What on earth is a provisional waiver?: How the Provisional Waiver changes the Immigration game.

What on earth is a provisional waiver?: How the Provisional Waiver changes the Immigration game.

Neil F. Lewis, Esq.

neilflewis@live.com

In an effort to keep families together and to streamline and regulate the approval of waivers of inadmissibility, the Department of Homeland Security issued new regulations allowing the filing of a provisional waiver for certain inadmissible persons, starting March 4, 2013.

An inadmissible alien is an immigrant who is not eligible to adjust his status (i.e., get his lawful permanent residence) in the US. This could be for many reasons, including criminal, illegal entry, fraud, and drug problems. In every case until March 4, 2013, in order to have a waiver of unlawful presence considered, an illegal entrant would have to be in his native country waiting for an answer. The answers and the timelines for an answer would vary from Embassy to Embassy. Most immigrants who received their green card in this manner stayed out of the US for 1 to 2 years before they were able to return. And the torture they endured is that they did not always know whether or not they would return.

That harsh period of separation will still apply to those applying for a waiver for criminal or fraud reasons, and for those who have been deported before. But for those who need a waiver of inadmissibility solely because of unlawful presence in the US, the new waiver process is available.

Basically this provisional waiver is for illegal entrants from Central and South America who have been in the US without permission for longer than one year (immigrants present in the US after being legally admitted who get married to a US citizen get their green cards in the US without too much trouble). To qualify to file for the waiver in the US, the applicant must be present in the US, and the only ground of inadmissibility he is subject to must be based on unlawful presence. The applicant must have an approved immediate relative petition from a husband or wife, his case must be pending at the National Visa Center after the immigrant visa processing fee was paid, and the applicant must prove extreme hardship to a US citizen spouse or parent.

Some people who may not apply for this waiver are parents of US citizens. Because of the vagaries of immigration law, parents of US citizens are not eligible for the waiver of unlawful presence.

Children under 18 are not eligible for the waiver, neither do they need it as one cannot accrue unlawful presence until one is 18. So if I have a US citizen with an illegal son, that son may apply for his green card at the Embassy in his native country, and as long as he is under 18, he is issued his green card and he comes back immediately to resume residence.

People who are currently in removal proceedings can apply for the waiver eventually. But they cannot apply for the waiver until they have their court cases terminated or administratively enclosed. Anyone who has been removed before is not eligible for the waiver.

People who currently have interviews abroad at US embassies who have not yet left the US may file for the waiver only if they file a brand-new I-130 petition and proceed from that.

You will be happy to know that CIS considers separating any husband and wife to be hardship. For extreme hardship an alien must typically show that according to the following criteria the hardship in their case would be extreme:

n  The presence of lawful permanent resident/US citizen family ties in the US;

n  the alien applicants family ties outside the US;

n  country conditions in the country of relocation and the qualifying relative’s (should be the spouse who applied for the waiver) ties to that country;

n  the financial impact of departure;

n  significant health conditions, particularly when tied to unavailability of suitable medical care in the country of relocation.

Immigration will seriously look at any evidence you have of hardship in the case. They look at age, length of residence in the US, health, technical skills, and employability. The language of the law does not allow hardship to US citizen/lawful permanent resident children to be counted, but you should certainly mention it. The hardship to the children is relevant as in how it would affect the hardship to the US citizen petitioner.

A smart applicant as well includes a letter from the alien whose legal violation requires the waiver. My clients explain who they are and why they had to come to the US when they came here. You will find immigrants are not here by accident and most of them had a great fire burning in them to come to the US. Generally the purpose of the trip is altruistic as well, and is done for the benefit of family or friends, and not for oneself. If this is true, it should certainly be mentioned.

The waiver will be filed on the yet to come form I-601A (why we need the new form, when we already have a form for the waiver, I have no idea -- these people really like creating forms). It will be available at www.uscis.gov It will be filed and adjudicated in the US, and processing times are optimistically projected at six months, which is a vast improvement on waivers in the past.

Because of these changes, US citizens who are married to illegal entrants and are living with them in the US will no longer be separated while having the waiver considered. They may file the I-130, get it approved, the case will be transferred to the National Visa Center, they will make a choice of agent and pay the immigrant visa fee, and then file the I-601A waiver. Once the provisional waiver is approved, we would resume immigrant visa processing is usual, scheduling interview at the Embassy abroad and sending my client to get his green card.

As there are things to take care of before the waiver is applied for, a smart immigration attorney will be encouraging his eligible clients to start the I-130 process immediately, so that they can be among the first to file for the new waiver. Anyone who has a case currently pending at the NVC should absolutely make sure that they file for the waiver within the first week of March 2013. We have no idea how many applications will be filed, or how long they will take to process, but I know getting an early is a good idea.

Neil F. Lewis has been an immigration lawyer in Tampa Florida since 1996. He is a former Marine and a graduate of law school at the College of William and Mary. He is a proud father of two sons, Jackson, seven, and William, six. Neil loves being an immigration lawyer and enjoys reuniting families and solving problems.

Family separated for too long

I am currently assisting a client pro bono in a case where he is seeking reunited with his wife and children. My client is a US citizen. He is a military veteran. And he works on very military like missions for private corporations that do work for the US military. Because of the vagaries of his station, he lived with his foreign wife and US citizen children in a foreign country for approximately 10 years. Then he received three weeks notice that his job no longer existed. The host country ordered him to leave and he prepared to go back to the US.

My client immediately made plans to move back to the US. He took his wife and children to the US Embassy to get a vacation visa for his wife so that she could come to the US with the rest of the family. This request was denied because the consular officer believed that she was coming to the US to stay, and therefore a vacation visa was inappropriate. This is a defensible decision only if you do not take into effect him the impact the decision will have upon the family of my client.

It is sometimes the case that a consular officer will issue a vacation visa to the wife of a US citizen. They do this sometimes because the wait for an immigrant visa can be ridiculous. I met my client and learned of his troubles on August 2. His wife and four children remain in another country. He has gone nearly bankrupt from the expenses of maintaining two households, one in the US, and one in another country. As you can imagine, he is suffering, his children are suffering, and his wife is suffering.


We have filed for everything reasonable to gain her entry. We performed a Congressional Inquiry on the actions of the Consular Officer. Of course what he did was legal, just not "right." We next we filed a request for a parole document to allow her to enter the US for emergency circumstances. There has not yet been a decision on this request. We also filed form I-130 to gain her entry to the US as a lawful permanent resident. This form should gain her entry into the US within a year to year and a half.

We have had support from Congressman, and CIS seems to be doing everything they can do, but this is just one of those frustrating things that often happen in immigration. It is a pity that happened to someone who spent his whole life working for the benefit of the US. I think it probably should not happen. But I can only do so much.

Does anyone think it is right that an alien on a nonimmigrant visa can get his wife here in two weeks, but a US citizen must wait a year or more for his wife? Nonimmigrants have the ability to bring their wives here quickly and easily. Why does this not exist for US citizens? Ridiculous.

Regarding personal injuries!

Everywhere you look, you see billboards owned by personal injury lawyers. Whether it is Morgan & Morgan, Fran Haasch or some other lawyer, these people clearly make good money helping the injured. But who should you trust? The guy on the billboard, the lady in the ad? Ask Gary?

You should trust me. If you were a friend involve an accident you should come to me and I will help you find the right lawyer.

Today I write to tell you why you should refer your personal injury cases through me to a personal injury attorney. I am an immigration attorney. That is all I do. But I do a great service for my clients who suffer through accidents or injuries. I refer them to friends of mine who handles personal injury cases. This is of utility to my client because he has a lawyer he should be able to trust. I am also involved in the case entirely, although mostly as a spectator. I get paid from the other lawyers portion of any recovery in the case. It is handy to my clients to have me involved in case there is any issue regarding the representation in the case.

So if you know somebody who has an accident or who was injured and it is not their fault, a great place for them to start in figuring out what to do is to meet with me. We can discuss the available options and if there is a case there I will know the lawyer who will handle it best.

same is true for criminal and family law cases!

Neil

The Heavens are aligning

Nov. 2012 -- The Speaker of the House has made it clear that Republicans are on board for immigration reform and a path to citizenship for my worthy immigrant friends. This election asserted the primacy of the young and tolerant against the old and scared. Great stuff and I am excited about the future!

DACA and the future of these kids.

Editor's note: DACA is Deferred Action for Childhood Arrivals. People under 31 years old as of the date of passage of the Act, brought to the US as children, who graduated high school here, with a clean criminal record may apply for a two year guarantee that they will not be deported. They will be allowed work cards during this period. A common question I get is "What about after that 2 years? What then?"


What then?

I have submitted approximately 20 DACA applications thus far. I see these applications  -- which are applications for deferred action for childhood arrivals -- as a no lose situation for my immigrant clients. They are receiving a binding promise from the US government that they will not be deported for two years. During the two years, they will be authorized to work and to drive (so long as they do not live in some medieval state. Hint: ARIZONA). I know that some applicants and some lawyers have fear and trepidation when approaching this process. I encourage you to have faith in the United States of America.

I met in my office a very nervous young man last week who refused to apply for his work card. He stated that he wanted to wait until the election was over, so that he can see what the future of the country would be. I tell myself, and I told my friend, that regardless of who is elected, America has made a promise to him and his young friends. That promise is: "You are safe here. In the future you will receive residence and citizenship, but the work card is the best we can do for you right now." I have faith that my country will do the right thing no matter who is President.

Immigration into America has always been guided by a good guys - in, bad guys - out policy. This is a basic truth about immigration into America since the pilgrims came ashore. Those who have done no wrong, and who are in America through no fault of their own have always been taken care of. This is true whether they are refugees from a war, economic refugees, or children brought here by their parents. My country will complain. My country may very well pitch a fit. But my country will come through for these children. It always has. It always will.

Great victory -- probably

I recently had a great victory in immigration court. But it was not so much a victory for me as it was for my country. My client came to me about a year ago. He was an illegal alien who had been present in the US for 15 years. His wife, for much of that time, was a US citizen. She never took any steps to gain his permanent residence. The couple had two children, boys, eight and 12. When I met my client his children were being held illegally out-of-state by his US citizen wife who assured him that his lack of status meant that she kept the kids and that the bully wins.

Not while I have anything to say about it.

I encouraged my client to contact a family attorney to get the return of his kids. He did have them pursuant to a lawful court order, and his wife's seizure of his children was against the law. The fact that he had no legal status here did not make any difference, I am happy to say. The children were returned to him within a reasonable time.

My client initially had custody of his kids because a judge in another state had found their mother to be dangerous and hazardous to them. For the same reason I believed the US government would look favorably upon application for cancellation of removal from my client. This application requires my client to prove he has been here more than 10 years, and that his deportation would work an exceptional and extremely unusual hardship upon his US citizen children or spouse.

Once we collected evidence in the case, it appeared clear that my client saved his children from a very dangerous mother. We went to court, explained the circumstances, and I am very confident that when the judge makes his decision we will win (bizarre court rules mean he cannot rule until October). It is not often that I am so proud of the people I represent. But something about this client was special to me.

One of the great things about being an immigration attorney is seeing how important it is to some parents that their children have a chance at success.

An education in immigration

I became an immigration lawyer because I did not really want to be a lawyer. I found that in 1996 I could be an incompetent nice guy who sat next to my clients while they got green cards. There was not much lawyering involved. I encouraged my clients to tell the truth, and I used to point out weak points of my cases so that the officer could do a thorough investigation and be satisfied that the relationship was real.

Immigration made sense back then. The immigration service showed me by their actions that they believed good people should get green cards and that bad people should be shown the door. For nearly any crime an alien could request a waiver of deportation, citing humanitarian or other equitable grounds. Although the crime of marriage fraud existed, no cases were pursued in Tampa. A marriage that did not meet the bona fide requirements of the Tampa office was simply denied. People who believed in their bona fide marriages continued to immigration court, others went back home.

Immigration was not about "national security." Immigration was not about reminding people from other countries that they are not us. Immigration was not about preventing nice people from immigrating. Immigration was about helping good people enter the US while trying to prevent bad people from entering the US. What is a good or bad person was up for debate in any given case.

The immigration officers at the time had broad discretion to decide cases as they saw fit. I learned that in nearly every case there appeared to be some technical violation of the immigration law somewhere (there are a lot of laws), but that a wise immigration officer would decide whether or not to create an issue on a given application depending on whether or not they thought the applicant was a good or a bad person. They would look to tax records, criminal records, and will make a determination about the person based on the record in front of them. The law was used to make it more difficult for bad people to apply for residency. There were times when good people would get kind of a pass. By "pass" I mean that the immigration officer would determine a waiver was not required, although maybe one should have been required, or the immigration officer would not ask questions about an area where there was clearly trouble, but where the trouble served no purpose, as in the case of previous unauthorized employment, the nature of previous marriages, and other issues outside the purview of an application for adjustment of status.

Now it appears that the immigration officers have no ability to decide if the people in front of them are good or bad, as they have been told to assume that everyone is bad. The law is used to delay and harass aliens applying for lawful permanent residence, regardless of whether or not they are good or bad people. The local office in Tampa acts as if there is a magical application for every circumstance, and any technical default in any case will result in them denying jurisdiction or denying a case.

I know that the immigration officers are frustrated, because I can see it in their eyes. These are generally good people who want nice people to move to the US. But the level of proof now required for a simple marriage or other immigration case is beyond any reasonable level.

I was reviewing an interview I attended regarding removal of conditions in 2006. I was with an officer who has a great reputation for knowing who is or is not telling the truth. My white Canadian client was applying for removal of conditions based on her short term marriage to a black US citizen man. My records show that we presented about 10 pieces of paper, and that the officer asked six questions of my client, determined she was telling the truth, and ended the interview, granting lawful permanent residence without conditions.

Such a simple interview is unthinkable now. For removal of conditions married couples are sometimes denied, as their currently real and existing marriages are deemed not real enough. I can tell you that the law in 2012 is no different than the law in 2006 or even 1998. The attitude of CIS is different. What is also different is the many and numerous obstacles that have been put in the way of ordinary and regular people getting the benefits they deserve from the federal government.

I have seen too many clients open themselves up to ridiculously detailed testimony regarding relationships and events from long ago for no purpose. I have seen the pain on my client's faces as they told the truth to a painful degree, only to be called a liar. I win in the end, but the toll on my clients. and their faith in the United States, compelled me to act more aggressively.

No one is served by the current immigration policies at Tampa CIS. Not the government, not aliens, not US citizens, nobody.

I did not want to be a lawyer, but the US government has forced me to be one. This is my country too. My clients have officially "lawyered up" for the duration. Instead of being free with evidence and testimony, we will give only what is required by law, not by Tampa CIS. When CIS does not agree with me, then I will simply go see the Judge in Immigration Court.