Provisional Extreme Hardship Waiver is Not Yet in Effect

Provisional Extreme Hardship Waiver is Not Yet in Effect

Not too long ago, the U.S. Citizenship and Immigration Services (USCIS) has made a proposed change to allow certain immediate relatives (spouse, parent and/or children of a US citizen) who can demonstrate the required extreme hardships to apply for a provisional extreme hardship waiver for unlawful presence prior to departing the United States of America (US). The provisional extreme hardship waiver for unlawful presence, if eventually implemented, will reduce separation of many families.

Extreme Hardship Waivers

Foreign nationals or non-U.S. citizens (including green card holders) with certain histories may need waivers (such as I-601 and/or other waivers) OR other filings to be allowed to enter, remain or return to the U.S. These certain histories include, but are not limited to: (a) commission of certain crime, or possible commission of misrepresentation/fraud to obtain or attempt to obtain immigration benefits in or to the U.S.; (b) certain medical conditions; (c) certain period(s) of illegal presence in the U.S.; (d) abandonment (intentional/unintentional) of green card; and/or (e) certain removal/deportation experience within the U.S. immigration law.

At present, the wait-time for an I-601 extreme hardship waiver varies widely. As a result, family separation is often lengthy and uncertain, and for the unfortunate ones, permanent.

Proposed Provisional Waiver Procedures Are Not Effective Yet

The provisional extreme hardship waiver for unlawful presence procedures are not yet in effect until the USCIS publishes a final rule in the Federal Register specifying the effective date, which may be the end of this year. Prior to it becoming effective, any applications to the USCIS for provisional waivers for unlawful presence will be rejected.

By Aik Wan Kok Fillali, Attorney at Law, at Tiya; Tel: 703-772-8224 & koka at tiyalaw dot com

www.tiyaimmigration.com ; http://tiyalaw.blogspot.com ; www.immigrationresource.net

We represent employers, and individuals and their families in green card and work visa matters in U.S. immigration law. We also have a focus on self-petition green card cases such as extraordinary ability and national interest waiver.

All Rights Reserved. This article is intended for informational purposes only, and should not be relied on as a legal advice or an attorney-client relationship.

Certain I-130 Petitioners Residing Abroad: New Filing Location

Certain I-130 Petitioners Residing Abroad: New Filing Location

On May 16, 2011, the U.S. Citizenship and Immigration Services (USCIS) published a new regulation stipulating that, effective August 15, 2011, I-130 petitioners residing in foreign countries without international USCIS offices must file their Forms I-130 Petition for Alien Relative with the USCIS Chicago Lockbox facility at:

For U.S. Postal Service:

USCIS
P.O. Box 804625
Attn. CSC/I-130/OS
Chicago, IL 60680-4107

For Express mail and courier deliveries:

USCIS
Attn. CSC/I-130/OS
131 South Dearborn – 3rd Floor
Chicago, IL 60603-5517

Under the current procedures and before August 15, 2011, I-130 petitioners residing abroad without international USCIS offices would be filing their I-130s with the USCIS or the U.S. Department of State at their local U.S. embassy or U.S. Consulate. From August 15, 2011 onwards, I-130 petitioners residing abroad without international USCIS offices must file their Forms I-130 with the Chicago Lockbox facility at the address above.

As of August 15, 2011, I-130 petitioners residing in a country with a USCIS office have the option of sending their Forms I-130 to the Chicago Lockbox, or they may file their Forms I-130 at the international USCIS office having jurisdiction over their area of residence.

Since the new regulation becomes effective only on August 15, 2011, all I-130 petitioners should still follow the procedures currently in place until August 14, 2011.

By Aik Wan Kok Fillali, Attorney at Law, at Tiya PLC; Tel: 703-772-8224

www.tiyaimmigration.com ; http://tiyalaw.blogspot.com ; www.immigrationresource.net

We represent employers, and individuals and their families in green card and work visa matters in U.S. immigration law. We also have a focus on self-petition green card cases such as extraordinary ability and national interest waiver.

All Rights Reserved.

This article is intended for informational purposes only, and should not be relied on as a legal advice or an attorney-client relationship.

Waiver of Joint Filing Requirement Based on Extreme Hardship for I-751 (Removal of Conditions on Permanent Resident Status)

Each year U.S. Citizens and Legal Permanent Residents apply to obtain permanent resident status for their foreign national spouse’s through filing an Immigrant Petition for Alien Relative (I-130) and Adjustment of Status Application (I-485). Upon approval of the application, the sponsored spouse is usually granted 2 year conditional permanent residence status.

Usually, the sponsored alien and U.S. citizen sponsor jointly file Form I-751 with the U.S. Citizenship and Immigration Service, when the conditional permanent residence status is within 90 days of expiring.

When the marriage no longer exists or there is some other reason the I-751 form cannot be filed jointly, the conditional permanent resident must file for a waiver of the joint filing requirement. One of the reasons for filing a waiver of the joint filing requirement is that the removal of the sponsored alien would cause an extreme hardship if the alien were removed to his home country.

According to the U.S. Citizenship and Immigration Services’ policy, those hardships which would occur as result of the alien’s removal to their home country will be considered in connection with an extreme hardship waiver of the I-751 joint filing requirement. Some examples of extreme hardships that might qualify for a hardship waiver include:

1. There is a close U.S. Citizen family member or Legal Permanent Resident who depends on the alien for their medical or other care.
2. Removal of the alien to the home country will result in their being shunned or persecuted because divorce is frowned upon. If the marriage involved a Muslim woman marrying a Christian man, maybe the alien would be subjected to shunning or persecution.
3. The alien is undergoing medical treatment in the U.S. that they cannot receive in their home country.

This list is not intended to be an exhaustive list of extreme hardships that might qualify for a waiver of the I-751 joint filing requirement. The purpose of this list is to emphasize that the extreme hardship must be the proposed result of the alien’s removal from the U.S.

Also, if you are the victim of abuse, you should consult with an immigration attorney to see if you are eligible for U visa or Violence Against Woman Act (VAWA) benefits.

If you feel that you might qualify an extreme hardship waiver, you should gather what documentation that you have and consult with an immigration attorney. An immigration attorney will let you know if your situation and the evidence you have qualify you for an extreme hardship waiver.

Author: Aaron Hurlock, an Immigration Paralegal with about 10 years of professional immigration experience.

Editor: Aik Wan Kok, Attorney at Law, at Tiya PLC; Tel: 703-772-8224
www.tiyaimmigration.com ; http://tiyalaw.blogspot.com ; www.immigrationresource.net
We represent employers, and individuals and their families in green card and work visa matters in U.S. immigration law.

All Rights Reserved.
This article is intended for informational purposes only, and should not be relied on as a legal advice or an attorney-client relationship.

Proposed Policy to Expedite I-601 Extreme Hardship Waiver is Currently Under Review!

Recently, the U.S. Citizenship and Immigration Services (USCIS) is considering a proposal to expedite the adjudication, based on extraordinary circumstances, of I-601, Application or Waiver of Grounds of inadmissibility (“I-601 extreme hardship waiver”) filed by individuals outside the United States.

Foreign nationals or non-U.S. citizens (including green card holders) with certain histories may need I-601 and/or other waivers, etc to be allowed to enter, remain or return to the U.S. These certain histories include, but are not limited to: (a) the commission of certain crime, or even possible commission of misrepresentation/fraud to obtain or attempt to obtain immigration benefits in or to the U.S.; (b) certain medical conditions; (c) certain period(s) of illegal presence in the U.S.; (d) abandonment (intentional/unintentional) of green card; and/or (e) certain removal/deportation experience within the U.S. immigration law. At present, the wait-time for an I-601 extreme hardship waiver varies widely between the immigration adjudication offices, from 6 months to 1 year. Certain adjudication offices can take several years to adjudicate an I-601 waiver while an extremely small number of adjudication offices may only take several days to several weeks. As a result, family separation is often lengthy and uncertain, and for the unfortunate ones, permanent.

Under the proposed expeditious adjudication policy, each expeditious request would be handled on a case-by-case, and discretionary basis. Since a strong desire to immigrate to the United States immediately would not be considered an “extraordinary circumstance”, it follows that extreme hardships from family separation would not by itself qualifies for the proposed expeditious handling of I-601.

The proposed “extraordinary circumstance” may apply if there is compelling and urgent, or time-sensitive reason necessitating the foreign national’s presence in the United States sooner than the regular I-601 extreme hardship processing time. For example, “extraordinary circumstance” may include, but are not limited to:

1. I-601 applicant’s urgent or critical medical reasons;
2. A (qualifying) family member in the United States has life-threatening medical condition necessitating immediate need of assistance from the I-601 applicant;
3. Urgent or critical circumstances such as terminal illness or death of a (qualifying) family member;
4. Vulnerable individual due to age or disability of the I-601 applicant or qualifying family member;
5. I-601 applicant is at risk of serious harm due to personal circumstances unrelated to the general safety conditions of those living in the applicant’s country;
6. It would be in the national interest of the United States to have the applicant in the United States (for example, applicant’s special skills, applicant’s urgent contribution is sought by the U.S. government entity); OR
7. Member of the Armed Forces of the United States:
(a) I-601 applicant’s qualifying member is a member of the military who is deployed or will soon be deployed; and
(b) I-601 applicant demonstrates compelling reasons (impact to the applicant, qualifying family member or their children) for expeditious adjudication of the I-601 extreme hardship waiver in light of the deployment.

The above and recently proposed policy on expeditious handling of I-601 extreme hardship waiver is currently under review by the USCIS and has not yet been adopted.

Please also visit http://tiyalaw.blogspot.com/2010/06/improvements-in-adjudication-standards.html and http://tiyalaw.blogspot.com/2010/04/permanent-or-long-term-residency-in-us.html .

By Aik Wan Kok, Attorney at Law, at Tiya PLC; Tel: 703-772-8224
www.tiyaimmigration.com ; http://tiyalaw.blogspot.com ; www.immigrationresource.net

We represent employers, and individuals and their families in green card and work visa matters in U.S. immigration law.

All Rights Reserved.
This article is intended for informational purposes only, and should not be relied on as a legal advice or an attorney-client relationship.