I-601A Provisional Waiver for Unlawful Presence Expansion!

The USCIS has announced that they will expand the availability of the I-601A Provisional Unlawful Presence Waiver to certain relatives of permanent residents and certain other immigrants eligible for immigrant visas. The Provisional Waiver allows families to stay together in the United States while an immigrant relative applies for a waiver of an unlawful presence inadmissibility. The Provisional Waiver is needed in the case where an immigrant lives in the United States but is unlawfully present. If the individual who is unlawfully present is sponsored for permanent residence (green card), and does not qualify for adjustment of status, the immigrant is required to return to their home country to complete a final interview at the consulate to receive permanent residence. However, there is a catch 22. If the immigrant has accrued a certain amount of unlawful presence in the United States, they are inadmissible and cannot be granted a green card at the consulate. Furthermore, the immigrant will certainly be denied re-entry to the United States. For some, the remedy is a hardship waiver, which the immigrant would have to submit in their home country and also wait for the waiver to be processed. Processing can take anywhere from 1 year to 1.5 years to be processed. Therefore, the immigrant can remain stuck in the foreign country and separated from family for years. This certainly takes its toll on the immigrant and their family. The Provisional Waiver helps immigrants to avoid this traumatic ordeal by allowing immigrants to apply for a waiver of the unlawful presence in the United States. If the Provisional Waiver is approved, the immigrant can return to their home country to attend the final interview with assurance that the waived unlawful presence will not be a basis for denial of the permanent residence.

Though the Provisional Waiver is a good solution to promote family unity in the United States, it was only available to immediate relatives of U.S. citizens. With the expansion, many more families will have the option to stay together during the processing of the waiver and during much of the immigration process. The expanded availability of the waiver goes into effect August 26, 2016. The rule also includes changes to the I-601A Provisional Unlawful Presence Waiver Form.

Disclaimer: The information on this blog is for informational purposes only and is not legal advice nor does it establish an attorney-client relationship.

The Aftermath of US v. Texas. What Now?

With the Supreme Court's split decision, President Obama's DAPA and Expanded DACA will continue to be blocked as it makes its way back to the fifth circuit. Even though DACA and DAPA are temporary measures, it gave some hope that undocumented individuals could have an avenue to lawful presence to work and go to school without the threat of deportation over their heads. However, without DAPA, parents of US citizens will continue to fear deportation as the threat looms. So what are the options available to undocumented individuals without DAPA and the expanded DACA? 

Unfortunately, the options are limited. While congress continues to delay immigration reform, the problem of undocumented immigrants persists. The permanent solution would be comprehensive reform designed to provide a fair and humane solution to undocumented individuals. Perhaps if there are any changes in the circumstances of the undocumented individuals, they can seek legal status through another avenue. For instance, if their US citizen child turns 21, the U.S. citizen child can sponsor the parent. Another change in circumstance is marriage to a U.S. citizen or a permanent resident. This could also be a likely avenue to legal status. However, a majority of individuals won't have a change in circumstances that will allow them to pursue an avenue to legal status. President Obama commented that undocumented individuals who would have qualified for DAPA and expanded DACA would continue to fall under the low enforcement priority for deportation and will remain so as long as the undocumented individuals don't commit certain crimes. This may seem like an assurance. However, there is a clear contradiction in the immigration policy.  Given the recent raids to seek, detain and deport undocumented women and children (many who flee from violence in their Central American countries), this vague enforcement policy is of little comfort. When President Obama was asked if he will do anything more for undocumented immigrants, he stated he did not anticipate additional executive action and must abide by the fifth circuit ruling to block his executive action. Therefore, undocumented immigrants must struggle on, with no way to legally work, with limited education options, and with fear.  And if caught, there is the last line of defense: deportation defense. 

As we fight for immigration reform and a humane solution, undocumented immigrants should not let this set back discourage their progress and hard work. Continue to dream, strive and achieve. Our government, especially congress, can only ignore this elephant in the room for so long.

Disclaimer: The information on this blog is for informational purposes only and is not legal advice nor does it establish an attorney-client relationship.

The Supreme Court Split 4/4 in US v. Texas, blocking President Obama's DAPA and Expanded DACA measures

This is an update to the previous post regarding US v. Texas. As a result of the 4/4 decision, President Obama's measures will continue to be blocked, leaving many undocumented individuals in limbo. The struggle continues but it does not mean defeat.


Disclaimer: The information on this blog is for informational purposes only and is not legal advice nor does it establish an attorney-client relationship.

Do You Need an Immigration Waiver of Inadmissibility? An Attorney Can Help Answer That

As I work with clients and consult with prospective clients, I love to take a collaborative approach and informatively guide my clients through the process, which gives them a sense of empowerment as well. One way that I do this is by posting information rich blog posts on my firm website and on my immigration blogs. I find many clients often struggle with solutions to a very difficult circumstance: That is, how to get past their or their relative's inadmissibility to the United States. One of the ways to get past inadmissibility is through a waiver. I think a big problem is, some clients have a hard time identifying inadmissibility and when they do, they have difficulty figuring out how to get past the inadmissibility. I can relate with clients on these difficulties, because at times, the waiver process can be exceedingly complicated. This article addresses the need to identify that there may be an inadmissibility problem and the need to get counsel involved as early in the immigration process as possible.

I will not expound on all the different reasons one may need a waiver. I have already addressed these reasons on my informational blog, MyImmigrationInfo.com, under Grounds of Inadmissibility. You can also read information about inadmissibility and waivers at my firm website, ST Law Office, PLLC, under the Immigration Practice Area page. However, I will discuss the overall experience of coming to terms with your or your relative's immigration inadmissibility, some hopeful avenues to take to be re-admitted into the United States and the importance of preparing a waiver in advance when it is necessary.

As an attorney and one who has seen the process first hand, I can tell you this now. If you or your relative has been convicted of a certain crime (see criminal grounds of inadmissibility), or has previously been deported or unlawfully present (See immigration violation grounds of inadmissibility), it is likely you or your relative will need a waiver to re-enter the United States. If you or your relative has an adverse criminal or immigration history, consult an attorney immediately before filing any paperwork with the USCIS. The right immigration attorney would be able to alleviate your fears if there is nothing to worry about or prepare you for the worst to come. I know, attorney fees can be expensive, which serves as a big obstacle for clients. But quality representation may very well be worth it because it could increase your chance of being re-admitted to the United States. If cost is a huge obstacle, it is important to seek an attorney early to allow yourself enough time to shop around for an attorney who is both well qualified and reasonable.

The Advantages of Attorney Representation
Sponsoring a relative who is inadmissible is a tedious, complicated process, marred by uncertainty. While you wait during the immigration process, it feels like a cruel fate looms. However, an attorney can properly lay out the hopeful avenues to reunite you with your relative in the United States and assist you to come up with a plan and execute the plan. For example, one common waiver is the Extreme Hardship Waiver (see waiver for criminal inadmissibility and waiver for certain immigration violations). A waiver for previous immigration violations, such as misrepresentation and fraud, may be granted if the inadmissible applicant can prove that a U.S. citizen or Permanent Resident relative (spouse, parent, son or daughter) will face "Extreme Hardship" if the inadmissible applicant is not granted a waiver to re-enter the United States. One of the key aspects of the Extreme Hardship waiver, is the collection and preparation of supporting evidence.

Preparing the waiver with the supporting documentation can be time consuming. For example, if there is a medical hardship that the relative will face, this will involve collecting extensive documentation of the illness and medical records, along with a physician's opinion and evaluation. Sometimes, it takes the physician a week or more to send the medical records, along with a letter. In addition, the attorney will spend time researching the relevant legal authority to support approval of the waiver. This too can take time to prepare. Therefore, when an attorney can confirm that a waiver will be needed, advance preparation is the next big step, which will make submitting the waiver easier at the visa interview or shortly after. With a lawyer's knowledge and guidance, you can face the problem of inadmissibility in advance in order to give yourself or your relative the best chance later on.


What to Expect During the Immigrant Visa and Waiver Process and the Importance of Preparation

Even though you know your relative is inadmissible, you will still file the I-130 petition to sponsor your relative, and go through the normal petition process. If the I-130 is approved, it will be sent to the country of the inadmissible relative to be processed as an immigrant visa. The consul will contact the relative, schedule an interview and provide instructions for the medical examination to be done before the immigrant visa interview. At the interview, the immigration officer will usually review your or your relative's history and advise you of the inadmissibility and the need for a waiver. *** This is where you will receive the reward of preparation. Once advised of the inadmissibility, you can submit the prepared waiver at the interview if permitted, or make a follow up appointment to submit the waiver shortly after the interview. The advance preparation allows you to submit the waiver soon after the interview so that the processing of the waiver can start shortly after the interview, which could possibly cut your wait time for the decision on the waiver by a month or two.

So the moral of my story: contact an attorney for advice and guidance before sponsoring an inadmissible relative and before filing any paperwork with the USCIS, and work on preparing the waiver in advance of the interview to give yourself a good headstart.

If you have any questions regarding this post or any of the waiver articles on my blogs, feel free to ask at: st@stlawoffice.com .


Good luck!


Disclaimer: The information on this blog is for informational purposes only and is not legal advice nor does it establish an attorney-client relationship.
*** There are instances, in which some inadmissible immigrants are allowed to apply for the waiver shortly after filing the I-130. For example, The I-601A Provisional Waiver allows for this under certain circumstances (only when unlawful presence is the only ground of inadmissibility and the qualifying relative is a U.S. citizen). This information is also on Everything Waivers at My Immigration Info.

Hey! I have a question: What the Heck is Good Moral Character?

This is a topic that I could go on and on about. Unfortunately, there is no single sentence answer, and for clients this can be frustrating. However, I will discuss Good Moral Character in the context of citizenship, since that is a major focus during the naturalization application process.

So What is Good Moral Character you ask? Here is my page full:

A naturalization applicant is required to have Good Moral Character among other requirements to become a United States Citizen (“USC”). Many applicants may think, “well I’m a good person, right? So I must automatically qualify for the Good Moral Character (“GMC”) requirement.”

This is a wrong assumption. Immigration Officers have a broad criteria to determine factors that reflect negatively on the Good Moral Character of the naturalization applicant. See INA § 316.10 (2). Good Moral Character is determined on a case-by-case basis “taking into account . . . the standards of the average citizen in the community of residence.” See INA § 316.10(2). The time period during which an immigration officer evaluates the GMC of the applicant is not limited to the 3 or 5 years preceding the naturalization application or during which the applicant has been a legal permanent resident and the officer may look at the acts or behaviors of the applicant beyond this time if any such acts are relevant to an evaluation of the GMC. See INA § 316.10(2).

The clearly stated acts that will result in the applicant being denied for lack of good moral character and a permanent bar to US citizenship are:

1.    Murder at any time; and

2.    Aggravated Felony as defined under INA section 101(a)(43). See INA § 316.10(2)(b). The list of Aggravated Felonies under INA § 101 (a)(43) warrants a whole other article. However, aggravated felonies for immigration purposes don't necessarily involve physical violence and includes such crimes as failure to appear for service of sentence if the crime is punishable by imprisonment of 5 years or more, or certain cases of bribery or  forgery. 

            Acts that will not necessarily result in a permanent bar from naturalization, but which will result in a “lack of good moral character” finding if committed during the relevant statutory 3 and 5 years preceding the naturalization application include:

1. Crimes of moral turpitude (discussed further below)

2. Two or more “offenses” for which the applicant was “convicted” and the total sentence imposed was 5 years or more. (except for purely political offenses committed outside of the United States).

3. Offenses anywhere in the world involving a controlled substance (but excludes a single offense for simple possession of 30 grams or less of marijuana).

4. Admission of crimes of moral turpitude, two or more offenses punishable by a 5 or more year sentence, and possession of a controlled substance, even if there was “no formal charge, indictment, arrest, or conviction.” See INA § 316.10(b)(2)(iv).

5. Imprisonment for a total of 6 months or more for a conviction or convictions (except for purely political reasons outside of the United States). See INA § 316.10(b)(2)(v).

6. False testimony to obtain any benefit under the Immigration and Nationality Act. See INA § 316.10(b)(2)(vi).

7. Involvement in prostitution and commercialized vice. See INA § 316.10(b)(2)(vii) and INA § 212(a)(2)(D).

8. Human Trafficking. See INA § 316.10(b)(2)(viii) and § 212(a)(6)(E).

9. Past or Present Polygamy. See INA § 316.10(b)(2)(ix).

10. Two or more convictions for gambling or earns income from illegal gambling activities. See INA§ 316.10(b)(2)(x) and (xi).

11. Is or was a habitual drunkard. See INA § 316.10(b)(2)(xii).

12. Willful failure to support dependents or an extramarital affair that destroyed the marital union. See INA § 316.10(b)(3)(i) and (ii).

13. Any crimes (not listed above) which negatively reflect on the applicant’s “moral character” or which resulted in a conviction or imprisonment for the unlawful acts.

Note: An applicant on parole, on probation or a suspended sentence will not be approved for citizenship until they have completed the program. See INA § 316.10(c)(1). Expungement for certain drug offenses have no effect on a conviction finding for the offense. See INA § 212(a)(2)(A)(i)(III); § 241(a)(2)(B); 316.10(b)(2)(ii); and § 316.10(b)(2)(iv). An applicant will not be permitted to show GMC if two or more crimes of moral turpitude (discussed below) were committed during the statutory period, even when one or more has been expunged. See INA § 316.10(b)(3)(ii).

TIP:  You should always be truthful on the application but always consult your attorney first before disclosing any information on an immigration application. Some lack of GMC factors may also result in deportation or removal proceedings. 

So the Next Question is: What are crimes of moral turpitude?

Determining a set list of crimes of moral turpitude is not simple and therefore the criminal history of an applicant should be evaluated carefully by an immigration attorney to determine whether the crime fits certain characteristics of a crime of moral turpitude. It is especially important to research the client’s criminal history because a crime of moral turpitude may render an applicant inadmissible and therefore deportable. Looking at whether an act or an offense is a crime of moral turpitude involves a little more research into case law, since the determination that a crime is one of moral turpitude is determined on a case by case basis, based on the characteristics.

Case law has provided the general characteristics of crimes of moral turpitude. In order for the offense to be a crime of moral turpitude, “there must be an element of evil intent” See D.L. Hawley., Immigration Briefings: Good Moral Character for Naturalization, (citing Goldeshtein v. INS, 8 F.3d 645 (9^th Cir. 1993)). However, evil intent is not required to find a crime of moral turpitude. Acts that are determined to be “contrary to justice, honesty, or morality” and which involve “acts of baseness, vileness, or depravity in the private and social duties which one person owes another, or to society in general, contrary to the accepted and customary rule of right and duty between people.” See D.L. Hawley. Immigration Briefings: Good Moral Character for Naturalization, (citing Islam v. Harrington, 2001 WL 2335852 (N.D. Tx. 2001)).

Some offenses found to be crimes of moral turpitude include:

1.    Embezzlement

2.    Spousal abuse

3.    Sexual assault

4.    Tax Fraud

5.    False information on a tax return

6.    Making a false statement on a driver’s license

7.    False statement under oath for a Green card

The above sample of offenses that have been found to be crimes of moral turpitude are examples of the broad definition of crime of moral turpitude. There are some exceptions, even if you have committed a crime of moral turpitude. 

Moral Turpitude Exceptions:

1.    If the offense was committed when under the age of 18; and was committed or the person has been released from the penal institution more than 5 years before the date of a visa application or date of admission application.

2.    The offense is punishable for 1 year or less and if the alien was convicted, the alien did not spend more than 6 months imprisoned.

When evaluating the criminal history, it is important to determine whether the crime(s) fall under an Aggravated Felony or crime(s) of moral turpitude within the statutory period. Either one could mean deportation, unless one of the exceptions apply. 

Disclaimer: The information on this blog is for informational purposes only and is not legal advice nor does it establish an attorney-client relationship.

The Highest Court Appeared Divided in the High Stakes Case, United States v. Texas

At this time the United States Supreme Court is considering a major immigration case, United States v. Texas. At the oral argument held on April 18, 2016, the Court was divided on whether President Obama’s immigration plan is legal and whether the States have standing to sue the federal government in this case. However, if the Supreme Court decides that President Obama should not be permitted to implement this immigration plan, millions will remain undocumented, subject to a lower quality of life and an inability to legally work. Many more will be separated from their families through deportation proceedings, and in the future, the States could possibly prevent and block federal laws and policies, as it is attempting to do in this case. I think the stakes are pretty high but unfortunately the Court seemed divided at the oral argument. If the decision ends in a four against and a four in favor of President Obama's immigration measures, the injunction on the DACA and DAPA executive action will be upheld, which would further delay a resolution to the pressing issue of undocumented immigrants in the United States.

This case stems from President Obama’s 2014 executive action, which authorized the expansion of Deferred Action for Childhood Arrivals (DACA) and introduced the Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA). Shortly after the issuance of the expanded DACA and DAPA, twenty-six States filed suit in the Southern District of Texas to prevent the implementation of the expanded DACA and DAPA. The district court found in favor of the States and issued a preliminary injunction, preventing the federal government from accepting applications under the expanded DACA and DAPA. The government appealed to the Fifth Circuit. However, the majority in the Fifth Circuit upheld the district court’s decision. The federal government then filed a petition of certiorari with the Supreme Court, which is now considering the case. 

Brief History of DACA and DAPA

With Congress refusing to agree on action for immigration reform and with the fate of millions of undocumented individuals hanging in the balance, President Obama enabled families to stay united and provided many undocumented individuals the opportunity to seek legal presence in the United States through the expanded DACA and DAPA. These measures were intended to prevent certain undocumented immigrants from being deported and instead provided them an avenue to gain work authorization and legal status for a few years.

DACA (2012): This program currently enables children brought to the United States under the age of 16 to gain lawful presence for 2 years and the ability to apply for work authorization if: they were under the age of 31 and had no lawful status as of June 15, 2012; continuously resided in the United States since June 15, 2007, up to the present time; met certain educational or military requirements; had no convictions for certain crimes; and posed no national security threat. This program is still available to those who are eligible. However, President Obama tried to expand DACA in 2014 to make it available to many more. The expanded DACA is now on hold pending the outcome of this case.

The Expanded DACA (2014): This expanded program extinguished the “under 31” age requirement of the original DACA and extended the lawful presence from 2 years to 3 years. There is a current injunction on this program due to this case.

DAPA (2014): This program was meant to provide relief from deportation to undocumented parents of U.S. Citizens or LPR children if: the parents lived in the United States continuously since Jan. 1, 2010, up to the present time; were physically present and undocumented in the United States on Nov. 20, 2014, and at the time of making the DAPA request; had, on Nov. 20, 2014, a son or daughter, of any age or marital status, who is a U.S. citizen (USC) or lawful permanent resident (LPR); and had no conviction for certain crimes or pose no threat to national security.This is also on hold pending the outcome of this case. The USCIS provides more information about DACA and DAPA.

According to the American Immigration Council, DACA has helped 700,000 individuals become documented in the United States and DAPA could help an additional 3.7 million undocumented immigrants stay united with their U.S. citizen or LPR children, gain proper work authorization and contribute to the U.S. economy. Furthermore, with no relief, and when some parents have been deported due to undocumented status, the children suffer irreparable harm. The American Immigration Council cited another horrific statistic that reveals the awful reality when families of illegal immigrants are separated due to deportation; a study by Race Forward showed more than 5,100 U.S. citizen children were placed in foster homes due to the deportation of parent(s) in 2011. Despite these horrific effects of deportation and President Obama’s effort to curb the trauma to families, the States  have argued that such policy was illegal and would cause further harm to them.

A Summary of the States’ Arguments

The American Immigration Council has succinctly broken down the arguments of both sides. The twenty-six States have argued that President Obama violated the “Take Care” clause in the Constitution to faithfully execute the laws by making unlawful conduct lawful. The States also argued that President Obama’s executive action violated the Administrative Procedure Act (APA) because it was “arbitrary and capricious,” was not in compliance with immigration law and did not adhere to the technical procedural requirements which included notice-and-comments rule making  The States have explained that if the federal government implements the expanded DACA and DAPA, Texas will lose money for each subsidized driver’s license due to the increased numbers of immigrants applying for the license. The district court’s issuance of the preliminary injunction, and the Fifth Circuit’s affirmance of the preliminary injunction were based the APA argument.

A Summary of the Federal Government’s Arguments

The federal government argued that the states did not have standing because the driver’s license subsidized cost incurred by Texas was an “indirect” and “incidental” effect of DACA and DAPA, which was “self-generated.” The federal government has also pointed out that it has traditionally had the discretion to defer deportation; and they are using such discretion to create the expanded DACA and DAPA.

At the Oral Argument: The Supreme Court Appeared Split

The oral argument at the Supreme Court on April 19, 2016, was the first hint of the divided position of the Supreme Court justices. Chief Justice Roberts and Justice Kennedy seemed skeptical regarding President Obama’s authority to implement the DACA and DAPA. According to the New York Times Article, Chief Justice Roberts asked, “Could the president grant deferred removal to every unlawfully present alien in the United States right now?” While the New York Times quoted Justice Kennedy’s statement regarding his opinion, “What we’re doing is defining the limits of discretion. . . And it seems to me that that [Obama’s DACA and DAPA] is a legislative, not an executive act.” Justice Kennedy made this statement even though the federal government has traditionally had the discretion to defer deportation. On the other hand, Justice Sotomayor acknowledged that “nearly 11 million unauthorized aliens are here in the shadows.” And “[t]hey’re here whether we want them or not.” In the transcript from the oral argument, Justice Breyer also pondered on the possibility that the courts could be inundated with lawsuits for "every case of political disagreement where States disagree" with federal policy. 

Worst Case Scenario If the Court Sides With the States

If the States prevail in their argument that President Obama’s executive action harms the states, then this would question the very essence of existing constitutional law and the deference given to the executive branch to enforce federal policies. This could lead States to file suits challenging all sorts of federal laws based on a disagreement with the federal policy underlying the federal law. Such an effect could hinder the federal government’s ability to implement policy efficiently, without delay and hindrance.

Furthermore, the most important and devastating cost of this nightmarish outcome would be the undocumented individuals at the center of this. They would be left in limbo. Undocumented parents of U.S. citizens would still live in fear of being deported, of being forced to leave their children behind. And the many more who could benefit from the expanded DACA would also face deportation; forced to go to a country that they have not known since childhood.

So let’s hold our breaths, hope and pray that the Supreme Court makes the right decision for the sake of so many who currently suffer "in the shadows".


Disclaimer: The information on this blog is for informational purposes only and is not legal advice nor does it establish an attorney-client relationship.