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Eligibility for the Provisional (Unlawful Presence) I-601A Waiver

by | Jan 11, 2013 | Uncategorized

The final rule to support the 601A unlawful presence waiver was published in the Federal Register on January 3, 2013. A summary of key eligibility factors from the said rule are as follows;

1. Must be an immediate relative of a United States Citizen (USC) to qualify.

2. A Lawful Permanent Resident (LPR) cannot be a qualifying relative for purposes of the provisional waiver.

3. Only a USC spouse or parent can be a qualifying relative for purposes of the extreme hardship determination.

4. If you are outside the U.S., you are not eligible.

5. If you are in removal proceedings, such proceedings must be administratively closed and not re calendered in order to be eligible to file the I-601A. (For a recent Board of Immigration Appeals decision on Admin. Closure see Matter of Avetisyan 25 I&N Dec. 688 (BIA 2012)). You should seek and obtain a termination of such proceedings prior to your departure following approval of a 601A application.

6. If your interview at the consulate was scheduled prior to 1/3/2013, you will not be eligible to use the 601A waiver.

7. If you have any other additional ground of inadmissibility beside that of unlawful presence, you would also not be eligible to use this process.

8. TPS recipients would be generally able to use this process if otherwise eligible.

9. No concurrent filing of 601A with I-130 or I-360. Must have an approved petition to become eligible.

10. Filing fee for 601A is $585.

This process becomes effective March 4, 2013. For additional information please see http://www.uscis.gov/portal/site/uscis

K-1 Fiance(e) Visa and Customary/Tribal Engagement

by | Nov 5, 2011 | Uncategorized

The K-1 visa is meant to be used by a United States Citizen (USC) to bring his/her fiance(e) into the U.S. conditioned on the fact that they will marry within 90 days of entry.

There are some basic requirements to be eligible to use this visa;
1. The petitioner must be a USC. A lawful permanent resident or green card holder cannot petition for a fiance(e).
2. The parties must have previously met in person within 2 years of the filing of the petition, and intend in good faith to marry within 90 days of entry.
3. The intended marriage that would take place must be legal in the sense that both parties are of the age to marry and if any had been previously married, there has been a valid divorce.
There are also other considerations that are not the focus of this writing such as the fact that the applicant must be generally admissible, that the USC’s criminal history may be an issue, and matters related to repeated filings.
The K-1 visa process is attractive to many USCs because it is thought by some to be a quicker way of bringing in one’s would be spouse into the U.S. as against getting married in the foreign country and going the route of an I-130 filing, and consular processing of an immigrant visa. (These days it is the writer’s view that speed should not be a consideration in whether or not to go this route because of the fact that processing times for an I-130 is comparable to that for an I-129F, plus factoring in the fee for adjustment of status in the U.S.).
The K-1 visa would also be the visa of choice where the parties prefer to have their marriage and wedding done here in the U.S. especially if they have more friends and family here.
Pitfalls of Customary/Tribal Engagement
As stated earlier, for a successful K-1, the petitioner and applicant need to show among other things that they have met in person within 2 years and intend to marry within 90 days of entry.
A customary or tribal engagement may be very fluid in the sense that one may not be certain when the parties cross the line of engagement into a customary marriage. Sometimes no two experts or courts would agree as to exactly when a customary marriage has or has not occurred. Where  for example, bride price is the corner stone of a customary marriage, sometimes some local courts or experts have found that there is a valid customary marriage though the bride price has not been paid. Some experts or local courts are prepared to recognize a valid customary marriage where the bride went home with the groom after the initial formal customary engagement. Therefore an elaborate customary engagement may actually be interpreted or misinterpreted as a valid customary marriage thereby making the parties ineligible for a K-1 visa.
It is my opinion that parties who may face this type of situation should avoid an elaborate customary engagement as a consular officer may find that a marriage has already taken place.
The law only requires that the parties have met physically within 2 years, and that they have a good faith intention to marry within 90 days of entry. Emails for example may be a way to prove an intention to marry without the risk of a consular officer thinking that a marriage has actually occurred. In this age of social media, such an intention can also be shown using such media.
Where the parties decide to have an elaborate customary/tribal engagement notwithstanding, it may be a good idea to be proactive and obtain affidavits from the tribal leader(s) or custodian affirming that what had transpired was an engagement only, and stating the reasons for such conclusion under the particular custom.
In no way am I advocating that anyone should abandon their culture out of fear of what a consular officer may decide. The fact of the matter remains that the lines are sometimes not very clear as to what has happened. Ultimately the parties will decide what and how they wish to proceed.

Voluntary Departure; What you need to know.

by | Apr 28, 2011 | Uncategorized

Voluntary Departure literally means and implies what it says. It involves permitting a person who is otherwise removable the privilege of leaving or departing on his/her own. A subtle point worth mentioning is that voluntary departure permits a person to depart on his/her own to any country that s/he can legally depart to.

Many people do not realize it but the relief of voluntary departure is not available to every alien. For example the relief is generally not available to someone who has been convicted of an aggravated felony. (Remember that aggravated felony has a much narrower definition in immigration law than in criminal law). Other restrictions and conditions exist regarding voluntary departure depending on the stage at which the relief is being considered.

Advantages of Voluntary Departure;
1. For the government, voluntary departure saves time, resources and money. Time and resources that may be spent on a removal proceeding may be saved depending on the stage when the voluntary departure is granted. Also the person bears the financial cost of the departure.

2. For the alien;

  • Volunatry departure means that s/he avoids any negative stigma that may be attached to a removal
  • S/he does have some time to wind up his/her affairs and put his/her house in order before departure
  • The grant of voluntary departure also means that s/he would not be subject to the admissibility bar which a person ordered removed would otherwise be subject to (generally 10 years) (statutory waiver available but grant is discretionary)
  • Voluntary departure is also beneficial to a person who has accrued some period of unlawful presence past 180 days but less than 1 year because such a person if granted voluntary departure after the commencement of proceedings gets to avoid the 3 year bar to admissibility.

Voluntary Departure; Any Downsides?

  • When a person is granted voluntary departure, it is usually for a fixed period. Failure to depart within the time granted can have severe consequences. The most severe of those consequences is that such a person becomes ineligible for 10 years to receive any further relief such as cancellation of removal, adjustment of status, change of status, registry, or voluntary departure.
  • Additionally a person who overstays the voluntary departure period is also subject to a monetary penalty of at least $1000 and not more than $5000.
  • The situations when the above severe consequences may not apply are not many. In some situations they may not apply to a VAWA self petitioner/applicant. Also they may not apply if the voluntary departure period is terminated by the filing of a motion to reopen or motion to reconsider, or by the filing of a petition for review during the voluntary departure period. Also where the failure to depart was not voluntary as provided by the statute, then the consequences may not apply.
  • Where a person would be subject to the 10 year unlawful presence bar, voluntary departure may also be of little practical benefit.

If you are considering the relief of voluntary departure, it is a good idea to fully discuss it with your immigration attorney in light of your own particular circumstances.

In Absentia Removal Order

by | Oct 27, 2010 | Uncategorized

When a person receives proper notice of a removal hearing or proceedings against her, and fails, refuses or neglects to attend, such a person would in all likelihood be ordered removed in absentia.

Where an in absentia order of removal is entered against someone, it carries some adverse immigration consequences over and beyond a regular order of removal.

Usually, whereas one can appeal against an order of removal, there is no right of appeal against an in absentia order of removal. One may only file a motion to reopen to rescind such an order under certain circumstances.

Also where such failure to appear was subsequent to one receiving the oral notices called for under the law, such person is in addition to having the in absentia order entered against them, also barred for 10 years from eligibility for many discretionary reliefs such as cancellation, and adjustment of status.

MOTION TO REOPEN TO RESCIND AN IN ABSENTIA ORDER[1]

The law provides limited circumstances under which one may apply to have an in absentia order of removal rescinded. There are two main circumstances:

  • Where the failure to appear was because of exceptional circumstances and the motion to reopen is filed within 180 days after issuance of the in absentia order of removal. Exceptional circumstances in this situation refer to battery or extreme cruelty to the person, their child or their parent. It also includes the person’s serious illness, or the death of a spouse, child or parent. There may be other situations that Courts have held amount to exceptional circumstances and one must consult an Immigration Attorney to look at her particular set of circumstances.

Whatever one does under this reason must be done within 180 days, unless in particular situations where the Courts may apply equitable tolling. Even then, diligence must be shown. In the 11th Circuit, there may be no tolling.

  • One can apply to have such order rescinded at any time, if she can be show that she did not receive notice in accordance with law, or because she was in federal or state custody and the failure to appear was not her fault.

The filing of such motion triggers an automatic stay of removal pending  conclusion of the motion by the Immigration Court.

Lastly, in the context of asylum,witholding and/or CAT, an in absentia order of removal may be rescinded/reopened based on changed circumstances arising consequent to changed country conditions in the country to which removal has been ordered, where evidence of such is material, and was unavailable, and could not be discovered or presented at the previous proceeding.


[1] Discusses only Removal Proceedings and Not Deportation or Exclusion Proceedings.