On Tuesday, twenty seven years after the last major changes in U.S. immigration laws, a bipartisan group of eight senators, meeting secretly for years revealed an outline of a major overhaul that will materially change the immigration landscape.
The bill called the Border Security, Economic Opportunity, and Immigration Modernization Act of 2013 has three dominant goals: to create a path to legal status and a path to citizenship for millions of undocumented immigrants; to lock up U.S. borders to prevent illegal entry; and to simplify the hiring of temporary and permanent workers from overseas when needed.
President Obama has mandated immigration reform to one of his main concern for 2013. Obama stated earlier in the week after a White House meeting with two members of the “Gang of Eight.” “I urge the Senate to quickly move this bill forward and, as I told Senators Schumer and McCain, I stand willing to do whatever it takes to make sure that comprehensive immigration reform becomes a reality as soon as possible,” Obama called the bill “clearly a compromise,” stating that , “no one will get everything they wanted, including me.” Meanwhile, the Senate Judiciary Committee appears to be moving quickly by scheduling hearings for Friday and Monday. Senate Democratic leaders anticipate passage of the bill in May, following the debate. The House is preparing a similar bill.
The following is a simplified outline of ta very complicated and detailed bill:
BORDER SECURITY
Establishment and maintenance of effective control in high risk border sectors along the Southern border. This will be done as follows:
1) Persistent surveillance in High Risk Sectors along the Southern Border; and
2) An Effectiveness Rate of 90% in a fiscal year for all High Risk Sectors along the Southern Border. (The number of apprehensions and turn backs in a specificsector divided by the total number of illegal entries.)
3) $3 billion in new funds would be provided to improve border surveillance and detection, add law enforcement officers and operate aerial surveillance, and $1.5 billion in new funds would be used to improve border fencing.
LEGALIZATION OF UNDOCUMENTED IMMIGRANTS
Certain individuals in unlawful status may adjust their status to the legal status of Registered Provisional Immigrant Status (RPI).
Eligibility Criteria are as follows:
- Must have resided in the United States prior to December 31, 2011 and maintenance of continuous physical presence since then;
- Pay a $500 penalty fee (except for DREAM Act eligible students), and assessed taxes, per adult applicant in addition to all applicable fees required to pay for the cost of processing the application.
Who does not qualify:
Ineligible if:
O Convicted of an aggravated felony;
o Convicted of a felony;
o Convicted of 3 or more misdemeanors;
o Convicted of an offense under foreign law;
o Unlawfully Voted; and
o Inadmissible for Criminal, National Security, Public Health, or other morality grounds
Spouses and children of people in RPI status can be petitioned for as derivatives of the principal applicant (but must in the United States at the time).
Immigrants in RPI status can work and travel outside of the United States Individuals outside of the United States who were previously here before December 31, 2011 and were deported for non-criminal reasons can apply to re-enter the United States in RPI status if they are the spouse, of or parent of a child who is, United States citizen or lawful permanent resident; or are a childhood arrival who is eligible for the DREAM Act.
Application period will be for 1 year with the possibility of extension by the Secretary for an additional 1 year.
((Individuals with removal orders will be permitted to apply, as will aliens currently in removal proceedings)).
RPI status shall last for a 6-year term that is renewable if the immigrant does not commit any acts that would render the alien deportable. Another $500 penalty fee is applicable at this time.
After 10 years, aliens in RPI status may adjust to Lawful Permanent Resident Status through the same Merit Based System everyone else must use to earn a green card (described below) if the following things have occurred:
o The alien maintained continuous physical presence
o They paid all taxes owed during the period that they are in status as an RPI
o They worked in the United States regularly;
o And demonstrated knowledge of Civics and English
People in DREAM Act Status and the Agricultural Program can get their green cards in 5 years and DREAM Act kids will be eligible for citizenship immediately after they get their green cards
LEGAL IMMIGRATION
The bill eliminates the backlog for family and employment-based visas.
The bill amends the definition of “immediate relative” to include a child or spouse of an alien admitted for lawful permanent residence.
The bill amends the existing category for married sons and daughters of citizens of the United States to include only sons and daughters who are under 31 years of age.
The bill repeals the Diversity Visa Program. Aliens who were or are selected for diversity immigrant visas for fiscal years 2013 or 2014 will be eligible to receive them.
The bill creates a startup visa for foreign entrepreneurs who seek to emigrate to the United States to startup their own companies.
THE NEW MERIT BASED SYSTEM
The merit based visa, created in the fifth year after enactment, awards points to individuals based on their education, employment, length of residence in the US and other considerations. Those individuals with the most points earn the visas. Those who access the merit based pathway to earn their visa are expected to be talented individuals, individuals in our worker programs and individuals with family here. 120,000 visas will be available per year based on merit. The number would increase by 5% per year if demand exceeds supply in any year where unemployment is under 8.5%. There will be a maximum cap of 250,000 visas
TEMPORARY WORK VISAS
H-1B Visa Reform
The base annual cap of 65,000 will be raised to 110,000 In future years, the cap can go as high as 180,000.
Create a new nonimmigrant classification known as the W-Visa. The W visa holder is an alien having a foreign residence who will come to the US to perform services or labor for a registered employer in a registered position. The spouse and minor children of the W visa holder will be allowed to accompany or follow to join and will be given work authorization for the same period of admission the W nonimmigrant is allowed to be here.
The Agricultural Job Opportunity, Benefits, and Security Act
The Agricultural Job Opportunity, Benefits, and Security Act (AgJOBS) would allow current undocumented farm workers to obtain legal status through an Agricultural Card Program. Undocumented farm workers who have made a substantial prior commitment to agricultural work in the United States would be eligible for an Agricultural Card.
Agricultural workers who fulfill future Agricultural Card work requirements in U.S. agriculture, show that they have paid all taxes, have not been convicted of any serious crime, and pay a $400 fine are eligible to adjust to legal permanent resident status. Spouses and minor children would receive derivative status.
A new agricultural guest worker visa program would be established to ensure an adequate agricultural workforce. A portable, at-will employment based visa (W-3 visa) and a contract-based visa (W-2 visa) would replace the current H-2A program. The H-2A program would sunset after the new guest worker visa program is operational.
source in part: www.aila.org
A recent poll by the Brookings Institution establishes that almost two-thirds of Americans approve granting illegal immigrants the opportunity for legal status with a path to citizenship. The published poll clearly indicated that an earned path to citizenship for illegal immigrants came from 71 percent of Democrats and 53 percent, of Republicans ,also a surprising majority,also desire immigration reform.
The poll offered several option for immigration reform. One would grant legal residency, but no path to citizenship. 14 % of Americans found this a viable course. A larger group of responders said they would like to see illegal immigrants rounded up and deported. This group comprise of 21%.
A preponderance of all religious groups in the poll supported giving earned citizenship to illegall immigrants. Support was especially intense among Hispanics, with 74 percent of Hispanic Catholics and 71 percent of Hispanic Protestants favoring that proposal.
Black Protestants Support for the citizenship option was also strong, with 71 percent in favor, Jewish Americans, with 67 percent. A majoriy of the most conservative group in the poll, white evangelical Protestants, had 56 percent in favor of offering citizenship to illegal immigrants after they met certain requirements.
According to 45 percent of Americans, the Republican Party had been hurt in recent elections by its posture on immigration. It was Mtitt Romneys “self deportation” strategy that would have madeillegal immigrants lives so difficult for that they would choose to leave on their own. No many lie this course of action.
The president has introduced a plan that would take up to 13 years for before illegal immigrants could apply to become full citizens. A bipartisan group in the Senate is working on similar legislation that includes a path to earned citizenship. Both proposals would required illegal immigrants to pass criminal background checks, pay fines and back taxes, learn English and civics before they could apply to naturalize.
Republican lawmakers have also been trying various approaches to legalization. Senator Marco Rubio of Florida, part of the bipartisan Senate group, has said he would offer eventual citizenship but no special or direct path to it for immigrants who have been in the country illegally.
March 4, 2013 - The United States Citizenship & Immigration Service (USCIS) has made the much awaited application form for the new provisional waiver available on its site.
Following Obama's victory in November, the Department of Homeland Security (DHS) acted quickly to published a final Rule for the much awaited application for a Provisional Waiver for undocumented immigrants. This Provisional Waiver is a Godsent to the Spouse or Parent of a US citizen that are unable to adjust their status to a legal resident while in the U.S. because they either entered illegally or have remained out of status for more than six months. The rule covers the process of fiing the Provisional Waiver on new form I-601A .
In the U.S. there are spouses, children, and parents of U.S. citizens (immediate relatives) who are in the United States are not eligible to apply for lawful permanent resident (LPR) status while in the United States. Instead, these immediate relatives must travel abroad to obtain an immigrant visa from the Department of State (DOS) to return to the United States to request admission as an LPR, and, in many cases, also must request from the Department of Homeland Security (DHS) a waiver of inadmissibility as a result of their unlawful presence in the United States. Currently, these immediate relatives cannot apply for the waiver until after their immigrant visa interviews abroad. As a result, these immediate relatives must remain outside of the United States, separated from their U.S. citizen spouses, parents, or children, while USCIS adjudicates their waiver applications. In some cases, waiver application processing can take well over one year, prolonging the separation of these immediate relatives from their U.S. citizen spouses, parents, and children. In addition, the action required for these immediate relatives to obtain LPR status in the United States—departure from the United States to apply for an immigrant visa at a DOS consulate abroad—is the very action that triggers the unlawful presence inadmissibility grounds under section 212(a)(9)(B)(i) of the Immigration and Nationality Act (INA), 8 U.S.C. 1182(a)(9)(B)(i). As a result of the often lengthy processing times and uncertainty about whether they qualify for a waiver of the unlawful presence inadmissibility grounds, many immediate relatives who may qualify for an immigrant visa are reluctant to proceed abroad to seek an immigrant visa.
The goal of the provisional unlawful presence waiver process is to facilitate immigrant visa issuance for immediate relatives of U.S. citizens who are otherwise admissible to the United States except for the 3-year and 10-year unlawful presence bars, which are triggered upon departure from the United States.
This final rule is expected to result in a reduction of the time that U.S. citizens are separated from their immediate relatives, thus reducing the financial and emotional hardship for these families.
The new waiver process will allow eligible immediate relatives to apply for a provisional unlawful presence waiver while they are still in the United States and before they leave to attend their immigrant visa interview abroad. DHS anticipates that this new provisional unlawful presence waiver process will significantly reduce the time that U.S. citizens are separated from their immediate relatives. USCIS's approval of an applicant's provisional unlawful presence waiver prior to departure also will allow the DOS consular officer to issue the immigrant visa without further delay, if there are no other grounds of inadmissibility and if the immediate relative is otherwise eligible to be issued an immigrant visa.
For more information on the Provisiional Waiver see
A Summary of the Major Provisions of the New I-601A Provisional Waivers
To obtain a copy of the Provisional Waiver:
Even prior to a comprehensive immigration reform, States are lining up to announce new policies for the issuance of driver’s licenses for successful DACA applicants. Officialy, there are twelve states and more expected shortly, that have announced that all young arrivals under the Deferred Action for Young Arrival (DACA) program will be issued a driver’s license. In response to the defeat of the DREAM Act in last years congress, DACA is President Obama’s temporarily solution to assist the many hundreds of thousand of children that arrived in the U.S. prior to the age of 16, graduated High School and have a clean record, to be granted legal status , which includes a work authorization, social security number and travel permission.
States such as Michigan and Illinois, are setting up the process to accept the se new drivers into the million of authorized drivers in their state’s. North Carolina’s Division of Motor Vehicles will issue licenses to immigrants who receive deferred action through DACA. These licenses will be restricted however, by the inclusion of a pink header and the words “NO LAWFUL STATUS” and “LIMITED TERM” written on the front. A group of Democratic lawmakers in North Carolina, believe that this type of limited license is improper and should introduced a bill to grant qualifying illegal immigrants driver licenses that look the same as those issued to everyone else. The Division of Motor Vehicles is set to begin issuing the pink licenses March 25. A competing GOP-backed bill would delay the licenses from going out to at least June.
Republican Gov. Susana Martinez of New Mexico supports a policy to provide temporary licenses for young undocumented immigrants who benefit from DACA but wants to stop granting licenses to undocumented immigrants. Immigrant advocates in the state say the proposal would discriminate against young immigrants with temporary legal status. Even more encouraging for the illegal community in Maryland, lawmakers are pushing a bill to end the state’s ban on providing licenses to undocumented immigrants. “If you live in Maryland you should be able to obtain a driver’s license,” said Democratic State Senator Vincent Ramirez.
If Ronald Reagan were alive today, he would be disappointed in the way many republicans have handled the immigration reform debate and would probably fear the eventual demise of the Republican Party caused by the stranglehold of anti-immigrant conservatives. Regan fundamentally saw America as a land open to immigrants that believe in the “American Dream.” In November 1979 when announcing his candidacy for the presidency he proposed a treaty allowing for full freedom of movement for all workers throughout North America. Even as far back as 1952 when the US immigration policy was still controlled by the very restrictive Immigration Act of 1924, Reagan gave a speech embracing nearly unlimited immigration:
“I . . . have thought of America as a place in the divine scheme of things that was set aside as a promised land . . . [A]nd the price of admission was very simple . . . Any place in the world and any person from these places; any person with the courage, with the desire to tear up their roots, to strive for freedom, to attempt and dare to live in a strange and foreign place, to travel halfway across the world was welcome here . . . I believe that God in shedding his grace on this country has always in this divine scheme of things kept an eye on our land and guided it as a promised land for these people.
It was not until the Republican leadership dismal loss in November’s election that even the thought of a comprehensive immigration would not have crossed their lip. But following the election Republican Whip Baener, ,immediately acknowledged on Meet The Press, that the Hispanic vote was fundamental in Obama’s win and fundamentally important for Republished if they wish to regain their throne. The speaker, as do most party leaders, acknowledges the Republican party’s serious difficulties with Hispanic voters and fears making things worse by derailing an overhaul. Two of the most venomous anti-immigration Republicans in the House, Lamar Smith of Texas and Steve King of Iowa, no longer hold important committee chairmanships.
Last Monday, a bipartisan group of eight senators approved to a set of sensible principles for immigration reform. On Tuesday, President Obama traveled to Las Vegas to outline his own proposals. Mr. Obama’s speech was followed by reports that a bipartisan group of representatives in the House were working out a set of bills.
On Tuesday, President Barack Obama threw his full support behind a comprehensive overhaul of U.S. immigration laws saying "now's the time" to replace a system he called "out of date and badly broken."
The president discussed that three pillars of immigration reform: better enforcement of immigration laws, providing a path to citizenship for the more than 11 million undocumented immigrants already in the country, and reforming the legal immigration system.
Talking at a Hispanic high school in Las Vegas, Obama said "a broad consensus is emerging" behind the issue across the country, with signs of advancement in Congress.
Lawmakers have tried this before, with no success. Efforts to overhaul the immigration system fell apart during George W. Bush’s administration and in 2010.
But predictions for the latest endeavor are considered improved. Mitt Romney’s bleak performance with Hispanic voters gave Republican legislators “a new appreciation” for change, as Senator John McCain, a Republican from Arizona, one of the eight senators in the bipartisan group, has said.
It may not be difficult for Republicans seeking to win national and statewide elections in places where the Hispanic share of the electorate has increased. . But the main roadblock is expected to be in the Republican-controlled House of Representatives, where each representative has a different set of political agenda. The obvious stumbling block is the fact that most Republicans in the House represent very conservative and overwhelmingly white constituants.
Let’s see if most republicans have woken up and smelled the coffee, otherwise they will turn their party into sour milk.
In Reagan’s farewell message to the nation he said “I've spoken of the shining city all my political life, but I don't know if I ever quite communicated what I saw when I said it. But in my mind it was a tall, proud city built on rocks stronger than oceans, wind-swept, God-blessed, and teeming with people of all kinds living in harmony and peace; a city with free ports that hummed with commerce and creativity. And (if there had to be city walls, the walls had doors and the doors were open to anyone with the will and the heart to get here).”
Janaury 15, 2015 - New York City - In the U.S. there are spouses, children, and parents of U.S. citizens (immediate relatives) who are in the United States are not eligible to apply for lawful permanent resident (LPR) status while in the United States. Instead, these immediate relatives must travel abroad to obtain an immigrant visa from the Department of State (DOS) to return to the United States to request admission as an LPR, and, in many cases, also must request from the Department of Homeland Security (DHS) a waiver of inadmissibility as a result of their unlawful presence in the United States. Currently, these immediate relatives cannot apply for the waiver until after their immigrant visa interviews abroad. As a result, these immediate relatives must remain outside of the United States, separated from their U.S. citizen spouses, parents, or children, while USCIS adjudicates their waiver applications. In some cases, waiver application processing can take well over one year, prolonging the separation of these immediate relatives from their U.S. citizen spouses, parents, and children. In addition, the action required for these immediate relatives to obtain LPR status in the United States—departure from the United States to apply for an immigrant visa at a DOS consulate abroad—is the very action that triggers the unlawful presence inadmissibility grounds under section 212(a)(9)(B)(i) of the Immigration and Nationality Act (INA), 8 U.S.C. 1182(a)(9)(B)(i). As a result of the often lengthy processing times and uncertainty about whether they qualify for a waiver of the unlawful presence inadmissibility grounds, many immediate relatives who may qualify for an immigrant visa are reluctant to proceed abroad to seek an immigrant visa.
At this time, the provisional unlawful presence waiver process will remain available only to individuals who are residing in the U.S., are immediate relatives of U.S. citizens (i.e., spouses, children, and parents (if the U.S. citizen is at least 21 years of age, as defined in INA section 201(b), 8 U.S.C. 1151(b).
The focus of the provisional unlawful presence waiver process is to reduce the impact of the current waiver process on U.S. citizens by reducing the time U.S. citizens are separated from their immediate relatives.
Individuals who are already outside of the United States must pursue a waiver of inadmissibility through the current Form I-601 process. The provisional unlawful presence waiver process will remain available only to those individuals who are currently in the United States and will be departing for consular processing abroad.
Aliens in removal proceedings
The Application for Provisional Unlawful Presence Waiver, Form I-601A, will be filed only with USCIS, even if an alien is in removal proceedings before the Court.
Aliens in removal proceedings are allowed to participate in this new provisional unlawful presence waiver process if their removal proceedings are administratively closed and have not been recalendared at the time of filing the Form I-601A.
Aliens whose removal proceedings are terminated or dismissed are covered in the general population of aliens who are eligible to apply for a provisional unlawful presence waiver.
If the Form I-601A is approved for an alien whose proceedings have been administratively closed, the alien should seek termination or dismissal of the proceedings, without prejudice, by EOIR. The request for termination or dismissal should be granted before the alien departs for his or her immigrant visa interview abroad. Applicants who leave the United States before their removal proceedings are terminated or dismissed may experience delays in their immigrant visa processing or risk becoming ineligible for the immigrant visa based on another ground of inadmissibility
Aliens who have had their NTAs (Notice to Appear) cancelled by ICE are also covered in the general population of aliens who are eligible to apply for a provisional unlawful presence waiver, since their removal proceedings were never initiated through filing of an NTA with EOIR
DHS also will notify such applicants that, if granted the provisional unlawful presence waiver, applicants should seek termination or dismissal of their removal proceedings.
You can follow this links:
Apsan Law Offices, LLC.
Illinois is moving closer to grant driver’s licenses to illegal aliens. House lawmakers voted 65-46 in favor of the plan and Gov. Pat Quinn. Quinn has said he will sign the measure. "Illinois roads will be safer if we ensure every driver learns the rules of the road and is trained to drive safely," Quinn said in a statement. "I look forward to signing this legislation."
The Illinois law would allow immigrants who drive to work and school eligible for three-year temporary licenses. The licenses couldn’t be valid to buy a firearm, register to vote or travel on a plane. Law enforcement officials wouldn’t be allowed to use these licenses to arrest illegal immigrants for deportation.
“This bill means safer roads for Illinois, this is going to save lives,” state Rep. Elizabeth Hernandez, a Cicero Democrat who sponsored the bill, said after the vote. “It’s the bottom line, this is a safety issue.”
The bill, introduced late last year, has received bipartisan support from its inception. The Senate approved the measure in December. Former Gov. Jim Edgar, a Republican, and Chicago Mayor Rahm Emanuel, a Democrat, have spoken out in favor of the proposal.
Each applicant would pay $30, the regular fee for a driver’s license. There will be different offices for the immigrants to apply throughout the state, however, only one location, will review the information submitted by the applicant. When applying, immigrants will be required to present a valid unexpired passport from their country of citizenship or a valid unexpired consular identification document and proof of insurance.
The two other states that currently allow illegal immigrants to obtain licenses are Washington and New Mexico. Utah allows permits and Connecticut officials said this week that some young illegal immigrants could apply if they qualify for the DACA (Deferred Action for Young Arrivals), a federal program enacted by the Obama administration. A number of other states are considering similar laws.
You can follow this links:
Apsan Law Offices, LLC.
Apsan Law Offices, LLC.
The U.S. immigration laws appear to finally be on it's way to recovery and heading to the "Holly Grail" of comprehensive immigration reform. Following Obama's victory in November, the Department of Homeland Security (DHS) has acted quickly to published a final Rule for the much awaited application for a Provisional Waiver for undocumented immigrants. This Provisional Waiver is a Godsent to the Spouse or Parent of a US citizen that are unable to adjust their status to a legal resident while in the U.S. because they either entered illegally or have remained out of status for more than six months. The rule covers the process of fiing the Provisional Waiver on new form I-601A . Filing commences on March 4, 2013.
In the U.S. there are spouses, children, and parents of U.S. citizens (immediate relatives) who are in the United States are not eligible to apply for lawful permanent resident (LPR) status while in the United States. Instead, these immediate relatives must travel abroad to obtain an immigrant visa from the Department of State (DOS) to return to the United States to request admission as an LPR, and, in many cases, also must request from the Department of Homeland Security (DHS) a waiver of inadmissibility as a result of their unlawful presence in the United States. Currently, these immediate relatives cannot apply for the waiver until after their immigrant visa interviews abroad. As a result, these immediate relatives must remain outside of the United States, separated from their U.S. citizen spouses, parents, or children, while USCIS adjudicates their waiver applications. In some cases, waiver application processing can take well over one year, prolonging the separation of these immediate relatives from their U.S. citizen spouses, parents, and children. In addition, the action required for these immediate relatives to obtain LPR status in the United States—departure from the United States to apply for an immigrant visa at a DOS consulate abroad—is the very action that triggers the unlawful presence inadmissibility grounds under section 212(a)(9)(B)(i) of the Immigration and Nationality Act (INA), 8 U.S.C. 1182(a)(9)(B)(i). As a result of the often lengthy processing times and uncertainty about whether they qualify for a waiver of the unlawful presence inadmissibility grounds, many immediate relatives who may qualify for an immigrant visa are reluctant to proceed abroad to seek an immigrant visa.
The goal of the provisional unlawful presence waiver process is to facilitate immigrant visa issuance for immediate relatives of U.S. citizens who are otherwise admissible to the United States except for the 3-year and 10-year unlawful presence bars, which are triggered upon departure from the United States.
This final rule is expected to result in a reduction of the time that U.S. citizens are separated from their immediate relatives, thus reducing the financial and emotional hardship for these families.
The new waiver process will allow eligible immediate relatives to apply for a provisional unlawful presence waiver while they are still in the United States and before they leave to attend their immigrant visa interview abroad. DHS anticipates that this new provisional unlawful presence waiver process will significantly reduce the time that U.S. citizens are separated from their immediate relatives. USCIS's approval of an applicant's provisional unlawful presence waiver prior to departure also will allow the DOS consular officer to issue the immigrant visa without further delay, if there are no other grounds of inadmissibility and if the immediate relative is otherwise eligible to be issued an immigrant visa.
Who is eligible for the Provisional Waiver?
At this time, the provisional unlawful presence waiver process will remain available only to individuals who are residing in the U.S., are immediate relatives of U.S. citizens (i.e., spouses, children, and parents (if the U.S. citizen is at least 21 years of age)), as defined in INA section 201(b), 8 U.S.C. 1151(b).
The focus of the provisional unlawful presence waiver process is to reduce the impact of the current waiver process on U.S. citizens by reducing the time U.S. citizens are separated from their immediate relatives.
Individuals who are already outside of the United States must pursue a waiver of inadmissibility through the current Form I-601 process. The provisional unlawful presence waiver process will remain available only to those individuals who are currently in the United States and will be departing for consular processing abroad.
What has to be established for the granting of the waiver?
Extreme Hardship to the United States citizen must be established in order for the waiver to be approved.
Extreme hardship is a statutory requirement that an applicant must meet to qualify for an unlawful presence waiver under INA section 212(a)(9)(B)(v), 8 U.S.C. 1182(a)(9)(B)(v). The INA does not define the term, and federal courts have not specifically defined extreme hardship through case law. The BIA has stated that extreme hardship is not a definable term of fixed and inflexible meaning, but that the elements to establish extreme hardship are dependent upon the facts and circumstances of each case.
Aliens in Temporary Protected Status
Any alien who meets the requirements of the provisional unlawful presence waiver process and who is consular processing abroad can obtain a provisional unlawful presence waiver regardless of the alien's current status in the United States. An alien currently registered for TPS under INA section 244, 8 U.S.C. 1254a, is considered to be maintaining lawful nonimmigrant status for purposes of adjustment of status or change of status.
Concurrent filing of I-130 or I-360 and I-601A and I-212
DHS will not accept concurrently filed Forms I-130 and I-601A, or allow for the filing of the Form I-601A before approval of the immediate relative petition.
DHS will not permit concurrent filing of Forms I-601A and I-212. (permission to reapply after prior removal (deportation)
Filing Fees
DHS has adopted the current cost for adjudicating an Application for Waiver of Ground of Inadmissibility, Form I-601($585), as the initial filing fee that will be required for the Form I-601A. DHS decided to set the fee for the provisional unlawful presence waiver process to be the same as the current Form I-601 waiver application fee
Aliens in removal proceedings
The Application for Provisional Unlawful Presence Waiver, Form I-601A, will be filed only with USCIS, even if an alien is in removal proceedings before the Court.
Aliens in removal proceedings are allowed to participate in this new provisional unlawful presence waiver process if their removal proceedings are administratively closed and have not been recalendared at the time of filing the Form I-601A.
Aliens whose removal proceedings are terminated or dismissed are covered in the general population of aliens who are eligible to apply for a provisional unlawful presence waiver.
If the Form I-601A is approved for an alien whose proceedings have been administratively closed, the alien should seek termination or dismissal of the proceedings, without prejudice, by EOIR. The request for termination or dismissal should be granted before the alien departs for his or her immigrant visa interview abroad. Applicants who leave the United States before their removal proceedings are terminated or dismissed may experience delays in their immigrant visa processing or risk becoming ineligible for the immigrant visa based on another ground of inadmissibility
Aliens who have had their NTAs (Notice to Appear) cancelled by ICE are also covered in the general population of aliens who are eligible to apply for a provisional unlawful presence waiver, since their removal proceedings were never initiated through filing of an NTA with EOIR
DHS also will notify such applicants that, if granted the provisional unlawful presence waiver, applicants should seek termination or dismissal of their removal proceedings.
Work Permission & Travel
Pending or approved provisional unlawful presence waiver does not authorize any interim benefits such as employment authorization or advance parole
Other immigration applicants
After assessing the effectiveness of the new provisional unlawful presence waiver process and its operational impact, DHS, in consultation with DOS and other affected agencies, will consider expanding the provisional unlawful presence waiver process to other categories, such a spouses of Lawful Residents
Note: If the consular interview has already been scheduled.
An alien is ineligible for a provisional unlawful presence waiver because of a previously scheduled immigrant visa interview.
If the date that the Department of State initially acted to schedule the immigrant visa interview is prior to the date of publication of this final rule, January 3, 2013, then the alien is ineligible to apply for a provisional unlawful presence waiver.
An alien who is ineligible to apply for a provisional unlawful presence waiver because of a previously scheduled immigrant visa interview may still qualify for a provisional unlawful presence waiver if he or she has a new DOS immigrant visa case because (1) DOS terminated the immigrant visa registration associated with the previously scheduled interview, and they have a new immediate relative petition; or (2) the alien has a new immediate relative petition filed on his or her behalf by a different petitioner.
How long will it take for an I-601A application to be decided?
DOS estimates that it will schedule the applicant for an immigrant visa interview within two to three months after approval of the provisional unlawful presence waiver and the applicant's submission of the required immigrant visa processing documents to DOS.
What Can be Done if the Waiver is Denied?
If an individual's provisional unlawful presence waiver request is denied or withdrawn, the individual may file a new Form I-601A. Alternatively, an individual who withdraws his or her Form I-601A filing prior to final adjudication, or whose Form I-601A is denied, can apply for a traditional waiver by filing Form I-601, Application for Waiver of Grounds of Inadmissibility, with the USCIS Lockbox, after he or she attends the immigrant visa interview abroad and after DOS conclusively determines that the individual is inadmissible on a ground(s) that is waivable.
Denial of an application for a provisional unlawful presence waiver is without prejudice to the alien filing another Form I-601A under paragraph (e) provided the alien meets all of the requirements. The alien's case must be pending with the Department of State, and the alien must notify the Department of State that he or she intends to file a new Form I-601A.
A provisional unlawful presence waiver is automatically revoked if the alien, at any time before or after the approval of the provisional unlawful presence waiver, or before the immigrant visa is issued, reenters or attempts to reenter the United States without being admitted or paroled.
If the Provisional Waiver is Denied will DHS begin Removal proceeding?
Consistent with its civil enforcement priorities, DHS does not envision initiating removal proceedings against aliens or referring aliens to ICE whose provisional unlawful presence waiver applications have been approved.
Similarly, consistent with its civil enforcement priorities, DHS also does not envision initiating removal proceedings against aliens whose Form I-601As are denied or withdrawn prior to final adjudication. An individual whose request for a provisional unlawful presence waiver is denied or who withdraws the Form I-601A prior to final adjudication will typically be referred to ICE only if he or she is considered a DHS enforcement priority—that is, if the individual has a criminal history, has committed fraud, or otherwise poses a threat to national security or public safety.
If USCIS denies an alien's Form I-601A, the alien has two alternate avenues for obtaining a waiver of inadmissibility: (1) Filing a new Form I-601A, in accordance with the form instructions, with the required fees and any additional documentation that he or she believes might establish his or her eligibility for the waiver or (2) filing a Form I-601, Application for Waiver of Grounds of Inadmissibility with the USCIS Lockbox, after he or she attends the immigrant visa interview and after DOS conclusively determines that the individual is inadmissible.
Does an Applicant for a Provisional Waiver receive any Benefits While in the U.S.?
The filing or approval of a provisional unlawful presence waiver application will not: (1) Confer any legal status; (2) protect against the accrual of additional unlawful presence; (3) authorize an alien to enter the United States without securing a visa or other appropriate entry document; (4) convey any interim benefits (e.g., employment authorization, advance parole, or eligibility to be paroled based solely on a pending or approved Form I-601A); or (5) protect an alien from being placed in removal proceedings or removed from the United States, in accordance with current DHS policies governing initiation of removal proceedings and use of prosecutorial discretion.
The source for this article is the Federal Register at https://www.federalregister.gov/articles/2013/01/03/2012-31268/provisional-unlawful-presence-waivers-of-inadmissibility-for-certain-immediate-relatives
FOR IMMEDIATE RELEASE
Released: Jan. 2, 2013
Contact: DHS Press Office, (202) 282-8010
WASHINGTON— Secretary of Homeland Security Janet Napolitano today announced the posting of a final rule in the Federal Register that reduces the time U.S. citizens are separated from their immediate relatives (spouse, children and parents), who are in the process of obtaining visas to become lawful permanent residents of the United States under certain circumstances. The final rule establishes a process that allows certain individuals to apply for a provisional unlawful presence waiver before they depart the United States to attend immigrant visa interviews in their countries of origin. The process will be effective on March 4, 2013 and more information about the filing process will be made available in the coming weeks at www.uscis.gov.
“This final rule facilitates the legal immigration process and reduces the amount of time that U.S. citizens are separated from their immediate relatives who are in the process of obtaining an immigrant visa,” said Secretary Napolitano.
U.S. Citizenship and Immigration Services (USCIS) received more than 4,000 comments in response to the April 2, 2012 proposed rule and considered all of them in preparing the final rule.
“The law is designed to avoid extreme hardship to U.S. citizens, which is precisely what this rule achieves,” USCIS Director Mayorkas said. “The change will have a significant impact on American families by greatly reducing the time family members are separated from those they rely upon.”
Under current law, immediate relatives of U.S. citizens who are not eligible to adjust status in the United States to become lawful permanent residents must leave the U.S. and obtain an immigrant visa abroad. Individuals who have accrued more than six months of unlawful presence while in the United States must obtain a waiver to overcome the unlawful presence inadmissibility bar before they can return to the United States after departing to obtain an immigrant visa. Under the existing waiver process, which remains available to those who do not qualify for the new process, immediate relatives cannot file a waiver application until after they have appeared for an immigrant visa interview abroad and the Department of State has determined that they are inadmissible.
In order to obtain a provisional unlawful presence waiver, the applicant must be an immediate relative of a U.S. citizen, inadmissible only on account of unlawful presence, and demonstrate the denial of the waiver would result in extreme hardship to his or her U.S. citizen spouse or parent. USCIS will publish a new form, Form I-601A, Application for a Provisional Unlawful Presence Waiver, for individuals to use when applying for a provisional unlawful presence waiver under the new process.
Under the new provisional waiver process, immediate relatives must still depart the United States for the consular immigrant visa process; however, they can apply for a provisional waiver before they depart for their immigrant visa interview abroad. Individuals who file the Form I-601A must notify the Department of State’s National Visa Center that they are or will be seeking a provisional waiver from USCIS. The new process will reduce the amount of time U.S. citizen are separated from their qualifying immediate relatives. Details on the process changes are available at www.regulations.gov.
In what appears to be the direction of U.S. immigration laws for the future, ICE has issued new national detainer guidance that eliminates the fear of deportation for most non-criminal aliens.
This guidance restricts the use of detainers to those who meet the department's enforcement priorities and curbs the use of detainers against people arrested for minor misdemeanor offenses such as petty crimes and traffic offenses. The new detainer guidance is intended to make certain that available resources are focused on apprehending felons, repeat offenders and other ICE priorities.
Immigration and Customs Enforcement Director John Morton has issued the latest guidance memo to the field directing the agency's officers only to ask for local law enforcement agencies to detain individuals accused of serious offenses. The memo states:
Consistent with ICE's civil enforcement priorities and absent extraordinary circumstances, ICE agents and officers should issue a detainer in the federal, state, local, or tribal criminal justice systems against an individual only where (1) they have reason to believe the individual is an alien subject to removal from the United States and (2) one or more of the following conditions apply:
• the individual has a prior felony conviction or has been charged with a felony offense;
• the individual has three or more prior misdemeanor convictions;
• the individual has a prior misdemeanor conviction or has been charged with a misdemeanor offense if
1. the misdemeanor conviction or pending charge involves violence, threats, or assault;
2. sexual abuse or exploitation;
3. driving under the influence of alcohol or a controlled substance;
4. unlawful flight from the scene of an accident;
5. unlawful possession or use of a firearm or other deadly weapon;
6. the distribution or trafficking of a controlled substance; or
7. other significant threat to public safety;
• the individual has been convicted of illegal entry pursuant to 8 U.S.C. § 1325;
• the individual has illegally re-entered the country after a previous removal or return;
• the individual has an outstanding order of removal; the individual has been found by an immigration officer or an immigration judge to have knowingly committed immigration fraud; or
• the individual otherwise poses a significant risk to national security, border security, or public safety.
"Smart and effective immigration enforcement relies on setting priorities for removal and executing on those priorities," explained Director Morton. "In order to further enhance our ability to focus enforcement efforts on serious offenders, we are changing who ICE will issue detainers against. While the FY 2012 removals indicate that we continue to make progress in focusing resources on criminal and priority aliens, with more convicted criminals being removed from the country than ever before, we are constantly looking for ways to ensure that we are doing everything we can to utilize our resources in a way that maximizes public safety."
In an effort to maintain its’ resources on priority cases ICE has implemented policies and processes that ensure that those enforcing immigration laws make suitable use of the discretion they have in determining the types of individuals prioritized for removal from the U.S.
Most importantly, ICE will not to renew any of its agreements with state and local law enforcement agencies that operate task forces under the 287(g) program. (The program that empowered the much criticized Arizona Senate Bill 1070). The Arizona Act made it a state misdemeanor crime for an alien to be in Arizona without carrying the required documents and required that state law enforcement officers attempt to verify an individual's immigration status during a "lawful stop, detention or arrest", or during a "lawful contact" when there is reasonable suspicion that the individual is an undocumented immigrant.
Critics of the legislation argued that it promotes racial profiling, while supporters say the law prohibits the use of race as the sole basis for investigating immigration status. In over 70 U.S. cities there were protests in opposition to the law
In June 2012, the U.S. Supreme Court ruled on the case Arizona v. United States. While the ruling upheld the provision requiring immigration status checks during law enforcement stops, it struck down provisions that gave the law it's power.
Now with Morton’s latest memo, 13 million undocumented immigrants can take a deep breath while waiting for comprehensive immigration reform laws to be enacted in 2013.
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