1. NEW UNLAWFUL PRESENCE WAIVER: UNITING FAMILIES SAFELY AND BOOSTING NATURALIZATION

2. Our Presenters Charles Wheeler, Director Training & Legal Support
Jack Holmgren, Field Service Coordinator
Center for Citizenship and Immigrant Communities, CLINIC JH

3. 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 JH

4. 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 CW

5. 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 JH

6. 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
JH does the slide and then…
Charles: “The nationality that stands to benefit in the greatest numbers in terms of naturalization is folks from Mexico. Historically, this group has naturalized at lower rates than others. Suddenly, this opportunity gives them new drive to make the most important step in immigrant integration.

7. 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)!
JH covers the slide and then:
CW chimes in at the bottom: The nationality that will see the greatest number of people benefit from this are Mexicans. They have the greatest number of visa applicants who have to deal with the 3 and 10 year unlawful presence bars.

8. 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 JH

9. 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 JH

10. 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 JH

11. 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
JH – Mention again that the slides will be posted to the website

12. 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 JH

13. 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 JH

14. Case management will be key
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 JH

15. 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 JH

16. 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 JH

17. 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 JH

18. 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 JH

19. 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 JH

20. 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 JH

21. 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 CW

22. 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 CW

23. 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: $ but could go higher depending on the level of work
Of course fee waivers are always possible JH

24. 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 CW

25. 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 CW

26. 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

27. 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

28. 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
Cw – so what is waivable with the provisional waiver?
ss –Waiver is exclusively for 212(a)(9)(B) – the three or the ten year bar.
So, as we know, a client’s history of coming and going from the U.S. can create multiple grounds of inadmissibility just from the client’s entry and exiits to and from the U.S. - if your clients history triggers other related inadmissibility grounds, like the permanent bar under (a)(9)(C) or the bar fro prior removals under (a)(9)(A), that will defeat eligibility for the provisional waiver.
As will falling within any other inadmissibility ground – it’s 212(a)(9)(B) only for purposes of provisional waiver eligibiliity.
But while the provisional waiver is limited to (a)(9)(B) inadmissibility, that is far and away the most common ground of inadmissibility found at the consulate. The DOS stats for FY 2011 for example, list over 25,000 findings of (a)(9)(B) inadmissibility for the ten-year bar for IV applicants. To put that in perspective, about 6800 were found inadmissible for wilful misrep during that time, and about 2600 for smuggling. So, even while we’d all like to see this process extend to cover other inadmissibility grounds, this should provide a benefit to many potential immigrant visa applicants

29. 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
Charles
Ss – who can take advantage of provisional waivers?
(discuss age component and 360 scenarios)

30. 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
Charles
SS TO CW: Provisional waivers only relate to 212(a)(9)(B) inadmissibility – which provides a waiver where there a USC or LPR spouse or parent will suffer extreme. Does that carry over to the provisional waiver system?

31. 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, 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
Susan
Cw to ss; provisional waivers are limited to 212(a)(9)(B) and to waiver applications by IRS based on extreme hardship to a USC spouse or parent. Who else isn’t covered?

32. 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
Charles
ss to cw – Some people don’t qualify for a provisional waiver now but might take steps to qualify. Who falls into this category?
Cw explains
What if an in interview was scheduled before 1/3/2013 – can the beneficiary qualify for a provisional waiver if the petitioner withdraws the petition and then re-files? (a)(3)(i)(A) = automatic revocation due to withdrawal by petitioner. DOS must terminate case and registration if automatically revoked. 9 FAM

33. 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
Cw to ss – We already learned that the final regs improved access to the provisional waiver for persons in removal proceedings. How does this work?

34. 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 Cw
(note – NVC is already sending out these notices; we can show one if you like)

35. How Do You Notify the NVC?
Special
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
Susan
Cw to ss

36. 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
Charles
ss to cw – Your waiver is approved – now what?
What if applicant doesn’t hear from NVC?

37. 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 cw
Question to Allison: If a person is found inadmissible at the consulate on another waivable ground – for example, a wilful misrep waivable under 212(i) – will the extreme hardship finding made for the provisional approval transfer to the new adjudication?
Allison addresses -

38. 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

39. 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 cw
601A instructions will include hardship checklist
Note that regs reserve right to deny without an RFE (212.7(e)(8)

40. What Circumstances Trigger Denial?
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 Ss
Also 8 cfr 212.7(e)(5): application will be rejected and fee and submission returned to applicant where:
-- fail to pay fee, or sign application, or omit name, address, DOB
-- fail to sign application
-- under age 17
-- fail to include fee receipt showing IV fee paid
-- fail to include evidence of classification as IR
--indicates that DOS initially scheduled interview before Jan. 3, 2013

41. 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
Susan
cw to ss – Let’s assume you’ve concluded that your client meets the eligility requirements to file a 601A – are there other considerations to take into account.

42. Additional Resources USCIS Stakeholders call on provisional waiver
Tuesday, 2/26 at 2 p.m. EST
Toll-free number:
Toll number for outside the U.S.:
Passcode: Provisional
CLINIC resources on website
ILRC podcast on provisional waiver jh

43. 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

44. 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

45. Questions?
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JH – Describe the many ways the webinar participant can enrich themselves by tapping into CLINIC’s menu of support. Point out that they should connect thru regularly reviewing our website and joining our listserves, e.g., DACA List Serve and our daily CIR Newletter.