Monthly Archives: January 2016

I-601A Provisional Waivers : Marriage Green Cards


Marriage Green Cards

I-601A Provisional Waivers

34 % USCIS Denial Rate

On January 13, 2013, DHS published the final rule that reduces the time a US. Citzen is separated from their immediate relatives (spouse, children and parents). The new rule will allow immediate family members of U.S. Citizens who entered the U.S. without inspection or are otherwise ineligible to adjust their status in the U.S. due to unlawful presence to apply for Form I-601-A Provisional Waiver in the United States. The rule will establish a process that will allow certain individuals to apply for a provisional unlawful presence waiver before they depart the United States to attend an immigrant visa interview in their country of origin. The rule became effective March 4, 2015.

The new rule is designed to prevent extremely hardship to U.S. citizens, and to avoid having spouses, sons and daughters and parents of U.S. Citizens separated from their families for potentially years while the waivers are pending.

I-601A Tip
Who is eligible to submit a Provisional Waiver?

To qualify a person must be at least 17 years old, and be the beneficiary of an approved I-130 as an immediate relative of a U.S. citizen. Immediate relatives are spouses, children and parents of U.S. citizens. The sponsoring son and daughter must be at least 21 years of age to file a petition for a parent. To be considered a child, the individual must be under 21 years of age. Although it is possible for a person over 21 years of age to be eligible under the Child Status Protection Act (CSPA).

In order to obtain a waiver, the applicant must demonstrate extreme hardship to the qualifying relative. The qualifying relative must be a spouse or parent who are U.S. citizens. While a LPR spouse or parent is eligible to apply for a regular I-601 waiver abroad, they are ineligible to qualify for an I-601A provisional waiver in the U.S..

What grounds of inadmissibility does the waiver apply to?

The waiver only applies to inadmissibility based on unlawful presence in the U.S.. Applicants must be subject to the 3 year and the 10 year bar once they leave the United States. Individuals subject to the permanent bar are ineligible to submit a waiver application until they have remained outside the U.S. for 10 years.

Individuals who are inadmissible for other reasons (fraud, criminal convictions etc.) are ineligible for provisional waivers.

I-601A Tip
What if a person is currently in removal proceedings or is subject to a final order of removal?

Such persons may participate in the provisional waiver program only if his removal proceedings have been administratively closed and have not been re-calendared as of the time that the waiver is submitted to the USCIS.

Persons in removal proceeding who have applied for DACA may apply for provisional waivers after USCIS grants their DACA applications, but only if they meet all the requirements for filing a provisional waiver and their removal proceeding have been administratively closed.

If the USCIS approves a provisional waiver for a person in removal proceedings, the person must seek termination or dismissal of the removal proceedings by the Executive Office for Immigration Review (EOIR), and this must be granted before the person departs the U.S. for their immigrant visa interview abroad. Failure to do so could prevent the person from obtaining an immigrant visa and returning to the U.S.

Persons under final order of removal are ineligible to participate in the provisional waiver program.

Can a person who had a previously scheduled immigrant visa interview (scheduled by DOS prior to January 3, 2013) abroad that he did not attend submit a provisional waiver?

Probably not. See the possible exceptions:

“An alien who is ineligible to apply for a provisional unlawful presence waiver because of a previously scheduled immigrant visa interview may still qualify for a provisional unlawful presence waiver if he or she has a new DOS immigrant visa case because 1) DOS terminated the immigrant visa registration associated with the previously scheduled interview, and they have a new immediate relative petition; or 2) the alien has a new immediate relative petition filed on his or her behalf by a different petitioner.”

If a I-601A waiver is denied, is it possible to appeal?

No. Although it is not possible to appeal a I-601A denial or submit a Motion To Reopen (the USCIS reserves the right to reopen or reconsider a I-601A denial on its own motion), it is possible to refile a waiver after a denial.

See quote from DHS:

“If an individual’s provisional unlawful presence waiver request is denied or withdrawn, the individual may file a new Form I-601A, in accordance with the form instructions and the required fees. The applicant’s case must still be pending with DOS, and the applicant must notify DOS that he or she intends to file a new Form I-601A. In the case of a withdrawn Form I-601A, USCIS will not refund the filing fees because USCIS has already undertaken steps to adjudicate the case.”

“Alternatively, an individual who withdraws his or her Form I-601A filing or whose Form I-601A is denied can reapply for a Form I-601 Application for Waiver of Grounds of Inadmissibility,with the USCIS Lockbox,after he or she attends the immigrant visa interview and after DOS conclusively determines that the individual is inadmissible. If the ground(s) of inadmissibility identified by the DOS consular officer can be waived, the individual can file a Form I-601 along with any supporting documentation or evidence needed to demonstrate eligibility for the waiver and ultimately the immigrant visa…”

“Applicants and their attorneys or accredited representatives also are reminded that they may address or correct mistakes by supplementing a pending Form I-601A waiver request with additional evidence or correcting the request before USCIS makes a final decision in the case. USCIS will take into consideration any evidence received when making the decision.”

Can a person who submits an I-601A application be placed in removal proceedings?

See USCIS statement regarding this issue:

“does not envision initiating removal proceedings against aliens whose Form I-601As are denied or withdrawn prior to final adjudication”, it reserves the right to do so if the person is considered to be a “DHS enforcement priority – that is, if the individual has a criminal history, has committed fraud, or otherwise poses a threat to national security or public safety.”

“DHS reminds the public that the filing or approval of a provisional unlawful presence waiver application will not: (1) confer any legal status; (2) protect against the accrual of additional unlawful presence; (3) authorize an alien to enter the United States without securing a visa or other appropriate entry document; (4) convey any interim benefits (e.g., employment authorization, advance parole, or eligibility to be paroled based solely on a pending or approved Form I-601A); or (5) protect an alien from being placed in removal proceedings or removed from the United States, in accordance with current DHS policies governing initiation of removal proceedings and use of prosecutorial discretion.”

What are the chances that your I-601A waiver will be granted?

This, of course, depends on the facts of your case, and how well your I-601A waiver is documented to demonstrate “extreme hardship” to your qualifying relatives. Do not submit 5 or 6 exhibits and expect to receive an approval. Here, it is absolutely essential that your attorney know the legal basis for establishing “extreme hardship”, and that he or she has prepared many successful I-601 waiver applications.

Extreme hardship can be emotional, financial, medical, etc. and hopefully a combination of these and many other factors. Last year, the USCIS denied 34%, or a little more than one out of every three, I-601 waivers.

I-601A Tip

      Top 9 Tips For Green Card based on Marriage

      Green Card , Marriage

      Foreign-born persons who enter into a bona fide marriage with a U.S. citizen are considered “immediate relatives” for purposes of obtaining a green card. There are no quota’s or restrictions for those persons, and they are allowed to adjust their status to permanent resident as long as they entered the U.S. legally.

      Obtaining the help of a knowledgeable attorney well versed in immigration law is advisable. Our goal is to make your immigration process as smooth as possible.

      Top 9 Tips

      1. You should marry the foreign born person in the U.S. and submit the appropriate petitions.
      2. Foreign born persons who enter the U.S. legally and later marry a U.S. citizen can adjust status to a permanent residence without leaving the U.S.
      3. Both parties, the U.S. citizen and foreign born person, must submit doucmentation.
      4. Within several weeks of filing the petition packet the foreign born spouse will receive an appointment for finger prints, and a second appointment will follow for a couples interview with an immigration officer.
      5. Both parties must attend the interview. It is important to simply tell the truth. Don’t offer information that is not asked, and refrain from talking too much. Appearance is also important, dress appropriately and remember where you are and why you are there.
      6. If your bride or husband to be entered the US on a finance visa, you must marry within 90 days of entry.
      7. The immigrant must be in a legitimate relationship with a US citizen or Legal Permanent Resident.
      8. Submit a complete petition packet along with appropriate filing fees to the correct immigration office.
      9. Be entirely upfront and truthful with your attorney

      How to bring your Fiancee to the United States

      K1 Finance

      How to bring your Fiancee to the United States

      That is the age old question top of mind for anyone that has falling in love with a guy or girl that is not a United States citizen or is not presently living in the United States. The process can seem very overwhelming to the untrained person. Don’t be fooled into thinking that all you have to do is fill out the forms and send them in to the agency. That approach will get your petition delayed at best or denied at worst.

      For starters, your foreign born fiancee needs permission from the USCIS to enter the United States. But, long before you get to the point of submitting a petition packet to ask for permission several keep requirements that must be present.

      There are a number of requirements that apply for a K-1 visa for your fiancee:
      1. You must be a U.S. citizens to apply for your foreign born fiancee;
      2. You must have met your fiancee in person within the past 2 years or you are eligible for a waiver based on an exception;
      3. You and your fiancee are both free to marry any any previous marriages must have been legally terminated by divorce, death or annulment;
      4. You intend to marry within 90 days of your fiancee entering the United States; and
      5. You must met certain financial threshold requirements

      Once the K-1 petition is approved and the visa issued your fiancee is allowed to enter the U.S. for 90 days. During that 90 days period the marriage ceremony must take place. If for some reason the marriage does not take place within the first 90 days your fiancee will have to exist / leave to U.S.. Unlike other visa categories where the beneficiary is allowed to apply for another nonimmigrant visa, your fiancee will not be allowed to switch to another nonimmigrant visa.

      The K-1 visa application is essentially a two step process:
      1. The first process involves submitting an application packet to the USCIS, once the application is approved, then
      2. The approval notice is sent to the U.S. Embassy in your fiancee’s native country or whatever Embassy has jurisdiction over the process. You fiancee will be asked to complete a large application packet, submit to finger printing and obtain a medical exam by a designated physician. An in person interview will also be required before a visa is granted.

      The second step in the process can be problematic for individuals. The important thing to keep in mind to consult with you representative to make sure you are prepared for the interview, and of course, tell the truth.

      The entire process generally takes approximately 5 to 8 months to complete. The exact time will depends on where you live and the embassy processing the application.

      Fiancee Visa Process / Overview

      K1 Finance

      Fiancee Visa Process Overview

      As a US citizen, what do you do if you want to marry the love of your life and that person happens to be a foreign national living outside the United States? How do you get them in the United States if you plan to marry them.

      The application process is generally not very lengthy and the eligibility process is not as complex as other family based Visas. If you petition for a fiancé(e) visa you must show that:

      1.   you are a US citizen,

      2.   you intend to marry your fiancé(e) within 90 days of entering the United States,

      3.    both parties are free to marry and not encumbered by any previous marriages, and 4.) you have met each other in person at least once within the last 2 years. Except, strict religious customs, cultural or social practices prohibit meeting or meeting in person would result in extreme hardship to you.

      Additional Action is Required

      Once all hurdles are cleared, the finance(e) is issued a K-1 nonimmigrant Visa to enter the United States for 90 days. The marriage must take place within those 90 days. After you are married, your spouse may apply for permanent residence and remain in the United States while the application is being processed.

      Your spouse can apply for an authorization to work in the United States. If your spouse has a child (or children) under the age of 21 and unmarried, a K-2 nonimmigrant Visa maybe available to them. Just make sure to include the names of the children on the petition for your fiancé(e).

      The fiancé(e) Visa status will only be valid for 90 days and will automatically expire.

      90 Days Valid for 90 Days

      No extension will be granted, and your fiancé(e) will not be allowed to switch to another Visa category. Your fiancé(e) must leave the US if the marriage does not take place within 90 days of entering the United States. Failure to leave may result in removal (deportation) and/or could affect future eligibility immigration benefits.

      Understanding Preference Categories

      Family Immigration

      Preference Categories Explained:

      Except for immediate relatives of U.S. Citizens, relatives in the below referenced categories must wait for an immigrant visa number to become available in accordance to the following preferences:

      1st Preference (F1):
      • Unmarried adult sons and daughters of U.S. citizens (21 years or older)
      • Quota 23,400 per yr plus any unused from F4
      2nd Preference (F2):
      • Spouse (husband or wife) of legal permanent residents
      • Unmarried son and daughters (regardless of age) and their children of legal permanent residents
      • Quota 114,200 per yr plus any visas unused in F1
      2nd Preference (F2A):
      • Spouses and unmarried minor children
      • 77% of the overall 2nd preference limitation
      • Of which, 75% is exempt from the pre-country limit
      • Granted conditional basis if marriage is 2 yrs old or less
      • If married to spouse before becoming an LPR, spouse may be eligible to receive following to join benefits. Which means the spouse will not have to submit a separate Form I-130, and spouse will not have to wait to immigrate to the U.S.
      • Adopted child, if the AC had lived with the adoptive parent (LPR) for 2 yrs he/she would be considered a child for immigration purposes, and will be allowed to get a green card at the same time the parents get a green card. Which means the child will not have to wait for a visa number to come available.
      2nd Preference (F2B):
      • Unmarried sons and daughters (21 years or older)
      • 23% of overall 2nd preference limitation
      • As for married sons and daughters, there is no visa category for LPR. If an unmarried son or daughter get married before the LPR becomes a U.S. citizen, any petition filed for that son or daughter will be automatically revoked.
      3rd Preference:
      • Married sons and daughters of U.S. citizens (of any age)
      • Their spouses, and
      • Their minor children (under the age of 21)
      • Quota, 23,400 per year plus any visas not used by F1 and F2 categories
      4th Preference:
      • Brothers and sisters of adult U.S. citizens
      • Their spouses, and
      • Their minor children
      • Quota, 65,000 per year

      Benefits of Family Petition

      Family Immigration

      What Does Filing The Petition Do For Your Relative?

      If your relative is an immediate relative, i.e. U.S Citizen’s spouse, unmarried children under 21 years of age and parents, special consideration is given to individuals in this category.

      • There is no waiting list for immediate relatives
      • Visas available are unlimited
      • They can apply for an immigrant visa as soon as the petition is approved
      • If the petition has been approved, and the relative is currently in the United States (after making a legal entry and meet other requirements) they may be able to file an application to adjust status to legal permanent resident status

      For individuals in a “preference category”, the high demand for and supply of visa numbers, the per country visa limitations and the number of visas allocated for a particular preference category means your relative may have to wait several years in line before being allowed to immigrate to the United States.

      Who Distributes Visa Numbers:

      The U.S. Department of State is responsible for distributing visa numbers. Family sponsored categories are limited to a minimum of 226,000 per year. There are also limits to the percentage of visas that can be allotted to each country.

      Because the demand for visas is generally higher than the supply of visas in any given year, a waiting list forms. In this instance visas are distributed based on the preference category and the priority date (date of filing). The priority date is used to determine an individual’s place in line. When the assigned priority date becomes current the individual will be eligible to apply for an immigrant visa

      ABC’s Of Family Immigration


      Family Immigration Overview

      As a U.S. Citizen you can help your relative become a lawful permanent resident. To do so you must sponsor your relative by filing the required petitions and prove that you have enough income or assets to support your relatives to insure they won’t become a public charge or need public assistance.

      To start the process you must provide evidence and documentation (birth certificate, death certificate, marriage license, etc.) to prove your relationship to the person for whom you are filing.

      Helping a family member, whether it is your spouse, fiancé(e), child, parent or brother or sister, become a permanent resident of the US, follows roughly the same procedure as outlined below. It may seem straightforward, but there are many nuances in each type of family-based visa.

      First, the US Citizenship and Immigration Services (USCIS) must approve an immigrant visa petition for you. This petition must be accompanied by proof of the relationship and the other required documentation in order to begin the family based immigration process.

      Second, the Department of State must determine if an immigrant visa number is available for the foreign national, according to the category of visa applied for, even if that person already lives in the United States.

      The third step in family based immigration, if the foreign relative is already in the United States, he or she should apply to change his or her status to that of a lawful permanent resident after a visa number becomes available.

      If you are outside the United States when an immigrant visa number becomes available, the foreign relative must go to the U.S. consulate to complete the processing. This is the other way in which you can apply to secure an immigrant visa number for US family based immigration. If a beneficiary is based outside the United States, then his / her documents are considered by the National Visa Center (NVC) before his / her case is being sent to the US Consulate for further processing.NVC reviews the documentation and completes the required administrative processing, such as checking backgrounds and so on.