the Act, 8 U.S.C. 1151(b)(2)(A)(i), who must

depart from the United States to obtain immigrant visas, and whose U.S. citizen spouse or parent

would suffer extreme hardship if the applicant were denied admission to the United States.  The

term “immediate relative” means the spouse, parent or child (unmarried and under 21 years old)

of a U.S. citizen, except that, in the case of a parent, the U.S. citizen son or daughter petitioning

for an immigrant visa must be at least 21 years old.  Certain self-petitioners (i.e.,

widows/widowers of U.S. citizen and their minor unmarried children) may also be considered

immediate relatives.  See INA 201(b)(2)(A)(i), 8 U.S.C. 1151(b)(2)(A)(i).  Individuals applying

for a waiver must also establish that the grant of the provisional waiver is warranted as a matter

of discretion. 9

Because the focus on family unification of U.S. citizens and their immediate relatives is

consistent with Congress’ prioritization in the immigration laws, USCIS has identified

immediate relatives of U.S. citizens as the class of aliens to consider for this procedural change.

In addition, Congress did not set an annual limitation for the number of immediate relatives of

U.S. citizens admitted to the United States.  Therefore, these relatives always have an immigrant

visa immediately available, and the visa thus can be processed immediately upon approval.

C. Ground of Inadmissibility Considered for Provisional Waiver

USCIS intends to further limit this procedural change to waivers filed by immediate

relatives of U.S. citizens whose only ground of inadmissibility is the three- or ten-year unlawful

presence bar under section 212(a)(9)(B)(i)(I) or (II) of the Act, 8 U.S.C. 1182(a)(9)(B)(i)(I) or

(II).  Aliens who require waivers for one or more additional grounds of inadmissibility, such as

fraud or willful misrepresentation (section 212(i) waiver) or certain criminal offenses (section

212(h) waiver), in conjunction with their immigrant visa applications must continue to file a

Form I-601 while outside of the United States in accordance with the existing process.

To qualify for the provisional waiver process, an applicant must establish not only that he

or she is the immediate relative of a U.S. citizen, but also that denial of the waiver would result

in extreme hardship to a qualifying relative.  The qualifying relative must be a U.S. citizen

spouse or parent but does not need to be the U.S. citizen petitioner.  Only extreme hardship from

the denial of a waiver to a qualifying U.S. citizen relative makes an alien eligible for the

provisional waiver process; extreme hardship to the alien himself or herself as a result of denial

does not make the alien eligible.  An alien whose waiver application is based on extreme

hardship to a lawful permanent resident spouse or parent must continue to apply for the waiver

from outside the United States in accordance with existing procedures.  Eligible aliens, 10

furthermore, must be the beneficiaries of petitions classifying them as immediate relatives of

U.S. citizens, and thus have visas immediately available.  Because the granting of a waiver is

discretionary, eligible aliens also must establish that they merit a favorable exercise of discretion.

The standard for assessing whether denial of the waiver would result in extreme hardship to the

U.S. citizen spouse or parent of such aliens will remain unchanged.

D. Adjudication and Decisions

After filing the Form I-601 with USCIS, DHS envisions that an alien seeking a

provisional waiver would be required to undergo biometrics collection.  USCIS would deny the

application for a provisional waiver if other possible grounds of inadmissibility are found or arise

during adjudication.

If the application is approved, USCIS would notify the Department of State and the alien

of the provisional approval.  In all instances, a Department of State consular officer would make

the formal inadmissibility finding during or following the immigrant visa interview abroad, and

if no other grounds of inadmissibility arise, the provisional waiver under section 212(a)(9)(B)(v)

of the Act granted by USCIS would facilitate immigrant visa issuance.  If, however, the consular

officer finds during adjudication of the immigrant visa application that the individual is subject

to another ground of inadmissibility that can be waived, the alien would need to file another

waiver application with USCIS.

This process would not alter the requirement that an alien depart from the United States

to apply for an immigrant visa.  An alien who receives a provisional waiver under section

212(a)(9)(B)(v) of the Act for the three- or ten-year bar under section 212(a)(9)(B)(i)(I) or (II) of

the Act would not gain the benefit of such waiver unless he or she departs from the United

States.  The departure from the United States would have to take place to activate the provisional 11

waiver under section 212(a)(9)(B)(v) of the Act.

E. Excluded Visa Categories

Aliens who would not be eligible for this provisional waiver adjudication process and

aliens who are denied provisional approval of their waiver requests would continue to follow

current agency processes for filing and adjudication of waiver requests.  Aliens who fall under

any other family- or employment-based or other visa category or whose section 212(a)(9)(B)(v)

waiver eligibility would be based on extreme hardship to a lawful permanent resident alien

relative would not be considered for provisional waivers.  Aliens who are subject to other

grounds of inadmissibility or removal also would not be considered for provisional waivers.

Further, aliens with waiver applications under section 212(a)(9)(B)(v) of the Act currently

pending in either administrative or judicial proceedings would not qualify for this new process.

III.  Conclusion

This document outlines the key elements of USCIS’s proposed change to its current

process for filing and adjudication of waivers of inadmissibility for unlawful presence for

immediate relative of U.S. citizens.  The focus on family unification of U.S. citizens and their

immediate relatives is consistent with Congress’s prioritization in the immigration laws; the new

process will reduce the movement of the case back and forth between the Department of State

and USCIS, which significantly prolongs the overall process and increases the time that U.S.

citizens are separated from their immediate family members.  The proposed change would affect

only when and where certain aliens can apply for waivers of the unlawful presence grounds of

inadmissibility; it would not change the extreme hardship standard for evaluating eligibility for

the waiver nor would it change whether aliens subject to these grounds of inadmissibility must

depart the U.S. to apply for their immigrant visas.  USCIS plans to effectuate this proposal 12

through the regulatory process.  USCIS will issue a proposed rulemaking that will explain the

proposal in further detail and that will invite comment from all interested parties.  Note:  Do not

send an application requesting a provisional waiver under the procedures under consideration in

this notice.  Any application requesting this new process will be rejected and the application

package returned to the applicant, including any fees, until a final rule is issued and the change

becomes effective.

_____________________________

Janet Napolitano,

Secretary of Homeland Security.

[FR Doc. 2012-140 Filed 01/06/2012 at 8:45 am; Publication Date: 01/09/2012]

The above law is ONLY proposed. Please contact us at info@scottcclaw.com if you have any questions or call us at one of our telephone numbers conveniently listed at www.scottcclaw.com.

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Scottcclaw.com

You may be eligible to receive a green card through Section 245(i) if you:

• Are the beneficiary of a qualified immigrant petition (Form I-130 or I-140) or application for labor certification (Form ETA-750) filed on or before April 30, 2001
• Were physically present in the United States on December 21, 2000, if you are the principal beneficiary and the petition was filed between January 15, 1998, and April 30, 2001
• Are currently the beneficiary of a qualifying immigrant petition (either the original Form I-130 or I-140 through which you are grandfathered or through a subsequently filed immigrant petition)
• Have a visa immediately available to you
• Are admissible to the United States

The above law provision is referred to as “grandfathering”, and is a very powerful way for a foreign national to adjust status to a U.S. Permanent Resident as soon as possible.

For instance, if a client (foreign national) had a 2001 I-130 petition filed by her spouse, and it was later denied due to divorce; if she then remarries her husband or a new husband, the priority date of the original I-130 may be considered. This would allow a visa number to possibly be immediately available.

The law is complex in this area and requires an experienced Immigration attorney to evaluate eligibility. However, if the person was divorced and the original marriage was valid, then the fact that the original application was denied does not preclude it from being a grandfathering petition.  The grandfathering petition must have been timely, meritorious in fact, and non-frivolous.

A copy of the original denial documents and proof of presence in the U.S. before 2000 filed along with a new petition, may allow a foreign national to adjust status quickly based on the more recent priority date which is controlled by the Visa Bulletin issued by the Department of State.

If you have any questions regarding grandfathering you may contact our law firm at info@scottcclaw.com. Or our office telephone numbers are conveniently listed at www.scottcclaw.com

ScottMond Law Firm

www.scottcclaw.com