Reflections after the election

I want to give you some thoughts about the future, after the results of the presidential election.

I do not know whether we will get any significant changes in immigration laws during the next 4 years.  It is possible, but it is also possible that there might not be changes.  It will depend on the priorities of the Trump Administration and on the actions of Congress.

For persons who are U.S. citizens or permanent residents, the election of Donald Trump should not result in any particularly new or different problems for you with respect to U.S. immigration laws.

For everyone else, if there are significant changes in immigration laws, the laws might actually help, or they might make things worse.  At this time, we just don’t know.  If there are changes in the laws, we also don’t know how quickly or slowly such changes might occur.  Things in Washington often move more slowly than we might think at first.

It is possible that the way cases are handled by the various immigration agencies will become stricter, but that also will not happen overnight.  There are thousands of immigration officials employed at USCIS, ICE, and CBP (Customs and Border Protection), and so if there are changes in procedures, they might happen slowly, if at all.  At this time, we just don’t know what changes in procedures might occur.

Probably most of the thousands of current employees in the federal government will remain working at their jobs.  Most will probably continue to handle cases the same way that they have been handling them up to now.  It is possible that the Trump Administration could call for changes in the way that cases are handled, but again, many of those changes (if any) take time to be implemented.

Some programs, such as the I-601A Provisional Waiver Program, remain in place.  A program such as I-601A could only be changed through an official process, which could take 6 months or longer.

Other programs, such as DACA, could be eliminated more quickly.  The future of DACA as of January 20, 2016 is uncertain.

I think that it is possible that CBP (the officials at the airports and the borders) might become tougher and stricter in their encounters with persons traveling into the United States.  I always advise that you communicate with me before you travel.  Now, with the election results, I want you to know that you might possibly face a more difficult encounter with CBP when you return to the United States.  We don’t know how CBP might change the way they do their job.  At this time, the best we can say is that they might become more strict.

For persons who have cases in Immigration Court, and whose cases have been administratively closed, the future is uncertain.  There exists the possibility that the new administration could order ICE to continue with your case in Immigration Court.  At this time, we do not know what the new administration might, or might not, do with cases that have been administratively closed.  If your case returns to the Immigration Court, or to the Board of Immigration Appeals (BIA), then we will have the right to continue to argue on your behalf to try to obtain any immigration benefits in Immigration Court or the BIA to which you may be entitled.

Adjudicators will not instantly start deciding cases differently from how they are doing it now. A case that would be approved today will be approved in the first few months of Trump’s presidency. There could be rapid change in specific types of cases due to a policy change – DACA is the most likely target of such a policy change – but the majority of cases will be decided the same as before.

New administrations can change how things are done, but there are laws preventing that from happening too quickly.

For cases that we are currently preparing, I expect we will be able to finish before substantial, sweeping change takes place. I cannot promise that a sudden policy change won’t affect your case, but I believe it is unlikely. The best thing to do is carry on and try to finish as quickly as possible. You can help me in that regard by providing me with requested information and documentation as quickly as possible when I request it. The sooner we finish your case, the better.

You will have questions that I will be unable to answer because I do not know the future. My promise to you is that I will do the best possible job on your case. Do not despair. Keep moving forward.

If after reading this you still have questions, please send them and I will respond as soon as I can.

Waivers for Unlawful Presence

If you entered the United States without permission, you might be eligible to apply for a waiver of unlawful presence.  Depending on the circumstances of your situation, you might be able to obtain the waiver, and then obtain permanent resident (green card) status.  Best of all, you might be able to remain in the United States while your application is pending.  If you are approved for the waiver, you would travel to a U.S. consulate outside the United States for an immigrant visa, and then you would return to the United States with the visa and become a permanent resident.  Your time outside the United States, in most cases, is approximately 2 weeks.

In order to be eligible to apply for this type of waiver, you must have either a spouse or parent who is a U.S. citizen.  You must also meet certain other requirements in order to be eligible.  For example, certain criminal convictions might make you ineligible to apply for this type of waiver.

In order to be granted the waiver, you would need to convince U.S. immigration officials that the denial of the waiver would result in an “extreme hardship” to your U.S. citizen spouse or parent.  The question of what qualifies as “extreme hardship” is complicated.  For more information about extreme hardship, please see my previous postings on the subject:

What is “extreme hardship”?  Part 1

What is “extreme hardship”?  Part 2

The process of obtaining a waiver of unlawful presence is complex.  In order to avoid problems and to have the best chance of success, you should work with an experienced immigration attorney.  I have handled many immigration waiver cases and I have a strong record of success.  I would be glad to speak with you about your case.  Please contact my office for details.  Thank you.

 

What is “extreme hardship”? Part 2

A couple of days ago, I wrote the first of two posts about “extreme hardship” in immigration law.  Today, in the second post, I write about the question of exactly what “extreme hardship” is, and how we can show it.

In many immigration cases, we must show extreme hardship to the spouse or parent of the person applying for the immigration benefit.  In some cases, we may show extreme hardship to the child of the applicant.  The applicant’s qualifying relatives – spouses, parents, and (in some cases) children – must be either U.S. citizens or lawful permanent residents.

As we stated in the first post, we need to show harships of both separation and relocation.

“Extreme hardship” is open to interpretation.  U.S. government officials may consider many different types of hardships.  Many of the most common hardships involve financial concerns, medical conditions, educational goals, psychological or emotional issues, family ties, and conditions in the location where the applicant would be living if the waiver is not granted.  In order to explain the hardship to the qualifying relatives, we must imagine that the applicant for the waiver is living in his or her home country.

Financial concerns:  An assessment of the loss of income to the household as a result of the applicant’s residence outside the United States, and the ripple effects that this loss can have on the well-being of the qualifying relatives.

Medical conditions:  The effects on the qualifying relatives of the potential lack of access to medical care in the country of relocation, and the potential loss of access to medical care in the United States due to loss of income or loss of insurance coverage.

Educational goals: The effects of the applicant’s absence on the education of qualifying relatives, including the loss of educational opportunities in the country of relocation, or the loss of opportunities in the United States due to financial or time constraints.

Psychological or emotional issues: The stress and anxiety that result from separation of qualifying relatives from the applicant, and the stresses and pressures that would accompany the qualifying relative’s relocation to another country.

Family ties: The qualifying relative’s connections to relatives in the United States, vs. connections to relatives in the country of relocation.

Country conditions:  Aspects of life in the country of relocation, including housing conditions, sanitation, educational opportunities, safety, social or political unrest, violence, environmental risks.

An application for a waiver based on a showing of extreme hardship requires significant careful preparation, planning, and documentation.  I have extensive experience in preparing these applications, and a strong record of success.

What is “extreme hardship”? Part 1

In many immigration cases, in order to help a client to obtain permanent resident, or “green card” status, we need to establish something called “extreme hardship” to a qualifying relative, such as the applicant’s spouse or parent who is a U.S. citizen or permanent resident.

For example, if you entered the United States without permission, without a visa, and without presenting yourself to U.S. immigration officials when you entered, then you might not be eligible to obtain your green card while you are in the United States.  You would need to go to a U.S. Consulate in your country of origin and apply for an immigrant visa.  If you are approved, then you receive the immigrant visa and enter the United States as a permanent resident.

The problem, however, is that if you are living in the United States without permission for 1 year or more, and then you leave the United States, you will be subject to the “10-year bar,” which means that you will not be permitted to enter the United States until you have spent 10 years outside, unless you obtain a waiver.  If you are granted the waiver, then you are permitted to enter the United States without the need to spend 10 years outside.

In order to obtain the waiver, we must convince the U.S. immigration officials that the denial of the waiver will result in “extreme hardship” to your spouse or parent who is a U.S. citizen or a permanent resident.  In order to obtain the waiver, we must imagine that we don’t have the waiver, and that you, the applicant, must spend 10 years outside the United States, living in your home country.

Then, we must imagine two different scenarios:

(1) Your spouse or parent who is a U.S. citizen or permanent resident remains in the United States and is separated from you for 10 years.

(2) Your spouse or parent who is a U.S. citizen or permanent resident lives with you, outside the United States, in your home country for 10 years.

We must show that BOTH of these scenarios will result in “extreme hardship” to your spouse or parent.  If we convince U.S. immigration officials that BOTH of these scenarios will result in extreme hardship, then you will be granted the waiver, and you will not be required to spend 10 years outside the United States.

In Part 2, we will explore the question of exactly what is “extreme hardship” and how we can show it.

The New Provisional Waiver

DHS has published the new provisional waiver rules. USCIS will begin to accept applications for provisional waivers on March 3, 2013.

The new waiver process allows certain people to apply for waivers in inadmissibility while remaining in the United States. If the waiver is approved, then the applicant goes abroad for an immigrant visa interview.

Provisional Waiver Expected Soon

We expect that the U.S. Government will soon publish a new procedure that will enable certain persons to apply for waivers while they remain in the United States.

Although we cannot be sure, we believe that the new procedures will be announced very soon, possibly as early as Monday.  We do not yet know when the new procedure will take effect, but we believe that the new procedure will take effect soon.

As soon as the new procedure is announced, we will have more information about eligibility requirements and procedures.

DHS proposes helpful change to processing of some waivers

On January 6, 2012, the U.S. Department of Homeland Security (DHS) proposed changes in how some waiver applications will be processed. Please note that at this time, the changes are not yet in effect. We do not know when the changes will take effect, but we are hopeful that they might take effect later this year.  Please consult with a knowledgeable immigration attorney before taking any action.

The Current Process

If you entered the United States without permission, and you have a spouse or a parent who is a U.S. citizen, in most cases you must leave the United States and apply for an immigrant visa in another country, usually your home country. Unfortunately, under U.S. immigration laws, when you leave the United States, you are barred from re-entering the United States for a certain period of time, usually 10 years (and in certain cases, 3 years). You may apply for an immigrant visa at the U.S. Consulate in another country, but you must also apply for a waiver of your unlawful presence in the United States. In order to be granted the waiver, you must establish that it would be an extreme hardship for your spouse and/or parent if you are not allowed to return to the United States.  The process can take a long time, and sometimes requires you to be outside the United States for a year or more.

The Proposed Changes

If you have a U.S. citizen spouse and/or a U.S. citizen parent, and if you need a waiver only for your unlawful presence in the United States, DHS has proposed to allow you to apply for a provisional waiver while you are still in the United States.  If DHS grants the provisional waiver, then you still must travel outside the United States and apply for an immigrant visa and the waiver at the U.S.  consulate in the other country.

We hope that the proposed change will do a couple of good things for you, if you are eligible:

1.  The proposed change will allow you to apply for the provisional waiver and see if DHS approves the provisional waiver before you leave the United States.

2.  The proposed change will shorten the length of time that you will need to be outside the United States.

Please consult with a knowledgeable immigration attorney before taking any action.