With last week’s Fifth Circuit Court of Appeals upholding the preliminary injunction of Texas District Court judge Andrew Hanen temporarily halting the Obama administration’s Deferred Action for Parental Accountability (DAPA) program, the landscape for significant immigration reform has darkened. Although not unexpected because of the high standard of proof required to overcome the preliminary injunction, the loss means that the period of time has elongated until the program can be placed in effect if and when approved.

Although not for everyone, those who are eligible should certainly consider processing their cases under the I-601A provisional waiver program which is not controversial and has been in effect since 2013. Highly successful, the latest U.S.C.I.S. statistics from 64,826 decisions covering the time from March 2013 to January 2015 show a 70.2% approval rate and 29.8% denial rate. In making the decisions, U.S.C.I.S requested additional evidence in 26.2% of the cases. These are very positive statistics and above U.S.C.I.S preliminary estimates for approval before implementation of the program. The beauty of the program is that it allows the waiver to be adjudicated while the applicant is in the U. S. and if approved, the applicant makes an interview appointment for the immigrant visa with a consulate or Embassy in the home country – which interview is a normal consular interview since the waiver application has already been adjudicated and approved.

The I-601A provisional waiver program’s final regulation “Provisional Unlawful Presence Waivers of Inadmissibility for Certain Immediate Relatives”, was published on January 3, 2013, with the rule set for the acceptance of waiver applications in the U. S. to cure the bars caused by illegal presence of non-adjustable immigrants who were the parents, spouses, and children (at least 17 and unmarried) of U. S. citizens. The waiver applications are 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 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. is 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.

A large incentive to many is that the program is set to expand as soon as U.S.C.I.S. clarifies exactly how the expansion is to proceed. The expansion was announced by the Obama administration as part of the Executive Actions on November 20, 2014, and 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.” In the I-601 program from which the I-601A is derived, statutorily eligible individuals come from all family-based and employment-based categories in which there is an eligible qualifying U. S. citizen or permanent resident spouse or parent who would suffer extreme hardship if the waiver is denied. If U.S.C.I.S. interprets the words “all statutorily eligible classes of relatives” in the same manner, then any person in any category with a priority date which is available could then file for the I-601A provisional waiver if he or she had a U. S. citizen or permanent resident spouse or parent who would suffer extreme hardship if the waiver was not granted. It appears clear that Mr. Johnson had this interpretation in mind in the memo when he said that the 2013 regulation only extended the provisional waiver process to the spouses and children of U. S. citizens; that it did not initially extend the provisional waiver to other statutorily eligible individuals such as spouses and children of lawful permanent residents and the adult children of U. S. citizens and lawful permanent residents; and later added that “As noted above, to be granted a provisional waiver, applicants must demonstrate that their absence from the United States would cause “extreme hardship” to a spouse or parent who is a U. S. citizen or lawful permanent resident.”

In the memo, Sec. Johnson also strove to make the process more predictable and to reduce the number of unwarranted denials. He directed U.S.C.I.S. to provide additional guidance on the definition of “extreme hardship.” At present, U.S.C.I.S. has only given a general set of categories for individuals to address in showing extreme hardship. Factors that it says that it will consider in the determination of extreme hardship are:

1. Health - For example: Ongoing or specialized treatment required for a physical or mental condition; availability and quality of such treatment in the foreign country; anticipated duration of the treatment; chronic vs. acute or long- vs. short-term.

2. Financial Considerations - For example: Future employability; loss due to sale of home or business or termination of a professional practice; decline in standard of living; ability to recoup short-term losses; cost of extraordinary needs such as special education or training for children with special needs; cost of care for family members (elderly and sick parents).

3. Education - For example: Loss of opportunity for higher education; lower quality or limited scope of education options; disruption of current program; requirement to be educated in a foreign language or culture with ensuing loss of time or grade; availability of special requirements, such as training programs or internships in specific fields.

4. Personal Considerations - For example: Close relatives in the United States and country of birth or citizenship; separation from spouse/children; ages of involved parties; length of residence and community ties in the United States.

5. Special Factors - For example: Cultural, language, religious, and ethnic obstacles; valid fears of persecution, physical harm, or injury; social ostracism or stigma; access (or lack of access) to social institutions or structures (official or unofficial) for support, guidance, or protection.

In light of complaints that had come about in early adjudications on the program, Secretary Johnson said that it was his assessment that additional guidance about the meaning of the phrase “extreme hardship” would provide broader use of this legally permitted waiver program; that U.S.C.I.S. should clarify the factors that are considered by adjudicators in determining whether the “extreme hardship” standard had been met; and further directed U.S.C.I.S. to consider criteria by which a presumption of extreme hardship could be determined to exist.

The path of the I-601A provisional waiver program to allow applicants to obtain permanent residence cards in a more safe manner than regular I-601 processing is expanding and improving. For these reasons and because of the uncertainties of other immigration initiatives, those who are eligible for consideration under the I-601A program should certainly consider applying.

Reprinted with permission.

About The Author

Alan Lee, Esq. Alan Leeis 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, 2013-14, 2014-2015), and recognized as a New York Area Top Rated Lawyer. 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, Muhasba 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; his 2004 case in the Second Circuit Court of Appeals, 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); and his 2015 case, Matter of Leacheng International, Inc., with the AAO set nation-wide standards on the definition of “doing business” for multinational executives and managers to gain immigration benefits.

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