NEW UNLAWFUL PRESENCE WAIVER: UNITING FAMILIES

SAFELY AND BOOSTING NATURALIZATION

2-25-13

Our Presenters

• Charles Wheeler, Director

Training & Legal Support

cwheeler@cliniclegal.org • Jack Holmgren, Field Service Coordinator

Center for Citizenship and Immigrant Communities, CLINIC jholmgren@cliniclegal.org

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Slide Availability

• Will be posted to the CLINIC website sometime this week

• Find them under the Resources tab• Hover over the Resources tab and then

locate Provisional Waivers and click on that• Look under webinars and click on that

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Agenda

• What does the provisional waiver do?• Who qualifies and what is procedure?• How can you maximize the benefits of

this for your current/future clients?• What’s in it for your program and what

should you do?• General advice on filing waivers

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Polishing your Preparation

• This webinar is the 3rd on this topic and many of you have prepared for this change already

• Today is a review and refresher with some new ideas for final preparation

• Maximizes immigrant integration in your community

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How Does it Promote Naturalization?

• Only certain immediate relatives can utilize the provisional waiver

• Immediate relatives (IRs) are spouses, parents, children of U.S. citizens

• If have a green card, may be able to naturalize and some of their relatives automatically become IRs

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How Does it Promote Family Reunification?

• Allows waiver to be filed before leaving• Waiver is adjudicated before leaving• Immigrants can travel to their consular

interview secure in the knowledge that they have been approved for the waiver

• No surprises (hopefully)!

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How Does it Promote Stable Family Income and Family Unity?

• Immigrant stays here and continues to earn until they leave for a few days for the consular interview - no loss of income

• Family of the immigrant does not suffer the psychological damage and trauma of an extended (six-month +) separation

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Why Is it Good for your Community?

• Immigrant families maintain income• Businesses benefit from a stable work force• No use of public benefits• Continuity of participation in faith-based

institutions• Continuity of parenting• Lower rates of depression due to

uncertainty over immigration situation

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More of Why it Helps your Community

• Promotes naturalization• Naturalization –

– Leads to higher/more:• Income• Educational achievement• Civic participation• Inclusion

– Immigrant Integration in the fullest sense

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What’s in it for Your Program?

• It is an immigrant integration one-two punch!

• Your program is at the top of its game when it can naturalize someone and that helps to safely re-unite a family

• You get two service opportunities for the same goal

• Increasing naturalization is key

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Why Is it Key to Increase Naturalization?

• Nationally, naturalization is where it is at!• Funders focus on naturalization• Naturalization is a safe bet for grant

applications• Nobody opposes it• You can use naturalization to make the

case for supporting your waiver work

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It Will Increase Your Earned Income

• You will process cases efficiently and at a high level of legal competence

• You are authorized (BIA R & A or immigration attorney) to practice immigration law

• You will charge and receive fees for both naturalization and for doing the family visa with the waiver

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Coordinating Naturalization and Family-Based Cases will Prepare You for CIR

• CIR will probably involve 13+ years from initial application to naturalization

• Case management will be key• Coordinating the naturalization and

family-based case and waiver will develop your program’s:– Case management skills set– Case management infrastructure

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What Should Programs Do Now to Prepare?

• You have only one week. Go!• Analyze current cases that could benefit

from the provisional waiver• Meet and discuss soon• Start with your existing caseload of waiver

eligible cases• Communicate with clients who would benefit

if the petitioner naturalized

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Use This to Start Your Volunteer Group for CIR

• CIR will only work for your agency if you have many volunteers

• This is your chance to start creating a robust volunteer component

• Volunteers should be recruited from the pews and other places

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Outreach

• Do outreach to let the people know!• This process of using the law takes

some explaining so do it in their language

• Use examples and have people speak who have suffered through lengthy waits outside the country under the old system

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Volunteers for Outreach

• Your volunteers will be helping clients document and describe extreme hardship

• That makes the volunteers your best resource to do outreach and talk about the hardship aspect

• The volunteers will be your best resource to create a robust referral network

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Partner for Hardship Documentation

• Make the “ask”/build the relationship now

Who will you ask to help document extreme hardship?– Hospitals– Doctors– Clinics– Social workers– School counselors– Religious personnel

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Training

• Staff should prepare now• In-person training• E-learning training• Reach out to other agencies/local private

attorneys that have done the unlawful presence waiver to learn from them peer-to-peer. CLINIC affiliates: Call CLINIC for a connection

• Ask a local foundation for support

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Training Up: What do You Need to Know To Represent Waiver Applicants?

• Law and skills– Family-based immigration– Inadmissibility assessment– Waiver eligibility– Effective interviewing and writing– Preparing effective waivers

• Don’t stop at course work when you can learn from others first hand

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Upcoming CLINIC Trainings

• Omaha, March 20-21• Los Angeles, June 10-11• Kansas City, September 26-27• E-learning courses starting again in June• Recorded e-learning course available now• Periodic articles or webinars if new info

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What Fees Should I Charge?

• Requires more work than many immigration benefit applications

• Client declaration: language capacity and ability to capture client’s voice

• Coordinating with community providers• Possible fee range: $600-800 but could go

higher depending on the level of work• Of course fee waivers are always possible

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Provisional Waiver Book

• Available in June• Print version, electronic version• Appendices:

– templates for intake and assessment– sample declarations– sample list of documents– sample cover letters– resources for gathering country conditions and

other evidence of extreme hardship

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Provisional Waiver Listserv

• Exchange information and results• How USCIS implementing process• Meeting hardship standard• Experts• Sources of documentation• Insider tips• Ask questions and get help• Only for CLINIC affiliates

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Final Regulation

• Published in Fed. Reg. on January 3, 2013• Implementation begins on March 4, 2013• No applications accepted before then• Form I-601A not available yet

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What’s It All About?

• Adjudication of unlawful presence waivers prior to consular interview

• Must still establish extreme hardship• Applicant waits in U.S. for decision• “Provisional” approval

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Waivers for What Grounds?

• Only unlawful presence: 3- or 10-year bar• Not if left U.S. after triggering 10-year bar

and then EWI’ed (permanent bar)• Not if ordered deported or removed• Not for other grounds (e.g., fraud, health,

criminal conduct, smuggling)• Ineligible if USCIS has “reason to believe”

may be found inadmissible by consulate

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Who is Covered?

• IRs who are consular processing– Spouses, children, parents of USCs– Rare for parents to qualify since would need

USC parent or spouse– Rare for children since between 18-21

• QR need not be petitioner• Must be at least 17• Residing in U.S., legally or illegally• Approved I-130 or I-360 and paid IV fee bill

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Extreme Hardship to Whom?

• Extreme hardship to USC spouse or parent • Not to LPR spouse or parent• Extreme hardship to child only as it affects

qualifying relative (USC parent/spouse)• Current standard will not change• USCIS reports I-601 approval rate of 65%• Applications to be adjudicated by NBC

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Who is Not Covered?

• Inadmissible on other grounds• Under age 17• No case pending with DOS, IV fee not paid• IV applicants scheduled before January 3, 2013

for consular interview• Persons in removal proceedings unless

proceedings admin closed at time of filing• Persons subject to final order of removal• Persons subject to reinstatement of removal• Adjustment applicants

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Who is Not Covered but Could Be?

• IRs who have not started family-based process → file I-130

• Spouse or child of LPR → petitioner can naturalize

• Qualifying relative is LPR → naturalize• Applicants scheduled for IV interview

before 1/3/13 → new I-130 by different petitioner; new I-130 by same petitioner following DOS termination of first I-130 or withdrawal of approved petition

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What if in Removal Proceedings?

• Get proceedings administratively closed or terminated

• Not re-calendared when I-601A filed• File I-601A with USCIS, not EOIR• If approved, get proceedings terminated

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What’s the Filing Procedure?

• File I-130 or I-360, receive approval notice• File sent to NVC• Receive instructions from NVC, pay fee bill• Notify NVC that wish to file I-601A• File I-601A and supporting documents• Fees: $585 for I-601A and $85 for biometrics

(no fee waivers)• Appear for biometrics• NVC has sent out notices advising applicants

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How Do You Notify the NVC?

• Special e-mail: nvci601a@state.gov• Subject line: NVC case number or USCIS

receipt number • Include petitioner’s name and DOB,

representative’s name and address, statement that applicant seeking provisional waiver

• If properly notified, NVC will suspend consular processing

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What Happens After Waiver Approval?

• If waiver approved, notice sent to applicant and NVC

• Complete DS-230 or 260 and proceed with consular processing

• 2-3 mos. after approval received, NVC will schedule interview

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Provisional Waiver Approval Does Not Guarantee Visa Issuance

• Approval “provisional” because unlawful presence bar not yet triggered

• Applicants still undergo normal consular processing including medical exam and interview

• If applicant found to be inadmissible on any other ground, provisional waiver automatically revoked

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Provisional Waiver Approval Grants No Benefits

• No right to:– Work authorization– Advance parole– Stop accrual of unlawful presence– Protection from removal– Allow to apply for adjustment

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How Will USCIS Adjudicate Provisional Waiver Applications?

• USCIS will issue RFEs if missing evidence:– Extreme hardship– Discretionary factors

• USCIS will not issue NOIDs• USCIS can reopen, reconsider on own

motion• No appeal but can re-file I-601A• Or can consular process and file I-601• 3-month adjudication target

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• USCIS will deny waiver if other possible grounds of inadmissibility discovered

• USCIS will deny waiver if extreme hardship to QR not established

• USCIS may deny waiver as matter of discretion

• Other: failure to appear for biometrics

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What Circumstances Trigger Denial?

Remedy Assessment: Don’t Forget to Consider….

• Does the client have a reasonable chance of meeting extreme hardship test?

• Is client a US citizen and not an alien?• Does the client have a way to qualify for

adjustment?– 245(i): prior petition filed before 4/30/01– 245(a): entered with inspection– 245(a): granted advance parole

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Additional Resources

• USCIS Stakeholders call on provisional waiver 

• Tuesday, 2/26 at 2 p.m. EST• Toll-free number: 1-800-369-2065 • Toll number for outside the U.S.: 1-212-

547-0425 • Passcode: Provisional • CLINIC resources on website• ILRC podcast on provisional waiver

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Basic Advice on Waiver Cases

• Start with effective interview• Understand all inadmissibility grounds• Inform client and bring into process• Relate all hardship to the qualifying relative• Don’t ignore hardship to other family

members• Consider and prioritize all hardship factors• Document all hardship factors

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Basic Advice on Waiver Cases

• How does applicant’s absence affect current hardship: nexus!

• Prove two things: qualifying relative cannot leave U.S. and can’t stay here w/o alien

• Effective declarations• Discuss discretionary factors• Package application well: cover letter and

index of documents

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