New Developments on I – 601A’s, §245(i), L-1’s, Same-Sex Petitions, K -4 Dependents, Scams, and NYC Help for Immigrants

byAlan Lee, Esq.

The below are some of the more interesting developments in the field of immigration law impacting areas of interest for many in the field.

  1. One of the key immigration accomplishments of the Obama administration, the I-601A program, appears to be in trouble from early returns. The program was conceived as a way by which undocumented immigrants unable to adjust status to permanent residence in the U. S. who were the immediate relatives (spouses, parents, and children (for purposes of the program the children must be at least 17 years of age)) of U.S. citizens and had no disabilities other than facing 3 or 10 year bars for illegal stay in the country, could consular process their cases just like other immigrant visa applicants. The mainstay and highlight of the program was the change of policy creating and allowing I-601A provisional waivers of the bar to be filed and adjudicated while the applicants were in the U. S. and the applicants then deciding whether to complete consular processing dependent upon the results of the adjudication. Prior to this, those in the U.S. unable to adjust status who wished to consular process their cases would have to first be interviewed at a U.S. consulate or embassy overseas, denied, given an opportunity to file I-601 waiver applications, and after submission continue to remain overseas while the waiver applications were being adjudicated. The I- 601A waiver is based on the establishment of extreme hardship to a U. S. citizen spouse or parent. In the final I-601A regulation, “Provisional Unlawful Presence Waivers of Inadmissibility for Certain Immediate Relatives,” on January 3, 2013, U.S.C.I.S. did warn that a review of I-601 processing statistics (I-601 and I-601A standards of adjudication are supposedly the same) revealed a denial rate of 34%, and was one of the reasons for which this writer in his “Article: I-601A Summary and Comment”, Immigration Daily (1/21/13), recommended that applicants be represented by competent legal counsel familiar with I-601 waiver application filings. Early returns appear to indicate anecdotally a denial rate even higher. U.S.C.I.S. reported that the National Benefits Center ( NBC) received approximately 7000 I-601A waiver applications during the first 4 months of the program, but did not release statistics on approvals/ denials. Most rejected applications were due to failure to submit proof of having paid the IV fee bill. The goal for adjudication by NBC was stated as 6 months. It now appears that Request for Evidence (RFE ) issuance rate is anecdotally perhaps 50%. Disturbingly American Immigration Lawyers Association (AILA) past president Charles Kuck stated in a blog on August 14, 2013, that knowledgeable and experienced attorneys are seeing approval rates at or below 50%. There are reports that NBC is denying cases for minor criminal offenses which do not involve crimes of moral turpitude or crimes of moral turpitude clearly falling within the petty offense exception or conviction for a single DUI. AILA sent a 12 page memorandum to Alejandro Mayorkas, the Director of U.S.C.I.S. dated August 6, 2013, complaining that it had received dozens of reports from members who had received denials based on a “reason to believe” the applicant might be inadmissible for grounds other than unlawful presence, and that AILA believed U.S.C.I.S. was in many cases applying an over-rigid interpretation of “reason to believe” and denying applications for individuals who would clearly not be deemed inadmissible for reasons other than unlawful presence at a consular interview. AILA asked U.S.C.I.S. to reconsider its current approach to assessing “reason to believe” and to adopt a more flexible analysis to allow many deserving families to benefit from the program. This attitude by U.S.C.I.S. of making final adjudications of inadmissibility based only upon a nebulous “reason to believe” standard is clearly at odds with its position as espoused in the I-601A Stakeholder Teleconference on May 10 2013, in which its representatives and those of the Department of State stressed that where crimes were concerned, U.S.C.I.S. would not be doing a full inadmissibility assessment, and that the Department of State would ultimately decide the question of crimes and inadmissibility. This writer believes that U.S.C.I.S. should release program statistics as quickly as possible if they are more positive than outlined above to dispel the increasingly negative views that many interested parties are gaining from the anecdotal evidence. If the statistics are as bleak as portrayed in this hallmark program of the Administration, U.S.C.I.S. should take steps to retrain the officers charged with making adjudications. If anything, adjudications standards for approval should be equal to or even less stringent for approval than regular I- 601 cases, as the program’s purpose was to provide a remedy for a favored class of undocumented immigrants.
  2. The recent August 8, 2013, ruling of the Board of Immigration Appeals in Matter of Estrada, 26 I & N Dec. 180 (BIA 2013), precludes grandfathering under §245(i) where the principal person being grandfathered married another alien after 4/30/01, and that alien became the principal in a later filed labor certification and attempted to use the provision to adjust herself to permanent residence as the principal and the original principal grandfathered person as the dependent. (Under the latest version of §245(i) which was the subject of the case, most illegal immigrants can adjust status under payment of a fine amount of $1000 if they had labor certification applications or immigrant visa petitions filed on their behalf by 4/30/01 and are able to prove physical presence in the U. S. on 12/21/00). Note that the Board’s decision only reaches cases in which the relationship between the parties was established after 4/30/01 and does not affect cases where the marriage was entered into on 4/30/01 or before. It also does not affect situations outlined in an earlier 3/9/05 U.S.C.I.S. memorandum by William R Yates, Associate Director for Operations, “Clarification of Certain Eligibility Requirements Pertaining to an Application to Adjust Status under Section 245(i) of the Immigration and Nationality Act” that where the marriage occurred after 4/30/01, individuals marrying grandfathered aliens can still adjust status as the dependents of the principal grandfathered aliens so long as the relationship still exists.
  3. For L-1 blanket petitions, there is a new form I-129S and employers are only allowed to use the former versions until 9/9/13. There will be a new Customs and Border Protection (CBP) procedure for cases in which L-1 blanket holders have visas with longer validity dates than the approval dates of the petitions. In a teleconference between CBP and AILA on May 28 2013, CBP announced that petitioners/beneficiaries will be given the choice of either filing an I-129 and I-129S form concurrently with U.S.C.I.S. to extend the period of stay, or leaving the U. S. and seeking readmission at any port of entry for the additional period upon presentation of a valid passport for 6 months beyond the requested period of admission, newly executed I-129S in triplicate original requesting the additional period of stay, and documents supporting eligibility for admission. There is no filing fee for the I-129S form, but L-1 blanket beneficiaries applying for admission at a land border will be charged $6 for a new I-94 card.
  4. In FAQs for same-sex marriages, U.S.C.I.S. affirmed that it will accept K-1 petitions as long as all other immigration requirements are met. Also that where the couple married in a U. S. state or foreign country that recognizes same-sex marriages but now live in a state that does not, an immigrant visa petition can still be filed since, “[a]s a general matter, the law of the place where the marriage was celebrated determines whether the marriage is legally valid for immigration purposes.” The Department of State in an announcement by Secretary of State John Kerry on August 2, 2013, cleared up any doubts that same-sex couples would receive disparate treatment at the U. S. consular posts in stating that “Effective immediately, when same-sex spouses apply for a visa, the Department of State will consider that application in the same manner that it will consider the application of opposite-sex spouses.” The announcement was the result of a review of policies requested of federal agencies by the President following the Supreme Court striking of a section of the Defense of Marriage Act on June 26, 2013 in Windsor v. U. S., 570 U.S.__(2013) (Docket No. 12-307).
  5. The Seventh Circuit in Akram v. Holder , __F.3d__, 2013 WL3455692, C.A. 7, July 9, 2013 (No. 12-3008) recently overruled The Board of Immigration Appeals precedent decision, Matter of Akram, 25 I&N Dec. 874 (BIA 2012), in stating that the K-4 regulation directly conflicts with the will of Congress; that 8 CFR §245.1(i)’s requirement that K-4’s (dependents of K-3 principal aliens) adjust status only by way of the sponsoring U. S. citizen is contrary to 8 USC §1255(d) and 8 USC §1101(a)(15)(K)(iii). Previously the BIA had denied Akram’s motion to remand the case to allow her to adjust status as the relative of her mother, the BIA reasoning that she could not adjust status through her mother because the regulation barred her from adjusting status on any other bases other than a relationship to the U. S. citizen stepfather. The court stated that the Government had misinterpreted §1255(d)’s requirement that K-4’s adjust status “as the result of the marriage” to mean through just the U. S. citizen when it could also be through the other party to the marriage, and that the text and structure of §1101(a)(15)(iii) suggested that Congress intended K-4’s to enter the United States and later adjust status to become lawful permanent residents.
  6. U.S.C.I.S. is warning of a telephone scam in which the caller announces that there is some discrepancy in U.S.C.I.S. records, asks for confirmation of data, then tells the individual that there is a penalty for not clearing up the discrepancy and that the individual is to send a sum of money via Western Union to an address the caller provides.
  7. New York City has now begun two programs with funding to help immigrants – $13.7 million to be provided to community-based organizations for outreach and increasing seats for adult education classes for GED’s so they can qualify for the Deferred Action for Childhood Arrivals (DACA) program - with a further $4.3 million to help expand related education programs offered through CUNY like ESL and general educational development. The second program, the New York Immigrant Family Unity Project, has a beginning allocation of $500,000 for a network of legal service providers to represent immigrants facing deportation. The City funds will help cover the cost of a pilot program to represent 135 immigrants and proponents say that it would cost about $8.7 million to provide legal representation for the approximate 2800 immigrants living in New York State who are detained and face deportation every year.

This article © 2013 Alan Lee, Esq.

About The Author

Alan Lee, Esq. is a 30+ year practitioner of immigration law based in New York City holding an AV preeminent rating in the Martindale-Hubbell Law Director, registered in the Bar Register of Preeminent Lawyers, on the New York Super Lawyers list (2011-12), and recognized as a New York Area Top Rated Lawyer in 2012. He was awarded the Sidney A. Levine prize for best legal writing at the Cleveland-Marshall College of Law in 1977 and has written extensively on immigration over the past years for Interpreter Releases, Immigration Daily, and the ethnic newspapers, World Journal, Sing Tao, Pakistan Calling, Muhasha and OCS. He has testified as an expert on immigration in civil court proceedings and was recognized by the Taiwan government in 1985 for his work protecting human rights. His article, "The Bush Temporary Worker Proposal and Comparative Pending Legislation: an Analysis" was Interpreter Releases' cover display article at the American Immigration Lawyers Association annual conference in 2004, and his victory in the Second Circuit Court of Appeals in a case of first impression nationwide, Firstland International v. INS, successfully challenged INS' policy of over 40 years of revoking approved immigrant visa petitions under a nebulous standard of proof. Its value as precedent, however, was short-lived as it was specifically targeted by the Bush Administration in the Intelligence Reform Act of 2004.

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