United States Citizenship and Immigration Services (USCIS) Publishes a Draft of its Guidance Policy Manual that Proposes Beneficial Changes to the Term "Extreme Hardship" When Adjudicating Form I-601 and Form I-601A Provisional Waivers
Last month, U.S. Citizenship and Immigration Services (USCIS) issued draft guidance on what constitutes “extreme hardship” for purposes of an immigration waiver. The guidance is a component of the executive actions on immigration announced in November 2014. Many had hoped that the anticipated guidance could help remove obstacles to obtaining legal permanent status in the United States. The guidance a draft only and has not gone into effect. USCIS seeks public comments and feedback no later than November 23, 2015. Following review of the comments, USCIS will issue a final version. To see the draft, please look below.
The immigration laws contain several waivers that allow noncitizens to overcome certain bars to admission (such as having unlawful presence in the United States) where certain family members (called “qualifying relatives”) would suffer “extreme hardship.” Unfortunately, immigration regulations do not define the term “extreme hardship.” As a result, USCIS has failed to apply the hardship standard consistently. In a November 20, 2014 memorandum, Secretary of Homeland Security Jeh Johnson directed USCIS Director Leon Rodriguez to “clarify the factors that are considered by adjudicators in determining whether the ‘extreme hardship’ standard has been met.” In issuing such a directive, his intent was clear: “It is my assessment that additional guidance about the meaning of the phrase ‘extreme hardship’ would provide broader use of this legally permitted waiver.”
Whether the final guidance will achieve the goal of “broader use” of the waiver remains to be seen. The draft guidance, in many ways, does not veer far from current guidance, albeit limited, that the immigration courts and the Board of Immigration Appeals have provided over the years. It also seems to add unexpected detail and layers of analysis, calling into question whether implementation will be difficult and the Secretary’s goal less obtainable.
Individuals applying for a waiver today must show that there would be extreme hardship to the qualifying relative if the family were separated (i.e., the relative remained in the United States) AND if the family member relocated outside the United States. Importantly, the draft guidance does not require the applicant to show hardship in both circumstances. Rather, if the applicant can pass a threshold finding that it is “reasonably foreseeable” that the qualifying relative would either remain in the United States OR relocate abroad, he or she need not demonstrate hardship in both situations.
One place where the guidance falls short is that it fails to include a list of situations where a presumption of extreme hardship exists, i.e., certain situations that automatically would result in a finding of hardship. The November 20 Johnson memo actually directed “USCIS to consider criteria by which a presumption of extreme hardship may be determined to exist.” As the Secretary pointed out, such presumptions exist in other immigration policies. Instead, the draft guidance offered the term “special circumstances”—circumstances that “would often weigh heavily in favor of finding extreme hardship.” These special circumstances include where the qualifying relative has been granted asylum or refugee status, is disabled, or is on active military duty; where the State Department has issued a travel warning to a country of relocation; and where there is a substantial change regarding the ability to provide care of an applicant’s children.
USCIS made a good decision to publicly release the draft guidance for public comment. This is an opportunity for stakeholders to carefully review the detailed guidance and make recommendations that will help the agency to fulfill its promise of waivers that are more broadly available. Once the guidance is finalized, it will be crucial to monitor how it is implemented in the field, as that will be the true test of its success.
Call our office if you need help with Form I-601 Waiver and/or Form I-601A Provisional Waiver. Our office will inform you of such updates and assist you through the process.
For those of you planning to apply for a driver's license (DL) under AB60, please be warned of the following information. The DMV aggressively pursues DL fraud cases. They consider it to be a security issue. They have recently taken the position that they will continue to do so in spite of AB 60's passage. For many, this may mean nothing. However, if an undocumented person has ever used fraudulent papers to secure a DL, you may want to warn them that applying for a driver's license under the new law will likely be a bad idea. Aggressive pursuit of DL fraud may include DMV contacting immigration authorities with any information they obtain regarding undocumented persons.
Yes, ICE detainers are no longer enforced here. Also, the TRUST Act passed into law, placing limits on enforcement of detainers. However, nothing in the law forbids state agencies, including the sheriff and the DMV, from sharing information with ICE. Also, the announcement by Obama in November included not only expansion of deferral of removal for certain classes of noncitizens but it also broader enforcement provisions different priority categories of persons for removal. If you client had or has an issue with false documents, and indicates they want to get a DL, you might want to warn them that doing so could place them on ICE's radar.
Moreover, if criminal charges are filed and one is convicted, it could disqualify them for future benefits including Deferred Action for Parental Accountability (DAPA).
There are likely millions of people abroad (and in the U.S.) "waiting in line" to become lawful permanent residents and acquire their "green card" based on a petition filed by a relative (parents, spouse, siblings) or employer. They monitor the Department of State's Visa Bulletin (here) hopelessly wondering when it will be their turn.
There are provisions in our immigration laws that make it better to be from one country over another. This has to do with the quota system that governs a major part of when person gets to immigrate to the U.S. With the exception of immediate relatives, for the most part those who immigrate to the U.S. do so under the family-based or employment-based preference system. The number of persons who can immigrate in any one year under one of the family-based or employment-based preference systems is limited. There are also caps placed concerning the number of people who can immigrate in any one year from a particular country. In effect, there is a quota system in place.
The quota system is based on a person’s place of birth, not their nationality. Immigration laws usually treat someone based on their country of birth. In some scenarios, a person can use their spouse’s place of birth instead of their own to receive an important advantage. This is called “cross-chargeability”. Unfortunately, there are a lot of people who are unaware of this concept and fail to take advantage of it.
Cross-chargeability is important because, as stated above, visas are based on quotas, and certain countries have more people applying for green cards under certain preference categories so it might take significantly longer to get a green card if you are born in one country rather than another.
For example, under family-based petitions, a married Mexican who is sponsored by his USC father. Could face about a 17-20 years waiting period for a green card. This is true for a Mexican national petitioned by a U.S. citizen sibling as well. If that Mexican were married to someone from Guatemala or Argentina (for example), the current waiting period could be cut 5-8 years.
There are other ways to qualify for cross-chargeability other than through marriage. Additionally, cross-chargeability can also be used in certain employment-based petition processes. I recommend you contact our office if you seek assistance with applying under cross-chargeability, or for more information see 8 C.F.R. § 42.12.
For more than 8 years, Immigration Attorney Mario Zapata has been assisting people with immigration, green card or visa issues. For more information on how our Orange County Immigration Law Firm can help, please call us at (714) 441-2800, email us, or visit our office at 1100 E. Orangethorpe Avenue, Suite 200C, Anaheim, CA 92801.
On November 20, 2014, President Barack Obama announced his plans for a series of executive actions on immigration policy. An important centerpiece to the plans include the Deferred Action for Parental Accountability (DAPA) program, which will provide temporary immigration relief to qualifying undocumented foreign nationals.
Presidential Executive Action
The President is addressing deficiencies in the current immigration system through this plan of implementing several executive actions. Moreover, the President indicated his desire and intentions to focus enforcement on criminals. Lastly, the President recognized he lacks the authority to provide undocumented individuals a pathway to citizenship, and hopes Congress will become motivated to address the immigration problem through a comprehensive bill.
Overview on DAPA
Those who are approved for the DAPA program will be protected from being deported for a period of three years, and will also be issued temporary work authorization. NOTE: A DAPA recipient will not have legal status, nor will they have access to becoming a lawful permanent resident.
Eligibility Requirements for DAPA
The requirements for individuals to qualify for DAPA are that they:
Application Process for DAPA
It is not yet possible to apply for DAPA. The U.S. Citizenship and Immigration Services (USCIS) is expected to initiate the program by May 19, 2015. In the meantime, those individuals who plan to apply for DAPA may wish to begin collecting documentation to establish eligibility. Such documents may include: proof of identity (ie. birth certificate and valid passport); proof of parentage of a U.S. citizen or permanent resident son or daughter (ie. birth certificate of child); and proof of continuous residence for the required time period (ie. bills, tax returns, contracts, paystubs, etc).
The series of executive action plans announced will prompt prompt unscrupulous individuals to try to take advantage of vulnerable foreign nationals. Until there is an official announcement, no applications can be filed. It is important to utilize reliable sources for information and assistance in immigration matters. Read more about how to identify and avoid immigration scams on the USCIS WebSite here.
You can remain updated on the progress of the DAPA progam by checking our website, liking us on Facebook here, or requesting to be placed on our CONTACT LIST by emailing the attorney at firstname.lastname@example.org.
NOTE: There is a strong likelihood that several (not all) DAPA recipients will be eligible to seek Adjustment of Status (green card) after acquiring and utilizing Advance Parole travel benefits. Attorney Mario Zapata has succeeded in obtaining green cards for various clients who previously were issued Deferred Action for Childhood Arrivals (DACA). For more information on Adjustment of Status for DACA recipients under Matter of Yarabally, please go here. This type of case must be carefully evaluated by an experienced immigration attorney, as past immigration violations (ie. multiple entries, detentions, removals, crimes) could pose problems.
The Law Office of Mario Zapata will continue to closely monitor and track progress made the executive action programs, and provide readers with such updates analysis as soon as new information is released. We do not suspect that any further significant plans will be released in the near future absent an agreement on a comprehensive immigration reform bill.
The Child Status Protection Act (CSPA) remains relevant in immigration law. On June 6, 2014, a USCIS policy memorandum was published, and it broadened the definition for how a CSPA beneficiary could have “sought to acquire” immigration status. Consequently, this could benefit certain adult children who were at one time available for protection under CSPA, but may have not timely filed for the benefit and outright disqualified from benefiting from the Act. The memorandum is available to read here.
Historically, CSPA provides for a formula wherein certain beneficiaries are still considered to be children (under 21 years of age) for immigration purposes, despite having actually turned 21 years of age. Notably, to qualify for CSPA, the beneficiary must “seek to acquire” their immigration status within one year of their priority date becoming current. Prior to the memorandum, the definition of “seeking to acquire” had been defined by USCIS and the Department of State as submitting an application for an Immigrant Visa (completed DS-230 Part 1 or DS-260), an application for Adjustment of Status (I-485), or an Application for Action on an Approved Application or Petition (Form I-824). This “sought to acquire” requirement was met as long as one of these applications had been filed within one year of visa availability.
Although USCIS and the State Department had narrowly defined the “seek to acquire” requirement previously, the Board of Immigration Appeals (Board) in Matter of O. Vasquez, held that an “extraordinary circumstances” exception can be applied in situations where the child has not met one of the three designated application procedures. Moreover, the USCIS Policy Memorandum references Matter of O. Vasquez, and officially provides guidance into the “extraordinary circumstances” exception. As a result, if an individual meets under the exception, USCIS may approve a CSPA request, even if they failed to take appropriate action on the case within the standard time limits.
The USCIS memorandum describes the criteria by which an immigration adjudicator can use discretion in excusing the one-year deadline by which to have “sought to acquire”. In essence, officers are to make extraordinary circumstances determinations on a case-by-case basis, under a totality of the circumstances. The memorandum reads that an adjudicator should exercise discretion in favor of the beneficiary if:
1. the circumstances were not created by the individual’s own action or inaction;
2. the delay was reasonable under the circumstances; and
3. the circumstances were directly related to the failure to act within the one-year period.
USCIS has not released a complete list of potential scenarios which would justify CSPA protection for a child who seeks to acquire residency beyond one year. The agency has, however, provided some examples of circumstances which might warrant a favorable exercise of discretion and a finding that CSPA protection is merited based on extraordinary circumstances. These circumstances include:
(a) Legal disability, such as mental impairment
(b) Serious illness or mental / physical disability during the one-year period
(c) Ineffective assistance of counsel
(d) Timely filing rejected by the USCIS followed by a prompt, corrected filing
(e) Death or serious illness or incapacity of legal representative or immediate family member
NOTE: The Memo is also retroactive in its effect, holding that cases denied solely due to late a filing after June 8, 2012, can be reopened.
CSPA provisions has been a highly litigated issued in immigration history, and the delays in immigrating due to the lack of such protection has caused families great anguish. Immigration law is complex and constantly evolving through case law and USCIS policy. Potential beneficiaries/applicants must act quick to avoid “aging out” from immigration benefits. Anyone who believes they or their children (or grandchildren) may benefit from the recent USCIS memorandum covering the “extraordinary exceptions” should seek advice from a qualified immigration attorney and not delay in getting answers.
I watch the news almost on a daily basis, and it’s very seldom that the news coverage goes without a violent crime being committed against someone. As a Hispanic viewer who is concerned with the perception of my race, I am always interested to hear whether the suspect is Hispanic. However, the next concern is whether the victim is Hispanic or possibly a foreign national of some other region. Specifically, I wonder whether the victim (and family members) will be informed of a “silver lining” to such dark cloud – they may qualify for a U-Visa. Far too many immigrants are unaware of the U-Visa and the benefits it may provide to them and their family.
A U-visa allows immigrants and their families to stay in the U.S. for four years and apply for permanent residency on humanitarian grounds. These benefits and pathway to legalization extend out to the victim (direct or indirect), and certain relatives (ie. Spouses, children, and sometimes siblings and parents). Since it was signed into law in 2000, the U-visa program has been hailed as a strategy to improve relations between police and immigrants. Supporters say it allows undocumented immigrants to report crimes more freely, gets criminals off the streets, and makes women and children safer. But the U-visa program has never run smoothly. The federal government took nearly seven years to implement rules for the program. Officials didn't issue the first one until 2008, and then only after a lawsuit from activist groups.
Since 2008, federal authorities have granted 10,000 U-visas a year to entice undocumented immigrants to assist police and prosecutors. To apply for a U-visa, immigrants need local law officers to verify they were victims of domestic violence, rape, attempted murder or other serious crimes. The process is started by getting local police, the district attorney's office or a judge to sign paperwork confirming they were victims of serious crimes and have cooperated with investigators and prosecutors. Then, documents go to U.S. Citizenship and Immigration Services (USCIS), who conduct background checks and decide whether to issue the visa. Immigration officials typically took 6-9 months to approve or deny an application, but that processing time has increased to approximately 12-15 because the system is backlogged.
This program has benefited thousands of people, and its continued success has led to more applicants and longer delays. The longer one takes to apply, the longer it will take to have their application processed and approved. More than 25,000 people nationwide applied for U-visas in fiscal 2013 compared with roughly 6,800 in 2009, according to the USCIS, which handles the requests. On December 11, 2013, USCIS approved the statutory maximum 10,000 petitions for U-1 nonimmigrant status (U visas) for fiscal year 2014. This marked the fifth straight year that USCIS had reached the statutory maximum since it began issuing U visas in 2008. USCIS News.
U-Nonimmigrant Status may even be granted to individuals with prior orders of removal, certain criminal convictions, and other immigration violations, including false claim of U.S. citizenship. In fact, I remain the attorney on a case involving a loving mother seeking to return to the U.S. on a U-Nonimmigrant Visa to care for her four (4) U.S. citizen children. You can read the OC Weekly article here.
For more information regarding a U-Visa I encourage you to go here. USCIS also provides valuable information about the U-Visa here.
I have assisted dozens of victims and their family members obtain their U-Nonimmigrant status, followed by their lawful permanent residence status 3-4 years later. If you, a friend, or family member has been the victim of a violent crime, I encourage you to schedule an office appointment with me, an experienced immigration attorney.
Blessed by Arrabally: DACA and TPS Recipients Who Entered the Country Illegally May Be Eligible for Green Cards
For those who entered without inspection and were later granted Temporary Protected Status (TPS) or now qualify for TPS, you may be able adjust your status by means of applying for advance parole. Also, Dreamers who qualified for, and received deferred action” under the Deferred Action for Childhood Arrivals (DACA) program, you may also apply for advance parole.
Specifically, for those TPS or deferred action (DACA) recipients who previously entered the U.S. without inspection and are immediate relatives (child or spouse) of U.S. citizens may benefit greatly by applying for and using Advance Parole. Advance parole allows you to exit and re-enter the United States with your advance parole document. The Board of Immigration Appeals in a recent case, Matter of Arrabally and Yerrabelly, 25 I&N Dec. 771 (BIA 2012), held that “[a] departure under advance parole does not trigger the inadmissibility ground under 212(a)(9)(B)(i)(II).” Therefore, leaving the United States under advance parole does not trigger inadmissibility and you will be able to re-enter, this time with inspection.
Consequently, without the ground of inadmissibility being triggered under Arrabally, such recipients will now become eligible for adjustment of status (“green card”) because they will have been “paroled” into the United States within the meaning of INA §245(a). So for those DACA and TPS recipients who are married to a U.S citizen, or qualify as children of U.S. citizens, travel on advance parole may have the dual benefits of eliminating exposure to the unlawful presence ground of inadmissibility and creating eligibility to adjust status in the United States. For more information on this topic, feel free to go here.
I have had much success in getting clients their green cards as a result of having traveled outside the U.S. and returning with the use of Advance Parole. If you feel you may benefit from such process, please consult with experienced immigration attorney, as not all cases are the same. Prior departures and entries may still effect your eligibility to file for adjustment of status. This must be discussed with an attorney. Immigration law is a complex topic that is constantly evolving. Moreover, it is important that the advice you receive is up to date.
According to a Times article published yesterday, July 24, 2014, President Obama may be preparing to provide temporary legal status to millions of undocumented immigrants. Obama has already voiced his intention to use his executive authority to reform parts of a broken immigration system that has cleaved families and hobbled the economy. The article further discusses various options that the President may execute under his authority to provide relief to millions of undocumented immigrants. It's a great read!
As a former Boy Scout, I encourage all undocumented immigrants to follow the scout motto - BE PREPARED. The motto reads that one should be prepared in body and mind. To accomplish this, I recommend getting organized by gathering and making copies of relevant documents including the following:
1. Physical presence documents (ie. tax returns, pay stubs, contracts, bill statements, etc)
2. Criminal history documents (ie. certified copies of criminal court dispositions) for any and all violations
3. Copy of birth certificate
4. Copy of prior immigration filing
Additionally, in this tough economic climate, I cannot emphasize how important it will be that you save money for such process. There is no saying how much government fees will cost. Additionally, if you have any prior criminal or immigration history, you may incur legal fees in having an attorney assist you with such process.
IMPORTANT: if you have made contact with the police or an agency under the Department of Homeland Security (ie. Immigration and Customs Enforcement, U.S. Citizenship and Immigration Service, or Customs and Border Protection), I recommend you consult with an immigration attorney before proceeding with any future immigration filing. Such "contact" includes previous immigration filings, detentions, removals, voluntary returns, and/or questioning at the port of entry. An experienced immigration attorney will assist in verifying whether such "contact" will disqualify you of certain immigration benefits through various actions including a Freedom of Information Act (FOIA) request to distinct agencies and their systems, US-VISIT fingerprint submission, and FBI fingerprint submissions.
Contact the Law Office of Mario Zapata if you would like to discuss your situation, or would like to verify what, if any, consequences there may be as a result of your prior "contact" with enforcement agencies.
PARENTS, SPOUSES AND CHILDREN OF CURRENT & FORMER MILITARY (Including RESERVES) MAY NOW BE ELIGIBLE FOR GREEN CARD (even if you entered “without inspection”)
Implementation of Parole-in-Place Benefits Parents, Spouses, & Children of Military Members
I strongly recommend each reader to share this with any active or veteran military member (or reservist), as it could benefit their immediate family or that of a military brethren.
On November 15, 2013, the US Citizenship and Immigration Services(USCIS) issued a Policy Memorandum concerning “parole in place” (PIP) for people who entered the US without inspection and are the spouse, child, and/or parent of those who are on active duty, reservists, or veterans (Armed Forces personnel). See Policy Memo here.
PIP is a substitute for “legal admission.” You get PIP to show you are “paroled in place” without leaving the U.S. In the past, these family members were unable to apply for adjustment of status ("green card") in the US, and instead had to go back to their home country for immigrant visa processing, and could face a 10 year bar from returning to the US, or possibly apply for a “provisional waiver” as a result of having accrued "unlawful presence in the U.S. This Policy Memorandum regarding PIP is simply a change in the guidelines to USCIS adjudicators. Nevertheless, it is very clear guidance to approve these requests, so this is a GREAT VICTORY for our service members, both active and retired, and their families, as there is added hope of resolving their immigration status without the peril of leaving the country for a prolonged period.
Again, this means that with PIP, a spouse, child, or parent of current or retired military, Reserves, or National Guard can get a Green Card WITHOUT leaving the US.
USCIS recognizes that active duty Armed Forces personnel “face stress and anxiety because of the immigration status of their family members in the United States.” Further, their military preparedness could be affected if they have to “worry about the immigration status of their spouses, parents and children.” The same holds true for our military veterans who have made sacrifices for our country.
The basic requirements for eligibility are:
If parole in place applies to you, you may be able to file for adjustment of status (green card in America) even though you previously entered without inspection (ie. illegally), or have no proof of inspection. The process of seeking PIP differs at each USCIS office. For more information please go here, or contact our office at (714) 441-2800.
Mario Zapata is an immigration attorney practicing out of Orange County, CA and represents clients nationwide.