AILA-DC New Members Division Webinar March 14, 2014 I-601A Waivers: A Year in review Dree K. collopy, esq. Kimberley schaefer, esq.

The provisional Waiver Final rule published by DHS on January 3, 2013 and became effective on March 4, 2013 78 Fed. Reg. 536 (Jan. 3, 2013) Allows certain noncitizens to seek unlawful presence waivers under INA section 212(a)(9)(B)(v) before departing the U.S. Doesn’t change the legal standards for demonstrating eligibility, but does change the procedures Avoids long-term separation of families

Roadmap Substantive Considerations Procedural Considerations Who qualifies? Who is disqualified? Practical tips Department of State requirements Inadmissibility grounds covered and “reason to believe” Removal proceedings Final orders Demonstrating extreme hardship Procedural Considerations I-130/I-360 petition to USCIS Immigrant Visa Application to Department of State NVC I-601A waiver application to USCIS Approval and denial

Substantive considerations

Who qualifies? Under 8 CFR section 212.7(e)(3), the applicant must: Be present in the U.S. at the time of filing and for biometrics collection Be inadmissible only under INA section 212(a)(9)(B)(i)(I) or (II) upon his or her departure Qualify as an immediate relative under INA section 201(b)(2)(A)(i) Be the beneficiary of an approved immediate relative petition Have a case pending with the Department of State based on an approved immediate relative petition Have paid the immigrant visa processing fee Depart the U.S. to obtain the immediate relative immigrant visa abroad Demonstrate that a denial of the waiver would result in extreme hardship to his or her U.S. citizen spouse or parent

What disqualifies an applicant? Under 8 CFR 212.7(e)(4), a noncitizen is disqualified if: USCIS has “reason to believe” that he or she is subject to inadmissibility grounds other than unlawful presence He or she is under age 17 He or she does not have a case pending with the Department of State based on an approved immediate relative petition or has not paid the immigrant visa processing fee The Department of State “initially acted” to schedule the applicant’s visa interview prior to January 3, 2013 (on the I-130 on which the provisional waiver is based) He or she is in removal proceedings, unless administratively closed He or she is subject to a final order of removal, exclusion, or deportation He or she is subject to reinstatement of a prior order of removal under INA section 241(a)(5) He or she has an application pending before USCIS for LPR status

Applicant must be an immediate relative with an approved petition Minor child under age 21 of a U.S. citizen Spouse of a U.S. citizen Parent of an adult U.S. citizen over age 21 Includes: Adult sons and daughters of U.S. citizens who are still classified as immediate relative children based on the CSPA Qualified widows and widowers of U.S. citizens who self-petition on Form I-360 Does not include: Adult sons and daughters of U.S. citizens (over age 21) Brothers and sisters of U.S. citizens Children and spouses of LPRs Any other categories of family relationships

Department of state requirements Applicant must have an immigrant visa case pending before the Department of State based on his or her approved petition Applicant must demonstrate that he or she has paid the immigrant visa processing fee Provide the Department of State fee receipt along with the waiver application

Not available if interviews scheduled prior to 1/3/13 If an applicant’s immigrant visa interview at a U.S. consulate abroad was scheduled prior to publication of the provisional waiver rule on January 3, 2013  not eligible! If DOS has “initially acted” to schedule the interview Acted at some point to schedule the IV interview Applies even if the applicant failed to appear for the interview Applies even if the interview was later cancelled Applies even if the interview is rescheduled for a date after 1/3/13 Date that governs is the date when the interview was scheduled, not the date of the interview itself Look at the date of the interview appointment letter Two exceptions: If DOS terminates the IV registration associated with the previously scheduled interview and a new immediate relative petition is filed If the individual is the beneficiary of a new immediate relative petition filed by a different petitioner

Only available to overcome unlawful presence “Reason to believe” subject to other inadmissibility grounds  applicant will be disqualified and the waiver will be denied “Reason to believe” is a low legal standard Any reasonable possibility that another act would independently make the applicant inadmissible USCIS had been denying if any indication of criminal history New Field Guidance from USCIS 1/24/14 USCIS officers should review all evidence of record, including evidence submitted by the applicant or attorney of record If record shows a criminal offense falls within the petty offense or youthful offender exception or is not a CIMT that would render the applicant inadmissible  USCIS officers should not find a reason to believe and should continue the adjudication Brief the issue and cite to case law Include the record of conviction and a copy of the criminal statute

Not available to applicants in removal proceedings Move for administrative closure or termination prior to filing the I-601A Strategic considerations: Administrative closure/termination = may no longer actively seek any pending applications for relief Administrative closure vs. Termination Termination – no longer in removal proceedings No longer threatened with forced removal from the U.S. If I-601A is approved, applicant must seek termination prior to departing the U.S. regardless Administrative closure – case still considered to be before the immigration court Applications filed with the court may still be considered “pending” Reserves the option of seeking relief before the court as a back-up if the I-601A is not approved Approval of I-601 after administrative closure: Proceedings must be terminated prior to departure for IV interview Otherwise, “self-deported” and may trigger other inadmissibility grounds, leading to revocation of the approved I-601A

Not available to applicants with final orders or subject to reinstatement Cannot concurrently file an I-212 Application for Permission to Reapply for Admission After Removal with the I-601A Must first move for proceedings to be reopened and final order to be rescinded Must then move for proceedings to be administratively closed or terminated

Applicants must demonstrate extreme hardship Applicant must demonstrate: He or she has a U.S. citizen spouse or parent (not children!) That relative would suffer “extreme hardship” if the applicant is refused admission as an LPR Hardship beyond the normal hardship that is suffered when family members are separated Extreme Hardship factors weighed in the aggregate: Presence of family ties within and outside of the U.S. Emotional and psychological impact on the U.S. citizen relative Political, economic, and social conditions in the country of relocation Financial and professional impact on the U.S. citizen relative Any significant health conditions U.S. citizen’s ability to raise children and other quality-of-life factors in the country of relocation U.S. citizen’s age, length of residence in the U.S., health, technical skills, and employability Trend is a difference in the application of the standard between I-601s and I-601As

Procedural considerations

The immediate relative petition I-130 Petition for Alien Relative or I-360 Petition for Widow(er) Forms I-130 page 2, Part C, Question 22  will apply abroad at the U.S. consulate Filing fees Passport photos Evidence of petitioner’s U.S. citizenship Evidence of the beneficiary’s identity Supporting documentation establishing the requisite family relationship Demonstrate the bona fides of the family relationship by a preponderance of the evidence Submit the petition to USCIS

The department of state nvc Upon approval, petition is forwarded to the National Visa Center for initial processing of the immigrant visa Taking up to 90 days NVC contacts the applicant to request payment of the immigrant visa fees Fees paid online or by mail Must complete this step before filing the I-601A Notify NVC of intent to seek provisional waiver NVCi601a@state.gov Ensures that NVC waits to schedule the immigrant visa interview until after USCIS has finished processing the I-601A Not doing this may delay processing of the immigrant visa After payment of fees, NVC moves forward with immigrant visa processing (except scheduling of the interview) If interview is scheduled before I-601A is filed, contact the post directly

Preparing The I-601A Approval of the petition + payment of fees to NVC = time to prepare and file the provisional waiver application Form I-601A Filing fees ($585 + $85 biometrics, no fee waivers) Receipt number for I-130/I-360 I-130/I-360 approval notice Copy of fee receipt from the NVC Documenting extreme hardship Applicant’s identity and relationship to the qualifying relative Personal declarations of applicant and petitioner Family connections to the United States Financial ties to the United States and economic/financial conditions in the country of relocation Medical and psychological hardship and health care system in the country of relocation Effects on children that directly impact the qualifying relative Positive discretionary factors

Filing the I-601A USCIS Chicago Lockbox National Benefits Center will notify NVC when it has received the I-601A Automatic rejection of the I-601A if: Filing fee not paid No signature No name, domestic address, or date of birth Applicant under age 17 Applicant does not include evidence of an approved petition that classifies him or her as the immediate relative of a U.S. citizen Applicant fails to include a copy of the DOS fee receipt DOS initially acted to schedule the visa interview before 1/3/13 No interim benefits No lawful status or protection from removal conferred

Awaiting adjudication of the I-601A While awaiting adjudication of the I-601A, continue to submit Immigrant Visa documentation to the NVC I-601A interviews will usually NOT be scheduled But USCIS reserved the right to interview I-601A applicants on a case-by-case basis New hardship evidence after I-601A has been filed May supplement the I-601A with additional materials any time before I-601A is adjudicated Requests for Evidence (response time 30 days) Extreme hardship and discretion But concern that USCIS has been denying based on hardship without RFEs and with very little analysis No Notices of Intent to Deny Inquiries to USCIS: lockboxsupport@dhs.gov

Approval of the I-601A USCIS National Benefits Center will notify the applicant and the Department of State NVC NVC will then schedule the immigrant visa interview and forward the applicant’s file to the consulate Requires careful review and analysis prior to departure Approval of the I-601A does not guarantee return to the U.S. Approval does not waive any ground of inadmissibility other than INA section 212(a)(9)(B)(i)(I) or (II) Applicant travels abroad to apply for the visa at the consulate Complete the required medical examination Attend the immigrant visa interview Consular officer will issue the visa if all eligibility requirements are met New ineligibility or inadmissibility grounds discovered during the interview  revocation of the approved I-601A with no appeal

Denial of the I-601A USCIS will notify the applicant and the NVC of the denial NVC will still process the immigrant visa application and will schedule the visa interview abroad If applicant decides to proceed abroad to apply for the visa, he or she will have to follow the existing I-601 process abroad No administrative appeal for a denial of an I-601A I-290B motions to reopen and reconsider are generally not permitted But may consider requesting USCIS to reopen/reconsider on its own motion Letter to the National Benefits Center Must file a new I-601A application Filing fees paid again Additional evidence to overcome the reasons for the denial Must notify NVC of the intent to file a new Form I-601A If interview has already been scheduled, applicant must notify consular post directly of intent to re-file Federal court litigation? Yet to be seen whether federal courts would assume jurisdiction Will a Notice to Appear be issued? USCIS Memo dated 11/7/11 on guidance for issuance of NTAs

Questions? Dree Collopy Benach Ragland, LLP 202-644-8600 dcollopy@benachragland.com 202-644-8600 Kimberley Schaefer Schaefer Law Firm kim@immigrationvirginia.com 703-424-2979