Immigration and Visa Lawyers Blog

Full summary of today's hearing located below

On 5/14/13 the Senate Judiciary Committee held Day Two of the markup on S. 744 and completed most of the debate on Title IV of the bill (non-immigrant visa provisions). 15 amendments were passed with majority support out of the 25 votes taken. All but one of the amendments that passed did so with broad bipartisan support on voice votes. The "Gang of Eight" continued to stay committed to the core provisions of the bill, with the two Republican Committee members of the "Gang of Eight" (Senators Flake (AZ) and Graham (SC)) joining all ten Democrats to vote no on two amendments offered by Senator Sessions that tie certain provisions of the bill to the successful implementation of a biometric entry/exit system.

Negotiations are still currently ongoing between Senator Hatch and the "Gang of Eight" to include some of his amendments (#10-17) in the final version of the bill. Although at the end of the day Chairman Leahy officially closed Title IV (with a few specified exceptions that will be brought up on Thursday), most likely some of Senator Hatch's amendments to the high-skilled visa program will also be addressed on Thursday. The committee will then move to Title III, starting with the E-Verify provisions.

In other amendment news: three of Senator Grassley's eight offered amendments were passed (all with voice votes). These will: require additional information in internet job postings for non-immigrant employees in connection with the issuance of H-1B visas (#58), strengthen provisions regarding student and exchange visitor visa programs (#69), and require the Secretary to implement the transmission of data from the Student and Exchange Visitor Information System (SEVIS) to databases used by CBP (#77). Two amendments offered by Senator Schumer (#3 and #4) to allocate small numbers of visas to underrepresented countries passed as well as an amendment by Senator Klobuchar (#1) to provide protections for abused derivatives of temporary workers also passed.

According to media sources, one American's story is shining new light on an all-too common problem. As U.S. immigration authorities reportedly aim for 400,000 deportations a year, the bureaucratic monolith has, perhaps inevitably, begun unlawfully exiling American citizens.
Mark Lyttle, an American troubled by mental disabilities and a checkered legal history, was being transferred from one prison to another when a government clerk filled out his intake form incorrectly. He was misidentified as an undocumented immigrant from Mexico despite having no Mexican heritage and speaking no Spanish. His story, which began in 2008, is the subject of a New Yorker Magazine feature, titled The Deportation Machine, this week.
Lyttle was held for 51 days by Immigration and Customs Enforcement (ICE) before being deported south of the border. The New Yorker noted that Lyttle is "brown-skinned" and that "the vagaries of race and ethnicities obviously played a part" in his being kick out of his home country.
He spent 125 days wandering through Mexico, Honduras, Nicaragua and Guatemala without psychiatric medicine before finally being allowed re-entry into the US. He had only $3 dollars in his pocket when he walked over a bridge from Texas to Mexico and spent nights on the streets and in shelters, once being arrested in Honduras where he befriended a notorious drug kingpin.
Lyttle was finally awarded $175,000 at the end of 2012, although the federal government has not admitted any wrongdoing while several of the ICE officers who oversaw his case - and ignored ample proof of his citizenship - have since been promoted.
He described his time in South America as "hell," and Lyttle's mother told the magazine he was noticeably different when he moved in with her upon his return.
"He was quiet," she said. "And an awful lot thinner. He was constantly watching his back, like somebody was going to jump out and grab him. Every time he heard a siren, it was like Post-Traumatic Stress Disorder. He says he doesn't trust anybody in a uniform anymore. He would cry, and say that he thought God would never get him home again. Why wouldn't they listen to him?"
While the American Civil Liberties Union reported there are, perhaps not by accident, no concrete numbers on how many Americans have been wrongfully deported, experts estimate a few dozen people have been victimized by the bureaucratic dispersal of responsibility.
"What happened to Mark Lyttle is outrageous and unconstitutional," Judy Rabinovitz, deputy director of the ACLU Immigrants' Rights Project said after Lyttle was awarded the settlement. "People with mental disabilities are entitled to due process in immigration court, and it is fundamentally unfair, as well as inhumane, to force them to endure such proceedings alone, without the assistance of a lawyer."
But the problem looks to be an indication of a much larger issue. The Obama administration has, in an effort to mute Republican claims that the president is 'soft' on immigration, exceeded its own record new deportation numbers every single year. And while ICE officials have denied any quota in place, from up the chain of command a leaked 2010 memo outlined a desire for 400,000 deportations every year.
"Between 1982 and 1997, the United States deported 2.1 million," wrote William Finnegan. "By the end of next year, if present trends continue, the Obama Administration will have deported that many in a mere six years."

Good news! Today, U.S. Customs and Border Protection (CBP) started implementing the automated version of Form I-94, Arrival/Departure Record, at air and sea ports of entry and wil by week's end include Charlotte Douglas International Airport in North Carolina, Orlando International Airport in Florida, McCarran International Airport in Las Vegas, Chicago O'Hare International Airport, Miami International Airport and George Bush Intercontinental Airport in Houston.

Implementation wil continue across the nation through May 21, to include air and sea ports of entry that support international arrivals. For more information on the implementation schedule, please see CBP's Travel Advisory.

Foreign travelers entering the United States at air or sea ports of entry wil be able to access their electronic Form I-94 by visiting CBP's Website. Please take note of it! Upon inspection at the point of entry, CBP wil give foreign travelers a tear sheet with instructions on how to look up their electronic Form I-94 on CBP's website. From this website, they can print out their Form I-94 in paper format. Foreign travelers may need their Form I-94 when requesting certain USCIS benefits, or when applying for public benefits from other government agencies.

Since Form I-94 is of the critical importance to prove a lawful entry when applying for adjustment of status and other USCIS benefits, it is essential foe all applicants to learn the new system of how to retrieve and print their Form I-94 in paper format.

To ensure that Form I-94 automation wil not disrupt USCIS's adjudication of benefit requests, USCIS has begun updating certain forms requesting applicants and petitioners to enter the admission number from their Form I-94 and/or their:

Passport information, including passport number, country of issuance and expiration date); and Travel Document information, including Travel Document information, country of issuance and expiration date.

As evidence of lawful admission submitted with a benefit request, USCIS wil accept the electronic Form I-94 in paper format obtained from CBP's website. This document is the equivalent of the paper versions of Form I-94 issued by CBP and USCIS. In lieu of submitting the electronic Form I-94 in paper format, USCIS wil also accept photocopies of the passport pages that contain the individual's biographical information, visa and admission stamp. These alternatives wil al ow applicants and petitioners more ways to provide proof of lawful U.S. entry in order to establish eligibility for certain USCIS benefits. Visit our website for a ful list of USCIS forms being revised to align with the Form I-94 automation.

For more information regarding CBP's I-94 automation or to access your electronic Form I-94, please see CBP's News Release or visit their website.

On April 17, 2013 American Immigration Lawyers Association ("AILA") Commended Senate "Gang of Eight" for Bipartisan Immigration Bill proposal on April 17, 2013

"As a framework for reform, this is closer than we've come in years to meaningful change," said AILA President Laura Lichter

The American Immigration Lawyers Association (AILA) commends the Senate "Gang of Eight" for introducing its bipartisan immigration reform proposal, allowing the Senate Judiciary Committee to forge ahead on the "markup" process. A proposal like this is a necessary first step in any path forward to create a common-sense immigration system that will meet the needs of the U.S. economy, businesses, and families, and integrate into our society aspiring Americans who work hard and want only a better life for themselves and their families.

In many ways, the language contained in the 844 page legislation reflects key issues AILA sees as necessary to any successful immigration reform, such as border and interior enforcement, legalization, backlog reduction, asylum, family unification, and both current and future business needs.

"Is it perfect? No compromise measure ever is. Is it a good bill? Yes, for the most part it is, and perhaps it is even a great bill in some respects. We do see some further changes that are desirable, and as we delve more deeply into the details, I'm sure we'll find some needed tweaks. But as a framework for reform, this is closer than we've come in years to meaningful change," said AILA President Laura Lichter. She continued, "This bill does not shy away from addressing the difficult issues embedded in current immigration policy. It's a good start, and I hope that by continuing to work across the aisle, the Senate can pass a bill that will meet our nation's needs and the House will follow suit."

The unveiled long-awaited landmark legislation will remove the threat of deportation for millions of illegal immigrants, giving them an opportunity to apply for permanent legal status within 10 years and eventually for U.S. citizenship.

Under the proposal, undocumented immigrants who came to America before Dec. 31, 2011 and stayed continuously could apply for "provisional" legal status as soon as six months after the bill is signed by the president.

But beyond that, they would have to wait, perhaps for a decade or more without receiving federal benefits, while the government meets a host of tough conditions for securing U.S. borders and enforcing current immigration law.

The bill's sponsors - four Democrats and four Republicans -felt such conditions and enforcement "triggers" to be necessary in order to help it succeed where similar measures have failed, mostly because of opposition to what opponents see as "amnesty" for law-breakers.

The U.S. Citizenship and Immigration Services (USCIS) recently released a guide to using InfoPass, a free service that lets you schedule an appointment online. If you have an immigration issue that is best handled by a trained USCIS Immigration Officer, InfoPass will let you schedule your appointment instead of requesting it in person at your local USCIS office.

It's free, it's convenient, and it's easy. Submit information in one of 12 languages about you, your question or issue, and your preferred date and time to meet. You can make your appointment here. Similarly, if you need to reschedule for any reason, you can do so without penalty with your appointment notice.

You will need to bring a variety of documentation to your appointment, including your appointment confirmation, a government issued ID, an Employment Authorization Document (Form I-551), an Arrival-Departure Record (Form I-94), and all immigration forms, receipt notices, approval or denial letters, translations and original documents that relate to your question. See the guide for exact instructions.

If your inquiry is routine, it may be more easily handled over the phone or Internet. Immigration forms can be downloaded from www.uscis.gov or requested from USCIS' customer service at 1-800-375-5283.

Many of my clients came to the United States from Russia and Ukraine as Lautenberg Parolees. This is a very special category of people who applied for but were denied refugee status in the former Soviet Union. Despite their denial by the U.S. Embassy in Moscow, they were still allowed to enter the U.S. as Lautenberg Parolees with the subsequent benefit of being able to apply for Green Cards after being in the States for a year. Those readers who are not familiar with this special program might like to read about it below. Although it is no longer available under the Lautenberg Amendment, Lautenberg Parolees who managed to enter the U.S. before the end of the program in 2011 are still eligible to file and obtain a Green Card in the United States.

Green Cards for Lautenberg Parolees

The Lautenberg Amendment to the Foreign Operations Appropriations Act allows certain individuals that were denied refugee status to be inspected and paroled into the United States on a humanitarian basis. These individuals were processed overseas in Moscow through the Moscow Parole Program before traveling to the United States. After 1 year of residence in the United States, these individuals may then apply for a green card without regard to visa availability.

Until the end of the Moscow Parole Program in 2011, this provision was limited to those from the former Soviet Union, Estonia, Latvia, Lithuania, and include Jews, evangelical Christians, Ukrainian Christians of the Orthodox and Roman Catholic denominations, and others. Prior to mid-1994, these provisions were available to certain individuals from Vietnam, Cambodia, and Laos, in addition to individuals from the former Soviet Union. This provision is included in Public Law 101-167 and 8 CFR 245.7.

Eligibility Criteria

You may be eligible to apply for a green card (permanent residence) as a Lautenberg parolee if:

• You are or were a national of the former Soviet Union
• You were inspected and paroled into the United States as a Lautenberg parolee
• You have been physically present in the United States for at least 1 year
• You are admissible to the United States

Application Process

To apply for a green card, you will need to file Form I-485, the Application to Register Permanent Residence or Adjust Status, with supporting evidence, including evidence of denied Refugee Status. It is highly recommended that you seek the advice of an immigration lawyer to guide you in this process.

Work & Travel Authorization

Generally, when you have a pending Form I-485, it is possible for you to apply for authorization to work in the United States and to seek advance parole (advance permission to travel and be admitted to the United States upon your return).

Immigration regulations in the United States are so complex, they cost the economy around $30 billion per year, according to a new study released yesterday by the center-right think tank American Action Forum. The study goes on to argue that the regulations should be either eliminated or streamlined for across-the-board cost savings.

The study, as reported by Jordan Fabian on ABCNews, counts 150 immigration-related regulations and 234 forms given by seven cabinet agencies. The result is an average of 98.8 hours spent per person or business complying with regulations, a number that adds up to $30 billion per year of money spent on immigration.

Sam Batkins, director of regulatory policy at the American Action Forum, hopes that this number will spur legislation, especially from the small-government conservatives who typically oppose reform. "Few doubt that our current immigration system is in need of reform. Thankfully, many agree that our regulatory state needs an overhaul as well," he wrote in the study.

Of course, there's also a chance reform will result in more regulation and, by extension, expense. For example, the E-Verify system that might become mandatory for employers to check the immigration status of potential employees will result in a slew of paperwork.

Batkins added, "I think the general hope is, from a regulatory perspective, that they don't keep on adding without realizing... there are obviously opportunities for streamlining and reducing." We hope so, but it remains to be seen how existing regulations will be impacted by reform, and what new regulations will be added.

The momentum continues to build in support of comprehensive immigration reform. Many business leaders, especially in technology sector in Silicon Valley have joined forces to lobby White House and U.S. Congress to pass comprehensive immigration reform as it becomes increasingly clear that issues like family-based immigration, enforcement, training the next generation of Americans for the next generation of jobs, and a pathway to citizenship for unauthorized immigrants are actually deeply connected.
Perhaps it should come as no surprise then that Facebook's Mark Zuckerberg, the king of making connections, has come on board for comprehensive immigration reform.

Zuckerberg is one of the founders of a new issues advocacy organization focusing on bipartisan comprehensive immigration reform, education, and other broad issues.

According to various sources, the Facebook founder and CEO already has pledged millions in support of the new initiative; Joe Green of NationBuilder and Causes is also involved in the effort to work with bipartisan strategists to define a role for the new group.

The news about Zuckerberg's group follows reports that the heads of 100 leading technology companies sent a letter I am posting here today, encouraging President Obama and members of Congress to pass immigration reform. Although the tone of the letter focuses on American business's ability to attract and retain the workers that it needs to remain globally competitive, it also highlights the need for family unity as part of immigration reform.

Specifically, the letter states, "spouses and children should not be counted against the cap of high-skilled immigrant visas" and "there should not be a marriage or family penalty." Speaking to immigrant entrepreneurship specifically, the letter states, "the United States has a long history of welcoming talented, hard-working people to our shores." Indeed, immigrant entrepreneurs and innovators have been a source of economic strength and job creation for all Americans in places throughout the country.

As various constituencies and organizations continue to add their voices to the chorus championing reform we must particularly encourage efforts supporting comprehensive immigration reform. The current system is broken for many reasons, and it hurts individuals, workers, families, spouses, partners, children of immigrants, communities, businesses, employers, and the economy. Comprehensive immigration reform contemplates treating these issues holistically, leaving no one behind. In other words, Zuckerberg is reminding us that when it comes to immigration reform, we can and should all be "friends."

Let us all support Mark in his effort and find ways to be also heard.

Despite the ongoing debate over immigration reform, most Americans approve of a path to citizenship. Over six in ten Americans think illegal immigrants should be given a visa road map according to a survey released just today by the Brookings Institution and the Public Religion Research Institute

Ted Hesson at ABC News reported that 63% of respondents favor citizenship for illegal immigrants, 21% back deportation, and 14% want legal status for the undocumented without citizenship. Perhaps siding with the latter minority, Senator Rand Paul (R-Ky.) intentionally omitted the word "citizenship" in a speech on immigration reform last Tuesday, admitting afterward that he felt the phrase "path to citizenship" to be too strong.

Elsewhere, obstacles exist: Google Trends shows more Americans are interested in issues of gun control than immigration despite growing support for comprehensive reform. In fact, the same Brookings survey found that immigration ranked sixth out of seven issues in a list of what Americans think should be congressional priorities.

Politico reported similarly that immigration advocates worry "their fight could slip behind a cause that wasn't even an issue during the election: gun control." At Behar International Counsel, so do we. It's clear that while there's a strong focus on immigration on Capital Hill and general support for the idea from most Americans, there is still far too much debate on what reform should entail, not to mention the lurking chance that immigration will be eclipsed by other issues in 2013.

One growing concern with the overhaul of immigration opportunities for highly skilled workers is the current gender gap of recipients of H-1B visas. The Silicon Valley Mercury News just reported that at least 70% of the recipients of these special visas were men. Legislators and advocates have begun to wonder if the current U.S. visa policy is discriminative.

The source of the issue is multi-faceted, with some blaming the imbalance on everything from outright discrimination in hiring practices to outdated visa policies to discrimination in the immigrants' home countries to all of the above. The disparity seems especially disconcerting because women now outnumber men in the professional workforce, though not in engineering. "More men are coming simply because companies prefer to hire the men over the women," said Karen Panetta, a professor of computer engineering at Tufts University.

The Bay Area News Group specifically requested the data from the U.S. Office of Immigration Statistics and found 347,087 male H-1B visa holders in 2011 to 137,522 females. Further, 67,000 immigrant men versus 39,000 women earned green cards. Overall, the US allows more foreign women than men to stay in the US, but many are banned from working due to the restrictions on their visas. The H-4 "dependent" visa for spouses, for example, prohibits employment and many advocates think it is also reflective of a much larger imbalance in the immigration policies of highly skilled workers.

Comprehensive immigration reform may arrive sooner than later as President Obama continues to pressure the "Gang of Eight" to produce legislation. Today, Department of Homeland Security Secretary Janet Napolitano told reporters that the Obama administration is "urgently awaiting" the next draft of a bill.

Napolitano unequivocally dismissed concerns that the lingering issue of border control was either stalling or would be separated from upcoming legislation by stating at the National League of Cities conference in DC that, "The notion that we have to secure our border first is kind of another way of saying 'we don't really want to deal with immigration reform,' right?"

Napolitano reassured the conference-goers by adding that border control was effectively a non-issue after recent, unprecedented security measures. NBCNews.com reported that the current movement of illegal immigrants across the border is down to the lowest level in 40 years. "We haven't seen these kinds of numbers since the early 1970s," she said.

While nothing specific has been officially reported, recent rumors suggest that the bipartisan group of senators comprising the "Gang of Eight" are close to consensus on comprehensive immigration reform. "Now is the time when this issue rises to the top," Napolitano said, referring to the political momentum pushing immigration reform to the forefront of the agenda. "[Obama] is urgently awaiting the product that emerges, hopefully sooner rather than later."

Last month, the New York Times reported on an informal alliance between Silicon Valley and immigration advocates.

The reason is simple: executives in tech want more minds to innovate and don't think there should be any bars on employing them whether they're American or foreign-born. As the push for immigration reform broadens, the industry is flexing its muscles to make sure more visas for highly-skilled, tech workers are extracted from legislation.

So far, leaders in the field have met with lawmakers and the Technology CEO Council--representing companies like Dell and Intel--testified at the first Senate hearing on immigration reform in 2013. The push has been felt: some, like Robert D. Atkinson, president of the Information Technology and Innovation Foundation, a nonpartisan research group, feel that visas for highly-skilled tech workers will be an indispensable part of comprehensive immigration reform.

Much movement has already been made on the subject: broader legislation was introduced in late January--we wrote about it here--and a group of Republicans and Democrats, known as the Team of Eight, have reached an agreement on exactly what the word "comprehensive" would entail.

President Obama himself has been pushing for reform both in his State of the Union address and in separate speeches. More visas for tech innovators was a pillar of his proposed blueprint for reform.

Both Facebook and Microsoft have been highly active in the debates, complaining that they've had to open offices outside of the US because they couldn't secure even temporary H-1B visas for the engineers they would have preferred to have work at their headquarters. 65,000 H1-B visas are available each year and they usually run out within a couple months.

As Bruce Mehlman, a tech lobbyist, said in the article, "The issue has truly ripened. Levels of optimism are higher than they've been in a while."

Many of our clients ask about the new Provisional Unlawful Presence Waiver that goes into effect on March 4, 2013. This is the second part of a Q&A that explains how applicants who are eligible to obtain green cards except for accumulated unlawful presence in the U.S can obtain a waiver. Here you'll learn how to make sure the waiver is approved before you leave the country for consular processing

Background
On March 30, 2012, U.S. Citizenship and Immigration Services (USCIS) posted a notice of proposed rulemaking (NPRM) in the Federal Register [http://www.gpo.gov/fdsys/pkg/FR-2012-04-02/html/2012-7698.htm] requesting public comment on its plan to create an improved process for certain immediate relatives of U.S. citizens. The rule would allow foreign-born spouses or parents of U.S. citizens still in the U.S. to apply for and receive a provisional waiver of the unlawful presence ground of inadmissibility if they can demonstrate that separation would cause extreme hardship. The goal would be to reduce the time that U.S. citizens are separated from their immediate relatives while those family members go through the consular process overseas to obtain an immigrant visa.

You can also visit USCIS for more details.

Q&A
Q11. Will the proposed provisional waiver process affect existing standards for unlawful presence and extreme hardship?
A11. No. The proposed provisional waiver process will not alter the criteria USCIS will use to determine if an individual qualifies for a waiver of the ground of inadmissibility or if an individual has established the requisite extreme hardship to a U.S. citizen spouse or parent.

Q12. If I get a provisional waiver, can I adjust my status without leaving the United States?
A12. No. Individuals who receive a provisional unlawful presence waiver must leave the United States to attend their immigrant visa interview with a DOS consular officer in order for the provisional waiver to take effect and for the individual to be granted an immigrant visa. However, because of the way the proposed process for adjudicating provisional waivers is designed, individuals who receive a provisional waiver will likely be separated from their U.S. citizen relatives for significantly shorter periods than is the case under the current process.

Q13. I already have an immigrant visa interview scheduled for next month in my home country. Should I cancel it so that I can apply for the provisional unlawful presence waiver when the final rule takes effect?
A13. No. If you already have an immigrant visa interview scheduled with DOS, we urge you to keep your appointment. This proposed waiver process is not in effect and USCIS will not be publishing a final rule until later this year. If you trigger the unlawful presence bars upon departure from the United States, you may still file a Form I-601, the Application for Waiver of Grounds of Inadmissibility, after you have appeared for your immigrant visa appointment and DOS has determined that you are inadmissible and need to file a waiver. If you fail to appear for your consular interview, DOS may terminate [http://www.travel.state.gov/visa/immigrants/info/info_3743.html ] your immigrant visa registration.

Q14. I am currently in removal proceedings. Will I be able to apply for a provisional waiver?
A14. As part of the rulemaking process, DHS is considering how it will address provisional waiver requests from individuals who currently are in removal proceedings.

Q15. If I have already filed a Form I-601, the Application for Waiver of Grounds of Inadmissibility, from outside the United States, will I be able to apply for a provisional waiver?
A15. No. The proposed provisional waiver process only applies to individuals who are physically present in the United States and have not yet been scheduled for their immigrant visa interview.

Q16. What happens if I am not eligible for a provisional unlawful presence waiver?
A16. When the new process goes into effect, individuals who are not eligible for the provisional waiver process can continue to follow current agency processes for filing a Form I-601, the Application for Waiver of Grounds of Inadmissibility, after the consular interview.

Q17. If I receive an approved provisional unlawful presence waiver, will I be able to work?
A17. No. Under the proposed rule, the filing or approval of a provisional unlawful presence waiver will not affect an individual's current immigration status in the United States. A pending or approved provisional waiver also will NOT:

Provide interim benefits such as employment authorization or advance parole;

Provide lawful status;

Stop the accrual of unlawful presence;

Provide protection from removal;

Remove the requirement to depart the United States to seek an immigrant visa; or

Guarantee visa issuance or admission to the United States.

Q18. If I apply for a provisional unlawful presence waiver but USCIS denies my request, can I appeal the decision or file a motion with USCIS asking for the decision to be reopened or reconsidered?
A18. No. Aliens seeking a provisional unlawful presence waiver would not be able to file a motion to reopen or reconsider. Such individuals, however, may still apply for a waiver through the current I-601 waiver process. USCIS also reserves the right to reopen and reconsider on its own motion an approval or a denial at any time.

Q19. If USCIS denies my request for a provisional unlawful presence waiver will I be placed in removal proceedings?
A19. For cases where the provisional unlawful presence waiver is denied, USCIS will follow its current Notice to Appear (NTA) policy, which prioritizes the types of cases USCIS will focus on for initiation of removal proceedings.

Q20. What will happen at the consular interview if I present an approved provisional unlawful presence waiver?
A20. If the DOS consular officer determines that a provisional waiver applicant, in light of the approved waiver of unlawful presence, is otherwise admissible to the United States and eligible for the immigrant visa, DOS would issue the immigrant visa, allowing the individual to travel to the United States. The provisional unlawful presence waiver would become permanent and cover the periods of unlawful presence on which the waiver was based for any future benefit requests.

Q21. What will happen at the consular interview if I present an approved provisional unlawful presence waiver but the consular officer determines I have other grounds of inadmissibility?
A21. If the consular officer determines that you are subject to other grounds of inadmissibility beyond unlawful presence, the approved provisional waiver is automatically revoked. If a waiver is available for the other ground(s) of inadmissibility identified by the DOS consular officer, you will need to file a Form I-601, Application for Waiver of Grounds of Inadmissibility, with USCIS after the consular interview to request a waiver for all applicable grounds of inadmissibility, including any periods of unlawful presence.

Q22. How long will an approved provisional unlawful presence waiver be valid?
A22. Under the proposed rule, an approved provisional unlawful presence waiver would remain valid as long as the underlying approved immigrant visa petition (I-130 or I-360) is not revoked. If DOS terminates the immigrant visa registration process or the approved immigrant visa petition is revoked, the provisional unlawful presence waiver grant also is automatically revoked. For more information on the terms and conditions for a provisional waiver and periods of validity, see DHS NPRM section IV, Parts G and H.

Q23. What happens to an approved provisional unlawful presence waiver if I reenter the United States illegally?
A23. Illegal reentry into the United States after approval of a provisional unlawful presence waiver will automatically revoke the approval. Whether an individual has a pending or an approved immigration benefit application, reentry into the United States without being admitted or paroled by an immigration officer at the U.S. border can have severe consequences; such individuals may be permanently barred from the United States.

Many of our clients ask about the new Provisional Unlawful Presence Waiver that goes into effect on March 4, 2013. The following Q&A, to be published in two parts, explains how applicants who are eligible to obtain green cards except for accumulated unlawful presence in the U.S can obtain a waiver. Here you'll learn how to make sure the waiver is approved before you leave the country for consular processing

Background
On March 30, 2012, U.S. Citizenship and Immigration Services (USCIS) posted a notice of proposed rulemaking (NPRM) in the Federal Register [http://www.gpo.gov/fdsys/pkg/FR-2012-04-02/html/2012-7698.htm] requesting public comment on its plan to create an improved process for certain immediate relatives of U.S. citizens. The rule would allow foreign-born spouses or parents of U.S. citizens still in the U.S. to apply for and receive a provisional waiver of the unlawful presence ground of inadmissibility if they can demonstrate that separation would cause extreme hardship. The goal would be to reduce the time that U.S. citizens are separated from their immediate relatives while those family members go through the consular process overseas to obtain an immigrant visa.

You can also visit USCIS for more details.

Q&A

Q1. How do I apply for the provisional unlawful presence waiver?
A1. The provisional waiver process will take effect March 4, 2013. USCIS will reject any application requesting a provisional waiver if filed before March 4, 2013 and return the application and any fees filed.

Q2. Why is this proposed waiver process limited to immediate relatives of U.S. citizens?
A2. The goal of the provisional unlawful presence waiver process is to alleviate the extreme hardship certain U.S. citizens experience when they are separated for extended periods of time from their spouses, children, and parents ("immediate relatives"). To further this goal, USCIS will make the proposed unlawful presence waiver process available only to immediate relatives (IRs) because there are currently no restrictions on visa availability for IRs. USCIS also is limiting the process to U.S. citizens who can establish extreme hardship to a U.S. citizen spouse or parent. (The waiver can still be established for extreme hardship to a lawful permanent resident spouse or parent through the current I-601 process after the immigrant visa interview with a Department of State consular officer abroad.) USCIS expects that this will streamline the waiver process and reduce the length of time immediate relatives must remain abroad to obtain an immigrant visa. For additional information, see DHS Notice of Proposed Rulemaking (NPRM), section IV, Part B, Rationale for Proposed Change.

Q3. Will USCIS consider expanding this new process to other relatives of lawful permanent residents who have visas?
A3. The agency decided as a matter of policy and operations to make this process available only to immediate relatives of U.S. citizens.

Q4. Why does USCIS refer to the waiver as "provisional?"
A4. USCIS refers to the waiver as "provisional" because it will not take effect until after the applicant departs the United States, appears for his or her immigrant visa interview, and is determined by the DOS consular officer to be otherwise admissible to the United States. In the proposed process, USCIS would determine eligibility for the provisional waiver and approve the provisional waiver before the applicant leaves the United States for the immigrant visa interview abroad.

Q5. Will I have to be fingerprinted or appear for an interview as part of the provisional waiver process?
A5. All provisional unlawful presence waiver applicants will be required to appear at a USCIS Application Support Center for biometrics collection. Generally, USCIS will not require provisional waiver applicants to appear for an interview but may schedule an interview if the facts in a particular case warrant further inquiry and review.

Q6. Will I use the current Form I-601, Application for Waiver of Grounds of Admissibility, to apply for a provisional waiver?
A6. No. USCIS is developing a new form for the proposed provisional unlawful presence waiver process, Form I-601A, or the Application for Provisional Unlawful Presence Waiver. The application filing fee is $585.00, the same fee required for the Form I-601. There is an additional biometric fee of $85.00 for applicants who are under 79 years of age. USCIS will post the proposed form in the Federal Register for formal comment in the near future.

Q7. Will USCIS waive the filing fees for provisional unlawful presence waiver applications?
A7. No. Fee waivers generally are available only if the fees for the underlying application are waivable. Currently, fee waivers are not allowed for Form I-130, the Petition for Alien Relative, which is the basis for the provisional unlawful presence waiver. USCIS, therefore, will not accept fee waiver requests for Form I-601A.

Q8. What documents will I be required to file with my application for a provisional unlawful presence waiver?
A8. USCIS will include instructions with the new Form I-601A that will describe the types of documents you will need to submit with your provisional waiver application. At a minimum, USCIS will require proof that you have an approved Form I-130, Petition for Alien Relative, or an approved Form I-360, Petition for Amerasian, Widow(er), or Special Immigrant, if you are a self-petitioning widow/widower, and an immigrant visa application fee receipt from the Department of State (DOS). Failure to follow the instructions on the form or submit required documentation may result in your application being rejected or denied.

Q9. Will I be able to file the provisional waiver application concurrently with my Form I-130?
A9. No. To be eligible for the provisional waiver process, applicants must already have an approved I-130 or I-360. The approved petition is what starts the immigrant visa process with DOS.

Q10. Will I be able to file the provisional waiver application concurrently with my Form I-212, Application for Permission to Reapply for Admission Into the United States After Removal?
A10. No. Aliens who must request permission to reenter the United States after removal are not eligible for the provisional unlawful presence waiver. In addition, USCIS will not accept concurrent filings of Form I-601A and Form I-212 or Form I-130.

Good news for foreign graduates of U.S. universities: the so-called Startup Act 3.0, a bipartisan bill granting 125,000 more employment-based green cards each year, was last week introduced by four U.S. Senators. The act would allocate 75,000 green cards to immigrants who start companies and another 50,000 to graduates of U.S. universities with advanced science and engineering degrees.

The bill, put forth by U.S. Senators Jerry Moran (R-KS), Roy Blunt (R-MT), Mark Warner (D-VA), and Chris Coons (D-DD), specifies that entrepreneurs must attract $100,000 of start-up capital investment and use it to create a business that employs at least 5 people for 3 years. Recent graduates must have higher degrees in science, technology, engineering, and math.

It is my hope that Congress will pass this bill quickly. The U.S. desperately needs highly-skilled workers in the technological fields to stay competitive globally. The statistics are staggering: immigrants were responsible or partly responsible for 52% of Internet startups in the U.S. between 1995 and 2005. Recently, that number has fallen to 42% as the government has made it increasingly difficult for the people who are the most needed to move here.

Since his reelection in November, President Obama has called for comprehensive immigration reform by the end of 2013 and a group of eight senators, known as the Gang of Eight, has worked out the framework for an act that just might work. Resolving the issue of business immigration is a crucial facet of comprehensive reform. It is our hope that very soon foreign graduates of U.S. universities majoring in science and engineering will have a shot at using their skills and expertise stateside.