Immigrant Waivers

Presented by

Shelley HennesseeLaw Office of Shelley Hennessee, PLLC, Irving, Texas

Liset LefebvreChavez & Valko, LLP, Baton Rouge, Louisiana

Amber WeeksNoble & Vrapi, PA, Albuquerque, New Mexico

AILA Spring Conference, Santa Fe, New Mexico

April 23-25, 2015

Overview

•Waiver Availability and Expansion of Provisional Waiver

•Preparing a Convincing Waiver Packet

•Practice Pointers: Managing Client Expectations, RFEs and Denials

I.Waiver Availability and Expansion of

Provisional Waiver

Waiver Basics• INA § 212(a)(9)(B)(v) waiver for unlawful

presence in the U.S.

• INA § 212(h) waiver for certain crimes

• INA § 212(i) waiver for fraud or misrepresentation

• INA § 212(a)(9)(A)(iii) waiver for prior order of removal

• INA § 212(g) waiver for health-related grounds

Unlawful Presence

• Unlawful presence begins to accrue on April 1, 1997

• > 180 days but < 1 year of unlawful presence = 3 year bar

• 1 year or more of unlawful presence = 10 year bar

• Triggered upon departure and subsequent application for admission to the U.S.

• Waiver available if extreme hardship to a qualifying relative is established.

• Qualifying relatives are U.S. citizen and legal permanent resident spouses and parents

Unlawful Presence

• Careful! Watch out for the INA § 212(a)(9(C) “permanent bar” and be prepared to address this in the event of a waiver denial.

• If your client has multiple entries and departures, be sure to have supporting documentation available to present if this finding is made in error.

Crimes• Waiver available for:

• Crimes involving moral turpitude

• Single offense of simple possession of marijuana of 30 g or less

• Multiple criminal convictions with aggregate sentence to confinement of 5 years or more

• Prostitution and commercialized vice

• Serious crimes in which individual asserted immunity

Crimes• To qualify, applicant must show:

• Activities occurred more than 15 years ago; admission would not be contrary to the national welfare, safety, or security of the U.S.; and applicant is rehabilitated; OR

• Qualifying relative, i.e., U.S. citizen or legal permanent resident parent, spouse, or child, will suffer an extreme hardship if waiver is denied; OR

• Applicant is a VAWA self-petitioner. No hardship required.

Crimes• Careful! Check the petty offense

exception, juvenile offense exception to ensure a 212(h) waiver is necessary.

• Watch out for the aggravated felon bar for LPRs, except for the 4th, 5th, and 11th Circuits, if LPR adjusted in the U.S.

• No waiver available to LPRs who have not resided in the U.S. continuously for at least 7 years immediately preceding initiation of proceedings.

Fraud or Misrepresentatio

n• Waiver available if applicant can show U.S.

citizen or legal permanent resident parent or spouse will suffer an extreme hardship.

• Waiver available to VAWA self-petitioner if he/she can show extreme hardship to self or U.S. citizen or legal permanent resident parent or child.

Fraud or Misrepresentatio

n• Careful! Verify that the elements of fraud

or misrepresentation have been met before conceding inadmissibility.

• If a timely retraction of the fraud/misrepresentation is made, argue that inadmissibility does not apply.

Health-Related Grounds

• Communicable disease of public health significance may be waived where the applicant is the spouse, unmarried son or daughter, or minor unmarried lawfully adopted child who is a U.S. citizen or LPR; or has a USC/LPR child; or is a VAWA self-petitioner.

• Lack of vaccinations may be waived.

• Physical or mental disorder that may pose a threat to the individual or others.

• No waiver available for drug abusers and addicts.

Health-Related Grounds

• Careful! A DWI could lead to a health-related ground of inadmissibility.

• A referral to a panel physician will be made for:

• 1 alcohol-related conviction within the last 5 years;

• 2 or more alcohol-related convictions within the last 10 years; or

• If there is any other evidence to suggest an alcohol problem.

Prior Proceedings

• Waiver available for prior order of removal.

• No qualifying relative required to seek the waiver.

• Adjudication is based on a weighing of the equities. Where I-601 is approved, I-212 will also, generally, be approved.

Burden of Proof

• Prove extreme hardship by a preponderance of the evidence, i.e., “more likely than not” or “probably true”

Provisional Waiver

• Available since March 4, 2013

• Allows for stateside processing of waiver for unlawful presence

• Currently available to immediate relatives

• Filed on Form I-601A

Provisional Waiver

• Areas of Concern:

• Denials based on “reason to believe”

• Template RFEs and denial letters

• Overly narrow interpretation of “extreme hardship”

• No appeal or motion to reopen/reconsider

Provisional Waiver

• Secretary Johnson’s November 20, 2014 Memo

• Directs CIS to expand its 2013 provisional waiver regulations to include all statutorily eligible individuals – spouses and parents of legal permanent residents and adult children.

• Directs CIS to provide guidance that would allow broader use of the waiver.

• Directs CIS to create a presumption of hardship.

Provisional Waiver• 11/20/2014 memo references the presumption

found in NACARA regulations.

• 8 CFR § 240.64(d) – Hardship shall be presumed to the applicant, or USC/LPR spouse, parent, or child.

• A presumption of hardship exists in the case of a widow(er) of a U.S. citizen. AFM § 10.21(c)(5).

Provisional Waiver

• AILA has submitted a letter of recommendation to DHS, suggesting that USCIS recognize a presumption where:

• QR is USC or LPR spouse and couple has been married 3 years or has at least 1 USC child; or

• Applicant comes from a country with rampant gang activity, natural disaster, or political upheaval; or

• Spouses are of the same sex and the country of relocation does not permit same sex marriage and is hostile toward LGBT individuals.

Texas v. United States

• Expansion of the provisional waiver program, additional guidance to broaden its use, and the creation of a presumption of hardship are not impacted by Texas v. United States.

II. Preparing a Convincing

Waiver Packet

Hypothetical #1

Dana (USC) and Juan Pablo (Mexican citizen) are married and have one child together. They consult with you regarding filing an I-601A waiver. Dana is a loan officer who does not have any medical issues. They do not own any property in the United States. What do you do?

A. Advise them that their chances of success of a waiver are low, but you will take the case as long as they acknowledge that in writing.

B. Refer them to another attorney.

C. Dig deeper.

Additional Facts Regarding Abuse• Dana’s father was an alcoholic and would hit

her. On one occasion when he was disciplining her, he hit her on the side with a wooden board, breaking the board in half. He would tell her that she would never succeed at anything. He would lock the door and make her sleep outside if she ever came home late.

Additional Facts Regarding

Medical Issues• Dana had gestational diabetes, and their son

had to be delivered early, resulting in his hospitalization. Their son has been diagnosed with failure to thrive and asthma.

• Dana is at higher risk of suffering from gestational diabetes again in future pregnancies and would need frequent prenatal visits in any future pregnancies.

Additional Facts Regarding

Financial Issues• Dana and Juan Pablo are trying to save money to buy their own

home and expand their family.

• Dana experiences extreme anxiety at the prospect of losing Juan Pablo’s income and having to incur credit card debt since, as a loan officer, she fears that would damage their credit score to the point that they would not be able to buy their own home.

• Due to the anxiety over the immigration process, Dana has had difficulty concentrating and her loan closure rate has gone down 15 percent, reducing her income.

• Dana speaks only very limited Spanish and would likely have to give up her career if she had to move to Mexico.

Finding the Story

• Childhood Trauma: Consider the Adverse Childhood Experiences (ACE) Test.

• Therapist evaluation and psychological Issues

• Medical issues of qualifying relative: Do not forget to ask about pregnancies, childhood health issues, and undiagnosed health issues

• Recovery from addictions

• Child custody and childcare issues

• Financial Issues: Home equity, business ownership, loss of income, language barriers to obtaining a job in a foreign country

• Disruption of education and career

• Community ties and ability to practice religion

• Violence, discrimination, economic, and social issues in foreign country

Telling the Story• Include a Hook (attention grabber)

• Develop a Theme

• A Good Story Includes Villains, Victims, and Heroes

• Pay Careful Attention to the Beginning and the Ending

Mapping Out the Waiver

• Hook: As a child, Dana’s father beat her to the point of breaking the board with which he hit her, and she grew up questioning the reason for living if even her own parents did not love her.

• Theme: Juan Pablo was the first person whom Dana was able to talk to about her abusive father, and Juan Pablo is helping her to recover from her depression.

• Villains: Father, Preeclampsia, Anxiety/Depression, Debt, Son’s Health Issues

• Victims: Dana, Son

• Hero: Juan Pablo

Hypothetical #2Matthew (USC) and Elena (Mexican Citizen) are married, and Elena has one child from a previous marriage. Matthew’s father contested paternity and abandoned him. Matthew was diagnosed with ADHD as a child. Matthew suffered from drug addiction in the past. Matthew and Elena do not own any property in the United States. Matthew is a janitor, and Elena works at Lotaburger.

Mapping Out the Waiver

• Hook: The first time that Matthew met his father was in a waiting room for a paternity test when he was 8 years old.

• Theme: Elena has provided the one source of stability in Matthew’s life in helping him to recover from the abandonment by his father, overcome his substance abuse, and manage his ADHD.

• Villains: Father, ADHD, Substance Abuse

• Victim: Matthew

• Hero: Elena

III. Practice Pointers: Managing Client

Expectations, RFEs and Denials

Practice Pointers: Do’s and Do Not’s

• Discuss processing times with client

• Keep open lines of communication if you notice processing times increase

• CURRENT PROCESSING TIMES:

• I-601A 2.5 to 5 months

• I-601 5.5 months

• I-212 5 to 7 months

• Discuss extreme hardship factors on more than one occasion• Surprising what clients will share after the first meeting

• Request client keeps you informed of any significant or insignificant changes during preparation of their waiver and/or while waiver is pending

Client Expectations

Discuss the possibility of an RFE

• What should the client be doing while their waiver is pending?

•Continue gathering evidence

•Keep all appointments with physician, psychologist and counselor and/or schedule follow ups

•Communicate any changes/new factors throughout the process

Client Expectations

Discuss the possibility of I-601 denial

• Lack of Extreme Hardship finding

• Abandonment

• “Reason to Believe”

• Alien Smuggling,

• 212(a)(9)(c),

• False name/DOB at entry

Discuss the possibility of denial at U.S. Consulate for separate ground of inadmissibility

• Tattoos

• Drug or Alcohol Abuse

• Options: Pursue I-601/ AAO Appeal

Client Expectations

Discuss Delays in Adjudication after Waiver Approval

• I-601

Depending on how long the I-601 was processing, your client may have to go back to Consulate to take fingerprints, medical, re-interview, or obtain an additional police clearance letter.

• I-601A

Must file DS-260, I-864, and other supporting documents

Wait for interview, Biometrics/Medical Exam, IV Appointment

Client Expectations

DO NOT:

• Underestimate the work that goes into gathering documents and evidence

• Compare client A’s waiver to client B’s waiver

• Underestimate the processing times

• Equip your client with the USCIS website so they are involved in the process

Client Expectations

DO NOT

• Take RFE’s lightly

• Template/Blanket RFEs are common

• Overlook updating previously submitted evidence when responding to an RFE

• Updated expense chart

• Updated bills

• Updated doctor’s letter

Client Expectations

DO NOT

• Compromise with your client re: evidence they want to provide vs. evidence that is necessary

• Client is busy

• Clients are living abroad

• Despair if your I-601A or I-601 is denied for lack of extreme hardship

RFE Practice Pointers

Responding to an RFE within 30 days

• Review RFE notice carefully

• Schedule a meeting with client to determine if any drastic changes have occurred since filing the initial waiver

• Provide client fix deadlines to produce additional evidence

• Set critical times to respond

RFE Practice Pointers

Responding to an RFE within 30 days

• Focus on the highlighted sections, but address all others as well

• Legal memorandum should discuss previously submitted evidence as well

• Exhibits: Continue from last submission

• (Example: If you tabbed exhibits A-L, then your RFE should start with Exhibit M – Z)

Re-evaluate Extreme Hardship Factors

The Board of Immigration Appeals has listed the following non-exclusive factors deemed relevant in determining if an alien has established extreme hardship to a qualifying relative:

• Presence of qualifying relatives in this country

• The qualifying relative’s family ties outside of the U.S.

• The conditions in the country or countries to which the qualifying relative would relocate and the extent of the QR’s ties in such countries

• The financial impact of departure from this country, and

• The significant conditions of health, particularly when tied to an unavailability of suitable medical care in the country to which the qualifying relative would relocate

Matter of Cervantes, 22 I&N Dec. 560 (BIA 1999)

Re-evaluate Hardship Factors

Medical/Psychological

• Hospital/ER medical bill/record

• New diagnosis

• Updated psychologist report

• Referrals to specialists

• Exam results

• Print out of prescriptions filled

• Physical therapy visit slips

• Physical therapy referrals, MRIs, etc.

Re-evaluate Hardship Factors

• Current Employment

• Promotion/demotion

• Increase in pay

• Loss of benefits

• Loss or Change of Employment

• Different schedule

• Lengthier commute

• Better or worse quality of life

Financial/Employment

• Acquisition/expansion

• Closing down/selling

• Profit v. Loss

• Require more personnel

• Transfer business/career to other country

• Degree acceptable or requires additional education or obtaining a license

Business/Career Loss

Re-evaluate Hardship Factors

Education

• New syllabus

• Transcripts

• Letter from advisor/counselor

• Proof of future potential earnings

• Possible job offers

• Look for positions in the field in the spouse’s native country

Family & Community Ties

• Proof of Community involvement

• PTA

• Religious groups

• Loss or addition of new family

• Parent-Child Court Orders

• Geographical restrictions

• Continue to pay child-support

Country Conditions

• Check the most recent travel warnings

• Obtain notarized letters from people residing in applicant’s home country, police reports if they have been victims of crime, missing people ads

• Reports on minimum wage, poverty level , illiteracy rates, etc.

• Wall Street Journal, Economist, Worldbank.org, CIA reports, etc.

Re-evaluate Hardship Factors

Show WHY your client merits a favorable exercise of discretion

Good Moral Character Evidence:

• Reference/character letters from non-family members

• Income tax returns

• High school diploma/college classes/ESL certificates

• Letters from Teacher explaining he/she is involved in child’s education

• Certificates, awards, and accolades from participation in community events, school or work

Re-evaluate Hardship Factors

Remind the adjudicator that he/she must “consider the entire range of factors concerning hardship in their totality and determine whether the combination of hardships takes the case beyond those hardships ordinarily associated with deportation.” Matter of O-J-O, 21 I&N Dec. 381, 383 (BIA 1996) (quoting Matter of Ige, 20 I&N Dec. at 882).

Strategies to Avoid Denials

Remind the adjudicating officer of the legal standard

•The Board in Matter of O-J-O- has made it clear that "[r]elevant factors, though not extreme in themselves, must be considered in the aggregate in determining whether extreme hardship exists." See Matter of O-J-O-21 I&N Dec. 381, 383(BIA 1996) (quoting Matter of Ige, 20 I&N Dec. at 882)(emphasis added).

Strategies to Avoid Denials

• Make sure the supporting evidence is clear and demonstrates how the standard is met

• Cite AAO case law

•AILA Infonet Doc. No. 14030449 (Posted 3/4/2014)

• Try to meet as many categories as possible (refer to past evidence submitted)

I-601A DenialsPursuant to 8 CFR 212.7 (e) , individuals for whom there is a reason to believe that they may be subject to grounds of inadmissibility other than unlawful presence at the time of the immigrant visa interview are ineligible for a provisional unlawful presence waiver.

• On January 24, 2014, USCIS issued field guidance addressing the adjudication of I-601A waivers in cases involving applicants with criminal history.

• USCIS instructed officers to: Review all evidence in the record, including any evidence submitted by applicant or the attorney of record. Also, determine if:

- (1) the criminal offense falls within the “petty offense” or “youthful offender” exception under INA section 212(a)(2)(A)(ii) at the time of the I-601A adjudication or

- (2) is not a CIMT under INA section 212(a)(2)(A)(i)(I) that would render the applicant inadmissible, then USCIS officers should not find a reason to believe that the individual may be subject to inadmissibility under INA section 212(a)(2)(A)(i)(I) solely on account of that criminal offense.

Sua Sponte Motion to Reopen: I-601A

• USCIS announced its intent to voluntarily reopen certain denied I-601A waivers.

• Effective March 18, 2014, this applies to I-601A waiver cases that were denied prior to January 24, 2014 and only to those cases that were denied solely based on the applicant having a history that included a prior criminal offense.

“Reason to Believe”

• Denials for violation of section 212(a)(9)(c)

• Denials for fraud/misrepresentation

• Denials for alien smugglers

• Denials for “unlawful activity” [212(a)(2)(C)]

I-601A Denials – Contact CIS

Ombudsman's office

Many recently issued denials under “reason to believe” are lacking specificity therefore, it is important to communicate with the CIS Ombudsman’s office and/or respond to USCIS asking them to provide evidence or details to support their Denial.

“The essence of the reason to believe standard must be more than mere conjecture or speculation –there must exist a probability, supported by evidence, that the alien is not entitled to status.” 9 FAM 42.43 N2.1, Matter of U-H-, 23 I&N Dec. 355,356 (BIA 2002).

Options after receiving a denialI-

601A• If denial is due to lack of

extreme hardship, REFILE with additional evidence

• If denial is due to a ground of inadmissibility, you have the evidence to show otherwise, then refile with ample evidence and a brief/legal memorandum

• If denial is due to a ground of inadmissibility you just discovered (i.e., USCIS did!), then file a regular I-601 abroad.

I-601

• If denial is due to lack of extreme hardship, REFILE with additional evidence.

• Usually better option than pursuing AAO appeal (2-3 years)

• If denial is due to a separate ground of inadmissibility, then seek waiver based on that ground (212h, 212i, etc.)

In Removal Proceedings• Request administrative closure if your client is in removal

proceedings and is eligible for consular processing with a stateside waiver (I-601A).

• Once your case is administratively closed, then you can file the I-601A with USCIS.

• Joint Motion to Administratively Close Proceedings

• Once the waiver is approved, a Motion to Recalendar to terminate removal proceedings should be filed with the court before your client departs to attend IV interview.

• Seek agreement from OCC to avoid long delays depending on court ‘s docket

Terminating Prior to Departing

• Take steps immediately to have your client’s removal proceedings formally terminated or dismissed by EOIR before your client departs the United States to attend his/her immigrant visa interview.

• If your client leaves the United States before his/her removal proceedings are terminated or dismissed, they will experience delays in the processing of their immigrant visa or risk becoming ineligible for an immigrant visa based on another ground of inadmissibility.

Conclusion

QUESTIONS?

QUESTIONS?

QUESTIONS?