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 JH

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

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

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

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.

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.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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 JH

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

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

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

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

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

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)

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?

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 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?

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? 205.1(a)(3)(i)(A) = automatic revocation due to withdrawal by petitioner. DOS must terminate case and registration if automatically revoked. 9 FAM

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?

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)

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 Susan Cw to ss

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?

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 -

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

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)

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

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.

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 jh

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

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

Questions? 415 Michigan Ave., NE Suite 200 Washington, DC 20017 202-635-2556 national@cliniclegal.org Follow us: twitter.com/cliniclegal Become a fan: facebook.com/cliniclegal 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.