NEW UNLAWFUL PRESENCE WAIVER: UNITING FAMILIES SAFELY AND BOOSTING NATURALIZATION

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NEW UNLAWFUL PRESENCE WAIVER UNITING FAMILIES
SAFELY AND BOOSTING NATURALIZATION 2-25-13
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Our Presenters

• Charles Wheeler, Director
• Training Legal Support
• cwheeler_at_cliniclegal.org
• Jack Holmgren, Field Service Coordinator
• Center for Citizenship and Immigrant
  Communities, CLINIC jholmgren_at_cliniclegal.org

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Slide Availability

• Will be posted to the CLINIC website sometime
  this week
• Find them under the Resources tab
• Hover over the Resources tab and then locate
  Provisional Waivers and click on that
• Look under webinars and click on that

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Agenda

• What does the provisional waiver do?
• Who qualifies and what is procedure?
• How can you maximize the benefits of this for
  your current/future clients?
• Whats in it for your program and what should you
  do?
• General advice on filing waivers

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Polishing your Preparation

• This webinar is the 3rd on this topic and many of
  you have prepared for this change already
• Today is a review and refresher with some new
  ideas for final preparation
• Maximizes immigrant integration in your community

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How Does it Promote Naturalization?

• Only certain immediate relatives can utilize the
  provisional waiver
• Immediate relatives (IRs) are spouses, parents,
  children of U.S. citizens
• If have a green card, may be able to naturalize
  and some of their relatives automatically become
  IRs

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How Does it Promote Family Reunification?

• Allows waiver to be filed before leaving
• Waiver is adjudicated before leaving
• Immigrants can travel to their consular interview
  secure in the knowledge that they have been
  approved for the waiver
• No surprises (hopefully)!

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How Does it Promote Stable Family Income and
Family Unity?

• Immigrant stays here and continues to earn until
  they leave for a few days for the consular
  interview - no loss of income
• Family of the immigrant does not suffer the
  psychological damage and trauma of an extended
  (six-month ) separation

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Why Is it Good for your Community?

• Immigrant families maintain income
• Businesses benefit from a stable work force
• No use of public benefits
• Continuity of participation in faith-based
  institutions
• Continuity of parenting
• Lower rates of depression due to uncertainty over
  immigration situation

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More of Why it Helps your Community

• Promotes naturalization
• Naturalization
• Leads to higher/more
• Income
• Educational achievement
• Civic participation
• Inclusion
• Immigrant Integration in the fullest sense

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Whats in it for Your Program?

• It is an immigrant integration one-two punch!
• Your program is at the top of its game when it
  can naturalize someone and that helps to safely
  re-unite a family
• You get two service opportunities for the same
  goal
• Increasing naturalization is key

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Why Is it Key to Increase Naturalization?

• Nationally, naturalization is where it is at!
• Funders focus on naturalization
• Naturalization is a safe bet for grant
  applications
• Nobody opposes it
• You can use naturalization to make the case for
  supporting your waiver work

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It Will Increase Your Earned Income

• You will process cases efficiently and at a high
  level of legal competence
• You are authorized (BIA R A or immigration
  attorney) to practice immigration law
• You will charge and receive fees for both
  naturalization and for doing the family visa with
  the waiver

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Coordinating Naturalization and Family-Based
Cases will Prepare You for CIR

• CIR will probably involve 13 years from initial
  application to naturalization
• Case management will be key
• Coordinating the naturalization and family-based
  case and waiver will develop your programs
• Case management skills set
• Case management infrastructure

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What Should Programs Do Now to Prepare?

• You have only one week. Go!
• Analyze current cases that could benefit from the
  provisional waiver
• Meet and discuss soon
• Start with your existing caseload of waiver
  eligible cases
• Communicate with clients who would benefit if the
  petitioner naturalized

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Use This to Start Your Volunteer Group for CIR

• CIR will only work for your agency if you have
  many volunteers
• This is your chance to start creating a robust
  volunteer component
• Volunteers should be recruited from the pews and
  other places

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Outreach

• Do outreach to let the people know!
• This process of using the law takes some
  explaining so do it in their language
• Use examples and have people speak who have
  suffered through lengthy waits outside the
  country under the old system

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Volunteers for Outreach

• Your volunteers will be helping clients document
  and describe extreme hardship
• That makes the volunteers your best resource to
  do outreach and talk about the hardship aspect
• The volunteers will be your best resource to
  create a robust referral network

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Partner for Hardship Documentation

• Make the ask/build the relationship now
• Who will you ask to help document extreme
  hardship?
• Hospitals
• Doctors
• Clinics
• Social workers
• School counselors
• Religious personnel

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Training

• Staff should prepare now
• In-person training
• E-learning training
• Reach out to other agencies/local private
  attorneys that have done the unlawful presence
  waiver to learn from them peer-to-peer. CLINIC
  affiliates Call CLINIC for a connection
• Ask a local foundation for support

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Training Up What do You Need to Know To
Represent Waiver Applicants?

• Law and skills
• Family-based immigration
• Inadmissibility assessment
• Waiver eligibility
• Effective interviewing and writing
• Preparing effective waivers
• Dont stop at course work when you can learn from
  others first hand

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Upcoming CLINIC Trainings

• Omaha, March 20-21
• Los Angeles, June 10-11
• Kansas City, September 26-27
• E-learning courses starting again in June
• Recorded e-learning course available now
• Periodic articles or webinars if new info

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What Fees Should I Charge?

• Requires more work than many immigration benefit
  applications
• Client declaration language capacity and ability
  to capture clients voice
• Coordinating with community providers
• Possible fee range 600-800 but could go higher
  depending on the level of work
• Of course fee waivers are always possible

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Provisional Waiver Book

• Available in June
• Print version, electronic version
• Appendices
• templates for intake and assessment
• sample declarations
• sample list of documents
• sample cover letters
• resources for gathering country conditions and
  other evidence of extreme hardship

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Provisional Waiver Listserv

• Exchange information and results
• How USCIS implementing process
• Meeting hardship standard
• Experts
• Sources of documentation
• Insider tips
• Ask questions and get help
• Only for CLINIC affiliates

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Final Regulation

• Published in Fed. Reg. on January 3, 2013
• Implementation begins on March 4, 2013
• No applications accepted before then
• Form I-601A not available yet

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Whats It All About?

• Adjudication of unlawful presence waivers prior
  to consular interview
• Must still establish extreme hardship
• Applicant waits in U.S. for decision
• Provisional approval

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Waivers for What Grounds?

• Only unlawful presence 3- or 10-year bar
• Not if left U.S. after triggering 10-year bar and
  then EWIed (permanent bar)
• Not if ordered deported or removed
• Not for other grounds (e.g., fraud, health,
  criminal conduct, smuggling)
• Ineligible if USCIS has reason to believe may
  be found inadmissible by consulate

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Who is Covered?

• IRs who are consular processing
• Spouses, children, parents of USCs
• Rare for parents to qualify since would need USC
  parent or spouse
• Rare for children since between 18-21
• QR need not be petitioner
• Must be at least 17
• Residing in U.S., legally or illegally
• Approved I-130 or I-360 and paid IV fee bill

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Extreme Hardship to Whom?

• Extreme hardship to USC spouse or parent
• Not to LPR spouse or parent
• Extreme hardship to child only as it affects
  qualifying relative (USC parent/spouse)
• Current standard will not change
• USCIS reports I-601 approval rate of 65
• Applications to be adjudicated by NBC

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Who is Not Covered?

• Inadmissible on other grounds
• Under age 17
• No case pending with DOS, IV fee not paid
• IV applicants scheduled before January 3, 2013
  for consular interview
• Persons in removal proceedings unless proceedings
  admin closed at time of filing
• Persons subject to final order of removal
• Persons subject to reinstatement of removal
• Adjustment applicants

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Who is Not Covered but Could Be?

• IRs who have not started family-based process ?
  file I-130
• Spouse or child of LPR ? petitioner can
  naturalize
• Qualifying relative is LPR ? naturalize
• Applicants scheduled for IV interview before
  1/3/13 ? new I-130 by different petitioner new
  I-130 by same petitioner following DOS
  termination of first I-130 or withdrawal of
  approved petition

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What if in Removal Proceedings?

• Get proceedings administratively closed or
  terminated
• Not re-calendared when I-601A filed
• File I-601A with USCIS, not EOIR
• If approved, get proceedings terminated

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Whats the Filing Procedure?

• File I-130 or I-360, receive approval notice
• File sent to NVC
• Receive instructions from NVC, pay fee bill
• Notify NVC that wish to file I-601A
• File I-601A and supporting documents
• Fees 585 for I-601A and 85 for biometrics (no
  fee waivers)
• Appear for biometrics
• NVC has sent out notices advising applicants

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How Do You Notify the NVC?

• Special e-mail nvci601a_at_state.gov
• Subject line NVC case number or USCIS receipt
  number
• Include petitioners name and DOB,
  representatives name and address, statement that
  applicant seeking provisional waiver
• If properly notified, NVC will suspend consular
  processing

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What Happens After Waiver Approval?

• If waiver approved, notice sent to applicant and
  NVC
• Complete DS-230 or 260 and proceed with consular
  processing
• 2-3 mos. after approval received, NVC will
  schedule interview

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Provisional Waiver Approval Does Not Guarantee
Visa Issuance

• Approval provisional because unlawful presence
  bar not yet triggered
• Applicants still undergo normal consular
  processing including medical exam and interview
• If applicant found to be inadmissible on any
  other ground, provisional waiver automatically
  revoked

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Provisional Waiver Approval Grants No Benefits

• No right to
• Work authorization
• Advance parole
• Stop accrual of unlawful presence
• Protection from removal
• Allow to apply for adjustment

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How Will USCIS Adjudicate Provisional Waiver
Applications?

• USCIS will issue RFEs if missing evidence
• Extreme hardship
• Discretionary factors
• USCIS will not issue NOIDs
• USCIS can reopen, reconsider on own motion
• No appeal but can re-file I-601A
• Or can consular process and file I-601
• 3-month adjudication target

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What Circumstances Trigger Denial?

• USCIS will deny waiver if other possible grounds
  of inadmissibility discovered
• USCIS will deny waiver if extreme hardship to QR
  not established
• USCIS may deny waiver as matter of discretion
• Other failure to appear for biometrics

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Remedy Assessment Dont Forget to Consider.

• Does the client have a reasonable chance of
  meeting extreme hardship test?
• Is client a US citizen and not an alien?
• Does the client have a way to qualify for
  adjustment?
• 245(i) prior petition filed before 4/30/01
• 245(a) entered with inspection
• 245(a) granted advance parole

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Additional Resources

• USCIS Stakeholders call on provisional waiver 
• Tuesday, 2/26 at 2 p.m. EST
• Toll-free number 1-800-369-2065
• Toll number for outside the U.S. 1-212-547-0425
• Passcode Provisional
• CLINIC resources on website
• ILRC podcast on provisional waiver

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Basic Advice on Waiver Cases

• Start with effective interview
• Understand all inadmissibility grounds
• Inform client and bring into process
• Relate all hardship to the qualifying relative
• Dont ignore hardship to other family members
• Consider and prioritize all hardship factors
• Document all hardship factors

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Basic Advice on Waiver Cases

• How does applicants absence affect current
  hardship nexus!
• Prove two things qualifying relative cannot
  leave U.S. and cant stay here w/o alien
• Effective declarations
• Discuss discretionary factors
• Package application well cover letter and index
  of documents

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