Articles Posted in Waivers

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New Melones LakeThe Immigration and Nationality Act (INA) identifies multiple grounds of inadmissibility to the U.S. These include criminal history, national security concerns, prior immigration violations, and health concerns. The INA allows the government to make exceptions with regard to fraud-related activities, based on the impact inadmissibility or removal would have on relatives in the U.S. The Third Circuit Court of Appeals in New Jersey recently reviewed the procedures for this type of waiver in Park v. Atty. Gen., 846 F.3d 645 (3rd Cir. 2017). This issue is unlikely to affect most prospective New Jersey immigrants, but it is important information to consider when planning a visa application.

A “§ 212(i) waiver of inadmissibility,” named for the section of the INA that defines it, applies to individuals previously held to be inadmissible for fraud, willful misrepresentation of a material fact, or falsely claiming U.S. citizenship in connection with seeking an immigration-related benefit. 8 U.S.C. §§ 1182(i), (a)(6)(C). An individual seeking a waiver must first establish that they are “the spouse, son, or daughter of a United States citizen” or lawful permanent resident (LPR). Id. at § 1182(i)(1). They must then show that denying them entry to the U.S. would cause “extreme hardship” to that individual’s relatives. Id. The Department of Justice (DOJ), through the Executive Office for Immigration Review (EOIR), has discretion to decide whether to grant a waiver.

The statute specifically denies the courts jurisdiction to review DOJ decisions regarding this type of waiver. Id. at § 1182(i)(2). Within the EOIR, however, a review process is available at the Board of Immigration Appeals (BIA). Both the immigration courts and the BIA are bound by their own precedential decisions and established practices. The impact of prior decisions on the BIA was a major aspect of the appellant’s argument in Park.

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visaThe Immigration and Nationality Act (INA) gives multiple federal agencies under several Cabinet departments jurisdiction over different—sometimes overlapping—processes. U.S. Citizenship and Immigration Services (USCIS), which is part of the Department of Homeland Security (DHS), handles most visa petitions and applications for adjustment of status. The courts that hear removal cases and other matters are part of the Executive Office of Immigration Review (EOIR), which is part of the Department of Justice. The Board of Immigration Appeals (BIA), also part of EOIR, recently resolved a dispute over whether an immigration judge (IJ) could adjudicate a request for a waiver of inadmissibility by a U visa petitioner, when the petitioner was already in the IJ’s court for another matter. Matter of Khan, 26 I&N Dec. 797 (BIA 2016). The BIA held that USCIS has exclusive jurisdiction to decide whether to grant waivers of inadmissibility.

A prospective immigrant who wishes to come to the U.S. must establish that they do not fall under any of the categories of inadmissibility set forth by the INA. These include criminal convictions, national security issues, and health-related factors. See 8 U.S.C. § 1182(a). USCIS has discretionary authority, however, to admit many otherwise inadmissible people on a temporary nonimmigrant basis. Id. at § 1182(d)(3)(A)(ii). This is known as a waiver of inadmissibility.

The INA creates numerous categories of nonimmigrant visas for people who intend to come to the U.S. for a limited period of time before returning home. These include tourist and business visitor visas, student visas, and various types of work visas. The respondent in Khan was seeking a U visa, which is available to crime victims who are actively assisting law enforcement in an investigation or prosecution. 8 U.S.C. §§ 1101(a)(15)(U), 1184(p). The total number of U visas that may be issued each fiscal year is capped at 10,000, not counting spouses and parents of the principal beneficiaries. A U visa is valid for up to four years and can be extended under some circumstances.

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marriageThe Immigration and Nationality Act (INA), the nation’s primary source of immigration law, allows noncitizens who marry U.S. citizens to obtain lawful permanent residence without numerical limitations. In order to address concerns about marriages whose sole intent is to facilitate immigration benefits, the INA sets restrictions on people who seek lawful permanent residence after less than two years of marriage. A violation of these restrictions can result in a finding of deportability, but the INA allows waivers in some situations. The Board of Immigration Appeals (BIA) recently ruled on a waiver claim in a case involving marriage fraud. Matter of Tima, 26 I&N Dec. 839 (BIA 2016). The ruling offers an extensive summary of this area of immigration law but resulted in the denial of the respondent’s claims.

An individual who obtains lawful permanent resident (LPR) status through marriage to a U.S. citizen is granted “conditional permanent resident” status if, at the time they obtain such status, they have been married for less than two years. 8 U.S.C. § 1186a. Within two years of obtaining conditional status, they must apply to have the conditions removed. The purpose of this two-year conditional period is to give the government time to investigate whether the marriage was solely entered into for immigration purposes.

If the parties are no longer married after two years, that is not automatic evidence of marriage fraud, but it will likely bring additional scrutiny from investigators. If the government concludes that the marriage was a sham, or if the immigrant fails to apply by the two-year deadline, conditional permanent residence is automatically revoked. The immigrant may then be subject to deportation. 8 U.S.C. § 1227(a)(1)(D)(i).

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Pulaski SkywayA ruling from the Administrative Appeals Office (AAO) of U.S. Citizenship and Immigration Services (USCIS) establishes new eligibility criteria for “national interest waivers” (NIWs). Matter of Dhanasar, Int. Dec. No. 3882, 26 I&N Dec. 884 (AAO 2016). The NIW is a type of employment-based immigrant visa petition in the second preference (EB-2) category. Normally, a petition for an EB-2 immigrant visa must include an employment offer and a labor certification from the Department of Labor. The NIW waives those requirements. USCIS had relied on the decision in Matter of N.Y. State Dep’t of Transp. (“NYSDOT”), 22 I&N Dec. 215 (Acting Assoc. Comm’r 1998), to determine eligibility for NIWs. The decision in Dhanasar overturns NYSDOT and establishes a more consistent standard.

EB-2 visas are available to individuals “who are members of the professions holding advanced degrees” or who have “exceptional ability in the sciences, arts, or business.” 8 U.S.C. § 1153(b)(2)(A). According to the statute, the individual’s exceptional ability must have the potential to “substantially benefit” the nation. Id. The individual must have an offer from an employer in the U.S., and they must obtain a labor certification, which basically shows that hiring an immigrant will not adversely affect U.S. workers. 8 C.F.R. § 204.5(k)(4)(i); 20 C.F.R. §§ 656.17(h)-(i).

USCIS is authorized by statute to waive the job offer and labor certification requirement by issuing an NIW, if doing so would “be in the national interest.” 8 U.S.C. § 1153(b)(2)(B)(i), 8 C.F.R. § 204.5(k)(4)(ii). The NYSDOT decision established a three-part test that required a prospective immigrant to establish (1) that there is “substantial intrinsic merit” in their field of employment, (2) that the likely benefits of their work will be “national in scope,” and (3) that requiring a labor certification would “adversely affect[]…the national interest.” Dhanasar, 26 I&N Dec. at 887, quoting NYSDOT, 22 I&N Dec. at 217.

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red markerUndocumented immigrants who meet certain criteria can apply for waivers allowing them to proceed with an immigrant visa petition. One type of waiver is known as a “provisional unlawful presence waiver” (PUPW). Individuals with six months to one year of accrued unlawful presence in the U.S. who voluntarily depart the U.S. are deemed inadmissible for a period of three years. A PUPW allows a person who meets these criteria to request a waiver of the three-year inadmissibility period, provided they leave the U.S. and apply to reenter at a U.S. consulate abroad. A new rule that took effect at the end of August 2016 streamlines the application process and expands eligibility for PUPWs. 81 Fed. Reg. 50243 (Jul. 29, 2016). Previously, PUPWs were only available to people seeking family-based immigrant visas. The new rule makes them available for employment-based and other visa petitions.

To qualify for a PUPW, an individual must be inadmissible under § 212(a)(9)(B)(i)(I) of the Immigration and Nationality Act (INA), 8 U.S.C. § 1182(a)(9)(B)(i)(I). This provision applies to people (1) who have been unlawfully present in the U.S. for more than 180 days but less than one year, (2) who voluntarily depart the country, either on their own or with the government’s permission under 8 U.S.C. § 1229c, (3) prior to the beginning of removal proceedings under 8 U.S.C. §§ 1225(b)(1) or 1229a.

People covered by this provision of the INA are ineligible for readmission for three years, beginning on the date they leave or are removed from the U.S. The PUPW waives the six- to 12-month period of unlawful presence, making them eligible for an immigrant visa without the three-year bar.

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Izzedine (Own work) [CC BY-SA 3.0 (http://creativecommons.org/licenses/by-sa/3.0)], via Wikimedia CommonsIn order for an individual who is not a citizen or lawful permanent resident of the United States to enter this country, they must possess a valid immigrant or nonimmigrant visa. The Immigration and Nationality Act (INA) allows people from certain countries, however, to enter the U.S. for a limited time, and for limited purposes, under the Visa Waiver Program (VWP). Anyone wanting to enter the U.S. under the VWP must be otherwise admissible, and the government may still deny them entry for various reasons. The Visa Waiver Program Improvement and Terrorist Travel Prevention Act of 2015, which was originally a separate bill but was then added to an appropriations bill, took effect in January 2016. Pub. L. 114-113, Div. O, § 201 et seq. The new law restricts people from entering the country through the VWP if they have recently visited certain other countries, purportedly based on national security concerns.

Under the VWP, nationals of specified countries are exempt from the usual requirement of a nonimmigrant visa or other document authorizing entry into the U.S., provided they are seeking admission as a tourist for no more than 90 days. 8 U.S.C. §§ 1187, 1182(a)(7)(B)(i)(II). The federal government designates specific countries for the VWP, usually based on a reciprocity agreement under which U.S. nationals can enter that country without a visa. According to the U.S. Department of State, 38 countries currently participate in the VWP. Most of these countries are in Europe. The list also includes one South American country (Chile); five Asian countries (Brunei, Japan, Singapore, South Korea, and Taiwan); and two countries in Oceania (Australia and New Zealand).

The new bill, which became law in December 2015 and took effect a month later, makes several modifications to the VWP. It amends the passport requirements to allow both machine-readable and electronic passports, effective April 1, 2016. It also requires VWP countries that issue electronic passports to certify that they have adequate means to validate these passports by October 1. The most notable features of the new law, however, deal with national security issues.

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By Dabit100 / David Torres Costales  Pictures of Ecuador (Own work) [CC BY-SA 3.0 (http://creativecommons.org/licenses/by-sa/3.0)], via Wikimedia CommonsThe Deferred Action for Childhood Arrivals (DACA) program, first announced by President Obama in 2012, allows undocumented immigrants who arrived in the U.S. as children, and who have graduated high school or served in the military, to remain in the U.S. and obtain work authorization. The program represents an agreement by immigration officials to defer any enforcement action. One question that seems to have received little public attention is whether a DACA recipient may leave the U.S. temporarily without jeopardizing their deferral. Any DACA recipient wanting to leave the U.S. must first obtain advance parole from U.S. Citizenship and Immigration Services (USCIS), a process that can unfortunately be both cumbersome and uncertain.

An article published by Vox in April 2015 describes the difficulties faced by a DACA recipient, who came to the U.S. from Ecuador at the age of eight, obtaining approval to travel to Ecuador for professional purposes. The woman works as an advocate for undocumented immigrant students, helps administer a $25 million scholarship fund, and frequently receives invitations to give speeches all over the country. When she was asked to speak at two events in Ecuador, she applied to USCIS for advance parole.

Advance parole is essentially an acknowledgment from the federal government that the recipient may leave the country without giving up their “continuous presence” in the U.S. Since DACA recipients are, by definition, potentially subject to deportation, voluntarily leaving the country could mean that they will not be allowed back in. Two immediate problems present themselves for people in the DACA program: USCIS can be very slow to process advance parole requests, and the applicability of advance parole to DACA is not at all settled.

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WhiteHouseSouthFacade.JPGPresident Obama announced a wide range of executive actions (EAs) on immigration in late November, including an expansion of the Deferred Action for Childhood Arrivals (DACA) program, deferrals for family members of citizens and lawful permanent residents (LPRs), and potential eligibility for certain public benefits. The EAs do not substantively alter federal immigration law by, for example, creating new immigrant categories or giving undocumented immigrants a new means of obtaining lawful status, but they do grant millions of people a reprieve from the threat of deportation and the opportunity to work.

The President announced the EAs on November 20, 2014, after a long period of inaction by Congress. The U.S. Senate passed the Border Security, Economic Opportunity, and Immigration Modernization Act of 2013, in a bipartisan vote on June 27, 2013. The bill would create new opportunities for lawful immigration status while enhancing immigration and border enforcement. It would crack down on abuses in the H-1B visa system and provide additional visas for students in science, technology, engineering, and mathematics (STEM) fields at U.S. colleges and universities. The bill never has even been introduced in the House of Representatives.

The EAs will expand eligibility for DACA, the program that allows undocumented immigrants who entered the U.S. as children and meet other criteria, about 90 days after the announcement date. The upper age limit, currently set at people born on or after June 15, 1981, will be removed, and the continuous presence requirement will be moved up from June 15, 2007 to January 1, 2010. The program still will not be available to anyone who entered the U.S. after that date.
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800px-JustsayIdo.jpg“Prosecutorial discretion,” in the context of federal immigration law, refers to the right of immigration authorities to defer prosecution of certain cases in order to focus resources on areas of higher concern. The Obama administration, working with the Department of Homeland Security (DHS), has developed a series of criteria for the immigration agencies to follow when deciding what cases to pursue. It expanded the criteria this summer to include individuals who entered the United States without inspection as children. This policy is known as Deferred Action for Childhood Arrivals. More recently, guidelines from DHS expanded the definition of “family,” with regard to deferring cases where an individual has started a family in the U.S., to include long-term same-sex relationships.

Immigration and Customs Enforcement (ICE), part of DHS, issued a memorandum in June 2011 that identified “enforcement priorities” and outlined the elements of prosecutorial discretion. Recognizing its limited resources, ICE stated that its agents should focus on cases that reflect the enforcement priorities of promoting “national security, border security, public safety, and the integrity of the immigration system.” June 2011 Memo at 2.

Prosecutorial discretion covers a wide range of actions, or lack of action, as the case may be, ranging from deciding not to stop or question a person to dismissing pending removal proceedings. ICE provided a lengthy list of factors for personnel to consider when determining whether to pursue a matter. Of particular note are factors relating to a person’s length of time in the U.S., family connections or roots in the community, and family members who are United States citizens or permanent residents. Statistics released by ICE in April 2012 indicate that the agency had reviewed over 200,000 pending cases and identified more than 16,000 that fit the criteria for prosecutorial discretion.
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657696_55005379_01072012.jpgThe U.S. Supreme Court issued an historic rebuke to the Board of Immigration Appeals (BIA) last week over standards the BIA applies in certain deportation proceedings. Justice Elena Kagan, writing for a unanimous court in Judulang v. Holder, held that the standards make no sense: “We must reverse an agency policy when we cannot discern a reason for it.” The ruling confirms something immigration lawyers have known for years, and hopefully it will cause the BIA to apply more consistent standards in the future.

At issue was the applicability of a type of waiver that “excludable” immigrants could request from the Attorney General. “Excludability” or “inadmissibility,” briefly stated, refers to an immigrant found to have never had legal status to enter the U.S., while deportability describes an immigrant whose legal immigration status is stripped by a court. The Immigration and Nationality Act (INA) sets out separate, sometimes overlapping, grounds for excludability and deportability.

Joel Judulang appealed his deportation order after the BIA held that he was not entitled to a waiver. He had come to the United States from the Phillipines as a child in 1974, and has resided here since then. He was charged as an accessory to a homicide and pleaded guilty to manslaughter in 1988. He later pleaded guilty to a theft-related crime in 2005, at which time the Department of Homeland Security (DHS) began deportation proceedings. DHS argued that the manslaughter conviction made Judulang deportable, as it fit the definition of an “aggravated felony” involving a “crime of violence.” The immigration court ordered him deported, and the BIA affirmed.

Judulang argued that he should qualify for a waiver under section 212(c) of the Immigration and Nationality Act. That section allowed people found to be excludable to request a waiver from the Attorney General. The BIA is an agency of the U.S. Department of Justice and is empowered to make or review decisions on granting 212(c) relief. The BIA has held for years that 212(c) also applies in deportation cases. Congress repealed 212(c) in 1996, but it still applies in cases, like this one, where the criminal offense leading to deportation occurred before 1996. The BIA has long applied a standard it calls “comparable grounds,” meaning that a deportable immigrant may only qualify for 212(c) relief if their particular ground for deportation has a similar counterpart in the list of grounds for excludablity. This is the standard challenged by Judulang and addressed by the Supreme Court.
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