In the coming week, U.S. Department of Homeland Security/Citizenship and Immigration Services offices across the U.S. will begin implementation of a new “Customer Identity Verification” process.  In the interest of national security and identity fraud prevention, applicants for U.S. citizenship, permanent residence, and other benefits, will now be required to submit to an additional biometric fingerprinting procedure to confirm their identity when appearing for their interview at a local CIS office.  This procedure, which will be in addition to a biometric fingerprint appointment scheduled just after application filing, is designed to provide an additional layer of security and identity verification for individuals seeking green cards or U.S. citizenship.

As stated, the procedure will be carried out on the day of the scheduled interview, and just prior to the actual interview, with 2 electronic fingerprints and photographs being taken of the applicant.  It is advisable that individuals appear at their local CIS office at least 15 minutes before their scheduled interview time to accommodate this new procedure.

PUBLISHED May 1, 2013 – “IMMIGRATION LAW FORUM” Copyright © 2013, By Law Offices of Richard Hanus, Chicago, Illinois

For the past two decades as a practicing immigration lawyer, I have come to be a student of everything immigration law – the actual laws, the way the laws are applied, the mindset of the powerful decision-makers who preside over immigration or deportation proceedings, the psychological/sociological state of the wide spectrum of immigrant groups I represent, and of course, the politics.  About today’s politics I know this - the significant losses sustained by Republican candidates in our most recent elections, including Mitt Romney, are in large part attributed to the views they espoused when it came to immigration.   Whether it be “kick em all out” promises, or “they will leave by attrition” observations, their message – right or wrong – did not resonate with enough of our population to get them into, or keep them in, office.  Now comes the Gang of 8, that bipartisan group of U.S. Senators who over this past weekend proclaimed to have reached agreement on a major framework to address our nation’s immigration problem, including border security, a practical work visa program and of course, a path to legalization for our nation’s 12 million undocumented.  Now, it’s up to legislators in both houses of Congress to write the legislation, debate it, and present something acceptable to the President to sign.  It is hoped that this last step will be reached by Thanksgiving.

Between Points A and B:  In the months ahead I can assure you our nation will witness more of the same political drama and hyperbole we have grown accustomed to when an Obama backed legislative initiative is being advanced i.e. for a Republican politician to show their true Republican bona fides, they must, without exception, oppose any measure advanced by the President, no matter how much sense it might make.  Why?  Because – per the tea party leaning mantra – if it’s being pushed by Obama, the initiative must be evil and defeated.  Consistent with this principle, many of our nation’s major Republican players, and especially wannabe players, will exhibit noteworthy levels of posing, backpedaling, kicking, and yelling as the legislative process moves toward actually getting a proposal to the President.

The main backpedaling will come from folks like Marco Rubio, who are straddling an uncomfortable fence position.  On the one hand, they do not want to be left on the outside of any bandwagon seen as sensibly addressing our nation’s important and future immigrant causes, such as a path to legalization for the undocumented.  And it was that appearance of “outsider-ness” that was left for the Republicans after their stinging string of defeats last November.  On the other hand, lots of these Republican folks still have significant tea party leaning constituencies, who want their candidate to kick and scream in the face of any proposal to reward the immigration law breakers with an immigration law benefit.  This demographic’s anti-“path to legalization” fury is further fueled by their perception that if it were not for these immigration law breakers, our nation’s unemployment problem would not be nearly as bad as it is, since, as the argument goes, these undocumented foreigners, in large numbers, are taking away jobs Americans would otherwise fill.

While we wait for this process – and accompanying drama – to unfold, those who might prospectively benefit from ”path to legalization” legislation should prepare themselves:  Although a law to allow the undocumented to legalize their immigration status is far from a certainty, the chances of enactment are as good as I have seen since before 9/11.  If and when a law gets passed, I envision applicants to be required to produce evidence of their presence in the U.S., however long any prospective law may specify.  Accordingly, now is an ideal time for prospective applicants to start creating a hard copy file of records of their financial, educational, employment and medical treatment history in the U.S., including bank account statements, school transcripts, receipts, leases, bills, tax returns, medical records, and even, as a last resort, print-outs of Facebook or other internet activity.  I am not saying all of this will necessarily be useful or needed for any future legalization process, just that it may be.   What I do know for sure, there will be lots of kicking, screaming and posing between Points A and B.

PUBLISHED April 1, 2013 – “IMMIGRATION LAW FORUM” Copyright © 2013, By Law Offices of Richard Hanus, Chicago, Illinois

Before intending family-based immigrants are issued their visa, or approved for adjustment of status, the petitioning U.S. family member or their joint co-sponsor will have to submit an I-864 Affidavit of Support (or acceptable I-864 variation) and most of the time, satisfy certain income requirements.  The most common exception is the option for a petitioner to prove their financial health by way of ownership of sizable liquid assets as evidenced by bank/brokerage account statements or real property appraisals.  The income requirement applicable to most petitioners is 125% of the poverty level as determined by the U.S. Department of Health and Human Services.  For sponsors residing in the lower 48 contiguous states in the U.S., applicable guidelines are set forth below:

2013 Poverty Guidelines for the 48 Contiguous States and the District of Columbia 

Size of family unit       Poverty guideline       125%

2                                      $15,510                    $19,388

3                                      $19,530                    $24,413

4                                      $23,550                    $29,438

5                                      $27,570                    $34,463

6                                      $31,590                    $39,488

7                                      $35,610                    $44,513

8                                      $39,630                    $49,538

For family units with more than 8 members, add $5,025.00 for each additional member to meet the required 125%.  Poverty Guideline level

PUBLISHED February 27, 2013 – “IMMIGRATION LAW FORUM” Copyright © 2013, By Law Offices of Richard Hanus, Chicago, Illinois

On March 30, 2012, US Department of Homeland Security/Citizenship and Immigration Services first announced its plan to implement a “stateside” I-601 Waiver program, an initiative for processing a “waiver of inadmissibility” for certain applicants for permanent residence who under current law, are ineligible to undergo final green card processing in the U.S.  Under the current system such individuals must leave the US for an extended period for their final green card/ interview, and appear before a US consular officer in their home country.  With the new stateside waiver program, however, instead of facing a 3 month or so wait to receive a decision on their waiver application while outside the US, applicants will only need to wait as little as a few days or week outside the US, since the 3 months of processing will now take place before the applicant’s departure.  With the most recent announcement, this program is set to take effect starting March 4, 2013.

Who benefits from this new program?  With some exceptions, the vast majority of applicants are spouses of U.S. citizens who have been present unlawfully in the U.S. for an extended period after previously entering the U.S. without being inspected/without a visa.  Unless they are covered under INA Section 245(i) (another discussion), these applicants are unable to “adjust” their status and undergo all immigrant processing in the U.S.  This class of applicants is to be distinguished from those who merely overstayed their nonimmigrant visas (excluding crewman and K-1 entrants), and who continue to be eligible to adjust status in the U.S. if they marry a U.S. citizen, notwithstanding their having overstayed their visa status or engaged in unauthorized employment.

What exactly is being processed “stateside” vs. at a U.S. consular post outside the U.S.?  It’s an I-601 Waiver Application to excuse an applicant’s period of 6+ months of unlawful presence in the U.S., and the consequent 3 or 10 year bars to reentering the U.S.    An I-601 application is approved only if the applicant can demonstrate that his denied reentry will pose extreme and unusual hardship for his U.S. citizen or permanent resident spouse or parent. Of course, there’s no guarantee all applicants for a waiver will be approved under the program, but this new procedure will no doubt be of great comfort to families by letting them know ahead of time if the main obstacle (3 or 10 year bar) to their loved one’s reentry has been removed – and repeat, before the applicant leaves the US for their interview in their home country.  Thus, if the applicant’s waiver application is denied, that decision will be known before any trip outside the US takes place. The applicant will then know there truly is no reason for the applicant to appear for their interview before a US consular officer in their home country, since he will know he will indeed be subject to a bar to reentry that has NOT been waived or excused.

What is the first step for those benefitting from this new program?   An I-130 visa petition on behalf of the foreign national in question must be filed and US DHS/CIS must approve the petition, a process that takes anywhere from 3 to 6 months.  And such a petition can be filed immediately, and with no need to wait for March 4, 2013 to submit the petition.  As stated, it’s mainly spouses of U.S. citizens that will be benefitting from the program although other classes of family based immigrants may also be helped by the program.  But for spouses of U.S. citizens, an immigrant visa becomes immediately available upon the approval of the petition, and the foreign national’s immigrant visa is immediately ripe for processing.  Within weeks after the I-130 petition is approved by US DHS/CIS, processing shifts to the U.S. Department of State’s National Visa Center and the parties are contacted to facilitate immigrant processing, and under the new program, the processing of the stateside waiver application.

Must the applicant appear for an interview on the waiver?  No.  Applicants will be directed to file their I-601 application and supporting documentation with DHS/CIS by mail.  As of this writing, DHS/CIS’ California Service Center will be making a decision on the application based on the documentation presented, and without conducting a face to face interview.  Such a protocol makes the preparation of a thorough and well documented waiver application all the more important, since its only by way of documents that applicants get a shot of being approved.

More information about the program can be obtained by way of the US DHS/CIS website:  www.uscis.gov

In any case, before proceeding with such a filing, it is highly advisable for prospective applicants to first consult with a knowledgeable and trustworthy immigration attorney to confirm eligibility and provide a frank assessment of the risks at play and prospects for success.

PUBLISHED January 3, 2013 – “IMMIGRATION LAW FORUM” Copyright © 2013, By Law Offices of Richard Hanus, Chicago, Illinois

No doubt by now you have heard the one about the foreign national who walks into the local Secretary of State’s office to get a driver’s license, and walks out a licensed driver, an organ donor AND a registered voter. As a voter registrant, that’s where the story begins to go downhill for many foreign nationals. Whether or not the foreign national goes on to vote, he ends up facing harsh consequences within the green card or citizenship application setting as a result of voter registration or voting. In many circumstances the application is denied, and in some cases, the applicant is placed in removal proceedings. In a decision handed down by the U.S. Court of Appeals, Seventh Circuit this past week, however, the court gives new life to individuals who are facing a denied application, or fighting deportation, as a result of being misled by a government official into registering to vote, or voting in a U.S. election.

In the interest of disclosure, I am the attorney who has been representing the foreign national at issue throughout removal proceedings, from the initial removal hearing stage, to the Board of Immigration Appeals, and now most recently, the U.S. Court of Appeals for the Seventh Circuit. (Importantly, as a federal court case, the matter is of public record, and that includes the identities of the parties and all of the surroundings facts) The case involves a Filipina who was petitioned to live in the U.S. by her U.S. citizen spouse. She eventually joined her spouse in the U.S. on a K-3 visa, and was to undergo the final processing of her green card while in the U.S. But between the time she arrived on her visa, and the time she appeared at her green card interview at the local Homeland Security/Citizenship and Immigration Services office in Chicago, she had an encounter with a government official that would turn her life upside down for the next 6 years.

The encounter was with an official at the Illinois Secretary of State’s office in Bloomington, Illinois, where she applied for her driver’s license. In support of her application, our Filipina presented documentation establishing her identity and legal status in the U.S., including her Philippines passport, and K-3 nonimmigrant visa. In response to her submission, the government official asked her 2 questions: 1) do you want to be an organ donor? and 2) would you like to register to vote? Not supposing her own ineligibility for either – since it was a government official offering up these choices AND after he reviewed her identity and immigration documents – she said yes to both. At no point during this process, did she claim to be a U.S. citizen. From there, she signed where told, was issued her driver’s license, and went home on her merry way. Weeks later, she gets a voter registration card in the mail, thus further, and reasonably, establishing in her mind her eligibility to vote in the U.S. Eventually, she carries out what she sees as her civic duty, and votes in a U.S. congressional election.

At her green card interview several months later, she honestly discloses all of these events in response to the immigration official’s questions about registering to vote or voting in the U.S. And that’s where things get really bad. Not only is her green card application denied, but her work permit is cancelled, and she is eventually placed in removal proceedings.

So how is it that two well-intended, honest folks who go through the trouble of adhering to every rule and instruction in legally bringing a spouse to the U.S., end up having to fight off the recently arrived spouse’s deportation? Answer: the law can be a tangled web, and these folks got caught in it.

No doubt, each of the laws at play were enacted with the best of intentions. Most notably, we have an immigration law that says foreign nationals are to be denied U.S. residence and removed from the U.S., when they vote in violation of state or federal law. And the federal voting law at issue here is such that a non-citizen who votes is considered to be unlawfully voting – no matter what – and even if the voter is acting innocently and does not know it’s wrong to be voting. i.e. no mens rea is required.

However, after many years of litigation, and appeals, the U.S. Court of Appeals has declared that in the context of immigration proceedings, such as in this case, the defense of “entrapment by estoppel” – or official authorization – is relevant in determining whether the specified unlawful conduct took place. That is, when a person reasonably relies on the guidance of a government official in committing some act, that person should not be deemed a criminal or legally penalized if that act turns out to be unlawful.

Put simply, just as we would never ticket a motorist who is waved through a stop sign by a police officer, a foreign national should not be denied their green card and deported after being waved through the voter registration and voting process by government officials. In remanding the case for further proceedings, the Seventh Circuit stated: “if the Immigration Judge does credit (her) statements about what occurred, the Department of Homeland Security should give serious consideration to withdrawing its proposal that she be declared inadmissible and be removed from the United States. A person who behaves with scrupulous honesty only to be misled by a state official should be as welcome in this country in 2012 as she was when she entered in 2004.”

Last week was a good week for this foreign national, and hopefully the process will play out as urged by the Seventh Circuit. For more details on this case, see KEATHLEY v. Eric H. HOLDER, Jr., Attorney General of the United States – No. 11–1594 (Seventh Circuit, August 22, 2012).

PUBLISHED August 27, 2012 – “IMMIGRATION LAW FORUM”
Copyright © 2012, By Law Offices of Richard Hanus, Chicago, Illinois

The momentum is unmistakable. State by state, our country is taking a serious look at the issue of gay marriage, with the volume of the local and national discussion only getting higher. Whether you believe same sex marriage is right or wrong, or should or should not be legalized, the issue certainly raises a multitude of questions on the rights of our gay population and the fairness of our current laws as applied to them. One such question involves the fairness of our immigration laws for individuals involved in same sex relationships. Should a heterosexual in the U.S. have any greater right to live in peace and harmony with their significant other or spouse than a gay individual in the U.S. who seeks to live with their partner – and particularly when that partner is from another country?

For a good portion of our society, the debate is complicated and emotional. And of course, with religion being an integral part of the discussion for many – if not most, it is next to impossible to avoid the explosive land mines that come with any conversation about morals or how God wants us to behave. The Constitution was written and adopted to guarantee, within certain limits of course, liberty and fairness for our citizens. But then again, the framers of the Constitution made no secret that Judeo-Christian principles were heavy on their mind when they went about their business of drafting the document.

To this point, 6 states have legalized same sex marriage, although the federal government (with the passage of the Defense of Marriage Act, or “DOMA” in 2006) and the vast majority of the rest of our states have enacted measures to prohibit recognition of same sex marriage. On the other hand, according to Wikipedia, approximately half of the US population now supports or has no objection to same sex marriage, a significant shift from 1996 when only 25% of Americans held such positions.

The legislative measures above have sparked numerous state and federal lawsuits – from both sides of the debate – challenging the legality of the pro-legalization or anti-legalization law in question. The Obama administration has sort of stepped forward to support the legalization of gay marriage, but we certainly do not hear President Obama screaming his support from the roof tops, especially as we inch our way toward November. On the other hand, the Obama administration has taken the bold step of allowing Department of Homeland Security officials to factor in same sex relationships with U.S. citizens in prosecutorial discretion decision-making for non-citizens in removal proceedings. Additionally, among other supportive policies, the U.S. Department of State has implemented regulatory measures to allow same sex partners of certain temporary work visa holders to accompany their partners to live in the U.S. for the term of their visa.

Like immigration law and policy, the gay marriage debate has become a powerful political football for players on the national stage to kick around. Whether same sex marriage becomes legalized or not, given our society’s growing comfort with the notion of same sex relationships, or simply gay individuals living their lives in the open, it seems to be just a matter of time before U.S. citizens who are gay will have the same rights as heterosexuals to have their legally recognized foreign partner/spouse live with them in the U.S. And more likely than not it will be the U.S. Supreme Court that will decide when that time will be.

PUBLISHED June 1, 2012 – “IMMIGRATION LAW FORUM”
Copyright © 2012, By Law Offices of Richard Hanus, Chicago, Illinois

On March 30, 2012, US CIS published a proposed rule for the implementation of the “stateside” I-601 Waiver program. That does not mean the program is now in effect, just that the government has commenced the beginning steps toward implementation of the program, with some commentators expecting the rule to be implemented by the end of the calendar year.

As previously discussed here, the proposed program would serve to streamline processing of certain applicants for permanent residence who under current law, must leave the US for an extended period for their final green card/ interview, and appear before a US consular officer in their home country. Instead of facing a 3 months or so wait to receive a decision on their waiver application while outside the US, the new proposal will allow for a wait as little as a few days outside the US, since the 3 months of processing is now being proposed to take place before the applicant’s departure. And what is being decided in this period is an “I-601 waiver” application to excuse, or “waive”, the individual’s previous period of unlawful presence in the U.S. and consequent 3 or 10 year bars to reentry, where cases are approved only if the applicant can demonstrate that his denied reentry will pose extreme hardship for his U.S. citizen or permanent resident spouse or parent.

Of course, there’s no guarantee all applicants for a waiver will be approved under this proposed program, but this new procedure will no doubt be of great comfort to families by letting them know ahead of time if the main obstacle (3 year bar) to their loved one’s reentry has been removed – and repeat, before the applicant leaves the US for their interview in their home country. Thus, if the applicant’s waiver application is denied, that decision will be known before any trip outside the US takes place. The applicant will then know there is no reason for the applicant to appear for their interview before a US consular officer in their home country, since he will know he will indeed be subject to a bar to reentry that has NOT been waived.

Developments toward actual implementation of this program will continue to be reported on here.

PUBLISHED April 1, 2012 – “IMMIGRATION LAW FORUM”
Copyright © 2012, By Law Offices of Richard Hanus, Chicago, Illinois

U.S. Department of Homeland Security/Citizenship and Immigration Services continues to do its job with efficiency and speed when it comes to processing Applications for Naturalization (N-400) and Applications for Adjustment of Status (green card – I-485) based on marriage to a U.S. citizen, or other family or employment immigrant category with current visa availability. Immigration interviews, at least through CIS Chicago, are being scheduled with lightning speed, and card production for approvable permanent resident applicants, and oath ceremonies for approvable U.S. citizenship applicants follow within just a week or two of the interview. In my 20+ years of practicing immigration law, I can say that the logistics of these aspects of the immigration benefits system have never worked better.

Here is the current timeline for family based, I-485 adjustment of status applicants — assuming the paperwork and all supporting documentation is prepared and filed correctly:

1. Dept. of Homeland Security/Citizenship and Immigration Services issues receipts within approximately 5 to 10 days of filing date,
2. Biometrics (fingerprint) appointment scheduled within approximately 10-15 days of filing date,
3. Employment Authorization Document (and for those eligible, Advance Parole Travel Document) issued within 45 to 90 days of filing date, and
4. Interview (at least at CIS Chicago) scheduled within 90 -120 days of filing.

Please note that interviews will be scheduled for all marriage-based applications, but not necessarily for other types of family-based cases. Applicants with arrest records or other significant immigration-related irregularities will always be interviewed.

The timeline for N-400 applicants for naturalization — assuming prepared and filed correctly — is pretty much the same as for I-485 applicants, except that interviews are scheduled within 3-5 months of the filing date, and oath ceremonies scheduled approximately 1-2 weeks following the interview.

What can impact this timeline? If the application and all supporting documentation, such as the Affidavit of Support, are not prepared correctly, additional weeks or months can be added to Employment Authorization Document and/or I-485 processing times. Also, if questions surrounding the applicant’s legal eligibility for permanent residence or U.S. citizenship comes into play — especially at the time of interview — weeks, months, and even years can be added on to this processing timeline. But when the case is prepared properly, and clear legal eligibility for the immigration benefit is established, applicants can pretty much expect smooth and speedy sailing.

PUBLISHED March 9, 2012 – “IMMIGRATION LAW FORUM”
Copyright © 2012, By Law Offices of Richard Hanus, Chicago, Illinois

For the past 5 years, I have seen more than a few variations on the theme of the “accidental” voter or voter registrant. In all but the exceptional case, the non-U.S. citizen was lured into registering to vote, or voting, because of “Motor-Voter”, the federal law that directs states, like Illinois, to incorporate a voter registration option when accepting applications for driver’s licenses and State I.D.’s. Invariably, the accidental voter or registrant is led into the voter registration process by the blind robotics of the motor voter protocol as carried out at state motor vehicle facilities, even when the governmental official is presented with clear evidence that the person appearing before them is not a U.S. citizen.

Sometimes the foreign born applicant presents their foreign passport as identification, other times its their green card, employment authorization document or non-immigrant visa. Notwithstanding the presentation of clear proof of their foreign birth and citizenship, the foreign national is asked if they would like to register to vote. Some bite right away, and say yes, feeling it’s their duty not to reject such an honor, or at least not thinking there would be any question of eligibility since it’s a government official offering up this privilege. Then there are those who state very clearly that they are not U.S. citizens and understand they are prohibited by law from voting, but are nevertheless mistakenly advised to register anyway, since according to the official (again mistakenly), one does not need to be a US citizen to register, or, because simply it’s just nice to have an extra form of identification. Lastly, there is the voter registration that takes place without the applicant ever knowing it, until, that is, he ends up receiving a voter registration card in the mail.

From the government’s perspective, the voter registration process only goes forward after the applicant signs a document confirming that they are a U.S. citizen. And it is up to the individual to carefully review what they are signing before signing it. However, that line of reasoning does not take into account the bigger picture context in which the process plays out – such as with the above examples, where the foreign national is essentially relying – with good reason – on the guidance of a government official throughout the process, and are given every reason to believe they are eligible to register. And then later, the registrant is reasonably led to believe they are eligible to vote since a voter card is issued, and presumably only after a thorough eligibility assessment and screening process was carried out.

Now that we know where the problem is most often rooted, what’s the accidental voter, or registrant, to do if he is only a green card holder, and wants to apply for naturalization? Or, what if the registrant or voter still has yet to become a permanent resident, and now wants to apply for a green card? What are the risks of being denied, or even deported as a result of being ensnared into such an awful mess?

For Applicants for Naturalization: individuals who admit to voting or registering to vote certainly risk being not only denied US citizenship, but also placed in deportation/removal proceedings, especially the accidental voter. In both cases though, the interviewing officer has the power to exercise discretion, excuse the violations and still approve the case. That power is exercised often, but one cannot know with certainty how the process will play out ahead of time. But even in the worst case scenario where an applicant is denied and placed in removal proceedings, there is usually a remedy to avail of to have removal proceedings terminated. That is because the applicant will usually have a solid case to show that the registration process did not involve a purposeful, intended claim to U.S. citizenship (integral to voter registration), and that any action, whether it be registering to vote, or voting, was taken while relying on the guidance of a government official. In such a case, the act of voting should not be, and cannot be considered “unlawful”, and a basis to deport someone from the U.S.

For Applicants for Permanent Residence: individuals caught in the motor voter trap face a bigger challenge since prosecutorial discretion cannot be exercised to waive, or excuse, an alleged false claim to citizenship, or act of “unlawful voting”. On the other hand, as in the case of an applicant for naturalization, the arguments about relying on the guidance of government officials are just as strong. More likely than not though, those arguments will have to be presented before an Immigration Judge in removal proceedings, because a front line immigration officer will not want to consider those arguments and will summarily deny the application. For certain, in the realm of accidental voting or registration, the applicant for permanent residence faces greater risks than the applicant for naturalization, although as stated, a remedy may very well be available within the context of a defense to removal proceedings.

As we speak, the U.S. Court of Appeals for the 7th Circuit is considering a case dealing with this very issue. Hopefully, the accidental voter or registrant will find some well-deserved sympathy (and benefit from positive case-law) in that arena.

PUBLISHED February 21, 2012 – “IMMIGRATION LAW FORUM”
Copyright © 2012, By Law Offices of Richard Hanus, Chicago, Illinois

It never fails. Whenever a new immigration provision is presented to Congress for consideration, or is proposed by the President or some other official in the Executive Branch, the media takes the ball and runs with it. It’s either presented as something it is not, or simply misunderstood to be something it’s not. Either way, the US audience, ranging from the general American John Q. Public demographic to the vulnerable 12 million undocumented demographic, gets excited, in different ways, and for different reasons. Notably, this provision will impact only limited number of prospective applicants, applicants who are ineligible to “adjust” status/ undergo all permanent residence processing in the U.S. and who are willing to visit a U.S. consular post in their home country for their “green card” interview.

The latest news has to do with an Obama administration initiative for processing “waivers of inadmissibility” and it proposes to streamline processing of certain applicants for permanent residence who under current law, must leave the US for an extended period for their final green card/ interview, and appear before a US consular officer in their home country. Instead of facing a 3 months or so wait to receive a decision on their waiver application while outside the US, the new proposal will allow for a wait as little as a few days outside the US, since the 3 months of processing is now being proposed to take place before the applicant’s departure.

And what is being decided in this period is an “I-601 waiver” application to excuse, or “waive”, the individual’s previous period of unlawful presence in the U.S. and consequent 3 or 10 year bars to reentry, where cases are approved only if the applicant can demonstrate that his denied reentry will pose extreme hardship for his U.S. citizen or permanent resident spouse or parent. Of course, there’s no guarantee all applicants for a waiver will be approved under this proposed program, but this new procedure will no doubt be of great comfort to families by letting them know ahead of time if the main obstacle (3 year bar) to their loved one’s reentry has been removed – and repeat, before the applicant leaves the US for their interview in their home country. Thus, if the applicant’s waiver application is denied, that decision will be known before any trip outside the US takes place. The applicant will then know there is no reason for the applicant to appear for their interview before a US consular officer in their home country, since he will know he will indeed be subject to a bar to reentry that has NOT been waived.

Again, this new provision is only at the proposal stage, and a final, working rule has yet to be implemented. In the meantime, no waiver filings will be decided in the US as proposed above. If implemented though, the rule will not impact applicants currently outside the U.S., who will continue to be subject to ordinary processing procedures now in place. Further, since this processing change is being presented as an act of Executive/Administrative “rulemaking” and not legislation, there is no need for congressional approval. All developments regarding implementation of this provision will continue to be reported on here.

PUBLISHED January 12, 2012 – “IMMIGRATION LAW FORUM”
Copyright © 2012, By Law Offices of Richard Hanus, Chicago, Illinois