PRESIDENT OBAMA'S PROVISIONAL WAIVER PROCESS SET TO TAKE EFFECT MARCH 4, 2013

Many of you, no doubt have heard that a new process, which will allow some aliens who have remained in the United States unlawfully to complete their legal immigration to the United States, will begin on Monday, March 4, 2013.  This process involves the adjudication and approval or denial of a Provisional waiver on inadmissibility for the alien's unlawful presence, here in the United States, and then ultimately, the alien's departure to be interviewed for an immigrant visa abroad.  I am certain there will be much confusion regarding this particular program, thus, I am providing verbatim below, the State Department's release in this regard, along with some of my own thoughts.

Here is what the State Dept. is saying:

About the Provisional Unlawful Presence Waiver

On January 2nd, 2013, U.S. Citizenship and Immigration Services (USCIS) announced that certain immediate relatives of U.S. citizens present in the United States, who are in the process of seeking immigrant visas with the Department of State to become lawful U.S. permanent residents, may apply and be approved for provisional unlawful presence waivers before departing the United States to attend their immigrant visa interviews. Refer to the Provisional Unlawful Presence Waiver News Release and Instructions on the USCIS Website for eligibility information and instructions. Learn more. USCIS will begin accepting provisional unlawful presence waiver, Form I-601A applications on March 4th, 2013.

The National Visa Center (NVC) Process – Frequently Asked Questions (FAQs)

If you have applied/are applying for the I-601A provisional waiver, listed below is important information regarding the National Visa Center pre-processing of your immigrant case and your interview at the U.S. embassy or consulate you designated.

If the Department of State has already scheduled my immigrant visa appointment, how do I determine if I am eligible to submit the I-601A to USCIS?

Applicants with an interview appointment letter from the National Visa Center dated before January 3rd, 2013 are not eligible to file the Form I-601A. Only applicants scheduled by the National Visa Center on or after January 3rd, 2013 for an upcoming initial immigrant visa interview are eligible to apply for the I-601A. “Scheduled” means the date on which NVC took the action to schedule the case – not the date of the visa interview appointment. NVC dates interview appointment letters on the day it schedules a case, so refer to the appointment notification letter to see when NVC took the scheduling action.

How do I get a copy of my immigrant visa (IV) application processing fee payment receipt?

You must submit proof of payment of your IV fee with your I-601A provisional waiver application to USCIS, attaching a copy of the receipt. Follow the instructions below to obtain a fee receipt copy:

If the Immigrant Visa Application Fee was:	Then do the following:
Paid Online: If you paid the IV fee online through the Consular Electronic Application Center (CEAC)	Return to the CEAC site and print a copy of your receipt
Paid by Mail: If you paid the fee by mail to the NVC	You must request a copy of your receipt from NVC. To request a copy of your IV fee payment receipt, send an email to NVCI601A@state.gov with the subject line: "Fee Payment Receipt Request” and also include your NVC case number.

Will NVC schedule my IV interview appointment even if I submit an I-601A provisional waiver to USCIS?

No, after you submit your I-601A Provisional Unlawful Presence Waiver Application, USCIS will notify the National Visa Center (NVC) that it received your Provisional Waiver application and NVC will not schedule your immigrant visa interview appointment until USCIS informs NVC of its determination about your I-601A application.

What should I do once USCIS approves my I-601A provisional unlawful presence waiver?

Once USCIS approves your Form I-601A, it will inform NVC of its decision. If NVC has received all required forms and documents for your immigrant visa case, NVC will schedule your immigrant visa interview at the U.S. embassy or consulate you designated and notify you of your interview appointment date. You will then need to depart the United States to attend your immigrant visa interview at the designated location. If you fail to depart and attend your immigrant visa interview, the provisional unlawful presence waiver will not take effect, and the approval may no longer be valid.

What will happen during the visa interview at the U.S. embassy or consulate if the consular officer determines that I have other visa ineligibilities?

If the consular officer determines at your immigrant visa interview that you have other ineligibilities (grounds of inadmissibility or are otherwise not eligible for the visa) beyond unlawful presence, the USCIS approved provisional waiver is automatically revoked. Learn more on the USCIS Website, provisional waiver.

END OF STATE DEPARTMENT RELEASE.

Aliens however should not simply file form I-601A with the presumption that because a relative petition such as I-130, or employment based petition such as I-140, has been approved on their behalf, the provisional waiver will be granted.  This waiver appears only to apply to aliens who are spouses or parents of US Citizens.  Hence, if the alien is a "preference alien," such as for example, an engineer with an approved I-140, or the spouse of a Lawful Permanent Resident (LPR) whose priority date is current, this process will not be available to them, unless the administration elects to significantly broaden the program.

Further, if the alien entered the United States with inspection, and is married to a US Citizen, or entered the US with inspection and is an unmarried child under 21 of a US Citizen, or entered the US with inspection and is the parent of a US Citizen, this provisional waiver process is likely not for such alien either, since with good legal counsel, said alien may find the laws related to adjustment to LPR status without leaving the US, to be more favorable and expeditious for them.

Aliens with criminal records and other grounds of inadmissibility should also be extremely careful in pursuing the provisional waiver process.  The wise approach, as always, is to consult an immigration attorney prior to filing this (or any other) immigration application, to determine eligibility (or for that matter, whether the process is even required, given the alien's particular circumstances), and to anticipate unintended consequences which might result from such application.

By Duane M. Hamilton

FIRST IMMIGRATION TRIAL OF THE YEAR RESULTS IN WITHHOLDING OF REMOVAL

On February 7, 2013, after a full half day trial, Judge Ipema of the San Diego Immigration Court granted withholding of removal in the matter of a Kenyan torture victim who had resided in the United States for many years before applying for humanitarian immigration relief.

Withholding is a form of relief which protects aliens from being returned to a country in which they fear persecution and/or have been persecuted in the past as a result of their race, religion, nationality, membership in a particular social group or political opinion.  Though withholding does not provide a direct path to Lawful Permanent Residence or US Citizenship, it is often a life-saving benefit to those upon which it is conferred.

The case took roughly a year to bring to trial, in San Diego, which is quite a bit faster than the two to three year average time-frames we experience in Los Angeles.

Incidentally, I was back in San Diego court the very next day, to receive an order of Termination of Removal Proceedings for an alien who will now be allowed to adjust status to lawful permanent residence through USCIS.

By: Duane M. Hamilton

AMNESTY RELATED CAUTION

I am aware that there has been much confusing talk in the community about an amnesty law being passed which will provide "green-cards" for the undocumented and those of who have overstayed.  Some in the community are even suggesting that aliens with existing cases who have hired attorneys and have filed their cases, should drop their cases, and wait for this so-called amnesty.  It is my understanding that there may be hustlers in various immigrant communities who are already accepting money to provide so-called "amnesty services."

Please understand that amnesty legislation is always a very contentious and difficult undertaking for the US government to pass, since such legislation must be approved by the House of Representatives, and the Senate, and then signed by the President.  The House is dominated by Republicans, who have very different ideas about immigration than  Democrats, and though it is true that the last election has convinced the Republican Party leadership that something must be done for the undocumented, it is not clear how, when, or if ever, this will be accomplished.

We are all hoping that an amnesty law will be passed as soon as possible, but we must also be wise in determining what forms of immigration relief are available to us now, and in pursuing such relief in a timely manner.  To the extent an amnesty is passed into law, immigration lawyers will have to review such law and its requirements and determine to what extent each of their clients might or might not qualify for such relief.  Existing clients would then be notified, and would instruct the attorney how they wish to proceed. 

Further, cases that are pending in Immigration Court cannot simply be dropped, without potentially dramatic negative consequences.  Clients who fail to appear in Immigration Court are ordered removed in their absence.  This would be unwise since an amnesty law could be written in such a way as to exclude people with existing removal orders (we simply do not know what such legislation might look like until it is written and we read and digest it). 

Further, aliens who have certain types of asylum claims, are required to file for asylum within a reasonable time of a change in their circumstances.  Those who wait 6 months or more to file such claims are generally barred from asylum.  Thus, an asylum seeker who has such a claim is required to file for asylum in a timely manner or risk losing that claim forever.  The wise approach is to file for whatever immigration relief is available to the alien now, and apply any new amnesty legislation to the alien later, if and when such amnesty becomes law..

It is a very good basic rubric, to consult with an immigration lawyer (not community elders or notarios) about these sorts of immigration matters, before making hasty decisions which could have undesirable consequences.

HAMILTON WINS GRANT OF ASYLUM FOR INDONESIAN ASYLUM APPLICANT IN LOS ANGELES IMMIGRATION COURT

This morning, Judge Travieso of the Los Angeles Immigration Court granted my Indonesian client asylum, in a case which was tried over several days spread out over more than a year.  The case commenced in 2007 at the Asylum Office (AO) and was denied by the AO and referred to the Immigration Court in Removal Proceedings where the asylum claim was renewed as a defense to removal.

The applicant was not only required to demonstrate a "well founded fear of persecution" in Indonesia, but also, to show why after residing in the United States for many years before the 2007, such filing was justified, given the general one-year filing requirement in asylum claims, which requires that an applicant must apply for asylum within one year of his or her arrival in the United States.

We were ultimately able to establish that the applicant qualified for one of the very narrow exceptions to the one year requirement, and after extensive testimony, documentation, and legal citation, that the requisite burden had been met to qualify the client for asylum.

The client was relieved and at the same time overjoyed to hear the judge's words of welcome to the United States, and to have concluded a long and challenging journey for lawful status in the United States.  Asylees (those granted asylum) may apply for lawful permanent residence (green card) one year after the asylum claim is approved, and then for naturalization (US Citizenship) five years after the green card is approved.  The asylee is also permitted to apply for and upon approval, travel to, any country of the world (except of course, the country of persecution) on a Refugee Travel Document.

This approval has been my 16th completed immigration trial of the year 2012 in Removal Proceedings, and the 16th in which my client has secured some form of permanent or indefinite immigration relief.

By:  Duane M. Hamilton

LOS ANGELES IMMIGRATION JUDGE GRANTS ASYLUM TO KENYAN IN CASE COMMENCED IN 2005

This afternoon I completed an asylum trial before Immigration Judge Dorfman of the Los Angeles Immigration Court in the matter of a Kenyan Kikuyu, whose case I took on at the Asylum Office (AO) level in 2005.  The case was initially denied by the AO and administratively closed and could not be referred to Immigration Court due to a lack of jurisdiction on the part of the court at the time.

In early 2010, long after court jurisdiction became possible, the client returned to my firm wishing to continue the asylum claim before the court in "Removal Proceedings."  We thus requested of the AO that the case be referred to the Immigration Court and commenced proceedings before the Court in mid 2010.

Now, seven years after we commenced this case, and after numerous delays, including changes in judges, we are happy to have been given our day in court and to have secured asylum for this cient.

This has been my 15th immigration trial of the year, and the 15th in which the client, facing removal from the United States, has secured some form of permanent or indifinite immigration relief.

By: Duane M. Hamilton

HAMILTON'S 14TH IMMIGRATION TRIAL FOR 2012 ENDS IN GRANT OF LAWFUL RESIDENCE FOR KENYAN COUPLE

Got up at 4:30 this morning to get ready for my 14th immigration trial of the year.  Trial proceedings began before Judge Ashley Tabaddor of the Los Angeles Immigration Court, promply at 9:00 a.m. in the matter of a Kenyan couple seeking various overlapping forms of relief, including what we call Non-LPR Cancellation of Removal. 

In this challenging application, we must prove that the alien: has resided continuosly in the United States for at least 10 years; is of good moral character; has a qualifying relative who would suffer "exceptional and extremely unusual hardship" if the alien is removed from the U.S.; and the alien is deserving of approval in an exercise of the judge's discretion.  This hardship standard is far more than mere inconvenience, or even significant disadvantage which would generally be suffered by an alien forced to depart the United States. 

In this case (as in all of our cancellation cases this year) we were able to meet the very high hardship standard and satisfy all of the other elements of this particular form of relief, this time for both husband and wife independently.  The judge at length, approved the cancellation claims for both, warmly welcoming the the couple to the United States and informing them that they are Lawful Permanent Residents of this country from this day forward.  The Government's counsel, representing ICE, graciously waived appeal and wished the couple well.

I have tried 14 cases thus far this year in various immigration courts, and am fortunate enough in all of them, to have secured indefinite or permanent immigration relief, including, adjustment of status, cancellation of removal (both LPR and Non-LPR), asylum, withholding of removal, and termination of proceedings for individuals fighting to preserve their green cards after criminal conviction.  Our clients have not suffered any removal or voluntary departure orders, nor have I had to reserve appeal in any case so far this year.  Most (though not all) of the beneficiaries of these life changing grants of relief have been natives of Kenya.

By: Duane M. Hamilton, Esq.

HAMILTON SUCCESSFULLY COMPLETES THIRD IMMIGRATION TRIAL FOR OCTOBER

On October 18, 2012, I conducted my third immigration "Removal" trial for the month, before the Los Angeles, California Immigration Court, in the matter of a native of Kenya.  In spite of profound complexities in this matter, we concluded proceedings with a grant of Withholding of Removal, by Immigration Judge Tabaddor, which will allow our client to remain in the United States indefinitely, with continuing renewable employment authorization.

By:  Duane M. Hamilton