Presentation on theme: "NEW UNLAWFUL PRESENCE WAIVER: UNITING FAMILIES SAFELY AND BOOSTING NATURALIZATION 2-25-13."— Presentation transcript:
1 NEW UNLAWFUL PRESENCE WAIVER: UNITING FAMILIES SAFELY AND BOOSTING NATURALIZATION
2 Our Presenters Charles Wheeler, Director Training & Legal Support Jack Holmgren, Field Service CoordinatorCenter for Citizenship and Immigrant Communities, CLINICJH
3 Slide AvailabilityWill be posted to the CLINIC website sometime this weekFind them under the Resources tabHover over the Resources tab and then locate Provisional Waivers and click on thatLook under webinars and click on thatJH
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 waiversCW
5 Polishing your Preparation This webinar is the 3rd on this topic and many of you have prepared for this change alreadyToday is a review and refresher with some new ideas for final preparationMaximizes immigrant integration in your communityJH
6 How Does it Promote Naturalization? Only certain immediate relatives can utilize the provisional waiverImmediate relatives (IRs) are spouses, parents, children of U.S. citizensIf have a green card, may be able to naturalize and some of their relatives automatically become IRsJH 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 leavingWaiver is adjudicated before leavingImmigrants can travel to their consular interview secure in the knowledge that they have been approved for the waiverNo 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 incomeFamily of the immigrant does not suffer the psychological damage and trauma of an extended (six-month +) separationJH
9 Why Is it Good for your Community? Immigrant families maintain incomeBusinesses benefit from a stable work forceNo use of public benefitsContinuity of participation in faith-based institutionsContinuity of parentingLower rates of depression due to uncertainty over immigration situationJH
10 More of Why it Helps your Community Promotes naturalizationNaturalization –Leads to higher/more:IncomeEducational achievementCivic participationInclusionImmigrant Integration in the fullest senseJH
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 familyYou get two service opportunities for the same goalIncreasing naturalization is keyJH – 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 naturalizationNaturalization is a safe bet for grant applicationsNobody opposes itYou can use naturalization to make the case for supporting your waiver workJH
13 It Will Increase Your Earned Income You will process cases efficiently and at a high level of legal competenceYou are authorized (BIA R & A or immigration attorney) to practice immigration lawYou will charge and receive fees for both naturalization and for doing the family visa with the waiverJH
14 Case management will be key Coordinating Naturalization and Family-Based Cases will Prepare You for CIRCIR will probably involve 13+ years from initial application to naturalizationCase management will be keyCoordinating the naturalization and family-based case and waiver will develop your program’s:Case management skills setCase management infrastructureJH
15 What Should Programs Do Now to Prepare? You have only one week. Go!Analyze current cases that could benefit from the provisional waiverMeet and discuss soonStart with your existing caseload of waiver eligible casesCommunicate with clients who would benefit if the petitioner naturalizedJH
16 Use This to Start Your Volunteer Group for CIR CIR will only work for your agency if you have many volunteersThis is your chance to start creating a robust volunteer componentVolunteers should be recruited from the pews and other placesJH
17 Outreach Do outreach to let the people know! This process of using the law takes some explaining so do it in their languageUse examples and have people speak who have suffered through lengthy waits outside the country under the old systemJH
18 Volunteers for Outreach Your volunteers will be helping clients document and describe extreme hardshipThat makes the volunteers your best resource to do outreach and talk about the hardship aspectThe volunteers will be your best resource to create a robust referral networkJH
19 Partner for Hardship Documentation Make the “ask”/build the relationship nowWho will you ask to help document extreme hardship?HospitalsDoctorsClinicsSocial workersSchool counselorsReligious personnelJH
20 Training Staff should prepare now In-person training E-learning trainingReach 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 connectionAsk a local foundation for supportJH
21 Training Up: What do You Need to Know To Represent Waiver Applicants? Law and skillsFamily-based immigrationInadmissibility assessmentWaiver eligibilityEffective interviewing and writingPreparing effective waiversDon’t stop at course work when you can learn from others first handCW
22 Upcoming CLINIC Trainings Omaha, March 20-21Los Angeles, June 10-11Kansas City, September 26-27E-learning courses starting again in JuneRecorded e-learning course available nowPeriodic articles or webinars if new infoCW
23 What Fees Should I Charge? Requires more work than many immigration benefit applicationsClient declaration: language capacity and ability to capture client’s voiceCoordinating with community providersPossible fee range: $ but could go higher depending on the level of workOf course fee waivers are always possibleJH
24 Provisional Waiver Book Available in JunePrint version, electronic versionAppendices:templates for intake and assessmentsample declarationssample list of documentssample cover lettersresources for gathering country conditions and other evidence of extreme hardshipCW
25 Provisional Waiver Listserv Exchange information and resultsHow USCIS implementing processMeeting hardship standardExpertsSources of documentationInsider tipsAsk questions and get helpOnly for CLINIC affiliatesCW
26 Final Regulation Published in Fed. Reg. on January 3, 2013 Implementation begins on March 4, 2013No applications accepted before thenForm I-601A not available yet
27 What’s It All About?Adjudication of unlawful presence waivers prior to consular interviewMust still establish extreme hardshipApplicant waits in U.S. for decision“Provisional” approval
28 Waivers for What Grounds? Only unlawful presence: 3- or 10-year barNot if left U.S. after triggering 10-year bar and then EWI’ed (permanent bar)Not if ordered deported or removedNot for other grounds (e.g., fraud, health, criminal conduct, smuggling)Ineligible if USCIS has “reason to believe” may be found inadmissible by consulateCw – 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 USCsRare for parents to qualify since would need USC parent or spouseRare for children since between 18-21QR need not be petitionerMust be at least 17Residing in U.S., legally or illegallyApproved I-130 or I-360 and paid IV fee billCharlesSs – who can take advantage of provisional waivers?(discuss age component and 360 scenarios)
30 Extreme Hardship to Whom? Extreme hardship to USC spouse or parentNot to LPR spouse or parentExtreme hardship to child only as it affects qualifying relative (USC parent/spouse)Current standard will not changeUSCIS reports I-601 approval rate of 65%Applications to be adjudicated by NBCCharlesSS 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 paidIV applicants scheduled before January 3, for consular interviewPersons in removal proceedings unless proceedings admin closed at time of filingPersons subject to final order of removalPersons subject to reinstatement of removalAdjustment applicantsSusanCw 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-130Spouse or child of LPR → petitioner can naturalizeQualifying relative is LPR → naturalizeApplicants 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 petitionCharlesss to cw – Some people don’t qualify for a provisional waiver now but might take steps to qualify. Who falls into this category?Cw explainsWhat 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 terminatedNot re-calendared when I-601A filedFile I-601A with USCIS, not EOIRIf approved, get proceedings terminatedCw 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 noticeFile sent to NVCReceive instructions from NVC, pay fee billNotify NVC that wish to file I-601AFile I-601A and supporting documentsFees: $585 for I-601A and $85 for biometrics (no fee waivers)Appear for biometricsNVC has sent out notices advising applicantsCw(note – NVC is already sending out these notices; we can show one if you like)
35 How Do You Notify the NVC? SpecialSubject line: NVC case number or USCIS receipt numberInclude petitioner’s name and DOB, representative’s name and address, statement that applicant seeking provisional waiverIf properly notified, NVC will suspend consular processingSusanCw to ss
36 What Happens After Waiver Approval? If waiver approved, notice sent to applicant and NVCComplete DS-230 or 260 and proceed with consular processing2-3 mos. after approval received, NVC will schedule interviewCharlesss 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 triggeredApplicants still undergo normal consular processing including medical exam and interviewIf applicant found to be inadmissible on any other ground, provisional waiver automatically revokedcwQuestion 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 authorizationAdvance paroleStop accrual of unlawful presenceProtection from removalAllow to apply for adjustment
39 How Will USCIS Adjudicate Provisional Waiver Applications? USCIS will issue RFEs if missing evidence:Extreme hardshipDiscretionary factorsUSCIS will not issue NOIDsUSCIS can reopen, reconsider on own motionNo appeal but can re-file I-601AOr can consular process and file I-6013-month adjudication targetcw601A instructions will include hardship checklistNote 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 discoveredUSCIS will deny waiver if extreme hardship to QR not establishedUSCIS may deny waiver as matter of discretionOther: failure to appear for biometricsSsAlso 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 4/30/01245(a): entered with inspection245(a): granted advance paroleSusancw 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. ESTToll-free number:Toll number for outside the U.S.:Passcode: ProvisionalCLINIC resources on websiteILRC podcast on provisional waiverjh
43 Basic Advice on Waiver Cases Start with effective interviewUnderstand all inadmissibility groundsInform client and bring into processRelate all hardship to the qualifying relativeDon’t ignore hardship to other family membersConsider and prioritize all hardship factorsDocument 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 alienEffective declarationsDiscuss discretionary factorsPackage application well: cover letter and index of documents
45 Questions?415 Michigan Ave., NE Suite 200Washington, DC 20017Follow us: twitter.com/cliniclegal Become a fan: facebook.com/cliniclegalJH – 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.