A preference category immigrant is an immigrant visa beneficiary that has been classified by her petitioner but cannot apply for an immigrant visa (Green Card) to enter the United States because no visa is yet immediately available to her.  The Citizenship and Immigration Services (CIS) issues the immigrant beneficiary a priority date that is listed on the notice of her approved alien relative petition.  The priority date is the date, in the case of a family based petition, on which the alien relative petition was filed with the CIS by the petitioner.  The alien beneficiary would then have to stay in the preference category, also called “The Waiting List”, until an immigrant visa becomes available.  A visa becomes available when the priority date on the alien relative petition becomes earlier than the stated cut-off date under a a particular Preference Category on the the United States State Department immigration visa bulletin.

There are four preference categories in family sponsored visa petitions, and to which the United States Congress allocates a maximum number of visas in each fiscal year.  The categories are as follows:

First:  (F1) Comprises unmarried Sons and Daughters, age 21 or older, of United States citizens.  Congress allocates 23,400 visas plus any number of unused visas from the Fourth preference category each year to this category.

Second:  (F2) Comprises spouses and children, and unmarried Sons and Daughters of Permanent Residents. Congress, each year, allocates 114,200 visas plus any visa left overs after the 226,000 visa allocation in all the other categories plus any unused visas in the First Preference Category.  F2 Preference Visa Categories are subdivided into F2A and F2B.  The F2A visa subdivision comprises all spouses and unmarried children, under 21, of Permanent Residents.  The F2B category comprises unmarried Sons and Daughters, 21 years or older, of Permanent Residents.  Of the 114,200 visas in the F2 category, Congress allocates 77% or approximately 87,973 visas to the F2A category while it allocates 23% or 26,266 visas to the F2B category.  Of the 77% overall visa allocation to the F2A category, 75% are exempt from the visa per-country limit.

Third:  (F3) Comprises married Sons and Daughters of US citizens.  Congress allocates 23,400, plus any left over visas in the First and Second preferences in this category.

Fourth:  (F4) Comprises Brothers and Sisters of adult US citizens.  Congress allocates 65,000, plus any unused visas from the first three preferences.

Let us suppose that a United States citizen acquires an approved alien relative classification from the CIS for her adult Daughter that is over 21 years old, but the beneficiary, after the establishment of the application priority date, gets married to an alien.  What then happens to the approved alien relative petition after the marriage?  Does the marriage extinguish the petition?

The answer to this question, which very often confronts the ill-informed immigrant visa beneficiary, is no, because the doctrine of automatic conversion springs to the rescue of the petition, and saves it from destruction.

Automatic conversion, under immigration law, as it relates to the preference category visa processing, is where an event pertaining to the status of the alien beneficiary causes the beneficiary’s relationship to the qualifying relative to shift from one preference category to another in the list of preference categories.  In Matter of Wang, the BIA stated that when the event occurs, neither the beneficiary, nor an immigration officer, need take an action to bring the preference category conversion into effect.  Rather, the conversion occurs by operation of law.  The Board further stated that the conversion does not entail a change in the petitioner or the sponsored’s status as it relates to the application process, or a new filing of the petition.  See Matter of Wang, 25 I & N Dec. 28, 35 (BIA 2009).  In addressing the same matter in 2014, the United States Supreme Court stated that the conversion does not involve additional service decisions, contingencies or delays.  In fact, it operates as a mechanical cut-and-paste job, and moves the petition without any substantive alteration from one category to another.  The occurrence of the event should notify and instruct the immigration officer to change the current preference category of the beneficiary to another as provided by the preference category law.  See Scilabala v. De Osorio, 134 S.Ct. 2191, 2204 (2014).

In the case of the over 21 alien beneficiary, the conversion would automatically remove the beneficiary from the First Preference category comprising unmarried Sons and Daughters of United States citizens to the Third Preference category, which comprise married Sons and Daughters of US citizens.

Automatic conversion allows the beneficiary to keep her originally approved alien relative priority date.  Here, the married beneficiary, even though she is now in a different preference category, will maintain, based on this provision, her original alien relative priority date.

But what happens if the alien beneficiary’s marriage fares badly and she is forced to dissolve it even before the completion of the immigrant visa process?  Does the dissolution destroy the approved alien relative petition and the concomittant new Third Preference Category?  If not, is she stuck in the category?

The answer is no!  The Code of Federal Regulation (CFR), in support of the automatic conversion theory, states that when the dissolution event occurs, the beneficiary’s classification reverts back from her present F3 category to the former F1 Preference Category, where she was before she conjugally became active.  Again, under the automatic conversion theory, no special legal intervention is warranted.  The appropriate event shifts occur automatically and by themsleves. See 8 CFR 204.2(i) (1) (iii).

As one can see, by now, automatic conversion is a refuge to approved alien relative petitions that are kept on the waiting preference category cliff.

The writer of this blog, Amadu Edward Swaray, is an immigration attorney with Swaray Law Office in Brooklyn Center Minnesota.  Brooklyn Center is one of the contiguous cities around Minneapolis, Brooklyn Park, Crystal, Robbinsdale, Anoka and Champlin.  The article is not intended to be a legal advice to anyone, but a mere legal information.  If you or someone you know is interested in knowing more about family immigration visas, and or Automatic Conversion, in particular, contact the Law Office at 763-549-0670 or swarayassociates@cs.com.        

The J-1 non-immigrant visa is issued by the United States to, among others, scholars, professors and exchange visitors that enter the country to participate in  programs that promote cultural exchange, and to engage in medical and business training.  The visa came into effect under the Fulbright Hays ACT of 1961.  Applicants must meet the eligibility criteria defined by a particular J-1 visa.  These include English language requirements and sponsorship by a university, private sector or government program.  There are at least nine private sector and six government and academic J-1 visa programs.

The J-1 visa duration of stay is specified in the accompanying DS-2019 Certificate of Eligibility for Exchange visitor form, which is produced by the Department of State through the Student and Exchange Visitor Information System (SEVIS).  The duration includes a 30 day grace period after the full duration of stay indicated on the DS-2019.

Many J-1 visa holders are subject to the two year mandatory home residency requirement.  The requirement precludes the J-1 visa beneficiary from moving into a non-immigrant or permanent residency status in the United States unless he returns to his country of last permanent residence for at least two years cumulatively.  The two year residency requirement applies to those under exchange programs funded by either their government or the United States government and involves specialized knowledge or skills deemed necessary by their home country or under graduate medical training.

The two year home residency requirement can, however, be waived in the following ways:  a no-objection statement from the beneficiary’s home country government; a demonstrated exceptional hardship to a United States citizen or legal dependent of the beneficiary if the beneficiary were to depart the United States; a demonstrated persecution in the beneficiary’s home country upon return; a United States Federal Government agency expression of interest in the beneficiary to work on a project in the United States, and detriment to the project by the beneficiary’s departure; or if the beneficiary is a foreign medical graduate with full-time employment offer at a health care facility in a designated professional shortage area in the United States under the Conrad program.

This blog will focus a bit more on the no-objection statement waiver. The waiver is a letter to the Waiver Review Division from the beneficiary’s home government in which the government states that it does not object to the beneficiary’s decision to change his status to non-immigrant or permanent residency status in the United States. All J-1 visa beneficiaries can pursue this waiver type, except physicians that received United States graduate medical training under the J-1 visa program or those that are directly or indirectly funded by the United States government.  If the beneficiary is directly or indirectly funded by the United States government, his government would have to provide the no-objection statement to the funding agency, which would, in turn, issue a no-objection to the beneficiary’s permanent stay or change to a non-immigrant visa status.

The J-1 visa beneficiary requests the no-objection statement from his home embassy in the United States, which, in turn, forwards the request to the specific concerned ministry in the country.  The ministry then executes the statement, and either directly sends it to the Department of State Waiver Review Division through the Chief of Mission in the Consular Section at the US embassy in the country or to its embassy in the US, which then forwards it to the Waiver Review Division.

Obtaining the no-objection statement can be time consuming.  In many cases, it requires the applicant to directly contact and establish a relationship with his embassy or ministry administrative staff charged with executing the statement.  At other times, the issuing ministry may need guidance in executing the document, especially if it has never executed one before.  There are times when it can take as long as six months to process.  The exact processing time depends on the country in question and amount of pressure the beneficiary exerts on the process.

Upon obtaining the no-objection statement, the waiver applicant can then complete and submit the DS-3035 application to the Waiver Review Division in which he asks for a waiver of the residency requirement.  Reviewing and deciding on the waiver request can take a long time as well.  In many cases, it has taken at least six months.

It is imperative that the beneficiary obtain and keep a copy of the no-objection statement.  It may be useful in proving that it was sent to the Waiver Review Division if the Division were ever to dispute whether it was ever sent the original.

This blogger is an attorney at Swaray Law Office in Brooklyn Center, Minnesota.  Brooklyn Center is near Brooklyn Park, Crystal, and north of Minneapolis and St. Paul in Minnesota.  Contacting the office is by email at swarayassociates @cs.com or 763-549-0670.

Voluntary Departure is the departure of an alien from the United States because of an immigration offense without an order of removal from the immigration court.  Once an alien is granted the voluntary departure, he gives up all rights to any other available relief and must depart the United States within the time the immigration court has specified.  Under a voluntary departure grant, the alien can depart the United States on his own, without the ten year bar of a removal order, and can legally re-enter the country.  There are four types of voluntary departure. They are pre-hearing voluntary departure, voluntary departure at the beginning of a removal hearing, voluntary departure from the Department of Homeland Security (DHS) during a removal proceeding and voluntary departure from the court at the end of a removal hearing.

An alien who is arrested and detained by an Immigration and Customs Enforcement (ICE) for an immigration offense may ask ICE to grant him voluntary departure even before he appears before the immigration court to answer to the charges against him.  This option makes sense where the alien’s commission of the offense is not questionable, and he also has no available relief to protect him from deportation.

But the alien can wait until the beginning of his removal proceeding to ask for voluntary departure.  This is usually at his Master Calendar hearing in immigration court.  To qualify, the alien must make the request before his first Master Calendar hearing; request no other form of relief; admit his removability; waive his right to appeal all issues; and prove that he has not been convicted of an aggravated felony; and not deportable for national security or public safety reasons.

Sometimes a DHS attorney may agree with the alien’s attorney to grant voluntary departure to the alien, if the alien does not have an aggravated felony record, at any time in the removal proceedings.  But this rarely happens.

The alien can also request voluntary departure at the end of his removal proceedings.  This happens where the alien is not likely to prevail on the removal claims against him, and he does not have a relief that will save him from deportation, and the removal proceedings is about to come to an end.  But the court’s grant of his request is pegged on the following factors:  the alien has been physically present in the United States for one year immediately before the service of the Notice to Appear (NTA) on him; has money to post a bond within five days of the judge’s order; has good moral character in the most recent five years before his voluntary departure request; not an aggravated felon or terrorist; not granted voluntary departure previously; has a valid passport or travel document for inspection and authentication by the United States Government and establishes that he has the financial means to leave the United States at his own expense and intends to leave within the required time.

Voluntary departure, in all cases, is a discretionary grant either by the DHS or the immigration court.  The conditions become tighter the longer the requester waits in the course of the immigration proceedings.  If the alien is granted voluntary departure, and he does not leave within the departure specified time, he will face severe consequences, including ineligibility for several other forms of relief.  The failure to depart turns into a warrant against the non-departing alien.  The relief does not forgive other immigration violations, such as unlawful presence.

The writer of this blog is an immigration attorney with Swaray Law Office, LTD located in Brooklyn Center in Minnesota.  Brooklyn Center is contiguous to Minneapolis, Brooklyn Park, Crystal, Robbinsdale and Maple Grove.  If you are in removal proceedings, and need the service of an attorney, please visit www.swaraylawoffice.com or contact us at swarayassociates@cs.com or 763-549-0670

Swaray Law Office building on a bright sunny day.

Residency and physical presence in the United States are among the centerpiece requirements for naturalization in the country. The applicant must reside in the country for the five year period immediately before he files his naturalization application.  If married to a United States citizen, he must reside continuously in the United States for the three year period immediately before the date of his application.  He must also be physically present in the country for at least 30 months or for two and half years of the five year period immediately before his application.

But if  a permanent resident must live outside the United States because of a job with the US Government, private sector or religious organization, and wants to apply for naturalization, he can avoid the residence and physical presence requirements by applying with the Citizenship and Immigration Services (CIS) for preservation of his residency for naturalization. If the CIS approves his application, he can live outside the country as a permanent resident and the period will not be counted against the residency and physical presence requirements of his naturalization application.

The application is filed on a Form N-470, also known as an Application to Preserve Residence for Naturalization purposes.  To qualify for the relief, the applicant must first have been physically present and resident in the United States continuously, without absences, for at least one year upon admission as a lawful permanent resident.  Religious workers are exempt from this requirement.  Second, the applicant must be employed with the United States Government, a private sector or a United States religious organization.  One is deemed to be physically present in the United States when the person is within the territorial borders of the United States.  One is deemed to be resident in the United States when the person has a principal residence in any part of the country.  Examples of principal residences include the ownership by the person of a house, apartment or other of abode type which the person owns or possesses with no immediate intent to abandon while outside the United States.  Examples of employment with the United States Government are work with the United States Government under a contract or with an American research institution, firm, corporation or the like.  Employment with a public international organization of which the United States is a member by treaty or statute is another example of a job with the United States Government.  But the applicant should not have been employed with the public international organization before becoming a lawful permanent president.

Spouses of United States citizens that are eligible for naturalization are exempt from establishing the naturalization residency and physical presence requirements, and therefore, not required to file for preservation of continuous residence.  Note that the grant of an application to preserve residence for citizenship does not relieve a permanent resident from obtaining a re-entry permit in advance of trips outside the United States for one year or more.  The grant does not also exempt the permanent resident from United States admissibility requirements of his permanent residency status.

This blog is by an attorney at Swaray Law Office in Brooklyn Center, Minnesota.  Brooklyn Center is located in the northern suburbs of the Twin Cities.  It is north of Minneapolis, Minnesota, and contiguous to Brooklyn Park, Crystal, Robbinsdale, Maple Grove and Blaine.  To visit Swaray Law Office, please go to www.swaraylawoffice.com, or call 763-549-0670 or email us at swarayassociates@cs.com.

Congress created the EB-5 immigrant visa in 1990 with the core purpose of attracting new foreign investment capital to the country, and to create new jobs for United States workers.  Since then, the visa program has yielded phenomenal results.  By 2008, the program had pumped over $15.4 billion foreign direct investment into the US economy.  Between 2010 and 2013, it had injected $9.62 billion, and 29,300 jobs and $12.08 billion in tax revenue.

This blog will define material concepts associated with the EB- 5 program.  The goal is to simplify the concepts so as to help the public to more fully understand the program.

 What does the EB-5 Visa Program mean?  It is a program Congress established in 1990 in which a foreign investor who intends to get permanent residency in the United States invests capital in a new commercial enterprise to create jobs for United States employees.

What is Investment of Capital?  Investment of capital is commitment of capital by the foreign investor into a new commercial enterprise to create jobs.

What is Capital?  Capital, among others, includes cash, equipment, inventory, other intangible property, cash equivalents, and all indebtedness secured by assets owned by the foreign investor.  The foreign investor has to be personally and primarily liable for the indebtedness and the assets of the new commercial enterprise, and the investment capital should not be used  to secure any of his indebtedness.  The capital is valued in US dollars at the United States fair market value.  Assets acquired directly or indirectly by unlawful means, such as criminal activity, is not capital for EB-5 purposes.

What is Investment?  The foreign investor’s contribution of capital into the risk stream of the market place for the purpose of generating a return.  It must go beyond a mere interest to invest.  For example, a promise or guarantee to the immigrant investor for a portion of his investment capital is not deemed an investment because the portion was risk protected at the time of investment.  The invested capital has to be at risk, i.e, it must be exposed to a loss possibility in order to be considered an investment.

What is the Amount of Capital that Must be Invested?  The immigrant investor must invest $1 million in a new commercial enterprise that creates no less than 10 jobs; or invest $500,000 in a Targeted Employment Area (TEA).  In the last two years, there has been political efforts to increase the TEA $500,000 investment amount, but the efforts have not yielded any result.

What is TEA?  A rural area or an area with at least 150% of the average national unemployment rate.  The TEA is designated by the controlling state government in conjunction with the investor and the Citizenship and Immigration Services (CIS).

What is a New Commercial Enterprise?  Any for-profit activity formed for the ongoing conduct of lawful business established after 1990.  Some examples are sole proprietorships, partnerships, holding companies, joint ventures, corporations, business trusts, or other privately or publicly owned entities.  New commercial enterprises that existed before 1990 are considered, but must meet the new commercial enterprise definition.  They could meet the definition if they are simultaneously or subsequently restructured into an EB- 5 new commercial business entity.

Is the Foreign Investor Needed to be Engaged in  the Management of the New Commercial Enterprise?  Yes, the investor needs to be engaged in the daily management of the new commercial enterprise, or in the formulation of its policies.

What are EB-5 Regional Centers?  These are centers established within the EB-5 program three years after the program came into effect.  They are referred to as the “Immigrant Investor Pilot Program”.  They are private or public economic units with one or more new commercial enterprises in a geographic area charged with managing, directing and controlling projects and developments of new commercial enterprises.  All the new commercial enterprises in a Regional Center must each meet EB-5 capital investment and job creation goals.

What is Job Creation?  EB-5 jobs must be full time of at least 35 hours per week.  The immigrant investor, his spouse, children and relatives are not counted as “employees” even if they work under the program.  If a particular commercial enterprise is troubled, it could still be deemed to have met the EB-5 job creation requirement if it had met the program’s required number of jobs goal before it adopted the EB-5 program.  But it must also be a business that has been in existence for at least two years with a net accounting loss in the twelve or twenty-four months prior to the foreign investors priority date indicated on his initial investor immigrant visa application.

This blog is written by an immigration attorney at Swaray Law Office, LTD situated in Brooklyn Center, Minnesota.  Brooklyn Center is located in the north of Minneapolis in Minnesota.  The city is close to Brooklyn Park, Robbinsdale, Crystal,and Maple Grove.  To contact Swaray Law Office, call 763-549-0670 or visit us at this website at www.swaraylawoffice.com or at swarayassociates@cs.com.

Without an executed and signed certification, the Citizenship and Immigration Services (CIS) cannot issue a U-Visa.  Certification is where the U-Visa applicant requests and a law enforcement officer confirms that the applicant suffered from a qualifying U-visa crime, and is helpful or likely to be helpful in the prosecution of the crime. The process is also referred to as “Certification of Helpfulness”.

Side view of Swaray Law Office

Under the U-Visa Act, “Helpfulness” is not specifically defined.  But in several post enactment guidelines, DHS has explained the term, and in general, now means that a victim of a U-visa crime informs law enforcement that she is a victim of the crime, and has specific and detailed knowledge of the crime, and has been, or is being or likely to be helpful to law enforcement in the detection, investigation or prosecution of the crime.  Some of the ways a victim can be helpful to law enforcement is to identify the crime perpetrator, assist in his apprehension, provide evidence useful to finding and apprehending him, and agree to testify against him if the case were to go to trial.

The certification starts with the victim filling out the USCIS Form I-918 and filing it with a particular law enforcement agency, which will, in turn, assess her usefulness to the investigation of the crime, and if satisfied sign the form.  Occasionally, the process is initiated by law enforcement.  Where certification is initiated by a crime victim, it is usually done with advocate or attorney assistance.  The agency head or his delegate signs the certification.  The law enforcement agency is not obligated to certify a U-Visa application since certification is purely discretionary.  Neither the victim, nor her attorney or the DHS or any other agency can compel a certification.  By signing a certification, law enforcement attests that the victim’s crime information is true and correct to the best of his knowledge.

Certification has no statute of limitation, and valid even where the investigation or the prosecution of the case is closed.  Once the certification is completed, the law enforcement official must return it to the victim or her attorney.  It does not need to separately send it to the CIS.  The victim can then send it together with her U-Visa application to the CIS.  The head of a law enforcement agency at the federal, state of local level or prosecutor, judge or other agency with authority to investigate or prosecute a qualifying crime can issue a certification.  This includes, among others, agencies with criminal investigative authority, child and adult protective services, Equal Opportunity Commission, federal and state departments of labor, and even law enforcement officials with a memorandum of understanding with DHS.

A U-Visa certification can be revoked if the victim unreasonably refuses to provide assistance after the U-visa has been granted.  In such a case, the law enforcement agency would inform the USCIS of the victim’s refusal, and after due investigation, the visa will be revoked.  The signing of a certification does not guarantee a U-visa grant.  It is merely a fulfillment of a requirement in the U-visa process.  Other requirements have to be met for the U-visa to be ultimately granted.

A U-visa certification is valid even if the initial crime being investigated is different from the crime that is eventually prosecuted.  For example, a U-visa investigation starts with burglary, which is not a listed qualifying crime, but in the process of investigation, the person is found to be a victim of torture.

This blogger is an attorney at Swaray Law Office, LTD.  About 65% of the attorney’s practice is in immigration law.  Swaray Law Office is located in Brooklyn Center in Minnesota.  Brooklyn Center is north of Minneapolis/St. Paul.  The city is contiguous to Robbinsdale, Crystal, Brooklyn Park, Blaine, Maple Grove and Golden Valley.  Should you be interested in contacting the office, visit www.swaraylawoffice.com or 763-549-0670 or email at swarayassociates@cs.com.

Congress enacted the U-visa in October of 2000 under the Victims of Trafficking and Violence Protection Act (VTVPA). It was part of a two category law designed to protect victims of violent crime and human trafficking.  After its enactment, it did not appear that the Department of Homeland Security (DHS) was immediately willing to enforce it.  In fact, the Department granted no U-visa relief to anyone until 2007.  Even then, it did so under pressure of a class action suit, which the Center for Human Rights and Constitutional Law (CHRLW) and other interested parties initiated, to force DHS to enforce the enactment.

Under the enactment, victims of certain violent crimes who have suffered mental or physical abuse, and helpful to law enforcement, including federal or state government officials in the investigation or prosecution of the crimes can be eligible for U-visa classification.  The crimes include the following:  Abduction, Abusive Sexual contact, Blackmail, domestic violence, Extortion, False Imprisonment, Female Genital Mutilation, Felonious Assault, Hostage, Incest, Involuntary Servitude, Kidnapping, Manslaughter, Murder, Obstruction of Justice, Peonage, Perjury, Prostitution, Rape, Sexual Assault, Sexual Exploitation, Slave Trade, Stalking, Torture, Trafficking, and Unlawful Criminal Restraint.  Attempt or conspiracy to or solicitation to commit any of the crimes are also eligible crimes.

The U-visa is among those visas for which the Petitioner files for classification by himself.  But he has the burden to provide evidence to the Citizenship and Immigration Services (CIS) that will demonstrate that he is eligible for the visa.  As part of the supporting evidence, the Petitioner is required to provide a certification signed by a law enforcement agency that confirms that he is or was helpful or likely to be helpful in the investigation of the crime committed against him.

The qualifying crime must be committed in the United States, even though there are instances in which a crime committed outside the United States is deemed a qualifying crime if it violates a law of the United States.

A U-visa applicant can apply for his family members.  But the family member can only be found eligible for the derivative visa if the principal applicant’s visa application is approved.

In June of 2013, several changes were made to the U-visa to expand its family member eligibility scope. Before 2013, an unmarried child derivative beneficiary U-visa application must be filed before the child turned 21, or the child could be deemed ineligible for the visa.  Additionally, the child beneficiary must be unmarried.  U-visa applicants were also subject to the public charge inadmissibility ground of INA 212(a)(4), under which an individual is inadmissible as an immigrant to the United States, except he proves that he is not a public charge.

Under the 2013 changes, an unmarried U-visa derivative beneficiary child remains eligible for the visa even after he turns 21.  The age of the child is established and firmly set when the principal U-visa applicant files the petition with CIS.  In addition, unmarried children filing for their parents and unmarried siblings received the age 21 age-out protection.  The children could now file for their parents and siblings even if they were under 18.  The inadmissibility public charge provision was also removed.   As a result, a U-visa applicant was no longer required to submit an Affidavit of Support (Form I-864) with his application to show that he is not a public charge.

A U-visa is valid for four years after which the classified holder can file for adjustment of status to a Green Card holder. There are situations, however, in which the four year period are extended.  Examples are when the extension is specifically requested by law enforcement, exceptional circumstances, and consular processing delays if the U-visa applicant initiated the application while he was outside the United States.

After three of the four year durational period, the U-visa holder can apply for adjustment of status.  His family members can also adjust, but must do so under a separate application.

Congress authorized that only 10,000 U-visas be granted per year to eligible principal applicants.  But derivative family member U-visas have no cap.  In the event of a cap constriction, CIS is authorized to place eligible applicants on a waiting list, and grant them an interim deferred action status with eligibility to work in the United States.

Amadu Edward Swaray is an immigration lawyer at Swaray Law Office in Brooklyn Center, Minnesota.  Brooklyn Center is one of the contiguous cities in the north of Minneapolis.  Other cities in the area are Brooklyn Park, Crystal, Robbinsdale, and Maple Grove.  Swaray Law Office can be reached at www.swaraylawoffice.com or swarayassociates@cs.com or 763-549-0670.

The expanded I-601A provisional waiver of unlawful presence rule came into effect on August 29, 2016.  The rule expanded the 2013 provisional waiver rule that created a shelter for individuals who had accrued unlawful presence by entering the United States without inspection and admission, and continued to unlawfully reside in the country.  Under the unlawful presence rule of INA Section 212(a) (9) (B) (i), if the individuals lived in the country for a minimum of 180 days but less than one year, or lived in the country for at least a year, they are barred from re-entering for three to ten years.  They were barred for only three years if they had unlawfully resided in the country for 180 days but less than one year.  They are barred for 10 years if they resided in the country for at least one year.

If they are unlawfully resident in the country, and an immigrant visa classification application that was filed for them was approved, they are required to leave the United States to attend the visa interview at an overseas United States embassy.  After the interview, the State Department would require them to get a waiver of the accrued unlawful presence, without which, it will not issue an immigrant visa to them to re-enter the country.

Before the 2013, the waiver application was filed with the Citizenship and Immigration Services (CIS) on a Form I-601.  The process was very long and cumbersome, during which the applicants were required to remain abroad for the many months in which the application was processed.  For some individuals, the process caused lengthy separations from family members that they had left behind in the United States.  The separation, in turn, created significant emotional and financial hardships on both the applicants and the family members.  In fact, there were cases in which many United States citizens and Lawful Permanent Residents relatives refused to travel abroad to seek and obtain the immigrant visas because of the associated problems.  The CIS and Department of State also felt the pain of these processing problems. It made their processing work inefficient and their consular interviews and interagency communications and appointments repetitious, and resulted in overuse of agency manpower and financial resources.

It was to alleviate these problems that Congress authorized the 2013 unlawful presence provisional waiver under INA Section 212(a)(9)(B)(V).  The waiver is to be filed on a form I-601A.  Under this rule, a person that is a spouse or relative of a United States citizen with an approved immigrant classification can apply for a waiver of an accrued unlawful presence while in the United States, and wait for an approval of the application before departing the United States to attend his visa interview at an overseas US Embassy.  But the benefit was limited to approved family based classifications, and even then, it was limited to spouses and parents of United States citizens only.

The expanded provisional waiver rule extended the remain-in-the-US-while-the-waiver-application-is-processed to spouses and parents of Lawful Permanent Residents and the spouses and children accompanying the principal immigrant applicant.  It was also extended to individuals with final orders of removal, deportation or exclusion, and to all statutorily eligible individuals regardless of their immigrant visa classification.  The “statutorily eligible individuals regardless of their immigrant visa classification” included Diversity Visa Lottery winners and employment based immigrants.

The extension of the provisional waiver to individuals with final orders of removal, deportation or exclusion came with well-specified limits.  First, the waiver applicant in this category should, as a first step, obtain an approved Application for Admission to the United States After a Deportation, Removal or Exclusion while still in the country before filing the provisional waiver application.  Second, during the immigrant visa interview, if the consular officer finds that the applicant is inadmissible on other grounds that have not been waived, the approved provisional waiver will be automatically revoked. For example, the waiver will be automatically revoked if the individual had entered the United States without inspection, admission or parole after a prior removal or prior unlawful presence.

The expanded waiver benefit also eliminated the “reason-to-believe” standard that adjudicators had used to deny waiver applications if they had reason to believe that the applicant may be subject to a ground of inadmissibility other than unlawful presence at the time of the visa interview abroad.  The elimination now forces the adjudicators to consider only whether the applicant has established extreme hardship, and whether his application warrants a favorable exercise of discretion.

The expanded provisional waiver rule is projected to be used by at least one hundred thousand applicants in a ten year span.  Of this number, about 44,000 will be family based, while about 56,000 will be from all the other immigrant categories.  It is also projected that within this period, it will cost the CIS and the applicants a total of at least $52 million.  But this cost will be offset by the alleviation of the burdens and hardships to applicants and the CIS inflicted by the pre-2013 unlawful presence waiver.

The writer of this blog, Amadu Edward Swaray, is an attorney at Swaray Law Office in Brooklyn Center, Minnesota.  Brooklyn Center is one of the northern suburbs of Minneapolis.  It is contiguous to Maple Grove, Crystal, Fridley, Brooklyn Park and Robbinsdale. You can reach Swaray Law Office at 763-549-0670 or swarayassociates@cs.com or www.swaraylawoffice.com