NEW UNLAWFUL PRESENCE
WAIVER: UNITING FAMILIES
SAFELY AND BOOSTING
NATURALIZATION
2-25-13
Our Presenters
• Charles Wheeler, Director
Training & Legal Support
cwheeler@cliniclegal.org
• Jack Holmgren, Field Service Coordinator
Center for Citizenship and Immigrant
Communities, CLINIC
jholmgren@cliniclegal.org
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Slide Availability
• Will be posted to the CLINIC website
sometime this week
• Find them under the Resources tab
• Hover over the Resources tab and then
locate Provisional Waivers and click on that
• Look under webinars and click on that
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Agenda
• What does the provisional waiver do?
• Who qualifies and what is procedure?
• How can you maximize the benefits of
this for your current/future clients?
• What’s in it for your program and what
should you do?
• General advice on filing waivers
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Polishing your Preparation
• This webinar is the 3rd on this topic and
many of you have prepared for this change
already
• Today is a review and refresher with some
new ideas for final preparation
• Maximizes immigrant integration in your
community
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How Does it Promote Naturalization?
• Only certain immediate relatives can utilize
the provisional waiver
• Immediate relatives (IRs) are spouses,
parents, children of U.S. citizens
• If have a green card, may be able to
naturalize and some of their relatives
automatically become IRs
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How Does it Promote Family
Reunification?
• Allows waiver to be filed before leaving
• Waiver is adjudicated before leaving
• Immigrants can travel to their consular
interview secure in the knowledge that
they have been approved for the waiver
• No surprises (hopefully)!
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How Does it Promote Stable Family
Income and Family Unity?
• Immigrant stays here and continues to
earn until they leave for a few days for the
consular interview - no loss of income
• Family of the immigrant does not suffer
the psychological damage and trauma of
an extended (six-month +) separation
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Why Is it Good for your Community?
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Immigrant families maintain income
Businesses benefit from a stable work force
No use of public benefits
Continuity of participation in faith-based
institutions
• Continuity of parenting
• Lower rates of depression due to
uncertainty over immigration situation
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More of Why it Helps your
Community
• Promotes naturalization
• Naturalization –
– Leads to higher/more:
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Income
Educational achievement
Civic participation
Inclusion
– Immigrant Integration in the fullest sense
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What’s in it for Your Program?
• It is an immigrant integration one-two
punch!
• Your program is at the top of its game
when it can naturalize someone and
that helps to safely re-unite a family
• You get two service opportunities for
the same goal
• Increasing naturalization is key
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Why Is it Key to Increase
Naturalization?
• Nationally, naturalization is where it is at!
• Funders focus on naturalization
• Naturalization is a safe bet for grant
applications
• Nobody opposes it
• You can use naturalization to make the
case for supporting your waiver work
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It Will Increase
Your Earned Income
• You will process cases efficiently and at
a high level of legal competence
• You are authorized (BIA R & A or
immigration attorney) to practice
immigration law
• You will charge and receive fees for
both naturalization and for doing the
family visa with the waiver
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Coordinating Naturalization and FamilyBased Cases will Prepare You for CIR
• CIR will probably involve 13+ years
from initial application to naturalization
• Case management will be key
• Coordinating the naturalization and
family-based case and waiver will
develop your program’s:
– Case management skills set
– Case management infrastructure
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What Should Programs
Do Now to Prepare?
• You have only one week. Go!
• Analyze current cases that could benefit
from the provisional waiver
• Meet and discuss soon
• Start with your existing caseload of waiver
eligible cases
• Communicate with clients who would benefit
if the petitioner naturalized
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Use This to Start Your
Volunteer Group for CIR
• CIR will only work for your agency if you
have many volunteers
• This is your chance to start creating a
robust volunteer component
• Volunteers should be recruited from the
pews and other places
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Outreach
• Do outreach to let the people know!
• This process of using the law takes
some explaining so do it in their
language
• Use examples and have people speak
who have suffered through lengthy
waits outside the country under the old
system
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Volunteers for Outreach
• Your volunteers will be helping clients
document and describe extreme hardship
• That makes the volunteers your best
resource to do outreach and talk about the
hardship aspect
• The volunteers will be your best resource to
create a robust referral network
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Partner for Hardship Documentation
• Make the “ask”/build the relationship now
Who will you ask to help document extreme
hardship?
– Hospitals
– Doctors
– Clinics
– Social workers
– School counselors
– Religious personnel
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Training
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Staff should prepare now
In-person training
E-learning training
Reach out to other agencies/local private
attorneys that have done the unlawful
presence waiver to learn from them peer-topeer. CLINIC affiliates: Call CLINIC for a
connection
• Ask a local foundation for support
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Training Up: What do You Need to Know
To Represent Waiver Applicants?
• Law and skills
– Family-based immigration
– Inadmissibility assessment
– Waiver eligibility
– Effective interviewing and writing
– Preparing effective waivers
• Don’t stop at course work when you can
learn from others first hand
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Upcoming CLINIC Trainings
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Omaha, March 20-21
Los Angeles, June 10-11
Kansas City, September 26-27
E-learning courses starting again in June
Recorded e-learning course available now
Periodic articles or webinars if new info
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What Fees Should I Charge?
• Requires more work than many immigration
benefit applications
• Client declaration: language capacity and
ability to capture client’s voice
• Coordinating with community providers
• Possible fee range: $600-800 but could go
higher depending on the level of work
• Of course fee waivers are always possible
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Provisional Waiver Book
• Available in June
• Print version, electronic version
• Appendices:
– templates for intake and assessment
– sample declarations
– sample list of documents
– sample cover letters
– resources for gathering country conditions and
other evidence of extreme hardship
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Provisional Waiver Listserv
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Exchange information and results
How USCIS implementing process
Meeting hardship standard
Experts
Sources of documentation
Insider tips
Ask questions and get help
Only for CLINIC affiliates
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Final Regulation
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Published in Fed. Reg. on January 3, 2013
Implementation begins on March 4, 2013
No applications accepted before then
Form I-601A not available yet
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What’s It All About?
• Adjudication of unlawful presence waivers
prior to consular interview
• Must still establish extreme hardship
• Applicant waits in U.S. for decision
• “Provisional” approval
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Waivers for What Grounds?
• Only unlawful presence: 3- or 10-year bar
• Not if left U.S. after triggering 10-year bar
and then EWI’ed (permanent bar)
• Not if ordered deported or removed
• Not for other grounds (e.g., fraud, health,
criminal conduct, smuggling)
• Ineligible if USCIS has “reason to believe”
may be found inadmissible by consulate
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Who is Covered?
• IRs who are consular processing
– Spouses, children, parents of USCs
– Rare for parents to qualify since would need
USC parent or spouse
– Rare for children since between 18-21
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QR need not be petitioner
Must be at least 17
Residing in U.S., legally or illegally
Approved I-130 or I-360 and paid IV fee bill
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Extreme Hardship to Whom?
• Extreme hardship to USC spouse or parent
• Not to LPR spouse or parent
• Extreme hardship to child only as it affects
qualifying relative (USC parent/spouse)
• Current standard will not change
• USCIS reports I-601 approval rate of 65%
• Applications to be adjudicated by NBC
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Who is Not Covered?
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Inadmissible on other grounds
Under age 17
No case pending with DOS, IV fee not paid
IV applicants scheduled before January 3, 2013
for consular interview
Persons in removal proceedings unless
proceedings admin closed at time of filing
Persons subject to final order of removal
Persons subject to reinstatement of removal
Adjustment applicants
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Who is Not Covered
but Could Be?
• IRs who have not started family-based
process → file I-130
• Spouse or child of LPR → petitioner can
naturalize
• Qualifying relative is LPR → naturalize
• Applicants scheduled for IV interview
before 1/3/13 → new I-130 by different
petitioner; new I-130 by same petitioner
following DOS termination of first I-130 or
withdrawal of approved petition
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What if in
Removal Proceedings?
• Get proceedings administratively closed or
terminated
• Not re-calendared when I-601A filed
• File I-601A with USCIS, not EOIR
• If approved, get proceedings terminated
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What’s the Filing Procedure?
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File I-130 or I-360, receive approval notice
File sent to NVC
Receive instructions from NVC, pay fee bill
Notify NVC that wish to file I-601A
File I-601A and supporting documents
Fees: $585 for I-601A and $85 for biometrics
(no fee waivers)
• Appear for biometrics
• NVC has sent out notices advising applicants
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How Do You Notify the NVC?
• Special e-mail: nvci601a@state.gov
• Subject line: NVC case number or USCIS
receipt number
• Include petitioner’s name and DOB,
representative’s name and address,
statement that applicant seeking provisional
waiver
• If properly notified, NVC will suspend
consular processing
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What Happens After
Waiver Approval?
• If waiver approved, notice sent to applicant
and NVC
• Complete DS-230 or 260 and proceed with
consular processing
• 2-3 mos. after approval received, NVC will
schedule interview
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Provisional Waiver Approval
Does Not Guarantee Visa Issuance
• Approval “provisional” because unlawful
presence bar not yet triggered
• Applicants still undergo normal consular
processing including medical exam and
interview
• If applicant found to be inadmissible on any
other ground, provisional waiver
automatically revoked
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Provisional Waiver Approval
Grants No Benefits
• No right to:
– Work authorization
– Advance parole
– Stop accrual of unlawful presence
– Protection from removal
– Allow to apply for adjustment
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How Will USCIS Adjudicate
Provisional Waiver Applications?
• USCIS will issue RFEs if missing evidence:
– Extreme hardship
– Discretionary factors
• USCIS will not issue NOIDs
• USCIS can reopen, reconsider on own
motion
• No appeal but can re-file I-601A
• Or can consular process and file I-601
• 3-month adjudication target
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What Circumstances
Trigger Denial?
• USCIS will deny waiver if other possible
grounds of inadmissibility discovered
• USCIS will deny waiver if extreme hardship
to QR not established
• USCIS may deny waiver as matter of
discretion
• Other: failure to appear for biometrics
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Remedy Assessment:
Don’t Forget to Consider….
• Does the client have a reasonable chance
of meeting extreme hardship test?
• Is client a US citizen and not an alien?
• Does the client have a way to qualify for
adjustment?
– 245(i): prior petition filed before 4/30/01
– 245(a): entered with inspection
– 245(a): granted advance parole
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Additional Resources
• USCIS Stakeholders call on provisional
waiver
• Tuesday, 2/26 at 2 p.m. EST
• Toll-free number: 1-800-369-2065
• Toll number for outside the U.S.: 1-212547-0425
• Passcode: Provisional
• CLINIC resources on website
• ILRC podcast on provisional waiver
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Basic Advice on Waiver Cases
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Start with effective interview
Understand all inadmissibility grounds
Inform client and bring into process
Relate all hardship to the qualifying relative
Don’t ignore hardship to other family
members
• Consider and prioritize all hardship factors
• Document all hardship factors
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Basic Advice on Waiver Cases
• How does applicant’s absence affect
current hardship: nexus!
• Prove two things: qualifying relative cannot
leave U.S. and can’t stay here w/o alien
• Effective declarations
• Discuss discretionary factors
• Package application well: cover letter and
index of documents
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Questions?
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