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Last month, U.S. Citizenship and Immigration Services (USCIS) issued draft guidance on what constitutes “extreme hardship” for purposes of an immigration waiver.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 The draft guidance, in many ways, does not veer far from current guidance, albeit limited, that the immigration courts and the Board of Immigration Appeals have provided over the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 Importantly, the draft guidance does not require the applicant to show hardship in both circumstances.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.
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.
Mario Zapata is an immigration attorney practicing out of Orange County, CA and represents clients nationwide.