The January 6, 2012, DHS announcement about Planned Changes to Processing for Unlawful Presence Waivers.

By David H. Nachman

The January 6, 2012, DHS Announcement about Planned Changes to Processing for Unlawful Presence Waivers – Frequently Asked Questions

What was announced on January 6?

On January 6 DHS announced, in a notice to be published in the Federal Register on January 9 that it will be issuing new regulations for how unlawful presence waivers will be processed for certain immediate relatives who are filing immigrant visa applications abroad. Specifically, the new procedure will allow
these individuals to file for a provisional unlawful presence waiver and await
adjudication while in the U.S. If approved, they will still have to depart the U.S. to undergo visa processing and an interview at a U.S. consulate abroad. To receive a provisional waiver, they will still need to show that a lengthy bar from the U.S. would cause their U.S. citizen spouse or parent “extreme hardship.”

What is the current process and why is the change necessary?

Currently, many relatives of U.S. citizens and lawful permanent residents face unnecessary and dangerous bureaucratic hurdles when they apply for lawful permanent residence (“green card”). In order to be granted permanent residence, these applicants
are required to travel to a U.S. consulate in their home country to be interviewed and wait for the visa to be processed. But departure from the U.S. triggers a 3- or 10-year bar to re-entry for many applicants—specifically those who have been unlawfully present in the
U.S. for more than 180 days.

Individuals subject to this re-entry bar may apply for a waiver (using DHS Form I-601;see 8 U.S.C. 1182(a)(9)(B)(v)) so that they do not have to face years of separation from their family. To qualify, they must demonstrate that their U.S citizen or permanent
resident spouse or parent would experience “extreme hardship” if the waiver is not granted. But under the current process, the individual can only apply for the waiver in the home country, after having had an initial interview at the consulate. The decision on the waiver, which is made by USCIS even though the family member is abroad, often takes weeks, months or even years to be completed. Meanwhile, families are separated,
and the spouses and children of U.S. citizens and lawful permanent residents are forced to endure potentially dangerous situations in the home country until the waiver is granted
and they can return to the U.S. as lawful permanent residents.

Immigration law provides that U.S. citizens and lawful permanent residents can apply for “green cards” for their foreign-born spouses and children. But the lengthy delays and risks in the current waiver procedure discourage many family members from completing
the process of legal immigration. Family members have been assaulted or killed while waiting for waivers to be reviewed.

What will the new process be?

The new procedure will allow certain immediate relatives—spouses, children and parents of adult of U.S. citizens—to apply for waivers of the unlawful presence bars while remaining in the U.S. If the individual is found eligible, USCIS will grant a provisional waiver. He or she will still have to depart the U.S. and visit a U.S. consulate abroad to apply for an immigrant visa. During the immigrant visa interview, the consular officer
will make the finding of inadmissibility based on unlawful presence and apply the provisional waiver. If other grounds of inadmissibility are found, the individual would need to submit another waiver application, if eligible, while abroad. In many cases, the provisional waiver will reduce the wait period abroad and the separation from the
applicant’s family by several months or years.

Individuals will still need to meet the extreme hardship standard established in existing law to obtain a waiver. The January 6 notice states that USCIS does not intend to modify the standard.

Who will be able to use the new process?

As announced in the January 6 notice, the new regulation will change the application process only for immediate relatives whose U.S. citizen spouse or parent would suffer extreme hardship if the bar is not waived.

Who is left out of the new process?

According to the January 6 notice, the new process will not apply to family members of lawful permanent resident petitioners. It will also not include immediate relatives if their qualifying relative for the hardship waiver is not a U.S. citizen spouse or parent. These
individuals will still need to apply under the existing procedure (departing the country first and applying for the waiver while abroad). There is no valid reason not to apply the same procedure to these individuals whose spouses and children face the same bureaucratic delays, obstacles and dangers when required to wait abroad for their waiver
adjudications.

The new procedure will apply only to individuals who are subject to the 3- and 10-year bars for unlawful presence. Individuals who are subject to other grounds of inadmissibility are not affected under the new process and will still have to depart the U.S. before applying for any waiver.

When will the new regulations and process be implemented?

The new provisional waiver procedure has not yet taken effect. The notice issued on January 6 announces the government’s intent to issue a proposed regulation at a future date. Next, DHS will issue a Notice of Proposed Rulemaking (NPRM) that will include a
proposed regulation governing the waiver process and will invite public comment. The notice states that the new waiver process will not be implemented until a final rule is issued and the change becomes effective.

What should current and prospective waiver applicants do at this time?

The January 6 announcement has not changed anything in the current waiver procedure.

The notice discourages the filing of applications for provisional waivers and states that such requests will be rejected. The new procedure will not take effect until a final regulation is issued.

Once the new procedure takes effect, individuals with pending applications for unlawful presence waivers will not qualify under the new procedure.

What is the cost for applying for a waiver under the new procedure?

The January 6 announcement does not mention a change in the application fee for filing a waiver application (Form I-601). The current fee is $585.

How will the new procedure improve government efficiency?

Under the current procedure, waiver applications are filed by individuals who have departed the U.S. and are applying at U.S. consulates abroad. However, those waiver applications are not adjudicated by the U.S. consulate. Instead, they are forwarded to USCIS. Wait times for processing waivers can be months or years. Processing these applications in the U.S. will save government resources at the consulates and reduce the costs of shifting cases back and forth between government agencies.

David Nachman & Michael Phulwani discuss several immigration law issues on iTV.

Immigration 11/29/11 Part 1 (David H. Nachman and Michael Phulwani)

http://www.youtube.com/watch?v=UbTZV_9WNKg

Immigration 11/29/11 Part 2 (David H. Nachman and Michael Phulwani)

http://www.youtube.com/watch?v=-kaXVOR_O8I

Immigration 11/29/11 Part 3 (David H. Nachman and Michael Phulwani)

http://www.youtube.com/watch?v=ZAicU6jAjks

The White House Blog.

Immigration Update: Maximizing Public Safety and Better Focusing Resources.

Posted by Cecilia Muñoz on August 18, 2011 at 02:00 PM EDT.

President Obama is deeply committed to fixing our immigration laws and has been aggressively searching for partners in Congress who are willing to work with him to pass a new law. As he focuses on building a new 21st century immigration system that meets our nation’s economic and security needs, the President has a responsibility to enforce the existing laws in a smart and effective manner. This means making decisions that best focus the resources that Congress gives the Executive Branch to do this work. There are more than 10 million people who are in the U.S. illegally; it’s clear that we can’t deport such a large number. So the Administration has developed a strategy to make sure we use those resources in a way that puts public safety and national security first. If you were running a law enforcement agency anywhere in the world, you would target those who pose the greatest harm before those who do not. Our immigration enforcement work is focused the same way.

Under the President’s direction, for the first time ever the Department of Homeland Security has prioritized the removal of people who have been convicted of crimes in the United States. And they have succeeded; in 2010 DHS removed 79,000 more people who had been convicted of a crime compared to 2008. Today, they announced that they are strengthening their ability to target criminals even further by making sure they are not focusing our resources on deporting people who are low priorities for deportation. This includes individuals such as young people who were brought to this country as small children, and who know no other home. It also includes individuals such as military veterans and the spouses of active-duty military personnel. It makes no sense to spend our enforcement resources on these low-priority cases when they could be used with more impact on others, including individuals who have been convicted of serious crimes.

So DHS, along with the Department of Justice, will be reviewing the current deportation caseload to clear out low-priority cases on a case-by-case basis and make more room to deport people who have been convicted of crimes or pose a security risk. And they will take steps to keep low-priority cases out of the deportation pipeline in the first place. They will be applying common sense guidelines to make these decisions, like a person’s ties and contributions to the community, their family relationships and military service record. In the end, this means more immigration enforcement pressure where it counts the most, and less where it doesn’t – that’s the smartest way to follow the law while we stay focused on working with the Congress to fix it.

Cecilia Muñoz is White House Director of Intergovernmental Affairs

Naturalization: Are You Eligible and Should You Apply?

Presented by: Victoria Donoghue, Esq.

Rights of Citizenship

• Ability to petition for the permanent residence of parents, children and spouse with no backlog
• Ability to bestow USC on child born abroad
• USC cannot be placed in removal proceedings
• Right to vote, hold office, and serve on juries
• Right to live abroad indefinitely

Liabilities of Citizenship

• May lose citizenship in native country
• Could highlight a ground for removal
• May lose property owned in home country

Eligibility for NATZ by Application

• Must be LPR
• Must be at least 18 years old
• Must be a resident continuously for 5 years subsequent
to LPR status (3 years if married to USC)
• Must have resided for at least 3 months in the state in which the petition is filed
• Must be physically present in the US for at least ½ of the 5 yrs
• Must reside continuously within the US from the date the application is filed up to the time of admission to CITZ
• Must not be absent from the US for a continuous period of more than one year during the period for which continuous residence is required
• Must be a person of good moral character for 5 yrs
prior to filing
• Must be attached to the principles of the US Constitution
• Must be willing to bear arms for the US
• Must not be otherwise barred (subversive, communist, etc)
• Must be able to satisfy the Civics and English language requirement

Continuity of Residence

• An absence of < 6 months does not break the alien’s continuity of residence for NATZ purposes
• An absence of 6 months or more but < 1 year breaks the continuity of the alien’s residence for NATZ purposes absent a reasonable explanation (like an oversees assignment with a US employer)
• An absence of 1 yr or more automatically breaks the continuity of the alien’s residence for NATZ purposes, unless the alien takes steps prior to the expiration of the yr to preserve the continuity of residence
Avoiding a break in the continuity of residence
• The result of a break in the continuity of the alien’s residence is that the alien must start all over again to accumulate the 5 yrs upon returning to the US
• Ways to avoid a break:
– Return to the US every 6 months or every yr if there is a reasonable explanation for the absence
– Apply for extended absence benefits (N-470) to preserve continuity of residence. Note: Unless the alien is a government employee, he still must be actually physically present in the US for at least ½ of the 5 year period

N-470 Eligibility Requirements

• Alien must be physically present and residing in the US as a LPR for an uninterrupted period of one yr prior to the absence
• Must be employed abroad by the US gov’t, a US research institute, a US corporation or mjty owned subsidiary, or an international organization
• Must request extended absence benefits before the alien has been absent from the US for one year
• The absence must be in furtherance of overseas employment

Reentry Permit

• Alien can also request an I-131 request for a reentry permit along with the N-470
• The purpose of the reentry permit is to maintain lawful permanent residence status. If the client wants to make sure to maintain continuous residence for NATZ purposes, he/she must also file an N-470.

Good Moral Character (GMC)

• An individual must be of good moral character for the requisite 5 yrs (or 3 yrs if married to a USC) prior to filing a NATZ application and up to the time of admission as a USC. This is called the “statutory period.”

People who are NOT of GMC

• Habitual drunkards
• Certain individuals are inadmissible under 212(a)(2)
• One who’s income is derived principally from gambling
• One who has given false testimony to obtain a benefit under the INA
• One who is convicted of an aggravated felony
• One who has committed genocide or torture
• One who has been imprisoned (after a conviction) during the “statutory period” for an aggregated period of 180 days or more
• One who has voted unlawfully or made a false claim to USC

Grounds of Inadmissibility Under INA § 212 (a)(2)

• Conviction or admission to the essential elements of crimes of moral turpitude (CIMT)
• Conviction or admission to the essential elements of controlled substance violations
• Multiple criminal violations
• Trafficking in controlled substance
• Prostitution and commercialized vice
• Smugglers of aliens
• Practicing polygamists

THESE ARE ALSO GROUNDS OF REMOVAL!

What is a CIMT?

• Not defined in the act- no exhaustive list
• Conduct which is inherently base, vile, depraved or contrary to accepted rules of morality
• Felonies and Misdemeanor
• Criminal statute must be examined

Exceptions to CIMT

• Petty Offense
• Juvenile Offenders
• Purely Political Crimes

Nonstatutory/Discretionary GMC Grounds

• Nonsupport of dependents
• Homosexuality- But cannot be only basis for
baring NATZ
• Adultery tending to destroy an existing marriage
• Knowing & willful failure to register with selective service between 18-26 within statutory period
• Drunk driving
• Other bad acts showing poor moral character

Civics & English Language Requirement

• NATZ applicant must demonstrate:
– An elementary level reading, writing and understanding of English
– A knowledge and understanding of the fundamentals of US history & government

Proof of Civics & English Knowledge

• All NATZ applicants must pass an examination. At the examination, the CIS examiner will do 3 things:
– Go over the NATZ application in detail, questioning about any problems such as an arrest
– Gauge the alien’s ability to understand and respond to questions (alien will be asked to write a sentence).
– Test the alien’s knowledge of US gov’t & history through the use of standard questions on the subject
• If the alien does not pass, a second examination will be scheduled within 90 days

Exceptions to English Language Requirement

• Persons over 50 and living in the US for 20 yrs subsequent to becoming a LPR
• Persons over 55 and living in the US for 15 years subsequent to becoming a LPR
• Special consideration in determining the knowledge requirements to persons over 65 with 20 yrs as a LPR (a test of 10 questions in the person’s native language where only 6 need to be correct)
• Physically/developmentally disabled or mentally impaired including:
• Individuals with Alzheimers, Parkenson’s Disease, senile dementia or a related disability

Disability Waivers

• Must establish a physical or developmental disability or mental impairment
• A medical doctor, osteopath, or clinical psychologist “experienced in diagnosing” these disabilities must complete an N-648 to be filed with NATZ application
• Even with a disability waiver the applicant still must meet the moral character, residence, and other NATZ requirements
• However, the oath can be waived if the person is unable to understand or communicate the meaning of it.

Designated Representative

• A representative of a person who is developmentally or physically disabled or suffering from mental impairment can complete the N-400 exam (including the oath) by attesting orally and submitting documentation that the applicant qualifies for NATZ
• Representative may be a legal guardian, surrogate, USC spouse, parent or adult sibling
• An MD, osteopathic doctor, or clinical psychologist must provide an evaluation attesting to the impairment and the ability to take the oath

Redesigned NATZ Exam

• In the past, the NATZ testing process and test content varied in each USCIS district office
• CIS revised the process to ensure uniformity
• CIS began administering the new test in October 2008
• Applicants will still have 3 chances to read & write a sentence. However, the study material will include a civics-based vocabulary list
• Sentences will focus on civics and history instead of broad range of subjects
• Civics questions will be drawn from a new list of questions

Adjudications of N-648

• CIS will look for:
– A complete description of the medical diagnosis
– An explanation of how the disability affects the applicant and prevents him from learning or demonstrating knowledge of English/Civics
– The MD’s conclusion with a focus on the nexus between the disability and the applicant’s ability to learn or demonstrate knowledge of English/Civics
– CIS may request documentation if the interview raises questions about the extent of the disability

CIS MAY NOT SECOND GUESS THE MD

Reasonable Accommodations

• Section 504 of the Rehabilitation Act of 1973 requires the CIS make reasonable accommodations/modifications to make it possible for NATZ applicants to get through the process
• This is the case regardless of whether the applicant has applied for a disability waiver
• Section 504 of the Rehabilitation Act of 1973 requires the CIS make reasonable accommodations/modifications to make it possible for NATZ applicants to get through the process
• This is the case regardless of whether the applicant has applied for a disability waiver

GMC Review

• An individual must be of good moral character for the requisite 5 yrs (or 3 yrs if married to a USC) prior to filing a NATZ application and up to the time of admission as a USC. This is called the “statutory period.”
• However, some criminal activity serves as an absolute bar to NATZ even if in occurred before the statutory period.

Absolute Bars to NATZ

• Aggravated felony convictions that occurred after 11/29/1990 render the person ineligible to establish GMC even when the conviction was before the statutory period
• Convictions for murder, even before 11/29/1990, render the person permanently ineligible to establish GMC

THESE ARE ALSO GROUNDS FOR REMOVAL

Definition of Aggravated Felony

• Murder, rape, or sexual abuse of a minor
• Trafficking in a controlled substance
• Trafficking in firearms or explosive material
• Money laundering
• Crimes of violence w/ an imprisonment term of > 1 yr
• A theft offense w/ an imprisonment term of > 1 yr
• Crimes related to prostitution & child pornography
• Offenses related to national security
• Fraud offenses
• Offenses related to bribery, counterfeiting or forgery
• Perjury

Deportation

• If an individual with a conviction applies for naturalization, and he or she is removable under §237(a) on the basis of that conviction, the NATZ unit may (and usually will) issue a Notice to Appear (NTA), commencing removal proceedings against the individual

ALWAYS MAKE SURE THAT A CLIENT HAS NOT COMMITTED A CRIME SUBJECTING HIM/HER TO DEPORTATION BEFORE FILING A NATZ PETITION

Exceptions to the Normal NATZ

Requirements

• Veterans/Military Service during hostilities
– If a person served in US Armed Forces during hostilities and continues to be in Armed Forces or was honorable discharged- he/she need not be a LPR to naturalize.
– Physical presence and residency requirements inapplicable
– 9/11/2001 to present is a period of hostilities for NATZ purposes
• Veterans/Military Service (not during hostilities)
– If a person served in the Armed Forces for a period aggregating one year (and separated honorably) and if NATZ application is filed during the service or within 6 months after separation, physical presence & residency requirements are inapplicable. No need to be a LPR.
– If person files after 6 months, he/she must be LPR
to naturalize
• Spouses of USC’s- eligible for NATZ 3 yrs after obtaining LPR status (instead of 5)
• Spouses (in LPR status) of USC’s who are assigned abroad by their qualifying US employer (next slide)
are exempt from continuous residence and physical presence requirements. They are permitted to naturalize prior to accompanying their USC spouses abroad
• Must be physically present in US at time of naturalization
• The USC spouse assigned abroad MUST be working for:
– The US government
– An American Research Institute
– A US firm engaged in the development of foreign trade or commerce
– A public international organization that the US is a member of
• Battered Spouses- a victim of domestic abuse perpetrated by a USC spouse is eligible for NATZ after he/she has resided continuously in the US for a period of at least 3 years
• No requirement that the abused spouse be living with the abuser in marital union
• Must have obtained LPR status based on a battered spouse filing, or through AOS or cancellation of removal
• Abusive spouse need not be alive at the time of filing a NATZ petition

Questions?

Please feel free to contact our office if you still have questions:

Victoria_donoghue@visaserve.com
201-670-0006 ext. 101

http://www.visaserve.com

Thank you.