LAST CHANCE FOR OBAMA IMMIGRATION LEGACY TO BENEFIT SIGNIFICANT NUMBER OF UNDOCUMENTED UNDER I-601A EXPANSION RULE SLIPPING AWAY

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Where is the I-601A expansion rule that was supposed to become final in spring? We now find ourselves in summer still waiting for Federal Register publication of a final rule that could by U.S.C.I.S. estimates benefit approximately 112,103 immigrants other than immediate relatives of U. S. citizens. The President announced the expansion as part of his executive actions of November 20, 2014, and it is not one of the parts being litigated. In a memo on that same day, “Expansion of the Provisional Waiver Program”, Jeh Johnson, the DHS Secretary, directed U.S.C.I.S. to issue new regulations and policies with respect to the use of the I-601A provisional waiver to all statutorily eligible applicants. In the second paragraph of his memo, Mr. Johnson mentioned the class of spouses and children of lawful permanent residents. In his fifth paragraph, Mr. Johnson said, “Today, I direct DHS to amend its 2013 regulation to expand access to the provisional waiver program to all statutorily eligible classes of relatives for whom an immigrant visa is immediately available.” DHS then published the proposed rule, “Expansion of Provisional Unlawful Presence Waivers of Inadmissibility” on July 22, 2015, and called for a final rule to be published in spring 2016. The proposed rule would expand the program in 2 ways – the classes of eligible aliens would be increased from immediate relatives of U. S. citizens to family sponsored immigrants, employment-based immigrants, diversity visa applicants and certain special immigrants, and the class of qualifying relatives who must be shown to suffer extreme hardship in order for the I-601A to be approved would be expanded from U. S. citizen spouses and parents to lawful permanent resident spouses and parents. In this scenario, for example, an individual who entered the U. S. without inspection, obtained a PERM labor certification application and had the I-140 immigrant petition for alien worker approved, and has a permanent resident parent, could possibly apply for the I-601A provisional waiver. Diversity visa (DV) lottery selectees would also included although there are special considerations in that the processing must be completed before September 30th of the year in which the lottery winner is eligible.

The present I-601A provisional waiver program for immediate relatives of U. S. citizens allows waiver applications to be submitted and adjudicated before the undocumented immigrant makes a final decision on whether to attend an immigrant visa interview at an American consulate or embassy for the green card. Under pre-I-601A rules, immediate relatives who were not able to adjust status to permanent residence in the States would have to travel outside the U. S. for an immigrant visa interview at which time they would be denied, asked to submit a waiver application, and have to sit outside the U. S. during the time that the waiver application was being adjudicated in hopes that it would not be turned down. The standard for approval of an I-601A provisional waiver is a showing of extreme hardship to a U. S. citizen parent or spouse if the applicant cannot return to the States.

A. An Eligible Alien under the present program is One Who is:

  1. present in the U. S. at the time of filing the application and for biometrics;
  2. upon departure is only inadmissible because of illegal stay in the U. S.;
  3. qualifies as the immediate relative of the U. S. citizen (spouse, parent or child and if child, must be at least 17 years of age);
  4. s the beneficiary of an approved I-130 immediate relative (IR) petition;
  5. the case is pending with the Department of State (DOS) based on the IR petition and the immigrant visa processing fee has been paid as evidenced by a fee receipt from DOS;
  6. will depart the U. S. to obtain the immigrant visa;
  7. shows that extreme hardship will occur to a U. S. citizen spouse or parent if the application is denied.

B. An Ineligible Alien is One Who:

  1. has a pending I-485 application to register permanent residence or adjust status with U.S.C.I.S.;
  2. is in removal proceedings unless the removal proceedings have been administratively closed and not re-calendared as of the date of filing the I-601A application;
  3. has been ordered removed, excluded, or deported from the United States;
  4. is subject to reinstatement of a prior removal order;
  5. had an immigrant visa interview scheduled by the DOS prior to January 3, 2013, even if there was a failure to appear or the interview canceled or rescheduled on or after January 3, 2013;
  6. does not establish that refusal of admission to the U. S. would result in extreme hardship to a U.S. citizen spouse or parent, or that the application should be approved as a matter of discretion;
  7. is ineligible for an immigrant visa on grounds other than illegal stay in the States.

The I-601A expansion rule is significant in opening an avenue for many undocumented immigrants who have lost hope of ever obtaining legal immigrant status in this country. Many of them are hard-working individuals who could qualify for employment-based immigration through companies and other organizations willing to sponsor them for green cards. They are stymied at this point as most are ineligible for adjustment of status while in the U. S., and are fearful of leaving the U. S. for an immigrant visa appointment at the home American consulate or embassy, knowing that they will be denied for an immigrant visa, have to apply for a waiver of the 10 year bar for staying in the country unlawfully for one year or more after the denial, and wait in the home country for the decision – which involves uncertainty of processing time and result. The I-601A provisional waiver allows applicants to advance file for a waiver while in the U. S. and wait for the result before making a decision whether to go overseas for an immigrant visa interview. Where a waiver has been approved, the applicant generally goes through a normal visa interview and returns to the U. S. within 1-2 months of leaving.
Questions that this writer and many other pro-immigration advocates would like to have answered are the following:

  1. The I-601A expansion rule appears to be the one that would allow relief to the largest number of undocumented immigrants now that DAPA (Deferred Action for Parental Accountability) is defeated in the Supreme Court – why is there not more of a push to get it through?
  2. Will this be on an expedited track if the reasoning before was not to disturb the justices with distractions prior to the ruling on DAPA?
  3. What is being done to expedite the final rule now?
  4. Where is the rule now?
  5. The website Reginfo.gov says that it is still in OMB pending an EO 12866 regulatory review, and as I understand, that is a review conducted by the Office of Information and Regulatory Affairs within the OMB which considers alternatives and analysis of impacts, both benefits and costs. Is that still the current status?
  6. Is there a timeline as to the remaining steps and time that it will take to be published as a final rule?
  7. Has it already come back from OMB?
  8. If so, are there any sticking points?
  9. If so, is it with any particular team, group, or division at U.S.C.I.S.?
  10. If so, how much longer will it be with the group at CIS?
  11. Can you speak to any changes between the proposed rule and what will be in the final rule?
  12. Will the expansion still be applicable to all classes like the regular I-601waiver and will there be limitations and exceptions?

This writer posed many of these questions to U.S.C.I.S. public affairs officer Jim McKinney late last week, and he would not publicly comment on any of them except to state that he could not go into more detail on a possible timeline and would not confirm whether the final rule would come out before Mr. Obama left office. He did state for the record that the agency is working diligently to publish and making preparation for Federal Register announcement as a final rule.

The reason for which we continually push for the rule and constantly remind readers who are eligible to consider the I-601A provisional waiver is the likelihood of its success. We hear every week in our practice from undocumented immigrants who describe an entire panoply of suggested routes to immigration that they have been advised to take by lawyers and nonlawyers which have little chance of success. The statistics thus far on the I-601A program from 2013 to the present as supplied by U.S.C.I.S. have been sterling in that 74% have been approved since program inception including 80.8% thus far in the 2016 fiscal year.

We strongly encourage Mr. Obama and pro-immigration advocates to work on expediting the rule which is clearly within the President’s executive power, has not been challenged, and is, from our viewpoint, incapable of being challenged successfully as it merely changes the time during which a waiver of inadmissibility can be submitted.

This article © 2016 Alan Lee, Esq. Reprinted with permission.


About The Author

Alan Lee, Esq. Alan Lee, Esq. the author is an exclusive practitioner of immigration law based in New York City with an AV preeminent rating in the Martindale-Hubbell Law Directory for 20+ years, registered in the Bar Register of Preeminent Lawyers, on the New York Super Lawyers list (2011-12, 2013-14, 2014-2015), and recognized as a New York Area Top Rated Lawyer. He has written extensively on immigration over the past years for Interpreter Releases, Immigration Daily, and the ethnic newspapers, World Journal, Sing Tao, Epoch Times, Pakistan Calling, Muhasba and OCS; testified as an expert on immigration in civil court proceedings; and is a regular contributor to Martindale-Hubbell's Ask-a-Lawyer program. 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; his 2004 case in the Second Circuit Court of Appeals, Firstland International v. INS, successfully challenged Legacy INS' policy of over 40 years of revoking approved immigrant visa petitions under a nebulous standard of proof, although its central holding that the government had to notify approved immigrant petition holders of the revocation prior to the their departure to the U. S. for the petition to be able to be revoked was short-lived as it was specifically targeted in the Intelligence Reform Act of 2004 (which in response changed the language of the revocation statute itself). Yet Firstland lives on as precedent that the government must comply with nondiscretionary duties established in law, and such failure is reviewable in federal courts. His 2015 case, Matter of Leacheng International, Inc., with the Administrative Appeals Office of USCIS (AAO) set nation-wide standards on the definition of "doing business" for multinational executives and managers to gain immigration benefits.


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