Child Status Protection Act Help “Aged Out” Children Over Age 21

Many families who have been waiting six to twelve years for their immigrant visas to be available often face the problem of children who “aged out” or turn age 21 and no longer qualify for the immigrant visa.  The Child Status Protection Act (CSPA) amended the Immigration Nationality Act (INA) by changing who qualifies as a child for purposes of immigrant.   This permits certain beneficiaries to retain classification as a “child,” even if he or she has reached the age of 21.  A “child” is defined as an individual who is unmarried and under the age of 21.  Before CSPA took effect on August 6, 2002, a beneficiary who turned 21 at any time prior to receiving permanent residence could not be considered a child for immigration purposes.  This situation is described as “aging out.” CSPA is designed to protect a beneficiary’s immigration classification as a child when he or she ages out due to excessive processing times.  CSPA can protect “child” status for family-based immigrants, employment-based immigrants, and some humanitarian program immigrants (refugees, asylees, VAWA).  

For more information, email Gail@GailLaw.com or call 1-877-GAIL-LAW or 407-292-7730.
FREE in-office consultation – FREE Live Chat www.GailLaw.com

Copyright © 2014, Law Offices of Gail S. Seeram. All Rights Reserved.

Child Status Protection Act Helps Eligible Immigrant Children Over Age 21

There are several issues faced by immigrant children who are beneficiaries of a pending family-based immigration petition.  One of the major issues is when a child turns age twenty-one before the issuance of the immigrant visa.

Family-based sponsorship petitions in the United States can take from one year to ten years depending on the relationship between the petitioner and beneficiary.  In these cases, a child that is listed as a beneficiary may be under age twenty-one when the petition was filed but is over age twenty-one (or has aged-out) when the visa is being issued at the Embassy.  Generally, if a child is being sponsored by a lawful permanent resident parent or U.S. citizen parent, when the child turns age twenty-one, the visa preference category is changed from a child under age twenty-one to a child over age twenty-one and the processing can take longer.  However, if the child is a beneficiary listed under a petition filed for their parent by a U.S. citizen brother or sister and the child is over age twenty-one when the visa is ready to be issued at the Embassy, then generally the child will not be eligible for a visa since the child is over age twenty-one (or has aged-out).  The exception to the general rules just stated is that the child may be eligible for the visa even though the child is over age twenty-one if the child meets the requirement of the Child Status Protection Act.

Under the Child Status Protection Act, a child beneficiary of a petition filed by a U.S. citizen parent, who was under age twenty-one when the petition was filed will not “age-out” if over the age of twenty-one when the visa is issued.  In this situation, the child’s age freezes at the time of the filing.  Also, a lawful permanent resident parent who filed a petition for a child, who was under age twenty-one, on the date the lawful permanent resident parent became a U.S. citizen will not age-out.  Further, the child beneficiary of a petition filed for their parent by a U.S. citizen brother/sister is eligible to have his/her date of birth recomputed under the following formula: subtract from child age when visa available the amount of days it took Form I-130 to be approved after initial filing.  Note, this has been simplified for the reader’s basic understanding of immigration.  A more detailed case analysis by an immigration attorney would be required to determine a child’s eligibility for the Child Status Protection Act.

Question #1:            My sister, who is a U.S. citizen, filed a petition on July 2, 2002 for my wife, three children and me.  The petition was approved on August 5, 2003.  My daughter was 15 when the petition was filed but now she is 23.  The visa became available in November 2010.  Will my daughter be able to get her visa for the U.S. even though she is over age 21?

Attorney Answer #1:            In applying the Child Status Protection Act to your case, your child’s age of 23 would be recomputed to age 22 – making her ineligible for a visa under your sister’s petition as your daughter is over age 21.  Basically, from her current age at the time the visa is available (23 yrs), you subtract the time between the filing and approval of the petition (1yr) and you get a recomputed age of 22.  Upon your entry into the U.S. and receiving your green card, you can then file a petition for your daughter if she remains unmarried.  A lawful permanent resident can only file a family-based petition for an unmarried child.

Question #2:            I was sponsored by my parents and became a green card holder and entered the U.S. in July 2007 but left my son in Guyana with his mother.  My son was age 20 when I became a U.S. citizen.  I would like to file a petition to sponsor my son but he is now age 25 and still unmarried.  Can I still sponsor him since he is over age 21?

Attorney Answer #2:            Under the Child Status Protection Act, since your son was under age 21 when you became a U.S. citizen he is considered a child under age 21 even though he is 25 at the time of your filing.  He will be considered an immediate relative of a U.S. citizen and a visa is available immediately (no backlog) but processing time may be 9-12 months.

Military Immigration-Legal Status in U.S.

A new military immigration initiative has been launched to assist illegal aliens who are present without admission or parole and who are spouses, children and parents of those serving on active duty in the U.S. Armed Forces, in the Selected Reserve of the Ready Reserve or who previously served in the U.S. Armed Forces or Selected Reserve of the Ready Reserve.  

For more information, email Gail@GailLaw.com or call 1-877-GAIL-LAW or 407-292-7730.
FREE in-office consultation – FREE Live Chat www.GailLaw.com

Copyright © 2014, Law Offices of Gail S. Seeram. All Rights Reserved.

Adjustment of Status using “Parole in Place” Gives Green Cards to Certain Family Members of U.S. Citizen Military Personnel

A new initiative has been launched to assist illegal aliens who are present without admission or parole and who are spouses, children and parents of those serving on active duty in the U.S. Armed Forces, in the Selected Reserve of the Ready Reserve or who previously served in the U.S. Armed Forces or Selected Reserve of the Ready Reserve.

In an effort to demonstrate its commitment to assisting military families, the Department of Homeland Security will use a discretionary tools called “parole in place” to help military dependents secure permanent immigration status in the United States as soon as possible.  Although it is most frequently used to permit an illegal alien who is outside the United States to come into U.S. territory, parole may also be granted to aliens who is already physically present in the U.S. without inspection or admission (sometimes called “parole in place”).  The basic authority for parole in place is INA § 212(d)(5)(A), which expressly grants discretion to parole “any alien applying for admission to the United States.”

The grant of “parole in place” allows illegal aliens who entered the U.S. without inspection or illegal aliens subject to the 3 years and 10 years ban for unlawful presence to adjustment status in the United States without having to leave the United States.  Also, there is no requirement to file a waiver in or outside the United States.  The illegal alien must not have criminal convictions of any other grounds of inadmissibility besides the two mentioned grounds mentioned in this paragraph.

STEP 1: Determine Eligibility

Remember, the decision whether to grant parole in place under INA § 212(d)(5)(A) is discretionary (on a case-by-case basis, looking at “urgent humanitarian reasons ”). The applicant must be a spouse, child or parent of an Active Duty member of the U.S. Armed Forces, an individual in the Selected Reserve of the Ready Reserve or an individual who previously served in the U.S. Armed Forces or the Selected Reserve of the Ready Reserve.

Absent a criminal conviction or other serious adverse factors, parole in place would generally be an appropriate exercise of discretion for such an individual. If USCIS decides to grant parole in place, the parole should be authorized in one-year increments, with re-parole as appropriate.

To request parole, the alien must submit to the director of the USCIS office with jurisdiction over the alien’s place of residence:

(1) Completed Application for Travel Document;

(2) Evidence of the family relationship;

(3) Evidence that the alien’s family member is an Active Duty member of the U.S. Armed Forces, individual in the Selected Reserve of the Ready Reserve or an individual who previously served in the U.S. Armed Forces or the Selected Reserve or the Ready Reserve such as a photocopy of both the front and back of the service member’s military identification card (DD Form 1173);

(4) Two identical, color, passport style photographs; and

(5) Evidence of any additional favorable discretionary factors that the requestor wishes considered.

STEP 2: Apply for Adjustment of Status

Once you have obtained approval of your parole in place, you can proceed with filing a visa petition (signed by the U.S. citizen) and adjustment of status application, all at the same time.  It is advised that you seek the advise of an experienced immigration lawyer when pursuing this new process of obtaining “parole in place” in order to seek adjustment of status in the United States as a family member of military personnel.

For more information, email Gail@GailLaw.com or call 1-877-GAIL-LAW or 407-292-7730.

U.S. Visas & Green Cards for Same-Sex Marriage

The Supreme Court has found section 3 of the Defense of Marriage Act (DOMA) unconstitutional. Effective immediately, U.S. embassies and consulates along with U.S. Citizenship & Immigration Services will adjudicate visa applications that are based on a same-sex marriage in the same manner they adjudicate applications for opposite gender spouses.

This means that the same-sex marriage spouse of a visa applicant coming to the U.S. for any purpose – including work, study, international exchange or as a legal immigrant – will be eligible for a derivative visa.  Likewise, stepchildren acquired through same sex marriages can also qualify as beneficiaries or for derivative status.

Lastly, same-sex marriage that are valid in the jurisdiction (U.S. state or foreign country) where it took place will be valid for immigration purposes and adjustment of status or applications for a application for permanent resident can be submitted in the United States.

For more information, email Gail@GailLaw.com or call 1-877-GAIL-LAW or 407-292-7730.
FREE in-office consultation – FREE Live Chat www.GailLaw.com

Copyright © 2014, Law Offices of Gail S. Seeram. All Rights Reserved.

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Same-Sex Marriage Immigration Lawyer

Same-sex marriages that are valid under State law are eligible to apply and receive immigration benefits.  Applicants and same-sex marriage immigration lawyer will be required to prove to Department of Homeland Security that the marriage is bona fide, meaning good-faith and based on love and not entered into for an immigration benefit.

On June 26, 2013, the U.S. Supreme Court ruled in the case U.S. v. Windsor, that section 3 of the Defense of Marriage Act (DOMA) was unconstitutional as a violation of the constitutional guarantees of equal protection and due process.  With this decision, DOMA was removed as an impediment to the recognition of lawful same-sex marriages if the marriage is valid under the laws of the State where it was celebrated.  The U.S. Supreme Court decision was re-affirmed in the immigration case Matter of Oleg B. Zeleniak that was reviewed by the Board of Immigration Appeals on July 17, 2013 and concluded that applicants of same-sex marriages are eligible for federal immigration benefits once the marriage is lawful and good-faith.

The first state to recognize same-sex marriages was Massachusetts in 2004 – the United States has come a long way since 2004 in now recognizing same-sex marriages for purposes of the spouses receiving federal benefits (including immigration benefits).

What type of immigration benefits can same-sex marriages receive?

Fiancé and fiancée visas, immigrant visa petitions (including based on marriage), refugee and asylee derivative status, inadmissibility and waivers of inadmissibility, removability and waiver of removability, cancellation of removal and adjustment of status.

Which States allow same-sex marriages that are legally recognized by Immigration?

District of Columbia: Connecticut, Delaware, Iowa, Maine, Maryland, Massachusetts, Minnesota, New Hampshire, New York, Rhode Island, Vermont, and Washington

I am a U.S. citizen or lawful permanent resident in a same-sex marriage to a foreign national. Can I now sponsor my spouse for a family-based immigrant visa?

Yes, you can file the petition. Your eligibility to petition for your spouse, and your spouse’s admissibility as an immigrant at the immigration visa application or adjustment of status stage, will be determined according to applicable immigration law and will not be automatically denied as a result of the same-sex nature of your marriage.

My spouse and I were married in a U.S. state that recognizes same-sex marriage, but we live in a state that does not. Can I file an immigrant visa petition for my spouse?

Yes, you can file the petition. In evaluating the petition, as a general matter, U.S. Citizenship & Immigration Services will looks to the law of the place where the marriage took place when determining whether it is valid for immigration law purposes. That general rule is subject to some limited exceptions under which federal immigration agencies historically have considered the law of the state of residence in addition to the law of the state of celebration of the marriage.

Visa Lottery OPEN

The visa lottery program will be accepting applications for the 2015 Diversity Visa Lottery program from October 1, 2013 to November 2, 2013.  Each year, the Diversity Visa Lottery program makes 50,000 permanent resident visas available to people from eligible countries.

The Department of State chooses the winners of the Diversity Visa Lottery program randomly through a computer-generated lottery drawing.  Anyone selected under the Diversity Visa Lottery program will be notified directly by the U.S. Department of State through the mail.  Applicants can check the status of their application to see if they are a winner by visiting www.dvlottery.state.gov.  If the winner is granted permanent residency, s/he will be authorized to live and work in the United States along with their spouse and children under age 21.  There are four basic entry requirements for the Diversity Visa Lottery program.

Native of Eligible Country: Applicants must be a native of an eligible country.  Natives from the following countries are not eligible to apply because they sent more than 50,000 immigrants to the United States during the past five (5) years: Bangladesh, Brazil, Canada, China, Colombia, Dominican Republic, Ecuador, El Salvador, Haiti, India, Jamaica, Mexico, Pakistan, Peru, Philippines, Peru, South Korea, United Kingdom, and Vietnam.

If you were born in a country whose natives are ineligible but your spouse was born in a country whose natives are eligible, you can claim your spouse’s country of birth—provided that both you and your spouse are on the selected entry, are issued visas, and enter the United States simultaneously. Second, if you were born in a country whose natives are ineligible, but neither of your parents was born there or resided there at the time of your birth, you may claim nativity in one of your parents’ countries of birth if it is a country whose natives qualify.

Education or Work Experience: Applicants must have either a high school education or its equivalent (completion of a 12-year course of elementary and secondary education) or two years of work experience within the past five years in an occupation requiring at least two years of training or experience to perform.

Photograph: Recent photographs of the applicant and his family (spouse and unmarried children under age 21) must be submitted with their application.  Note, a group or family photo will not be accepted.  Separate digital passport style photos of each family member must be submitted with the Diversity Visa Lottery application.  Since the application is submitted on-line, the digital photos are also required to be submitted on-line. Note, this is the most cumbersome part of the process because if your photo does not meet specific requirements, your application will not be accepted on-line.

Application: The Diversity Visa Lottery application is accessible only at www.dvlottery.state.gov and must be submitted on-line.  Note, when your application and photo have been accepted on-line, a confirmation screen will appear and this should be printed for your records.

Remember to keep a copy of your confirmation page from the online registration entry submission because you can conduct a status check on your visa lottery entry starting May 1, 2014 by returning to www.dvlottery.state.gov, clicking on Entrant Status Check, and entering your confirmation number and personal information.  Entrant Status Check will be the only way to find out if you were selected through the visa lottery.  If you require assistance in submitting your visa lottery application, contact our office by email at Gail@GailLaw.com or call 407-292-7730.

Same-Sex Marriage Immigration – Question & Answers by DHS

Petitioning for my Spouse

Q1: I am a U.S. citizen or lawful permanent resident in a same-sex marriage to a foreign national. Can I now sponsor my spouse for a same-sex marriage immigration family-based immigrant visa?
A1: Yes, you can file the petition. You may file a Form I-130 (and any applicable accompanying application). Your eligibility to petition for your spouse, and your spouse’s admissibility as an immigrant at the immigration visa application or adjustment of status stage, will be determined according to applicable immigration law and will not be automatically denied as a result of the same-sex nature of your marriage.

Q2. I am a U.S. citizen who is engaged to be married to a foreign national of the same sex.  Can I file a fiancé or fiancée petition for him or her?
A2. Yes.  You may file a Form I-129F.  As long as all other immigration requirements are met, a same-sex engagement may allow your fiancé to enter the United States for marriage.

Q3: My spouse and I were married in a U.S. state that recognizes same-sex marriage, but we live in a state that does not. Can I file an immigrant visa petition for my spouse?
A3: Yes, you can file the petition. In evaluating the petition, as a general matter, USCIS looks to the law of the place where the marriage took place when determining whether it is valid for immigration law purposes. That general rule is subject to some limited exceptions under which federal immigration agencies historically have considered the law of the state of residence in addition to the law of the state of celebration of the marriage. Whether those exceptions apply may depend on individual, fact-specific circumstances. If necessary, we may provide further guidance on this question going forward.

Applying for Benefits

New Applications and Petitions:

Q4.  Do I have to wait until USCIS issues new regulations, guidance or forms to apply for benefits based upon the Supreme Court decision in Windsor?
A4.  No.  You may apply right away for benefits for which you believe you are eligible.

Previously Submitted Applications and Petitions:

Q5. My Form I-130, or other petition or application, was previously denied solely because of DOMA.  What should I do?
A5.  USCIS will reopen those petitions or applications that were denied solely because of DOMA section 3.  If such a case is known to us or brought to our attention, USCIS will reconsider its prior decision, as well as reopen associated applications to the extent they were also denied as a result of the denial of the Form I-130 (such as concurrently filed Forms I-485).

  • USCIS will make a concerted effort to identify denials of I-130 petitions that occurred on the basis of DOMA section 3 after February 23, 2011.  USCIS will also make a concerted effort to notify you (the petitioner), at your last known address, of the reopening and request updated information in support of your petition.
  • To alert USCIS of an I-130 petition that you believe falls within this category, USCIS recommends that you send an e-mail from an account that can receive replies to USCIS atUSCIS-626@uscis.dhs.gov stating that you have a pending petition.  USCIS will reply to that message with follow-up questions as necessary to update your petition for processing.  (DHS has sought to keep track of DOMA denials that occurred after the President determined not to defend Section 3 of DOMA on February 23, 2011, although to ensure that DHS is aware of your denial, please feel free to alert USCIS if you believe your application falls within this category.)
  • For denials of I-130 petitions that occurred prior to February 23, 2011, you must notify USCIS by March 31, 2014, in order for USCIS to act on its own to reopen your I-130 petition.  Please notify USCIS by sending an e-mail to USCIS at USCIS-626@uscis.dhs.gov and noting that you believe that your petition was denied on the basis of DOMA section 3.

Once your I-130 petition is reopened, it will be considered anew—without regard to DOMA section 3—based upon the information previously submitted and any new information provided.   USCIS will also concurrently reopen associated applications as may be necessary to the extent they also were denied as a result of the denial of the I-130 petition (such as concurrently filed Form I-485 applications).

Additionally, if your work authorization was denied or revoked based upon the denial of the Form I-485, the denial or revocation will be concurrently reconsidered, and a new Employment Authorization Document issued, to the extent necessary.  If a decision cannot be rendered immediately on a reopened adjustment of status application, USCIS will either (1) immediately process any pending or denied application for employment authorization or (2) reopen and approve any previously revoked application for employment authorization.  If USCIS has already obtained the applicant’s biometric information at an Application Support Center (ASC), a new Employment Authorization Document (EAD) will be produced and delivered without any further action by the applicant.  In cases where USCIS has not yet obtained the required biometric information, the applicant will be scheduled for an ASC appointment.

  • If another type of petition or application (other than an I-130 petition or associated application) was denied based solely upon DOMA section 3, please notify USCIS by March 31, 2014, by sending an e-mail to USCIS at USCIS-626@uscis.dhs.gov as directed above.  USCIS will promptly consider whether reopening of that petition or application is appropriate under the law and the circumstances presented.

No fee will be required to request USCIS to consider reopening your petition or application pursuant to this procedure.  In the alternative to this procedure, you may file a new petition or application to the extent provided by law and according to the form instructions including payment of applicable fees as directed.

Changes in Eligibility Based on Same-Sex Marriage

Q6. What about immigration benefits other than for immediate relatives, family-preference immigrants, and fiancés or fiancées?  In cases where the immigration laws condition the benefit on the existence of a “marriage” or on one’s status as a “spouse,” will same-sex marriages qualify as marriages for purposes of these benefits?
A6. Yes.  Under the U.S. immigration laws, eligibility for a wide range of benefits depends on the meanings of the terms “marriage” or “spouse.”  Examples include (but are not limited to) an alien who seeks to qualify as a spouse accompanying or following to join a family-sponsored immigrant, an employment-based immigrant, certain subcategories of nonimmigrants, or an alien who has been granted refugee status or asylum.  In all of these cases, a same-sex marriage will be treated exactly the same as an opposite-sex marriage.

Q7. If I am seeking admission under a program that requires me to be a “child,” a “son or daughter,” a “parent,” or a “brother or sister” of a U.S. citizen or of a lawful permanent resident, could a same-sex marriage affect my eligibility?
A7. There are some situations in which either the individual’s own marriage, or that of his or her parents, can affect  whether the individual will qualify as a “child,” a “son or daughter,” a “parent,” or a “brother or sister” of a U.S. citizen or of a lawful permanent resident.  In these cases, same-sex marriages will be treated exactly the same as opposite-sex marriages.

Residency Requirements

Q8. Can same-sex marriages, like opposite-sex marriages, reduce the residence period required for naturalization?
A8. Yes.  As a general matter, naturalization requires five years of residence in the United States following admission as a lawful permanent resident.  But, according to the immigration laws, naturalization is available after a required residence period of three years, if during that three year period you have been living in “marital union” with a U.S. citizen “spouse” and your spouse has been a United States citizen.  For this purpose, same-sex marriages will be treated exactly the same as opposite-sex marriages.

Inadmissibility Waivers

Q9. I know that the immigration laws allow discretionary waivers of certain inadmissibility grounds under certain circumstances.  For some of those waivers, the person has to be the “spouse” or other family member of a U.S. citizen or of a lawful permanent resident.  In cases where the required family relationship depends on whether the individual or the individual’s parents meet the definition of “spouse,” will same-sex marriages count for that purpose?
A9.Yes.   Whenever the immigration laws condition eligibility for a waiver on the existence of a “marriage” or status as a “spouse,” same-sex marriages will be treated exactly the same as opposite-sex marriages.

For more information, email Gail@GailLaw.com or call 1-877-GAIL-LAW or 407-292-7730.
FREE in-office consultation – FREE Live Chat www.GailLaw.com

Copyright © 2014, Law Offices of Gail S. Seeram. All Rights Reserved.

Same-sex Marriage Eligible for Immigration Benefits

Same-sex marriages that are valid under State law are eligible to apply and receive immigration benefits. Applicants will still be required to prove to Department of Homeland Security that the marriage is bona fide, meaning good-faith and based on love and not entered into for an immigration benefit.

On June 26, 2013, the U.S. Supreme Court ruled in the case U.S. v. Windsor, that section 3 of the Defense of Marriage Act (DOMA) was unconstitutional as a violation of the constitutional guarantees of equal protection and due process. With this decision, DOMA was removed as an impediment to the recognition of lawful same-sex marriages if the marriage is valid under the laws of the State where it was celebrated. The U.S. Supreme Court decision was re-affirmed in the immigration case Matter of Oleg B. Zeleniak that was reviewed by the Board of Immigration Appeals on July 17, 2013 and concluded that applicants of same-sex marriages are eligible for federal immigration benefits once the marriage is lawful and good-faith.

The first state to recognize same-sex marriages was Massachusetts in 2004 – the United States has come a long way since 2004 in now recognizing same-sex marriages for purposes of the spouses receiving federal benefits (including immigration benefits).

Q1.What type of immigration benefits can same-sex marriages receive?

A1.Fiancé and fiancée visas, immigrant visa petitions (including based on marriage), refugee and asylee derivative status, inadmissibility and waivers of inadmissibility, removability and waiver of removability, cancellation of removal and adjustment of status.

Q2.Which States allow same-sex marriages that are legally recognized by Immigration?

A2. District of Columbia: Connecticut, Delaware, Iowa, Maine, Maryland, Massachusetts, Minnesota, New Hampshire, New York, Rhode Island, Vermont, and Washington

Q3.I am a U.S. citizen or lawful permanent resident in a same-sex marriage to a foreign national. Can I now sponsor my spouse for a family-based immigrant visa?

A3.Yes, you can file the petition. Your eligibility to petition for your spouse, and your spouse’s admissibility as an immigrant at the immigration visa application or adjustment of status stage, will be determined according to applicable immigration law and will not be automatically denied as a result of the same-sex nature of your marriage.

Q4. My spouse and I were married in a U.S. state that recognizes same-sex marriage, but we live in a state that does not. Can I file an immigrant visa petition for my spouse?

A4.Yes, you can file the petition. In evaluating the petition, as a general matter, U.S. Citizenship & Immigration Services will looks to the law of the place where the marriage took place when determining whether it is valid for immigration law purposes. That general rule is subject to some limited exceptions under which federal immigration agencies historically have considered the law of the state of residence in addition to the law of the state of celebration of the marriage.

For more information, email Gail@GailLaw.com or call 1-877-GAIL-LAW or 407-292-7730.
FREE in-office consultation – FREE Live Chat www.GailLaw.com

Copyright © 2014, Law Offices of Gail S. Seeram. All Rights Reserved.

Provisional Waivers Allow Illegals With Unlawful Presence to File Waivers in U.S.

Since March 4, 2013, certain immediate relatives of U.S. citizens who are physically present in the United States have been  allowed to request provisional unlawful presence waivers prior to departing from the United States for consular processing of their immigrant visa applications.  The Department of Homeland Security (DHS) anticipated that these changes in the rule will significantly reduce the length of time U.S. citizens are separated from their immediate relatives who engage in consular processing abroad.

Effective March 4, 2013, the new law benefits the following individuals:

(1) crewman (or jump ships) who married US citizens, but do not have the benefit of Section 245(i);

(2) people who entered the US without inspection (EWI), who married US citizens, but do not have the benefit of Section 245(i); and

(3) people who entered the US on a K-1 fiancée visa, but did not marry the American who petitioned them, but instead married a different American; and

(4) immediate relatives of U.S. citizens with an approved Form I-130 found ineligible to adjust status in the U.S.

What is the current process for filing an unlawful presence waiver?

An unlawful presence waiver is required for individuals who depart the U.S. after remaining illegally in the U.S. and trigger a three-year or ten-year ban from returning to the U.S.  Under current law, individuals identified in the above paragraph would not be eligible for lawful permanent resident status in the U.S. if a petition was filed by their U.S. citizen relative.  Instead, these individuals would have to return to their native country, attend the immigrant visa interview, file the unlawful presence waiver at the U.S. Embassy and wait (sometimes 1-2 years) for a decision from the U.S. Embassy.  If the waiver is granted then the individual can return to the U.S. with an immigrant visa but if the waiver is denied then the individual can submit an appeal (which can take 2-3 years).

What will be the NEW “provisional unlawful presence waiver” process?

The new waiver process will allow eligible immediate relatives to apply for a provisional unlawful presence waiver while they are still in the United States and before they leave to attend their immigrant visa interview abroad. It is anticipated that this new provisional unlawful presence waiver process will significantly reduce the time that U.S. citizens are separated from their immediate relatives. The approval of an applicant’s provisional unlawful presence waiver prior to departure also will allow the U.S. Embassy abroad to issue the immigrant visa without further delay, if there are no other grounds of inadmissibility and if the immediate relative is otherwise eligible to be issued an immigrant visa.  U.S. Citizenship and Immigration Services will be rolling out a new form, Form I-601A, for this new process.

Can I benefit from the NEW “provisional unlawful presence waiver” process if I am in removal proceedings?

DHS has decided to limit eligibility for the provisional unlawful presence waiver process to individuals whose removal proceedings are administratively closed and have not been recalendared at the time of filing the Form I-601A.  If the Form I-601A is approved for an alien whose proceedings have been administratively closed, the alien should seek termination or dismissal of the proceedings, without prejudice, by Immigration Court. The request for termination or dismissal should be granted before the alien departs for his or her immigrant visa interview abroad. Applicants who leave the United States before their removal proceedings are terminated or dismissed may experience delays in their immigrant visa processing or risk becoming ineligible for the immigrant visa based on another ground of inadmissibility.

Can I benefit from the NEW “provisional unlawful presence waiver” process if I have a final order of removal?

No, the NEW provisional unlawful presence waiver process will not include aliens with final removal orders. Generally, aliens who have outstanding final orders of removal may be inadmissible on a variety of grounds other than unlawful presence, such as criminal offenses and fraud and misrepresentation. In addition, any alien who is subject to a final order of removal, decides to leave the United States, and subsequently seeks admission, is inadmissible as an alien with a prior removal.

Will I be able to benefit from the NEW “provisional unlawful presence waiver” process if I entered with a fraudulent passport or have past convictions?

This provisional waiver applies only to unlawful presence that triggers the three and ten year ban from returning to the U.S. If a person has other immigration violations, such as fraud (entry with another’s passport), criminal convictions, and the like, which also require a waiver, the person would have to depart the U.S. and file the waivers after an interview at the U.S. Embassy and wait abroad for the final decision.

Can an immigrant already living outside the U.S. benefit from the the NEW “provisional unlawful presence waiver” process?

Unfortunately, individuals who are already outside of the United States must pursue a waiver of inadmissibility through the current Form I-601 process. The NEW provisional unlawful presence waiver process will remain available only to those individuals who are currently in the United States and will be departing for consular processing abroad.

How will immigration decide whether to approve or deny my  “provisional unlawful presence waiver”?

For the waiver to be approved, there must be an extreme hardship determination based on a showing of extreme hardship to a U.S. citizen spouse or parent.  Documentary evidence to prove the “extreme hardship” must be submitted with the waiver form, Form I-601A.

Can an immigrant with TPS benefit from  the NEW “provisional unlawful presence waiver” process?

TPS applicants who are immediate relatives of U.S. citizens can participate in the provisional unlawful presence waiver process if they are pursuing consular processing of an immigrant visa abroad.

When can I file the NEW “provisional unlawful presence waiver”?

Once you obtain an approved Form I-130 then a request for the unlawful presence waiver can be filed in the U.S. by using Form I-601A and you will be permitted to remain in the U.S. during the adjudication or decision-making process.  The filing fee for Form I-601A will be $585.00.

How old do I have to be to file under the NEW “provisional unlawful presence waiver” process?

Individuals must be 17 years or older request a provisional unlawful presence waiver.

What happens if I go through the NEW “provisional unlawful presence waiver” process and my waiver is denied?

The individual may depart the U.S., attend the visa interview at the Embassy and file the waiver under the current process and wait abroad for a decision on the waiver.  Also, the individual may appeal or re-file the waiver is new evidence will be submitted.  If the individual wants to remain the U.S. after a denial on his provisional unlawful presence waiver then they may face removal proceedings before the immigration court.

Before deciding to proceed with the NEW “provisional unlawful presence waiver” process, speak with a experienced immigration lawyer who can assess your unique situation and conclude you will benefit from this new law and new process.

For more information, email Gail@GailLaw.com or call 1-877-GAIL-LAW or 407-292-7730.
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