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  • Article: Notes From The 2/26/13 U.S.C.I.S. Teleconference on I-601A Provisional Unlawful Presence Waivers by Alan Lee

    Notes From The 2/26/13 U.S.C.I.S. Teleconference on I-601A Provisional Unlawful Presence Waivers

    Alan Lee, Esq.

    In the teleconference with representatives of U.S.C.I.S. and the Department of State, processing issues for the upcoming I-601A acceptances were discussed. The below is a listing of many of the important points covered in the teleconference.

    1. Some who took part in the teleconference were confused as to who could be a qualifying petitioner and who could be a qualifying immediate relative to whom extreme hardship would be experienced if the applicant could not gain an I-601A waiver. Specifically they were confused as to whether parents qualify for the waiver - how a U. S. citizen petitioner could petition for his or her parent and have the parent gain an I-601A waiver since the child could not be a qualifying family member for the hardship finding (must be U. S. citizen parent or spouse). Clarification was given in an example in which the U. S. citizen child could petition on the I-130 for the parent, and the parent could show extreme hardship to the parent's U. S. citizen parent - in other words, the petitioner's grandparent. The answer illustrated the rule that the qualifying U. S. citizen for extreme hardship does not have to be the same person as the I-130 petitioner.
    2. The I-601A waiver form will be released to the public on Monday, March 4th, the first day that the agency will accept waiver applications. Applications should be sent to the Chicago lockbox at an address to be provided.
    3. Applications must be accompanied by I-797 I-130 approval sheets from the U.S.C.I.S. and fee receipts from the Department of State. Clarification was made that only the visa fee and not necessarily the I-864 affidavit of support fee was required to be paid for I- 601A acceptance by U.S.C.I.S. A later question of what would happen if the I-797 approval was lost and the applicant was able to present a copy of the I-130 receipt and Online Case Status Report to show that the petition was approved was met with the answer that U.S.C.I.S. needs the case number. (That was the logical response since the agency already has the history of the petition in its database and only needs to access the receipt number to see that the case was approved).
    4. The National Benefits Center (NBC) will review the applications and can send out Requests for Further Evidence (RFE's) if needed. The NBC will inform the National Visa Center (NVC) of I-601A receipt and decision. In the event of denial, applicants will only have the recourse of filing another waiver application.
    5. On consular processing, U.S.C.I.S. and the Department of State contemplate a concurrent process in which NVC will not schedule an immigrant visa appointment while the I-601A application is pending; that applicants can continue sending documentation to the NVC during the time that the I-601A is being adjudicated; and that the NVC can schedule a consular appointment after the approval. It was later clarified that applicants did not have to continue the consular processing during the pendency of the I-601A, but that such action would accelerate the processing of their cases. Potential applicants were reminded that the NVC should still be notified of the applicant's continuing interest in the case at least once a year even while an I-601A application is still pending. Otherwise the NVC would begin to take steps to terminate the case.
    6. An applicant cannot have a letter dated by the NVC before January 3, 2013, setting up an immigrant visa appointment based on the petitioner's I-130 petition as that would invalidate an I-601A filing. (The interim regulation states that those with scheduling letters before January 3, 2013, may still qualify if the Department of State terminated immigrant visa registration associated with the previously scheduled interview and they have a new immediate relative petition, or they have a new immediate relative petition filed on their behalf by a different petitioner). As to steps to take if caught in the situation, applicants should possibly withdraw the I-130 petition and file another as that would be "potentially so". Further discussion focused on the documentation to prove termination of the case including the Termination-1 and Termination- 2 letters of the Department of State.
    7. There was concern by one participant that those who smuggled a child into the U. S. (presumably their own child) would be found ineligible at the consulate and that there should be a provision to accommodate these individuals. The participant was thanked for his comment, but no further discussion of this was made as the teleconference concerned procedures and not possible regulatory nor legislative changes.
    8. Questions were asked as to how long it would take to process the I-601A waivers and as to visa issuance times at the consulates. On the I-601A waivers, the answer was that would depend upon the volume of applications received and no estimated time was given. On consular visa issuance processing times (time required to issue immigrant visas at the consulates), the answer was that this would vary case-by-case, every applicant was different, but that assuming a person was otherwise eligible, months to weeks or less.
    9. There appeared to be confusion as to whether applicants whose qualifying relatives for waiver (U. S. citizen spouses or parents) had passed away (ostensibly after filing the I-130 petition) could qualify for a waiver with the answer being that there needed to be a qualifying relative for a waiver to be processed. However, this answer appears to be wrong as the draft I-601A instructions state that "USCIS will consider the death of your U. S. citizen spouse or parent (the petitioner) to be the functional equivalent of extreme hardship to the petitioner if you meet the following requirements: (1) you resided in the United States at the time of the death of the petitioner; and (2) you continued to reside in the United States. You must still complete Parts 2 and Part 3 of the form with information about the form I-130 petitioner. In Part 4 of the form, you must explain why you believe your application should be approved as a matter of discretion. You must also provide a copy of the petitioner's death certificate with the application." The question was asked twice more in various ways and artfully dodged by the panel members.
    10. The question was asked whether someone with an order of deportation but also with approval of an I-212 (application for permission to reapply for admission into the United States after deportation or removal ) would be eligible to file an I-601A application, with the answer being no.
    11. A questioner was also concerned that the extreme hardship finding by U.S.C.I.S. would be revisited at the consulate and whether applicants could rely upon the U.S.C.I.S. decision - to which the Department of State representative responded that only U.S.C.I.S. has authority to make a finding of extreme hardship and that is part of the I-601A adjudication; that consular officers have no authority to review I-601A adjudications.

    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, and on the New York Super Lawyers list. 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.


    The opinions expressed in this article are those of the author(s) alone and should not be imputed to ILW.COM.
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