Expanded I-601A Waivers- Provisional Waiver of Inadmissibility

September 6, 2016 § Leave a comment

If a visa applicant was facing a 3 or 10 year bar from entering the United States, s/he can request admission by applying for the I-601 waiver. Before March 4, 2013, this waiver could only be applied for from outside of the US.

The applicant would have had to-

  • Leave the United States, knowing that s/he may not be allowed to return for 10 years.
  • Attend an interview with the US consulate in the applicant’s home country.
  • Be found inadmissible because of the 3 or 10 year bar.
  • Then, apply for the I-601 waiver.

Understandably, visa applicants inside the US who had accrued enough unlawful time to be facing a 3 or 10 year bar were reluctant to leave the country to attend their consular interviews. It was impossible to know how long the interview, denial, and waiver application process could take.

The Department of Homeland Security has tried to amend that. As of March 4, 2013, applicants who would face a 3 or 10 year bar upon exiting the US can apply for a provisional unlawful presence waiver from the bar, while still on US soil. On July 29, 2016, the DHS expanded upon this rule which took effect on August 29, 2016. In the final rule, the provisional unlawful presence waiver process has been expanded to now include all individuals seeking provisional waivers, including those in removal proceedings before the Executive Office for Immigration Review (EOIR).  This also means that a qualifying US relative now includes U.S. permanent residents as well as U.S. citizens.

Further, the final rule allows individuals to apply for provisional waivers even if USCIS has a reason to believe that they may be subject to other grounds of inadmissibility.  Other modifications include: Eliminating the proposed temporal limitations that would have restricted eligibility for provisional waivers based on DOS visa interview scheduling; Allowing individuals with final orders of removal, exclusion, or deportation to be eligible for provisional waivers provided that they have already applied for, and USCIS has approved, an Application for Permission to Reapply for Admission into the United States After Deportation or Removal, Form I-212; Clarifying that DHS must have actually reinstated a removal, deportation, or exclusion order in order for an individual who has returned to the United States unlawfully after removal to be ineligible for a provisional waiver on that basis; as well as several technical and non-substantive changes.

The new provisions for applying for the I-601A are intended to help to promote family unity and improves administrative efficiency. Visa applicants facing a 3 or 10 year bar can apply for the I-601A while still inside the US, and can be reasonably sure before they leave whether they will be barred from readmission to the United States.


Refugee Protection Act of 2016

August 24, 2016 § Leave a comment

The Refugee Protection Act of 2016 has been introduced to the US House and Senate by Senator Patrick Leahy of Vermont and Representative Zoe Lofgren of California on July 14, 2016. This act is intended to strengthen current U.S. laws pertaining to refugees and asylum seekers, the passage of which date back to the historic Refugee Act of 1980.   The bill also seeks to correct barriers that bar deserving individuals from receiving asylum in the United States. According to Human Rights First, some of the improvements proposed in the Refugee Protection Act of 2016 are an elimination of the one year filing deadline, the provision for asylum cases to be handled at an asylum office rather than in an immigration court, setting criteria for detaining an asylum seeker, and providing legal counsel to some particularly vulnerable populations.

Each year the president sets a ceiling for the number of refugees it will accept. In 2015, the ceiling was 70,000. 69,933 refuges were accepted. Obama has proposed to increase this ceiling to 100,000 by 2017. The passage of the bill would be a significant step toward protecting freedom and preserving human rights of those facing persecution from all around the world.

Status of STEM Extension or OPT Extension

August 19, 2015 § Leave a comment

On Wednesday, August 12, 2015, the US District Court for the District of Columbia ruled that the US Department of Homeland Security (“DHS”) did not follow required procedures when it promulgated regulations allowing for certain extensions of F-1 Optional Practical Training (“OPT”) employment authorization. The Court has provided a period of six months by February 12, 2016 to allow DHS time to submit the rule again with appropriate notice and comment. There is no immediate impact on STEM or “cap-gap” OPT extensions.  The judge’s decision does not invalidate the employment authorization for current STEM extension holders, nor does it preclude an individual from applying for and being granted a STEM extension up until February 12, 2016. With the six month period, DHS should have sufficient time to issue the rule again for notice and comment and finalization prior to February 12, 2016. If DHS follows the Court’s direction, there should continue to be no impact on STEM or “cap-gap” OPT extensions. More updates will be provided as new information becomes available.

FY2016 H-1B Update

April 23, 2015 § Leave a comment

This year USCIS received nearly a whopping 233,000 H-1B petitions during the filing period, which began April 1. On April 13, USCIS used a computer-generated random selection process, or lottery, to select enough petitions to meet the 65,000 general-category cap and the 20,000 cap under the advanced degree exemption.

USCIS conducted the selection process for the advanced degree exemption first. All unselected advanced degree petitions then became part of the random selection process for the 65,000 limit.  All final unselected petitions would be rejected and returned with their filing fees, unless the petition is found to be a duplicate filing.

USCIS will begin premium processing for cap-subject H-1B petitions requesting premium processing, including petitions seeking an exemption for individuals with a U.S. master’s degree or higher, on April 27, 2015.  For H-1B petitions that are not subject to the cap and for any other visa classification, the 15-day processing period for premium processing service begins on the date that USCIS receives the request. However, for cap-subject H-1B petitions, including advanced degree exemption petitions, the 15-day processing period set by 8 CFR § 103.7(e)(2) will begin on April 27, 2015, regardless of the date on the Form I-797 receipt notice, which indicates the date that the premium processing fee is received.

The President’s Immigration Accountability Executive Actions

November 21, 2014 § Leave a comment

First, for those of you who missed the President’s remarks last night, you get a chance to read them here.

Then taken from the Department of Homeland Security’s website (DHS) below is a just published layout of the President’s Executive Actions one by one.  You may also find further details on the DHS website:

Strengthen Border Security

DHS will implement a Southern Border and Approaches Campaign Strategy to fundamentally alter the way in which we marshal resources to the border.  This new plan will employ DHS assets in a strategic and coordinated way to provide effective enforcement of our laws and interdict individuals seeking to illegally across land, sea, and air.  To accomplish this, DHS is commissioning three task forces of various law enforcement agencies.  The first will focus on the southern maritime border.  The second will be responsible for the southern land border and the West Coast.  The third will focus on investigations to support the other two task forces.  In addition, DHS will continue the surge of resources that effectively reduced the number of unaccompanied children crossing the border illegally this summer. This included additional Border Patrol agents, ICE personnel, criminal investigators, additional monitors, and working with DOJ to reorder dockets in immigration courts, along with reforms in these courts.

Revise Removal Priorities

DHS will implement a new department-wide enforcement and removal policy that places top priority on national security threats, convicted felons, gang members, and illegal entrants apprehended at the border; the second-tier priority on those convicted of significant or multiple misdemeanors and those who are not apprehended at the border, but who entered or reentered this country unlawfully after January 1, 2014; and the third priority on those who are non-criminals but who have failed to abide by a final order of removal issued on or after January 1, 2014.  Under this revised policy, those who entered illegally prior to January 1, 2014, who never disobeyed a prior order of removal, and were never convicted of a serious offense, will not be priorities for removal.  This policy also provides clear guidance on the exercise of prosecutorial discretion.

End Secure Communities and Replace it with New Priority Enforcement Program

DHS will end the Secure Communities program, and replace it with the Priority Enforcement Program (PEP) that will closely and clearly reflect DHS’s new top enforcement priorities. The program will continue to rely on fingerprint-based biometric data submitted during bookings by state and local law enforcement agencies and will identify to law enforcement agencies the specific criteria for which we will seek an individual in their custody. The list of largely criminal offenses is taken from Priorities 1 and 2 of our new enforcement priorities. In addition, we will formulate plans to engage state and local governments on enforcement priorities and will enhance Immigration and Customs Enforcement’s (ICE) ability to arrest, detain, and remove individuals deemed threats to national security, border security, or public safety.

Personnel Reform for ICE Officers

Related to these enforcement and removal reforms, we will support job series realignment and premium ability pay coverage for ICE ERO officers engaged in removal operations.  These measures are essential to bringing ICE agents and officers pay in line with other law enforcement personnel.

Expand Deferred Action for Childhood Arrivals (DACA) Program

We will expand eligibility for DACA to encompass a broader class of children.  DACA eligibility was limited to those who were under 31 years of age on June 15, 2012, who entered the U.S. before June 15, 2007, and who were under 16 years old when they entered.  DACA eligibility will be expanded to cover all undocumented immigrants who entered the U.S. before the age of 16, and not just those born after June 15, 1981.  We will also adjust the entry date from June 15, 2007 to January 1, 2010.  The relief (including work authorization) will now last for three years rather than two.

Extend Deferred Action to Parents of U.S. Citizens and Lawful Permanent Residents

DHS will extend eligibility for deferred action to individuals who (i) are not removal priorities under our new policy, (ii) have been in this country at least 5 years, (iii) have children who on the date of this announcement are U.S. citizens or lawful permanent residents, and (iv) present no other factors that would make a grant of deferred action inappropriate.  These individuals will be assessed for eligibility for deferred action on a case-by-case basis, and then be permitted to apply for work authorization, provided they pay a fee.  Each individual will undergo a thorough background check of all relevant national security and criminal databases, including DHS and FBI databases. With work-authorization, these individuals will pay taxes and contribute to the economy.

Expand Provisional Waivers to Spouses and Children of Lawful Permanent Residents

The provisional waiver program DHS announced in January 2013 for undocumented spouses and children of U.S. citizens will be expanded to include the spouses and children of lawful permanent residents, as well as the adult children of U.S. citizens and lawful permanent residents.  At the same time, we will further clarify the “extreme hardship” standard that must be met to obtain the waiver.

Revise Parole Rules

DHS will begin rulemaking to identify the conditions under which talented entrepreneurs should be paroled into the United States, on the ground that their entry would yield a significant public economic benefit.  DHS will also support the military and its recruitment efforts by working with the Department of Defense to address the availability of parole-in-place and deferred action to spouses, parents, and children of U.S. citizens or lawful permanent residents who seek to enlist in the U.S. Armed Forces. DHS will also issue guidance to clarify that when anyone is given “advance parole” to leave the country – including those who obtain deferred action – they will not be considered to have departed.  Undocumented aliens generally trigger a 3- or 10-year bar to returning to the United States when they depart.

Promote the Naturalization Process

To promote access to U.S. citizenship, we will permit the use of credit cards as a payment option for the naturalization fee, and expand citizenship public awareness. It is important to note that the naturalization fee is $680, currently payable only by cash, check or money order. DHS will also explore the feasibility of expanding fee waiver options.

Support High-skilled Business and Workers

DHS will take a number of administrative actions to better enable U.S. businesses to hire and retain highly skilled foreign-born workers and strengthen and expand opportunities for students to gain on-the-job training.  For example, because our immigration system suffers from extremely long waits for green cards, we will amend current regulations and make other administrative changes to provide needed flexibility to workers with approved employment-based green card petitions.

Further guidance on the above will be made available in the next several weeks and months.

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