Provisional Unlawful Presence Waivers of Inadmissibility for Certain Immediate Relatives

IMMIGRATION AND POLICY:: Law Offices of Norka M. Schell, LLC 11 Broadway, Suite 615, New York, NY 10004 Phone (212)564-1580 www.lawschell.com Certain spouses, c...

Law Offices of Norka M. Schell, LLC
11 Broadway, Suite 615, New York, NY 10004
Phone (212)564-1580
www.lawschell.com

Certain 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 relatives must travel abroad to obtain an immigrant visa from the Department of State (DOS) to return to the United Sates 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 relatives cannot apply for the waiver until after their immigrant visa interviews abroad.
As a result, these immediately 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, waive 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 the LPR status in the United States-departure from the United States to apply for an immigrant visa at a DOS consular abroad-is the very action that triggers the unlawful presence inadmissibility grounds under the Immigration and Nationality Act (INA) section 212(a)(9)(B)(i), 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.

On April 2, 2012, the United States Immigration Services (USCIS) published a Notice of Proposed Rule-making (NPRM) regarding the provisional unlawful presence waiver process. DHS reviewed and considered all of the public comments. As a result, DHS adopted most of the public comments and produced a final rule. The completion of the provisional unlawful presence waiver process was then announced to the public on January 2, 2012 by the Secretary of Homeland Security, Janet Napolitano. 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. In addition, the Federal Government should achieve increased efficiencies in processing immigrant visas for individuals subject to the unlawful presence inadmissibility bars under the INA section 212(a)(9)(B), 8 U.S.C. 1182(a)(9)(B).

USCIS will start accepting unlawful presence waiver application (I-601A) on March 4, 2013. It is important to keep in mind that the provisional unlawful presence waiver process does not confer any legal status, protect against the accrual of additional periods of unlawful presence, authorize an alien to enter the United States without securing a visa or other appropriate entry document, convey any interim benefits (e.g., employment authorization, parole, or advance parole), or 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 the use of prosecutorial discretion.

For questions about the provisional unlawful presence waiver process please visit the Law Offices of Norka M. Schell, LLC's website www.lawschell.com or call our office at (212)564-1589 to speak with an attorney or visit the USCIS website at www.uscis.gov>

IMMIGRATION AND POLICY: Final Rule to Support Family Unity During Waiver P...

IMMIGRATION AND POLICY: Final Rule to Support Family Unity During Waiver P...: Homeland Security  Release Date: January 2, 2012 Today the Secretary of Homeland Security Jane Napolitano announced the posting of a fi...

Final Rule to Support Family Unity During Waiver Process

Homeland Security 
Release Date: January 2, 2012

Today the Secretary of Homeland Security Jane Napolitano 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, 2012 and more information about the filing process will be made available in the coming weeks.

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 the 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 States 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 fro 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.
For more information about the Release, please call our office at (212)564-1589 to speak with an attorney or visit the www.uscis.gov.

IMMIGRATION AND POLICY: Employment Discrimination Claim Settled (Form I-9/...

IMMIGRATION AND POLICY: Employment Discrimination Claim Settled (Form I-9/...: Justice Department settled discrimination claim against Oregon Homecare Provider. ComForcare In-Home Care & Senior Services, a home pr...

Employment Discrimination Claim Settled (Form I-9/ E-Verify)

Justice Department settled discrimination claim against Oregon Homecare Provider. ComForcare In-Home Care & Senior Services, a home provider for sick and elderly patients in Tigard, Ore. The agreement resolve claims that the provider violated the anti-discrimination provision of the Immigration and Nationality Act (INA), when it demanded unnecessary documentation from a newly naturalized citizen in response to an initial mismatch in E-Verify and then refused to hire her when she did not produce it. ion

The investigation stemmed from a charge filed by a naturalized U.S. citizen, who was not allowed to work for ComForce after the company received an initial mismatch in her data in E-Verify, called a tentative non-confirmation.  E-Verify is an Internet-based system run by U.S. Citizenship and Immigration Services (USCIS) that confirms employment eligibility by comparing information from an employee's Form I-9 to from that all new employees must complete upon hire, to data in the Department of Homeland Security's and Social Security Administration's records. 

If an employee receives a tentative non-confirmation, E-Verify requires the employer to provide the employee with a tentative non-confirmation notice offering the employee the choice to contest the mismatch.   If the employee decides to contest the mismatch, the employee must be allowed to work while resolving a tentative non-confirmation, and the rules do not permit an employer to request additional documentation based on a tentative non-confirmation.   ComForcare failed to provide the charging party with written notice of her tentative non-confirmation, as required by E-Verify, demanded that she produce an “alien card” and did not allow her to start working.   When the charging party informed ComForcare that, as a naturalized citizen, she did not possess an alien card, ComForcare demanded her naturalization papers even though she had already produced proper work authorization documents during the Form I-9 process. The investigation also established that ComForcare requested that non-U.S. citizens and persons perceived to be non-U.S. citizens produce specific employment eligibility documents to establish their employment eligibility rather than allowing these individuals to show their choice of valid documentation.  

       Under the settlement agreement, ComForcare will pay approximately $525 in back pay to the charging party and $1,210 in civil penalties to the United States.   ComForcare will also train its human resources staff about employers’ responsibilities to avoid discrimination in the employment eligibility verification process and be subject to reporting and compliance monitoring by the department for eighteen months.  

          “This case illustrates the importance of following E-Verify rules consistently regardless of citizenship status or perceived status, or risk running afoul of the anti-discrimination provision,” said Thomas E. Perez, Assistant Attorney General for the Civil Rights Division.   “Subjecting naturalized citizens to heightened documentary standards that result in the loss of employment constitutes discrimination, and the Division is fully committed to enforcing the law that prohibits it.”

      The Office of Special Counsel (OSC) for Immigration-Related Unfair Employment Practices is responsible for enforcing the anti-discrimination provision of the INA, which protects work-authorized individuals from employment discrimination on the basis of citizenship status or national origin discrimination, including discrimination in hiring and the employment eligibility verification (Form I-9) process. 

      For more information about protections against employment discrimination under federal immigration law, call our office at (212)564-1589 or visit our website at   www.lawschell.com  or contact OSC’s worker hotline at 1-800-255-7688 (1-800-237-2515, TDD for hearing impaired).

IMMIGRATION AND POLICY: USCIS Will Collect New Immigration Fee On Feb. 1, ...

IMMIGRATION AND POLICY: USCIS Will Collect New Immigration Fee On Feb. 1, ...: United States Immigration and Naturalization (USCIS) announced that starting on Feb. 1, 2013, it will begin collecting a new USCIS Immigra...

USCIS Will Collect New Immigration Fee On Feb. 1, 2013

United States Immigration and Naturalization (USCIS) announced that starting on Feb. 1, 2013, it will begin collecting a new USCIS Immigration Fee of $165 for foreign nationals seeking permanent residence in the United States. The new fee will allow USCIS to recover the costs of processing visas after individuals receive their visa packages from the Department of State (DOS) abroad.

USCIS has worked closely with the DOS to implement the new fee which allows USCIS to recover the costs of processing immigration visas in the United States after immigrant visa holder receive their visa packages from DOS. This includes staff time to handle, file and maintain the immigrant visa package, and the cost of producing and delivering the permanent  resident card. The implementation of this new fee is further detailed in the December 14, 2012 Federal Register notice.

In order to simplify and centralize the payment process, applicants will pay online through the USCIS website after they receive their visa package from DOS and before they depart for the United States. DOS will provide applicants with specific information on how to submit payment when they attend their consular interview. The new fee is in addition to fees charged by DOS associated with an individual's immigrant visa application.

USCIS  processes approximately 35,00 immigrant visa packages each month. Prospective adoptive parents whose child will enter the United States under the Orphan or Hague processes are exempt from the new fee.

For more information contact our offices or visit the USCIS Immigrant Fee website.