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

2. 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

3. 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

4. Substantive considerations

5. 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

6. 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

7. 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

8. 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

9. 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

10. 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

11. 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

12. 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

13. 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

14. Procedural considerations

15. 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

16. 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
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

17. 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

18. 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

19. 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:

20. 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

21. 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

22. Questions? Dree Collopy Benach Ragland, LLP 202-644-8600
Kimberley Schaefer
Schaefer Law Firm