October 2013

Immigration News + Analysis

Maggio + Kattar

11 Dupont Circle NW, Suite 775
Washington, DC 20036
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202.483.6801 f
www.maggio-kattar.com

In March of this year, United States Citizenship and Immigration Services (USCIS) implemented a new waiver process for certain immediate relatives of U.S. citizens who are ineligible for U.S. legal permanent residence due to their unlawful presence in the United States.  This waiver, called the provisional unlawful presence waiver, allows these individuals to apply to waive their inadmissibility for unlawful presence prior to departing the United States.   Although this was a welcome development, the implementation of the new process has, unfortunately, met with some serious adjudication obstacles. Many waiver applicants and their representatives have received unwarranted denials or overly broad evidentiary requests including requests for information that was previously submitted.  

 

USCIS' National Benefits Center (NBC) recently shared adjudication statistics and has provided some reassurance that the policies behind the wrongful denials are being reexamined by USCIS and the Department of State (DOS). Of the nearly 24,000 applications submitted since the waiver became available, almost a quarter have been rejected due to various filing insufficiencies. The NBC has adjudicated 5,789 cases, approving 59 percent. Nearly half of all denials are because the NBC determined there was a "reason to believe" the applicant was inadmissible for a reason other than unlawful presence.

 

Why does the provisional unlawful presence waiver matter?

 

The provisional unlawful presence waiver helps to solve a legal conundrum that has prevented many family members of U.S. citizens from seeking permanent residence.  Generally, individuals who have entered the United States without inspection must return to their country of origin to apply for permanent residence. This departure triggers a 3 or 10 year bar to the individual's return if he or she has been unlawfully present in the United States for more than 180 days (3 year bar) or for one year or more (10 year bar).   Prior to March 2013, in order to waive this bar, individuals applied for a waiver with USCIS following their interview at the U.S. consulate abroad and remained separated from their U.S. family members for several months while the waiver was being adjudicated.   The provisional waiver process allows the immediate relatives of U.S. citizens (spouses, children under 21-years old, and parents whose children are over 21-years-old) to apply for a provisional waiver of unlawful presence prior to departing for their visa interview. At the visa interview, the DOS consular officer makes a final determination of their admissibility and eligibility for an immigrant visa. This new process minimizes family separation and allows those with approved provisional waivers to depart the United States with greater confidence that they will be able to return as a permanent resident.

 

Who is eligible for the provisional unlawful presence waiver?

 

The provisional unlawful presence waiver is only available to certain immediate relatives of U.S. citizens. Relatives of lawful permanent residents cannot benefit from the stateside application process. Waiver applicants also must meet the following eligibility requirements:

• They must be at least 17 years old;
• They must be the beneficiary of an approved Form I-130 immediate relative visa petition;
• They must have an immigrant visa case pending with DOS with the visa processing fee paid;
• They must have a U.S. citizen spouse or parent who will suffer extreme hardship if the applicant is not admitted to the U.S.; and
• Unlawful presence must be the individual's ONLY ground of inadmissibility.

Where did USCIS go wrong?

 

While few expected a seamless, problem-free introduction of the new waiver process, the NBC has alarmed many practitioners in the past few months with a pattern of overly broad evidentiary requests and wrongfully denying eligible waiver applicants.   The Catholic Legal Immigration Network (CLINIC) first reported in July that the Request for Evidence (RFE) rate was anecdotally reported to be around 50 percent, and that many RFEs generally requested additional evidence that the applicant's relative would suffer extreme hardship. Most concerning, many applicants with a minor criminal offense not affecting their admissibility were receiving denials. The regulation forming the basis of the provisional waiver process states that an applicant is ineligible for a waiver if USCIS has "reason to believe" that he or she may be inadmissible for a reason other than unlawful presence. See 8 CFR 212.7(e)(4)(i).  However, even when attorneys provided clear explanations for why their client was not inadmissible for a past offense, the applications were still denied.  

 

The NBC recently acknowledged in an update provided to CLINIC that adjudicators had been instructed to deny waiver applicants with any past criminal conviction, even if it was a minor offense that did not affect admissibility.   They were also instructed to deny any case under the "reason to believe" standard if there was an inconsistency in the applicant's name or date of birth that was provided by the applicant after an arrest at the border.   Such an inconsistency amounted to "reason to believe" the person was inadmissible for fraud or a material misrepresentation, in spite of the fact that the inconsistency was not analyzed for context or materiality. However, it appears that due to well-organized advocacy from the American Immigration Lawyers Association and others in the immigration community, USCIS is reevaluating its instructions and training.

 

Where do we go from here?

 

The NBC has reported that it will suspend adjudication of cases that are flagged under the "reason to believe" standard. These cases will be held in abeyance until USCIS and DOS reconsider their current policy and provide further guidance on how to proceed.   USCIS estimates that there are currently 1300 cases on hold for this reason. If the "reason to believe" policy changes, the NBC will also consider whether to apply the policy retroactively and reopen previously denied cases sua sponte.   We sincerely hope that the "reason to believe" policy is discarded and a new policy that provides meaningful consideration of an applicant's admissibility is instituted. The provisional waiver process, which is already limited to a narrow subset of individuals, should not exclude applicants who have provided evidence and explanation of their eligibility. An overly exclusive adjudication process undermines the purpose of this new process: family unity and fairness.

The Department of State (DOS) recently released additional, more detailed information about how it calculates immigrant visa availability cut-off dates.  

 

DOS explained that each month, its Visa Office subdivides the annual preference and foreign state limitations into monthly allotments based on totals of documentarily qualified immigrant visa applicants reported at consular posts and U.S. Citizenship and Immigration Services (USCIS) offices, grouped by foreign state "chargeability" (the country where an applicant was born is his/her country of "chargeability"), preference category (which employment-based category the immigrant visa petition is filed in), and priority date (when the legal permanent residence application was first filed - either with the USCIS or with the U.S. Department of Labor (DOL), depending on the type of case).  

 

If there are sufficient numbers in a particular immigrant visa category, the immigrant visa category for that country is considered "Current." For example, if the monthly allocation target is 3,000 and there is only demand for 1,000 applicants, the category will be Current. Whenever the total of documentarily qualified applicants in a category exceeds the supply of numbers available for allotment for the particular month, the category is considered to be "oversubscribed" and a visa availability cut-off date is established. The cut-off date is the priority date of the first documentarily qualified applicant who could not be accommodated for a visa number. For example, if the monthly target is 3,000 and there is demand for 8,000 applicants, it would be necessary to establish a cut-off date so that only 3,000 numbers would be allocated. In this case, the cut-off would be the priority date of the 3,001st applicant.

 

The DOS noted that the employment-based immigrant visa limits for the 2013 government fiscal year were reached before the end of September (the new fiscal year begins on October 1). Although pending employment-based cases continued to be processed, they could not be approved and were placed in a "Pending Demand" status. Any cases that did not receive visa numbers in the last fiscal year were allocated under the new quota for the 2014 fiscal year which began on October 1, 2013.

 

The DOS has stated that the number of adjustment of status (AOS) applications already filed in the employment third preference (on which U.S. Citizenship and Immigration Services has not yet finalized action) for countries other than India and the Philippines exceed the numbers currently available. The AOS filings are the result of the cut-off dates for those countries having been advanced dramatically since April 2013 to ensure that all available employment-based numbers were used in the 2013 fiscal year.  The sustained demand is being considered in the determining the monthly cut-off dates to prevent unnecessary fluctuation.

 

It is important to note that the cut-off dates for some categories/countries has limited the number of applicants who have been able to file for adjustment of status with USCIS, and such applicants would not be included in the totals.  In addition, new applicants are constantly becoming eligible for processing in categories for which cut-off dates do not apply, or for a category other than that in which they initially filed for status. Therefore, DOS said that the totals in the Visa Bulletin charts should not be read as reflective of the entire universe of applicants. These totals only represent the amount of demand taken into consideration during the determination of new dates.

 

The Department of State's Visa Office wrote in the November 2013 Visa Bulletin:

 

It is important to remember that the establishment of a monthly cut-off or "Current" status for a numerically controlled category (preference or Diversity [Visa]) applies to those applicants who were reported prior to the allocation of visa numbers for that month. For example, all qualified applicants who were reported to the Visa Office in time to be included in the calculation of the September cut-offs, who had a priority date or rank-order number before the relevant September cut-off, would have been allotted visa numbers for September. There would be no expectation, however, that sufficient numbers would be available for the processing of cases which subsequently became eligible for final action during that month. Additional numbers may be allocated outside the regular monthly cycle, but only to the extent that such numbers remain available under the applicable annual limit. The availability of additional numbers is subject to change at any time and should never be taken for granted. This is especially true late in the fiscal year when numerical allocations are often close to or at the annual limits.

 

When applicants fail to appear or overcome a refusal (even for reasons beyond their control) during the original month of scheduled interview, they risk not having their case processed later in the fiscal year. This is because the establishment of a monthly cut-off or "Current" status for a numerically controlled category (preference or Diversity Visa) applies to those applicants who were reported before the allocation of visa numbers for that month.  

 

Meaningful movement on employment based cases for applicants that, in certain cases have been waiting more than 10 years, continues to be slow. We believe that Comprehensive Immigration Reform is needed to address these issues. Until we have more parity in visa number availability or a more common sense approach to the allocation of numbers (for example, at present, all dependents require a visa number from the allocation instead of just the principal applicant), there will continue to be substantial delays in certain categories for individuals from countries like India, China, Mexico and the Phillippines.  

Changes brought about by the 1996 overhaul of the Immigration and Nationality Act (the Act) included the introduction of a permanent bar to a visa, green card or naturalization to anyone who has made a false claim to be a U.S. citizen "for any purposes or benefit under this Act ... or any other Federal or State law." In the years since, there has been much debate about this stringent bar and to whom it applies. One area in which the impact of this ground of inadmissibility has had the most troubling consequences is that of unknowing children who may have believed themselves to be citizens or been told they were by their parents.

 

Until recently, the only exception was for individuals where each natural parent (or adoptive parent) is or was a citizen, the individual permanently resided in the United States prior to reaching the age of 16, and the individual "reasonably believed" at the time of making the claim that she or he was a citizen. Unfortunately, this exception was quite narrow, and did not cover those whose parents were not citizens or with only one citizen parent. In addition, government officials (U.S. consular or DHS officers) frequently misinterpreted the "reasonably believed" standard, instead denying benefits on the grounds that the individual "should have known" that the claim made on their behalf was false, even though they were minors at the time. In effect, the law has been applied to deny permanent residence and other immigration benefits to those who were minor children when one or both parents asserted a fraudulent claim to U.S. citizenship on their behalf, thereby visiting the sins of the fathers on their innocent children.

 

The obvious inequities, and indeed injustice, of this earlier interpretation have now been somewhat rectified by DHS undertaking a review, in 2012, of this bar as it applies to minors. It now appears that DHS review led to a similar review at the Department of State (DOS). The policy shift became known on August 29, 2013 in a letter responding to Senate Majority Leader Harry Reid's inquiry of August 1 about a specific case involving the bar. DHS followed with its reply to Senator Reid on September 12, 2013. Both DOS and DHS have now confirmed publicly that this policy shift occurred in late May 2013 when DHS formally notified DOS of its new interpretation. Under current agency guidance:

1. Only a knowingly false claim can support a finding of inadmissibility:
2. The individual bears the burden of showing that she or he did not know the claim was false, and establish this "clearly and beyond doubt."

Notably, the guidance also provides for a separate, affirmative defense to the "false claim" bar for minors who can show "clearly and beyond doubt" that:

 

b)   At that time, they "lacked the capacity to understand and appreciate the nature and consequences of a false claim to citizenship."

 

While this interpretation is now official policy, DHS has not yet amended its Field Adjudicator's Manual, nor has DOS amended its Foreign Affairs Manual, both of which instruct agency officials on regulatory interpretations. The agencies did assure Senator Reid that they plan to do so and have, in the interim, provided guidance to field officers. And, as a welcomed additional step, both agencies advised that they are consulting with each other on how to apply this new standard to previously decided cases.

 

We can only hope that the agencies continue to coordinate quickly and consistently so that individuals denied benefits in the past might seek redress under this more logical and humane standard of what is otherwise a very harsh bar for many innocent, would-be immigrants and intending citizens. For those individuals barred in the past, as well as those who will be seeking benefits in the future, it remains important to recognize that the new "clearly and beyond doubt" standard may still leave considerable room for overly narrow or punitive interpretations by individual officers. For this reason, a thorough and careful review of one's immigration history remains the best strategy. Overall, for anyone facing this particular issue, the new interpretation is a significant and welcomed change and one that will result in more equitable outcomes, particularly for those with significant family ties to this country.

On September 26, 2013, Maggio + Kattar client "Thomas" received an immigrant visa to come to the United States. Thomas was a winner of the diversity visa lottery, or "green card lottery," for 2013. The congressionally mandated Diversity Immigrant Visa Program makes available up to 55,000 diversity visas annually, drawn from random selection to persons who meet certain eligibility requirements from countries with low rates of immigration to the United States. The green card lottery is strictly regulated, and diversity visas for specific fiscal years become unavailable as of September 30th of the fiscal year. Had Thomas not been granted the visa with just days to spare, it is likely that he would have been separated from his lawful permanent resident wife Maria and U.S. citizen children for years to come.  

 

Thomas is a native and citizen of Kenya, who lived in the United States for many years with his wife and two young daughters. Thomas and Maria are hardworking individuals, dedicated to volunteering, participating in their local church, and caring for their children. Many years ago, while going through a difficult time in his life, Thomas had two minor run-ins with the law. Thomas worked hard to put these issues behind him and renewed his focus on his wife and children. In December 2011, Thomas was forced to return to Kenya due to a family emergency.  

 

After Thomas's wife Maria won the "green card lottery," she and Thomas both applied for immigrant visas at the consulate in Nairobi. Maria's visa was granted without issue, but in July 2013, the consulate found Thomas inadmissible to the United States due to his two prior run-ins with the law. The consulate indicated that the only way that the visa would be issued was if Thomas applied for and was granted a waiver of inadmissibility. Such waivers normally take eight months to be approved-which would mean the deadline for issuance of the diversity visa would have long passed by the time the waiver was adjudicated.  

 

Maggio + Kattar worked quickly to put together a compelling waiver package. The adjudication of this waiver required the involvement of not only the U.S. consulate, but several government agencies in the United States. Our office also aggressively advocated for expedited processing of the waiver and followed up with the various agencies regarding its processing. The advocacy paid off. The waiver was approved, and Thomas was issued his immigrant visa on September 26, 2013, just four days before the close of the diversity visa program for his year.   Thomas has now returned to the United States as a lawful permanent resident. The family had a very happy reunion after their nearly two year separation.

In 2013, the Ukraine government overhauled procedures for issuing, extending and canceling employment permits for foreigners (foreign nationals and stateless persons).

Under the revised regulations, the prospective Ukrainian employer must notify its local State Employment Service about vacant positions at least 15 calendar days before prior to an application for an Employment Permit.  The number of documents to be submitted by the Employer with the Employment Permit Application has been streamlined with only 7 supporting documents required (as opposed to 15 previously).  

One key, newly introduced requirement is that the Employer must submit a medical examination certification confirming that the prospective foreign employee is free from chronic addictions (alcoholism, drug addiction) and from infectious disease (as defined by the Healthcare Ministry).

Additionally, two specific categories for foreigners have been added:

• a  foreigner who applies for a director/deputy director or another executive position at the company (enterprise, institution or organization) of which he/she is a founder or co-founder; and  
• a foreigner who is a holder of copyright and related rights and is invited to work in Ukraine to exercise such rights.

Application for the Employment Permit

The Resolution reduces the application time from 30 to 15 days, and the same term is prescribed for decisions concerning cancellation of the issued Employment Permits.  The relevant decision is executed as an Order of the local State Employment Service and must be sent to the Employer no later than 3 working days after the date on which it was made; it is also posted on the official website.

The consideration of the Application for the Employment Permit is now carried out by a commission that includes the representatives of the Ministry of Internal Affairs, State Immigration Service, State Security Service of  Ukraine,  Healthcare  Ministry,  State Frontier Service Administration, Federation of Trade Unions and Employers of Ukraine. The commission issues recommendations concerning the issuance or rejection of the Employment Permit.

Another positive development with the new law is that the fee to the State Employment Service must be paid within 30 calendar days after the positive decision was made to issue the Employment Permit (the fee amount remains the same - 4 minimal salaries).  Please note that the failure to timely pay the fee, however, results in cancellation of the decision to issue the Employment Permit.

The Employment Permit is issued to the Employer within 10 working days after the date on which the fee is placed to the account of the Fund of Social Insurance against unemployment. Employment Permits continue to be issued for a term of no more than 1 year, and they can be extended for the same term.

The Resolution stipulates grounds for the refusal by the State Employment Service to issue/extend the Employment Permit, in particular in case of simultaneous existence of the following circumstances:

1. availability of qualified employees in Ukraine (region) who can be employed in the vacant position; and  
2. refusal  by  the  Employer  to  employ  the  Ukrainian  national  sent  by  State Employment Service (except for foreigners transferred to the Ukraine by their overseas employer to perform specific services).

Extension of the Employment Permit

To extend an Employment Permit the Employer must submit the Application (according to the prescribed form) with the following documents no later than 30 days before the current Employment Permit expires.

Maggio + Kattar is pleased to invite you to join us for our final quarterly Immigration Community Forum for 2013 on Wednesday, October 23, 2013 from 9 - 11 a.m. 

Nationwide advocacy efforts have resulted in legal representation for mentally ill non-citizens in immigration proceedings, including the appointment of guardians. Government attorneys, community based organizations and the private bar alike recognized and advocated for guidance on how to effectively mentally ill non-citizens.

 

The forum will provide an opportunity for participants to learn about changes to the law and procedures, to hear about advocacy efforts being carried out by organizations and how to effectively collaborate with mental health professionals when working with mentally ill clients.   

 

Our panelists will provide important guidance on the following:

• Competency issues
• Case Law and regulations governing competency and proceedings
  • How to obtain a finding of no competency and 
  • Burden of proof
• Challenges in obtaining certain forms of relief available to mentally ill non-citizens include:
• Asylum and 
  • Cancellation of removal
• Working with mentally ill non-citizens, and
• Advocacy efforts on behalf of mentally ill non-citizens in the immigration context.

The forum will be moderated by Maggio + Kattar Attorney Elizabeth Carlson and will include subject matter experts: Heidi Altman, Legal Director, CAIR Coalition, and Dr. Yeshashwork Kibour, Clinical Psychologist.

 

Please join us in our 5th Floor Conference Room for a continental breakfast at 9 a.m., immediately followed by the panel.   Limited space is still available, please RSVP to: events@maggio-kattar.com if you are able to join us.

M+K Senior Attorney Meg Hobbins will present at the USCIS Office of the Ombudsman Conference in Washington, DC on October 24th on Provisional Unlawful Presence Waivers along with American Immigration Lawyers Association President Douglas Stump.

 

Join Maggio+Kattar Attorneys Jim Alexander and Alix Mattingly along with Corporate and Tax Experts at the District of Columbia Bar Association's Continuing Legal Education Program for an innovative, inter-disciplinary approach to "Advising Foreign Nationals on Starting a Business in the U.S." For more information or to register, click here. 

 

Join Meg Hobbins on November 5, 2013 at the District of Columbia Bar Association's Continuing Legal Education Program CLE program on the Nuts and Bolts of Naturalization. For more information or to register, click here.

Anna Gallagher will speak on advanced issues in asylum practice: "Chasing Freedom - Advanced Asylum Issues."  

 

Steve Pattison will present on a panel relating to consular processing: "Dude, where's my visa:  Practical Tips for Handling Complex Nonimmigrant Visa Issues at U.S. Consulates".

 

Monique Van Stiphout will speak on complex employment based immigration cases: "Die Hard - NOIDS, NOIRS and RFE Responses in Employment Based Cases." She is also publishing an accompanying article entitled: "Thinking ahead:  How good PERM practices can help minimize the possibility of an RFE on the I-140."

 

Meg Hobbins will be speaking on the Child Status Protection Act and other children's issues in immigration law on a panel entitled: "Home Alone".

Maggio + Kattar provides Immigration News + Analysis as a service to its clients and friends to highlight and provide opinions on changes within the field of immigration and nationality law. The information contained in this newsletter is not intended as legal advice, and persons receiving this information should not act on it without consulting professional legal counsel.


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