By Ari Sauer, immigration lawyer with the Memphis, Tennessee office of the Siskind Susser Law Firm.

The US Department of State has issued the June 2013 Visa Bulletin. The DOS Visa Bulletin lists visa availability to let foreign nationals know when they can file an immigrant visa application or application for adjustment of status to obtain a green card as a US permanent resident. The dates listed are the priority dates for immigrant petitions (I-130, I-140, I-360) or Diversity (DV) Lottery winner case numbers. A visa is available if your priority date or an earlier date is listed for your category and country of chargeability or if your DV Lottery case number or a larger number is listed.

Dept. of State Seal

1) To read the visa bulletin, first find the appropriate chart for your case: Family Based immigrant petitions; Employment Based immigrant petitions; or the Diversity Visa Lottery.

2) Next locate the appropriate column or row for your country of chargeablity. If your country is not listed, you would fall within the All Chargeability category. The DV lottery is listed by region instead of country although some countries within a region will be listed separately.

3) For the Family or Employment charts, locate your appropriate visa preference category from the rows listed on the left (F1 through F4 or EB-1 through EB-5).

4) Compare the priority date listed on the Visa Bulletin to the priority date for your petition. For the DV Lottery, compare the number listed on the Visa Bulletin to the number listed on your Congratulatory Notice.

The June 2013 Visa Bulletin becomes effective on June 1, 2013. Until then the May 2013 Visa Bulletin remains in effect. If you file a visa application or application for adjustment of status too early, your application will be rejected or denied.

Related articles

• How do I read the Department of State Visa Bulletin? (immigrationanswerman.com)
• What is my country of chargeability for the Visa Bulletin? (immigrationanswerman.com)

By Ari Sauer, immigration lawyer with the Memphis, Tennessee office of the Siskind Susser Law Firm.

The US Department of State has issued the May 2013 Visa Bulletin. The DOS Visa Bulletin lists visa availability to let foreign nationals know when they can file an immigrant visa application or application for adjustment of status to obtain a green card as a US permanent resident. The dates listed are the priority dates for immigrant petitions (I-130, I-140, I-360) or Diversity (DV) Lottery winner case numbers. A visa is available if your priority date or an earlier date is listed for your category and country of chargeability or if your DV Lottery case number or a larger number is listed.

1) To read the visa bulletin, first find the appropriate chart for your case: Family Based immigrant petitions; Employment Based immigrant petitions; or the Diversity Visa Lottery.

2) Next locate the appropriate column or row for your country of chargeablity. If your country is not listed, you would fall within the All Chargeability category. The DV lottery is listed by region instead of country although some countries within a region will be listed separately.

3) For the Family or Employment charts, locate your appropriate visa preference category from the rows listed on the left (F1 through F4 or EB-1 through EB-5).

4) Compare the priority date listed on the Visa Bulletin to the priority date for your petition. For the DV Lottery, compare the number listed on the Visa Bulletin to the number listed on your Congratulatory Notice.

The May 2013 Visa Bulletin becomes effective on May 1, 2013. Until then the April 2013 Visa Bulletin remains in effect. If you file a visa application or application for adjustment of status too early, your application will be rejected or denied.

Related articles

• How do I read the Department of State Visa Bulletin? (immigrationanswerman.com)
• What is my country of chargeability for the Visa Bulletin? (immigrationanswerman.com)

Is it possible to be deported without seeing a judge?

By Ari Sauer, immigration lawyer with the Memphis, Tennessee office of the Siskind Susser immigration law firm.

QUESTION: Is it true that you can only be deported by an immigration judge?

An American judge talking to a lawyer. (Photo credit: Wikipedia)

THE IMMIGRATION ANSWER MAN – ARI SAUER: This is a myth. An Immigration Judge can order non-citizens deported. But since 1997 so can Customs and Border Protection (CBP) officers. CBP officers at the border, airports and other ports of entry can issue Expedited Removal orders against someone trying to enter the US without the proper documentation or against someone who lies or uses fraudulent documents when trying to enter the US.

Also, when someone is being held by Immigration and Customs Enforcement (ICE), the officers often will try to get the person (especially those from Mexico) to agree to a Stipulated Removal. Someone who agrees to a stipulated removal gives up their right to go before an immigration judge and agrees to be deported. People sign these because they usually don’t realize what they are signing and think that they are agreeing to go home without being deported. These are often confused with Voluntary Departure orders, which are issued by an Immigration Judge, not by ICE.

But just because someone was denied entry into the US that doesn’t necessarily mean that they were expeditedly removed, sometimes CBP officers will allow someone to withdraw their application for admission and agree to go back home without a removal order, and sometimes CBP officers and ICE officers will just send someone back without going through the formal process of expeditedly removing them or having them sign a stipulated removal order. Sometimes the difference depends on what paperwork the officer did.

Bottom line:

1) If you are ever picked up by immigration, do not sign anything without speaking to your immigration lawyer first, because you are most likely signing a Stipulated Removal order, deporting yourself and giving up any chance you had to get relief from removal from an immigration judge.

2) If you are applying for admission into the US and the CBP officer asks if you would like to withdraw your application for admission, say “yes” (unless you have a legitimate fear of being persecuted, tortured or killed, based on your race, religion, nationality, political opinion, or membership in a particular social group if you are sent back home and you are asking for asylum). When the CBP officer asks if you want to withdraw you application, what they mean is that they they are giving you a choice to withdraw your application and go back home rather than being ordered deported by Expedited Removal. Either way you are going home, but if you are allowed to withdraw your application for admission then you do not have a deportation bar from future admissions or visas.

3) If you have been denied entry into the US or sent back home by CBP or ICE, especially since 1997, you should have an immigration attorney request your immigration files from the various government agencies to see if you have been deported.

Call 901-507-4270 to schedule an appointment with me to obtain copies of your government records, review them with you, and explain what options you may have for the future.

Last updated March 14, 2013

* This is an advertisement. Ari Sauer is a Memphis immigration lawyer with the Siskind Susser law firm. www.visalaw.com/ari. On this blog we answer questions as a service to our readers, but we cannot assume any liability related to reliance on anything herein, and responses to questions are not intended to establish an attorney-client relationship. Immigration laws and regulations are constantly changing and the rules stated may not apply to your situation. Readers are cautioned to schedule a consultation with an immigration lawyer before acting on anything stated in this blog. This blog is not intended to substitute for a consultation with a qualified immigration law attorney. Ari Sauer is licensed to practice law through the states of Tennessee, New York and New Jersey but is eligible to assist clients from throughout the US. Certification as an Immigration Specialist is not currently available in Tennessee, New York or New Jersey. Siskind Susser limits its practice strictly to immigration law, a Federal practice area, and we do not claim expertise in the laws of states other than where our attorneys are licensed.

By Ari Sauer, immigration lawyer with the Memphis, Tennessee office of the Siskind Susser immigration law firm.

QUESTION: I came to the US 15 years ago on a visitor’s visa. Can my company sponsor me for a green card?

Work Ahead by Riza Nugraha

THE IMMIGRATION ANSWER MAN: As a general rule, in order to be eligible to apply for Adjustment of Status (an application for a green card in the US), an applicant must show that they have maintained valid immigration status at least until the time they file the application for adjustment of status. Therefore someone who enters on a visa, but overstays past the time listed on their I-94, is not eligible to apply for adjustment of status unless they fall within one of the few exceptions to this rule. The more common exceptions to this rule are a) adjustment for an Immediate Relative, b) adjustment under the 245(i) amnesty, and c) adjustment under 245(k). There are other exceptions to this rule, however these three are the most common.

Immediate Relative Exception: An Immediate Relative (IR) is the 1) spouse of a U.S. citizen or the 2) unmarried child of a U.S. citizen who is under the age of 21. If the foreign national’s most recent entry into the US was with a visa, was admitted on the Visa Waiver Program, or was paroled into the U.S., then they are able to apply for Adjustment of Status based upon the fact that they are applying as an Immediate Relative.

245(i): Another exception is where the foreign national can show that 1) an immigrant petition or labor certification was filed on their behalf before January 14, 1998, or 2) that an immigration petition or labor certification was filed on their behalf before April 30, 2001 and they were in the U.S. on December 21, 2000. When filing under the 245(i) “amnesty” the foreign national must pay an additional $1,000 penalty filing fee.

245(k): Under the 245(k) exception, a foreign national who is filing a green card application based upon an immigrant petition filed by their employer may still be eligible to apply despite falling out of status. To be eligible under 245(k) the foreign national must not have been out of status, worked without authorization, or done anything else to violate their status for a total of more than 180 days between the time of their last entry into the U.S and the time they file the green card application.

If you are not eligible to apply for adjustment of status in the U.S., you might still be eligible to apply for an immigrant visa at the U.S. Embassy or Consulate in your home country. However, you should consult with an immigration attorney before doing so to make sure that you are not barred from receiving a visa under any of the categories of inadmissibility.

This is a brief overview of these complex rules. As such, I recommend that you consult with a qualified immigration attorney before filing an application for adjustment of status under one of these rules.

You can call 901-507-4270 to schedule an appointment to talk to me about your case.

Join  Immigration Lawyer Ari Sauer on Facebook for regular updates.
Connect with Ari Sauer on LinkedIn.

Follow Ari Sauer on Twitter.

Submit questions to The Immigration Answer Man by emailing your question to immigrationanswerman@gmail.com or by posting your question on Facebook, Twitter or LinkedIn. Questions submitted by email will be posted without the personal information unless specifically requested. Due to the volume of questions received, not all questions submitted will be answered. Only general questions can be answered on this blog. For answers to specific questions about your situation, please schedule a consultation.

Last updated March 11, 2013.

* This is an advertisement. Ari Sauer is a Memphis immigration lawyer with the Siskind Susser law firm. www.visalaw.com/ari. On this blog we answer questions as a service to our readers, but we cannot assume any liability related to reliance on anything herein, and responses to questions are not intended to establish an attorney-client relationship. Immigration laws and regulations are constantly changing and the rules stated may not apply to your situation. Readers are cautioned to schedule a consultation with an immigration lawyer before acting on anything stated in this blog. This blog is not intended to substitute for a consultation with a qualified immigration law attorney. Ari Sauer is licensed to practice law through the states of Tennessee, New York and New Jersey but is eligible to assist clients from throughout the US. Certification as an Immigration Specialist is not currently available in Tennessee, New York or New Jersey. Siskind Susser limits its practice strictly to immigration law, a Federal practice area, and we do not claim expertise in the laws of states other than where our attorneys are licensed.

Visa Bulletin Update: April 2013

By Ari Sauer, immigration lawyer with the Memphis, Tennessee office of the Siskind Susser Law Firm.

The US Department of State has issued the April 2013 Visa Bulletin. The DOS Visa Bulletin lists visa availability to let foreign nationals know when they can file an immigrant visa application or application for adjustment of status to obtain a green card as a US permanent resident. The dates listed are the priority dates for immigrant petitions (I-130, I-140, I-360) or Diversity (DV) Lottery winner case numbers. A visa is available if your priority date or an earlier date is listed for your category and country of chargeability or if your DV Lottery case number or a larger number is listed.

Dept. of State Seal (Public Domain)

How to read the Visa Bulletin:

1) To read the visa bulletin, first find the appropriate chart for your case: Family Based immigrant petitions; Employment Based immigrant petitions; or the Diversity Visa Lottery.

2) Next locate the appropriate column or row for your country of chargeablity. If your country is not listed, you would fall within the All Chargeability category. The DV lottery is listed by region instead of country although some countries within a region will be listed separately.

3) For the Family or Employment charts, locate your appropriate visa preference category from the rows listed on the left (F1 through F4 or EB-1 through EB-5).

4) Compare the priority date listed on the Visa Bulletin to the priority date for your petition. For the DV Lottery, compare the number listed on the Visa Bulletin to the number listed on your Congratulatory Notice.

The April 2013 Visa Bulletin becomes effective on April 1, 2013. Until then the March 2013 Visa Bulletin remains in effect. If you file a visa application or application for adjustment of status too early, your application will be rejected or denied.

Related articles

• How do I read the Department of State Visa Bulletin? (immigrationanswerman.com)
• What is my country of chargeability for the Visa Bulletin? (immigrationanswerman.com)

By Ari Sauer, immigration lawyer with the Memphis, Tennessee office of the Siskind Susser immigration law firm.

QUESTION: I have my 2-year conditional Green Card based on marriage. It has been 6 months since we married. Unfortunately, my wife has been very abusive in the relationship and has been threatening me constantly with divorce knowing full well that I am dependent on her for my Green Card. But, now that I have received the conditional Green Card, do I have to stay in this relationship anymore? If I do decide to divorce her will I lose my conditional Green Card? Am I at least safe until the end of the 2 years when my card expires?

Broken Heart (Credit: miguelpdl)

THE IMMIGRATION ANSWER MAN: Someone who receives a green card based upon a marriage to a US citizen or US permanent resident, and the marriage was less than two years old at the time the person was granted permanent resident status, they will receive a 2-year Conditional Permanent Residence. This means that the green card will be valid for only two years.

If the couple remains together, then they must jointly file an application to have the condition removed. They will file this application during the 90 days prior to the expiration date on the green card.

But there is no requirement to stay in a difficult marriage. If the couple files for divorce before the two years are up, the green card holder can still file to have the condition removed from their green card. They will file the application to remove the condition from their card as soon as the divorce is finalized, even if it is more than 90 days before their card expires. They will be required to provide proof that the marriage was real and that they did not marry just to get the green card. Alternatively, if the person was abused by their US citizen or permanent resident spouse, they can apply to have the condition removed even before their divorce is finalized, but they will need to show that the marriage was real and not entered into to get their green card and they will also have to prove that they were abused.

You can call 901-507-4270 to schedule a consultation appointment with me for assistance with filing the application to remove the condition from your green card or to discuss any other immigration matter.

Join  Immigration Lawyer Ari Sauer on Facebook for regular updates.
Connect with Ari Sauer on LinkedIn.

Follow Ari Sauer on Twitter.

Submit questions to The Immigration Answer Man by emailing your question to immigrationanswerman@gmail.com or by posting your question on Facebook, Twitter or LinkedIn. Questions submitted by email will be posted without the personal information unless specifically requested. Due to the volume of questions received, not all questions submitted will be answered. Only general questions can be answered on this blog. For answers to specific questions about your situation, please schedule a consultation.

Last updated March 11, 2013.

* This is an advertisement. Ari Sauer is a Memphis immigration lawyer with the Siskind Susser law firm. www.visalaw.com/ari. On this blog we answer questions as a service to our readers, but we cannot assume any liability related to reliance on anything herein, and responses to questions are not intended to establish an attorney-client relationship. Immigration laws and regulations are constantly changing and the rules stated may not apply to your situation. Readers are cautioned to schedule a consultation with an immigration lawyer before acting on anything stated in this blog. This blog is not intended to substitute for a consultation with a qualified immigration law attorney. Ari Sauer is licensed to practice law through the states of Tennessee, New York and New Jersey but is eligible to assist clients from throughout the US. Certification as an Immigration Specialist is not currently available in Tennessee, New York or New Jersey. Siskind Susser limits its practice strictly to immigration law, a Federal practice area, and we do not claim expertise in the laws of states other than where our attorneys are licensed.

By Ari Sauer, immigration lawyer with the Memphis, Tennessee office of the Siskind Susser immigration law firm.

This is probably the question I get the most from followers on social media. Unfortunately there is not an answer.

The DOS calculates the Visa Bulletin based upon the number of approved

Valentines Day. Public Domain. Credit: Dan Moyle. http://bit.ly/zya2FC

immigrant visa petitions issued by USCIS and an estimate of the number of beneficiaries that will be applying for visas based on the approved petitions. This is an imperfect system, as the DOS can only guess at how many family members will be applying for a visa along with each of the primary beneficiaries. They also do not know how many people there are who have approved petitions but will not be applying for a visa based on that petition because they are not eligible, have received a visa based on another petition, or have decided not to come to the US.

Since the DOS is basing the Visa Bulletin on guesses and estimates, the dates in the Visa Bulletin do not move forward at a predicable pace. Some months the visa dates will move ahead a week. Some months the visa dates could jump forward a year at a time. This means that it is very difficult to predict how the Visa Bulletin will move and how long it will take for a visa to become available for a particular petition. Sometimes DOS will realize that they have moved the visa numbers to far ahead of where they should be and that there are not enough visas available to grant visas to all beneficiaries for the priority dates they have listed. This will  result in the DOS retrogressing, or moving back, the listed priority date in the following month’s Visa Bulletin. Sometimes all visas for the year in a particular category will have been used before the end of the fiscal year, which will result in a visa becoming unavailable until October when the new fiscal year starts and new visas become available.

So unfortunately there is no way to predict how long it will take for a visa to become available for your petition.

If you would like to discuss your particular case with me or you would like my assistance with your visa or green card application, you can schedule a consultation appointment with me by calling  901-507-4270.

Join  Immigration Lawyer Ari Sauer on Facebook for regular updates.
Connect with Ari Sauer on LinkedIn.

Follow Ari Sauer on Twitter.

Submit questions to The Immigration Answer Man by emailing your question to immigrationanswerman@gmail.com or by posting your question on Facebook, Twitter or LinkedIn. Questions submitted by email will be posted without the personal information unless specifically requested. Due to the volume of questions received, not all questions submitted will be answered. Only general questions can be answered on this blog. For answers to specific questions about your situation, please schedule a consultation.

Last updated January 8, 2013.

* This is an advertisement. Ari Sauer is a Memphis immigration lawyer with the Siskind Susser law firm. www.visalaw.com/ari.html. On this blog we answer questions as a service to our readers, but we cannot assume any liability related to reliance on anything herein, and responses to questions are not intended to establish an attorney-client relationship. Immigration laws and regulations are constantly changing and the rules stated may not apply to your situation. Readers are cautioned to schedule a consultation with an immigration lawyer before acting on anything stated in this blog. This blog is not intended to substitute for a consultation with a qualified immigration law attorney. Ari Sauer is licensed to practice law through the states of Tennessee, New York and New Jersey but is eligible to assist clients from throughout the US. Certification as an Immigration Specialist is not currently available in Tennessee, New York or New Jersey. Siskind Susser limits its practice strictly to immigration law, a Federal practice area, and we do not claim expertise in the laws of states other than where our attorneys are licensed.

Related articles

• What is my country of chargeability for the Visa Bulletin? (immigrationanswerman.com)
• How do I read the Department of State Visa Bulletin? (immigrationanswerman.com)

The US Department of State has issued the February 2013 Visa Bulletin. The DOS Visa Bulletin lists is availability to let foreign nationals know when they can file an immigrant

DOS Seal (Public Domain, Credit: USDOS)

visa application or application for adjustment of status to obtain a green card as a US permanent resident based upon an immigrant visa petition filed by them or on their behalf. The dates listed are the priority dates for immigrant petitions. A visa is available if your priority date or an earlier date is listed for your category and country of chargeability.

How to read the Visa Bulletin: I have provided an explanation of the Visa Bulletin below, however, if you wish to review the visa bulletin yourself, you can click on the link below. To read the visa bulletin, first find the appropriate chart for your case: Family Based immigrant petitions; Employment Based immigrant petitions; or the Visa Lottery. Next locate the appropriate column or row for your country of chargeablity. If your country is not listed, you would fall within the All Chargeability category. The DV lottery is listed by region instead of country although some countries within a region will be listed separately.  Finally, for the Family or Employment charts, locate your appropriate visa preference category from the rows listed on the left (F1 through F4 or EB-1 through EB-5). Compare the priority date listed on the Visa Bulletin to the priority date for your petition. For the DV Lottery, compare the number listed on the Visa Bulletin to the number listed on your Congratulatory Notice.

The February 2013 Visa Bulletin becomes effective on February 1, 2013. Until then the January 2013 Visa Bulletin remains in effect.

Related articles

• How do I read the Department of State Visa Bulletin? (immigrationanswerman.com)
• What is my country of chargeability for the Visa Bulletin? (immigrationanswerman.com)

By Ari Sauer, immigration lawyer with the Memphis, Tennessee office of the Siskind Susser immigration law firm.

The Department of State Visa Bulletin, which is issued each month, shows when an immigrant visa is available for your

Scratching Head, Credit: Paul Anthony Troy http://bit.ly/Wt1kG0

immigrant visa petition (Forms I-130, I-140, I-360) or under the Diversity Visa Lottery. Congress has set a limit on the number of immigrant visas (green cards) issued each year. Often there are more beneficiaries of immigrant visa petitions each year than there are available visas, which results in a backlog. The available visas are allotted based on a preference category system. Each preference category is allotted a specific percentage or number of visas from the total number of visas to be issued that year, which is why some preference categories have a longer wait for a visa than others. Furthermore, no country is allowed to receive more than 7% of the total number of visas issued in a preference category for that year, which creates a longer wait for those countries that hit that 7% cap. Currently the countries affected by this are China, India, Mexico and the Philippines.

The Visa Bulletin consists of three charts: family-based immigrant visas (F1, F2A, F2B, F3, and F4); employment-based immigrant visas (EB1, EB2, EB3, EB4 and EB5); and diversity (DV) visas. I will explain the family and employment-based charts, and save the discussion about diversity visas for another time. The family-based chart is split into 5 rows representing the four preference categories (The second preference category is split into two subcategories). Immediate Relatives (spouses and unmarried children under 21 of US citizens) are not listed on the chart because there is no limit to the number of visas to be issued to Immediate Relatives. Once you have found your preference category, find the corresponding column for your country of nationality (usually your country of birth) or your spouse’s country of birth if they are immigrating with you. The date within the box shows the priority date for which a visa is available. If your petition’s priority date is earlier than the date listed on the Visa Bulletin, then a visa will become available for your petition as of the 1st of the month listed at the top of the Visa Bulletin.

The employment-based chart is read the same way. It has nine rows each for a different preference category. The employment-based chart will sometimes have a letter listed instead of a date. The letter “C” shows that this category is Current, meaning there is no backlog and a visa is available. The letter “U” shows that this category is Unavailable, meaning all visas for this category have been used until October.

Derivatives beneficiary spouses and children are included in the preference category of the primary beneficiary.

How long will it take for a visa to become available for my petition?

The DOS calculates the Visa Bulletin based upon the number of approved immigrant visa petitions issued by USCIS and an estimate of the number of beneficiaries that will be applying for visas based on the approved petitions. This is an imperfect system, as the DOS can only guess at how many family members will be applying for a visa along with each of the primary beneficiaries. They also do not know how many people have approved petitions but will not be applying for a visa because they are not eligible, have received a visa based on another petition, or have decided not to come to the US. This means that it is very difficult to predict how the Visa Bulletin will move and how long it will take for a visa to become available for a particular petition. Sometimes DOS will realize that they have moved the visa numbers to far ahead of where they should be and that there are not enough visas available to grant visas to all beneficiaries for the priority dates they have listed. This will  result in the DOS retrogressing, or moving back, the listed priority date in the following month’s Visa Bulletin. Sometimes all visas for the year in a particular category will have been used before the end of the fiscal year, which will result in a visa becoming unavailable until October when the new fiscal year starts and new visas become available.

So unfortunately there is no way to predict how long it will take for a visa to become available for your petition.

If you would like to discuss your particular case with me or you would like my assistance with your visa or green card application, you can schedule a consultation appointment with me by calling  1-800-343-4890 or 901-682-6455.

or by clicking here to

schedule a consultation appointment with an immigration lawyer.

Standard consultation fee applies.

Join  Immigration Lawyer Ari Sauer on Facebook for regular updates.
Connect with Ari Sauer on LinkedIn.

Follow Ari Sauer on Twitter.

Submit questions to The Immigration Answer Man by emailing your question to immigrationanswerman@gmail.com or by posting your question on Facebook, Twitter or LinkedIn. Questions submitted by email will be posted without the personal information unless specifically requested. Due to the volume of questions received, not all questions submitted will be answered. Only general questions can be answered on this blog. For answers to specific questions about your situation, please schedule a consultation.

Last updated January 8, 2013.

* This is an advertisement. Ari Sauer is a Memphis immigration lawyer with the Siskind Susser law firm. www.visalaw.com/ari.html. On this blog we answer questions as a service to our readers, but we cannot assume any liability related to reliance on anything herein, and responses to questions are not intended to establish an attorney-client relationship. Immigration laws and regulations are constantly changing and the rules stated may not apply to your situation. Readers are cautioned to schedule a consultation with an immigration lawyer before acting on anything stated in this blog. This blog is not intended to substitute for a consultation with a qualified immigration law attorney. Ari Sauer is licensed to practice law through the states of Tennessee, New York and New Jersey but is eligible to assist clients from throughout the US. Certification as an Immigration Specialist is not currently available in Tennessee, New York or New Jersey. Siskind Susser limits its practice strictly to immigration law, a Federal practice area, and we do not claim expertise in the laws of states other than where our attorneys are licensed.

Related articles

• What is my country of chargeability for the Visa Bulletin? (immigrationanswerman.com)

By Ari Sauer, immigration lawyer with the Memphis, Tennessee office of the Siskind Susser immigration law firm.

USCIS will be publishing the final rule tomorrow January 3, 2013 for the I-601A Provisional Unlawful Presence Waiver

Mother. Public Domain. Credit: Lisa Runnels http://tinyurl.com/benqy9v

of Inadmissibility for Certain Immediate Relatives, but they made an advance copy of the rules available today. Below is my explanation of the rule based upon a combination of a reading of the rules and comments made by USCIS on a telephone conference today.

Why did we need a Provisional Waiver rule?

Certain individuals are ineligible for an immigrant visa because they are inadmissible under INA section 212(a)(9)(B) for 3 or 10 years because they were Unlawfully Present in the US for more than 6 months, or they would be subject to this bar if they were to leave the US.

A waiver of this inadmissibility is available for those who can show that if they are not granted the waiver, their US citizen or permanent resident (green card holder) spouse or parent would suffer Extreme Hardship. Under the regular process for the I-601 Unlawful Presence Hardship Waiver for an applicant for an immigrant visa at the US consulate abroad, the foreign national must first apply for the immigrant visa at the US consulate, wait for the consulate to deny the visa because of their 3 or 10 year bar, and then they can apply for the I-601 hardship waiver. Under the regular process, the foreign national must then remain outside of the US while waiting for USCIS to decide the waiver, which can take as long as a year. If the waiver is denied, then the foreign national is stuck outside the US until they have waited the required 3 or 10 years.

USCIS has determined that it is unfair to require Immediate Relatives of US citizens to wait outside the US for the long period it takes for them to adjudicate the waiver. They have therefore created the I-601A Provisional Waiver process, which allows certain Immediate Relatives of US citizens to apply for the waiver while they are in the US and wait here while USCIS decides the waiver application, and then leave the US for their visa interview after the waiver has been approved. This significantly shortens the length of time that these Immediate Relatives of US citizens must remain separated from their family.

When does the Provisional Waiver rule go into effect?

The rule will go into effect on March 4, 2013, which is 60 days after the rule is published by USCIS on January 3, 2013. Anyone who files an I-601A Provisional Waiver application before March 4, 2013 will have their application rejected.

Am I required to hire an attorney to apply for an I-601A Provisional Waiver?

No. It is not required that an attorney be hired to prepare the waiver application, but it is highly recommended. The standard for this waiver, Extreme Hardship to a US citizen parent or spouse if the waiver is not granted, is very high. It is more than just the usual hardship one would suffer if separated from their spouse or parent. An immigration lawyer who is experienced in filing hardship waivers knows what USCIS is looking to see when determining whether would be Extreme Hardship, and so working with an attorney to prepare the application will result in a much stronger application.

At the very least, one should consult with an immigration lawyer before beginning the process to determine if there are other grounds of inadmissibility that might result in the foreign national becoming stranded abroad when they go for their visa interview.

Finding the right immigration lawyer.

Who is eligible to apply for the I-601A Provisional Waiver?

To be eligible for the Provisional Waiver the foreign national must:

1. Have an approved I-130 immigrant petition filed by their US citizen spouse or US citizen parent under the Immediate Relative category or have an approved I-360 VAWA petition as an Immediate Relative.
2. Must be physically present in the United States when the I-601A application is filed and when they are fingerprinted for the application.
3. Must not be subject to any other ground of inadmissibility.
4. Have a pending Department of State (DOS) case with the National Visa Center and have paid the visa application fees.
5. Must not have been scheduled for a visa interview appointment at the US consulate before January 3, 2013.
6. Must be able to show Extreme Hardship to their US citizen parent or spouse.

Can I apply for the I-601A waiver if I am filing an I-485 Application for Adjustment of Status?

No. A foreign national who is in the US and is eligible to apply for an I-485 Application for Adjustment of Status would not apply for an I-601A waiver. If they require a waiver of the 212(a)(9)(B) Unlawful Presence bar, they would file an I-601 waiver application. The I-601A Provisional Waiver application is only for those who are currently in the US, but will be required to apply for an immigrant visa at the consular post abroad because they are not eligible to apply for an I-485 Application for Adjustment of Status.

If I am outside the US can I apply for the I-601A waiver?

No. A foreign national must be physically present in the US at the time they file their I-601A application and at the time they have they biometrics (fingerprinting) appointment for the application. If someone is currently outside the US and comes into the US without inspection then they might make themselves permanently barred from eligibility for a visa. A foreign national who is outside the US must apply under the regular I-601 process.

I am Unlawfully Present, but I also have a bar because of some criminal convictions. Can I apply for the I-601A Waiver?

No. The I-601 Provisional Waiver is only available where the only ground of inadmissibility the foreign national has is the Unlawful Presence 3 or 10 year bar under 212(a)(9)(B). If the foreign national requires a waiver for any other reason (such as a deportation order, certain criminal convictions, health-related grounds, fraud or misrepresentation, or as a smuggler) then they are not eligible to apply for the I-601A waiver and must instead apply under the regular I-601 process.

I have been told I must stay outside the US for at least 10 years before I can apply for the I-601 waiver. Does this new rule change that?

No. The new Provisional Waiver rule does apply to those who are subject to the permanent bar under INA Section 212(a)(9)(C) for those who have entered the US without inspection after having accrued more than a year of Unlawful Presence or having been Removed from the US. Those subject to the 212(a)(9)(C) permanent bar must remain outside the US for at least 10 years before they can apply for the waiver under the regular I-601 process.

If my I-601A provisional waiver application is approved, will I be able to apply for status in the US without leaving or for work authorization?

No. The I-601A provisional waiver will not allow someone to apply for status without leaving the US and approval of the I-601A provisional waiver does not allow the person to apply for work authorization, a driver’s license or a social security card.

I am in removal proceedings before an Immigration Judge, can I apply for the I-601A Provisional Waiver?

In order for a foreign national who is in removal (deportation) proceedings to be able to apply for the I-601A provisional waiver, they must first have their Immigration Court case terminated or administratively closed, or must have ICE cancel their Notice to Appear, before they are eligible to file an application for the I-601A provisional waiver. It is important to note that someone who has had their Immigration Court case administratively closed will be subject to a deportation order if they leave the US without first having their case terminated, even if their I-601A provisional waiver is granted.

I have been given a deportation order from the Immigration Court, but I never left the US. Can I apply for the I-601A Provisional Waiver?

Someone with an outstanding deportation order or removal order is not eligible to apply for the I-601A provisional waiver. In order to be eligible to apply, they would first need to have to the Immigration Court reopen their removal or deportation order and then administratively close or terminate their case. The same is true for someone who was granted Voluntary Departure, but did not leave the US under the grant of Voluntary Departure.

If I have been granted DACA Deferred Action, can I apply for an I-601A Provisional Waiver?

Those granted Deferred Action under the Deferred Action for Childhood Arrivals (DACA) are eligible to apply for an I-601A provisional waiver as long as they meet all the requirements for the program. Therefore, for example, a DACA beneficiary who has an outstanding order of removal would not be eligible to apply for the I-601A provisional waiver without first having their order reopened by the Immigration Court and administratively closed or terminated.

What petitions count as an Immediate Relative petition?

An Immediate Relative petition includes an I-130 filed by a US citizen spouse; a US citizen parents (as long as the petition is filed before the child’s 21^st birthday and as long as the child remains unmarried); or a US citizen child over the age of 21. An Immediate Relative petition would also include an I-360 petition filed under the Violence Against Women’s Act (VAWA) based upon the foreign national’s relationship to an Immediate Relative.

However, children are not qualifying relatives when it comes to showing Extreme Hardship for a waiver of the 212(a)(9)(b) Unlawful Presence bar. So if someone is the beneficiary of an I-130 filed by their US citizen child, they must still have a US citizen spouse or parent who would suffer Extreme Hardship in order to qualify to file the I-601A provisional waiver.

I have an approved I-130 petition, but it is not in the Immediate Relative category. Will I be able to apply for the I-601A Provisional Waiver?

Not right now. But USCIS has stated that they may expand the program to other petition categories if the program works well.

I have an approved I-130 immigrant petition as an Immediate Relative from my US citizen spouse, but the Extreme Hardship would be to my elderly Permanent Resident parents. Will Extreme Hardship to them be considered in my I-601A Provisional Waiver application?

Not right now. Currently USCIS has said that they will only be considering Extreme Hardship to the US citizen spouses or parents for the I-601A provisional waiver. This is different from the standard for the regular I-601 hardship waiver, which takes into consideration Extreme Hardship to Permanent Resident spouses and parents as well as US citizen spouses and parents. While USCIS will not currently consider hardship to Permanent Resident spouses and parents, they have said they may consider changing this policy in the future after seeing how the new program works.

If my I-601A application is denied, will I be able to file again?

Yes, especially where the foreign national’s circumstances have changed or where they have been the victim of non-lawyers who are not authorized to practice law. But USCIS will expect an applicant who is applying a second time to provide additional evidence of Extreme Hardship or changed circumstances with the second application, above and beyond what was provided in the denied application. So it is best to submit a strong application the first time you apply, as it may be more difficult to get an approval the second time.

While it is not required to have your application prepared by an immigration lawyer, it is recommended, as an experienced immigration lawyer knows what USCIS is looking for when deciding whether Extreme Hardship exists and will be able to help you put together a stronger application.

If my I-601A provisional waiver application is denied, would I still be eligible to apply for an I-601 hardship waiver under regular processing?

Yes, in many cases. If a foreign national’s I-601A provisional waiver application is denied, the foreign national may still be eligible to apply for an I-601 waiver under the regular processing. For example, if the I-601A was denied because the foreign national has another waivable ground of inadmissibility other than the 212(a)(9)(B) unlawful presence bar, they would still be eligible to apply for an I-601, along with whatever other waiver may be required, after being denied at the visa interview at the consular post abroad. Additionally, if the I-601A was denied because there was not a sufficient showing of hardship to the US citizen qualifying relative, but the foreign national also has a Permanent Resident qualifying relative that would suffer extreme hardship, the foreign national might want to apply under the I-601 waiver regular processing, which would allow USCIS to take into consideration the hardship to the permanent resident spouse or parent along with the hardship of the US citizen’s hardship.

If my I-601A provisional waiver application is denied, will immigration try to deport me?

USCIS will continue to follow their current standard in deciding whether to issue a Notice to Appear to start deportation proceedings against someone whose I-601A provisional waiver application is denied. This means that immigration is not any more likely to try and deport someone whose I-601A is denied than someone who has been denied for any other immigration benefit. Most applicants will not be at risk for this. However if someone lies on their application or submits fake documents, they are likely to be put in deportation proceedings. Also, those with certain criminal convictions may be subject to deportation proceedings. For more information on the standards USCIS will use to determine who will be at risk of being put in deportation proceedings if their application is denied, go to www.uscis.gov/NTA.

How long will it take for USCIS to decide my I-601A Provisional Waiver application?

Right now USCIS does not have a timeline for how long they expect to take to decide I-601 applications. They expect to know more after March 4, 2013 when they can see how many applications they receive.

I have filed an I-601 hardship waiver and am waiting on USCIS to approve it. Will this new rule make it take longer for USCIS to decide my application?

USCIS has said that the new I-601A filings will not delay the adjudication of currently pending I-601 waiver applications. There has been no work yet on whether the I-601A program will cause it to take longer for USCIS to decide future I-601 hardship waiver applications under the regular process.

I have already applied for my immigrant visa and have been scheduled for an interview, but I haven’t left the US yet. Can I apply for an I-601A Provisional Waiver?

If the foreign national’s immigrant visa interview at the consulate was scheduled by the consulate before January 3, 2013, even if the interview was scheduled for a date after January 3, 2013, then the foreign national is not eligible to apply for an I-601 provisional waiver. This is true even if they did not show up for the interview, cancelled the interview or rescheduled the interview.

However, if someone did have an interview that was scheduled by the consulate before January 3, 2013, but they are now applying for a visa based upon an I-130 Immediate Relative petition filed by a different relative then they may be eligible to apply for the  I-601 Provisional Waiver. For example, if their current immigrant visa interview is based upon a petition filed by the US citizen parent, but they now have an approved I-130 filed by their US citizen spouse, they would be eligible to apply for the I-601A provisional waiver.

Also, if the DOS terminates the foreign national’s immigrant visa registration associated with the scheduled interview, which can sometimes occur when the foreign national goes more than a year without contacting the National Visa Center or the consulate processing their case, then the foreign national would then be eligible to apply for an I-601A Provisional Waiver based upon a newly filed and approved Immediate Relative I-130 immigrant petition, even if the new I-130 petition is filed by the same Immediate Relative.

If my I-601A Provisional Waiver application is approved, does that guarantee that I will be granted my immigrant visa at the consulate?

No. The approval of the I-601A provisional waiver of the 3 or 10 year unlawful presence bar for not guarantee that the consular officer will find the foreign national eligible for the immigrant visa. The foreign national must still show the consular officer that they are otherwise eligible for the immigrant visa. If the consular officer determines that the foreign national is inadmissible under a ground of inadmissibility other than the 3 or 10 year bar under 212(a)(9)(B), they will deny the visa. It may be that the foreign national would be eligible to apply for a waiver of inadmissibility for this additional bar, but this would require the filing and approval of a new waiver application. Furthermore, the consular officer can request that USCIS review the provisional waiver approval if the officer becomes aware of new factors which reflect on whether Extreme Hardship to a qualifying relative continues to exist.

If you would like to discuss your particular case with me or you would like my assistance with your waiver application, you can schedule a consultation appointment with me by calling  1-800-343-4890 or 901-682-6455.

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Submit questions to The Immigration Answer Man by emailing your question to immigrationanswerman@gmail.com or by posting your question on Facebook, Twitter or LinkedIn. Questions submitted by email will be posted without the personal information unless specifically requested. Due to the volume of questions received, not all questions submitted will be answered. Only general questions can be answered on this blog. For answers to specific questions about your situation, please schedule a consultation.

* This is an advertisement. Ari Sauer is a Memphis immigration lawyer with the Siskind Susser law firm. www.visalaw.com/ari.html. On this blog we answer questions as a service to our readers, but we cannot assume any liability related to reliance on anything herein, and responses to questions are not intended to establish an attorney-client relationship. Immigration laws and regulations are constantly changing and the rules stated may not apply to your situation. Readers are cautioned to schedule a consultation with an immigration lawyer before acting on anything stated in this blog. This blog is not intended to substitute for a consultation with a qualified immigration law attorney. Ari Sauer is licensed to practice law through the states of Tennessee, New York and New Jersey but is eligible to assist clients from throughout the US. Certification as an Immigration Specialist is not currently available in Tennessee, New York or New Jersey. Siskind Susser limits its practice strictly to immigration law, a Federal practice area, and we do not claim expertise in the laws of states other than where our attorneys are licensed.