Immigration law developments: I-601 Unlawful Presence Waiver New Procedure

The US Citizenship & Immigration Service recently published a Notice of Intent for proposed rulemaking in the Federal Register.  It outlines the agency’s plan to transfer the adjudication of certain I-601 waiver applications from USCIS overseas to stateside processing.  This adjudication would take place before the proposed immigrant leaves for consular processing, thus eliminating the waiting time abroad and the uncertainty of the adjudication outcome.  Those applicants whose waiver is provisionally approved could then continue with immigrant visa processing at theU.S. consulate abroad; those who are denied would likely choose to abandon the process. The proposed pre-adjudication procedure is not in effect yet and will likely not go into effect for several months. Officials within the USCIS are hopeful that a final regulation implementing the change will be in effect before the end of this year.

1. The pre-adjudication policy will apply only to immediate relatives, i.e., spouses, parents, and unmarried children under 21 ofU.S.citizens. Those in the preference categories (spouses and children of permanent residents; married children or children over 21 ofU.S.citizens; and siblings ofU.S.citizens) are not covered and continue to be subject to the current waiver filing requirements. In other words, they will file their I-601 waiver after being formally refused an immigrant visa by a consular official and that waiver will be adjudicated by an overseas USCIS office. It is unclear at this time whether the agency is likely to, or could be convinced by the submission of comments; expand this to cover all family preference categories and/or waivers for other grounds of inadmissibility. This proposed change will also have limited applicability to parents ofU.S.citizens over 21, since they will likely lack the qualifying relative.

2. The pre-adjudication procedure will apply only to immediate relatives who are filing an I-601 application to waive the unlawful presence ground of inadmissibility that would be triggered by the immigrant visa applicant’s departure for the consular interview. Those who are subject to inadmissibility based on other grounds, such as fraud, health, or criminal conduct, will be subject to the current waiver filing requirements. It is also important to remember that family members who have triggered the “permanent bar” under INA § 212(a)(9)(C), based on more than one year of unlawful presence followed by a departure and illegal reentry, cannot file a waiver until they have departed and spent 10 years outside the United States.

3. The waiver would be filed after the I-130 petition is approved and the case file has been forwarded to theNationalVisaCenter, which controls consular processing. The immigrant visa applicant would likely file the waiver at a designatedUSCISServiceCenterand pay the filing fee (currently $585). All waiver applicants will be screened through existing databases based on their names and biometrics to see if they are subject to other grounds of inadmissibility.

4. If the waiver is granted by theUSCISServiceCenter, it will be on a provisional basis. This means that the consulate reserves the right to question the immigrant visa applicant, review current data bases, and investigate for any other possible grounds of inadmissibility that were not previously identified. But it is anticipated that denial of an immigrant visa after the waiver has been provisionally granted would be rare.

5. If the waiver is denied by theUSCISServiceCenter, the applicant will be subject to the current USCIS policy on issuance of a Notice to Appear, which commences removal proceedings. According to the November 7, 2011 USCIS memo titled “Revised Guidance for the Referral of Cases and Issuance of Notices to Appear (NTAs) in Cases Involving Inadmissible and Removable Aliens,” the USCIS will issue NTA’s when there is a finding of fraud in the record. The memo does not indicate if the nature of the fraud will be considered, but simply states upon a finding of fraud, an NTA will be issued. In addition, an NTA will be issued if the applicant is under investigation for, has been arrested for, or has been convicted of an “egregious public safety” crime. These include aggravated felonies, such as murder, rape, sexual abuse of a minor, firearms trafficking, crimes of violence for which a term of imprisonment for a year or more has been imposed, ransom, child pornography, alien smuggling, or offenses relating to peonage or slavery. In addition, NTAs will be issued to human rights violators and those where the alien reentered theUnited   Statesafter an order of removal subsequent to a conviction for a felony where an I-212 has not been approved.

In the case of non-egregious public safety criminal cases, the USCIS will complete adjudication of the waiver and refer the case to Immigration and Custom Enforcement (ICE). ICE will then decide whether or not to issue an NTA. It will make its decision based on the “totality of the circumstances” and existing priorities and guidelines on the exercise of prosecutorial discretion. The totality of the circumstances includes factors such as the severity of the crime, time since the crime was committed, additional criminal conduct, evidence of rehabilitation, immigration history, length of presence in theUnited   States, and contributions to society. The USCIS will not issue an NTA if ICE declines to do so.

Therefore, in the routine case involving an applicant with no serious criminal conduct, if the waiver for unlawful presence is denied, the applicant will not be put into immigration proceedings. However, practitioners will need to screen their clients well to determine if they are subject to any other grounds of inadmissibility, including prior orders of deportation.

6. The proposed change does not affect current requirements for eligibility for the waiver of unlawful presence, nor does it modify the standard of extreme hardship to aU.S.citizen or LPR spouse or parent. Those applicants who are provisionally approved would still have to consular process if they are not otherwise eligible for adjustment of status. The proposed change would not affect pending waiver applications. In other words, those who have left the country and are waiting abroad for their waiver to be approved by the USCIS will be subject to the current procedure. This change, however, will likely discourage those immediate relatives who are in the consular process pipeline and will be scheduled for an immigrant visa soon from proceeding abroad if they would be eligible for this pre-adjudication process.

Evita Tolu

Immigration Law Group LLC

9378 Olive Blvd. Ste. 307

St. Louis, MO 63132

What are the rules on OPT and unemployment?

The law governing OPT rules and periods of unemployment are found in 8 CFR 214.2(f)(5),(10), (11), and (12) and 247a12(b)(6)(iv) and (v) and SEVP Policy Guidance 0801-01.  Below are the key points relating to the OPT rules of unemployment:

  • As of April 8, 2008, students granted post-completion OPT can only accrue up to ninety days of unemployment.
  • Unemployment of ten days or fewer, when changing jobs, does not need to be reported to OIS and does not count towards the ninety-day total days of unemployment.
  • Students whose employers filed timely H-1B petitions and were granted cap-gap coverage are permitted a total of ninety days of unemployment for the entire period of OPT.
  • Days spent outside the United States while unemployed count towards the ninety days of permitted unemployment.
  • If a student on OPT nears the 90th day of unemployment, it would be best to make plans to depart the United States, apply for a change of status to a different status or make preparations to begin a new degree program.  Action needs to be taken early enough so that by the end of the 90th day of unemployment, the student has another option already in progress.  DHS has stated that an F-1 student who is unemployed for more than ninety days will be considered to be out of status.
  • OIS will not take any adverse action on a student’s SEVIS record regarding unemployment.  OIS’s responsibility is to report interruptions in employment that the F-1 student reports to OIS.  Failure to report that information or accruing more than ninety days of unemployment may result in DHS’ not approving future benefits or requests.

For students who are not on STEM (master’s degree in science) extensions, this employment may include:

  • Paid employment.  Students may work part-time (at least 20 hours per week when on post-completion OPT) or full-time.
    • Multiple employers.  Students may work for more than one employer, but all employment must be related to their degree programs, and, for pre-completion OPT, cannot exceed the allowed per-week, cumulative hours.
    • Short-term, multiple employers (performing artists).  Students, such as musicians and other performing artists, may work for multiple, short-term employers (gigs). The student should maintain a list of all gigs as well as their dates and duration.  If requested by DHS, students must be prepared to provide evidence showing lists of all gigs.
    • Work for hire.  This is also commonly referred to as 1099 employment in which an individual performs a service based on a contractual relationship rather one based on employment.  If requested by DHS, students must be prepared to provide evidence showing the duration of the contractual periods as well as the names and addresses of the contracting companies.
    • Self-employed business owner.  Students on OPT may start a business and be self-employed.  In this situation, the student must work full-time.  The student must also be able to prove that he has the proper business licenses and is actively engaged in a business related to his degree program.
    • Employment through an agency.  Students on post-completion OPTs must be able to provide evidence showing they worked an average of at least twenty hours per week while employed by the agency.
  • Unpaid employment.  Students may work as volunteers or unpaid interns, but only in jurisdictions where it does not violate any labor laws.  The work must be at least twenty hours per week for students on post-completion OPTs. 

Can a US citizen spouse legalize an undocumented spouse in the US?

This post I receive from a blog reader today.  A US citizen asked me whether she can get a green card for her husband based on their marriage.  Her husband crossed the US border without being admitted sometime in 2003.  Now that they are married the client wants to legalize her husband. 

Based on your facts it appears that your husband is not eligible for legalization under INA Section 245(i) which allows certain immigrants present in the United States on April 21, 2001 with pending employment or family based petition to petition for adjustment of status while in the United States.  Based on the current law, your husband needs to process his documents through United States Embassy in Mexico.  He needs to seek a waiver for illegal entry and unlawful presence in United States.  Once he leaves for Mexico he will be subject to a ten year bar.  As a petitioner and his United States citizen spouse you will need to show that you are suffering extreme hardship because your husband is not in the United States. Although Form I0-601 is deceptively easy, preparation of the documents in support of the waiver is usually time consuming, document intensive and definitely requires expertise of an immigration lawyer. 

Evita Tolu, Esq.
Immigration Law Group LLC

9378 Olive Blvd., Ste. 325

St. Louis, MO 63132

 (314) 872-3988 telephone-general number
(314) 872-9556 facsimile

www.toluimmigration.com

evitatolu@yahoo.com

Criminal defense attorney has a duty to advise immigrant non-citizens of immigration consequences of a guilty plea

On March 31, 2010, the United States Supreme Court in Padilla v. Kentucky, 2010 U.S. Lexis 2928 (March 31, 2010) held that immigrants and non-citizens with criminal convictions which subject them to deportation have a right to competent and affirmative advice regarding the immigration consequences of a guilty plea.  The Supreme Court held that absent such advice an immigrant defendant may raise a claim of ineffective assistance of counsel under the Sixth Amendment. 

Padilla holding requires criminal defense attorneys working with immigrant and non-citizen clients facing criminal convictions to advise them of immigration consequences of a guilty plea.  If you are a foreign national who pleaded guilty to a crime that might subject you to deportation and you were not advised of the immigration consequences of your guilty plea under Padilla holding your guilty plea may be vacated based on ineffective assistance of counsel and your deportation may be terminated.  Contact our experienced immigration attorney today for assessment of your criminal case and potential immigration consequences. 

Under Padilla criminal defense attorneys owe the following duties of care to their immigrant non-citizen clients:

  1. Duty to inquire about criminal client’s immigration or citizenship status at the inception of the attorney-client relationship;
  2. Duty to investigate client’s criminal history and advise immigrant non-citizen client about immigration consequences of a guilty plea;
  3. Duty to advise of different plea alternatives to avoid harsh immigration consequences; and
  4. Duty to investigate and advise about immigration consequences of sentencing alternatives. 

Under current law deportation is considered to be penal in nature because it is closely intertwined with criminal proceedings.  The Supreme Court in Padilla explained that professional standards for defense lawyers provide the guiding principles for what constitutes effective assistance of counsel.  The court explained that the Sixth Amendment requires affirmative and competent advice regarding immigration consequences.  The Supreme Court made it clear that defense lawyer’s silence regarding immigration consequences of a guilty plea constitutes ineffective assistance of counsel.  Where the deportation consequences of a particular plea are unclear or uncertain, a criminal defense attorney must still advise an immigrant or non-citizen client regarding the possibility of adverse immigration consequences.

The Court endorsed “informed consideration” of deportation consequences by both the defense and the prosecution during plea-bargaining.  The Court specifically focused on benefits and appropriateness of the defense and the prosecution factoring immigration consequences into plea negotiations in order to craft a conviction and sentence that reduce the likelihood of deportation while promoting the interests of justice.

If you require any assistance to assess immigration consequences of your criminal conviction, please contact our office through contact page or by phone at 314-872-3988.