Category Archives: Immigration News

Stateside Waiver Now Availabe to LPR Family Members

On July 29, 2016, U.S. Citizenship and Immigration Services (USCIS) announced a final rule which expands the current provisional waiver process. When the provisional waiver process was established in 2013, only immediate relatives of U.S. citizens were eligible to seek a stateside provisional waiver before departing the United States for the processing of their immigrant visas. Otherwise, the waiver was applied for and processed while the applicant was outside of the U.S. The new rule, which goes into effect on Aug. 29, 2016, will now include certain individuals who are family members of lawful permanent residents (LPRs), and who are statutorily eligible for immigrant visas, to apply for an unlawful presence waiver before leaving the U.S.

The provisional waiver process is intended to promote family unity by reducing the time that individuals are separated from their family members while they complete immigration processing abroad. To qualify for a provisional waiver, applicants must have an approved family petition and establish that their U.S. citizen or lawful permanent resident spouses or parents would experience “extreme hardship” if the applicants are not allowed to return to the United States.

USCIS also announced it expects to update its Policy Manual to provide guidance on how USCIS makes “extreme hardship” determinations. This information should be available in the coming weeks.

Immigrant Visa Application

Department of Homeland Security (DHS) proposes changes to expand the provisional stateside waiver process

Today the Department of Homeland Security (DHS) published a proposed rule change in the Federal Register to streamline and expand the provisional stateside waiver process.  This is part of a multi-step immigration process for eligible individuals to become permanent residents of the United States.

The current provisional waiver process is only available to intending immigrants, now living in the United States, with a six month or longer period of unlawful presence in the US, who have spouses or parents that are United States citizens. Until three years ago, all intending immigrants had to have an interview in their own country first before applying for waivers based on prior violations of the immigration laws.  This caused very long delays and lengthy separations from family members in the United States while the intending immigrant waited outside the US.  The change three years ago allowed some eligible people to file a waiver only for the unlawful presence provisions prior to departing from the United States for consular processing rather than applying for a waiver abroad after the immigrant visa interview. That change enabled a more streamlined and family friendly process – thus significantly shortening the period of separation while completing the process to becoming a resident of the United States.

DHS now proposes to expand the current provisional waiver process in two ways.

First, DHS will eliminate current limitations on the provisional waiver process that restrict eligibility to certain immediate relatives of U.S. citizens. With the proposed changes, the provisional waiver process will be made available to family-sponsored immigrants, employment-based immigrants, certain special immigrants, and Diversity Visa program selectees, together with their derivative spouses and children.

Second, DHS proposes to expand the provisional waiver process by eliminating the current restriction that limits “extreme hardship” to U.S. citizen spouses or parents. Under this proposed rule, an applicant for a provisional waiver would be permitted to establish the eligibility requirement of showing extreme hardship to lawful permanent resident spouses or parents as well.

For further details on this proposed rule change go to: http://www.gpo.gov/fdsys/pkg/FR-2015-07-22/html/2015-17794.htm

Murphy Law Firm will publish more information such as the date the changes will take effect as soon as the details are announced.

Some DACA EADs with Three Year Approval Must be Returned

If you have received a notice from USCIS that you must return your 3-year EAD card, you must follow their instructions or you will lose your grant of Deferred Action.

When the President announced his plans for expanding the Deferred Action for Childhood Arrivals (DACA) in November of 2014, USCIS began issuing three year work permits according to the new guidelines. But when the federal court in Texas issued an injunction on February 16, 2015 temporarily stopping the expanded DACA, the government went back to issuing only two year approvals for DACA. But they mistakenly issued about 2,000 work permits good for three years after the injunction. Also, about 500 EAD cards that were returned by the post office as undeliverable, and were resent after the injunction, are considered erroneously issued. Now, USCIS is requiring these recipients of the 3-year EAD cards to return their work permits if it was approved or re-mailed after the injunction.

If you get a letter requesting return of your work permit, you should follow the instructions to return the card. But do not worry, they are not taking away your DACA. You will be sent a 2-year EAD card in its place.

2,000 3-year EADs that were mailed after the injunction

In May 2015, USCIS sent letters to the 3-year EAD recipients issued after February 16, 2015, explaining they need to return their work permits and approval receipts to USCIS. Recipients were provided a postage paid envelope and instructions. USCIS received approximately 1,100 EADs from this first letter.

In the beginning of July, USCIS sent a second letter stating that “USCIS must receive your EAD by 7/17/15. Failure to return the invalid EAD without good cause may affect your deferred action and employment authorization.”

Also USCIS customer service representatives began calling affected individuals and/or their representatives providing instructions for returning erroneously issued EADs.

On July 13, 2015, USCIS sent a third letter telling these individuals they must appear at a USCIS field office to return their 3-year EAD, or certify that it has been returned or that it has been lost by July 27, 2015. This notice indicates that the DACA grant will be terminated, and the EAD declared invalid, effective July 31, 2015, if the recipient does not comply. Recipients who have returned their three-year EADs by mail, but who still receive the letter requiring them to report to a USCIS field office must still go to the field office to certify that the three-year EAD has been returned.

USCIS also has a plan for plain-clothed USCIS officers to conduct home visits to retrieve the 3-year EADs.

500 3-Year EADs approved and mailed prior to the injunction, returned to USCIS as undeliverable, and re-mailed after the injunction

On July 14, 2015, USCIS mailed this group of 3-year EAD recipients a letter asking them to return their 3-year EAD card, or to certify that it has been returned or lost, by July 27, 2015. If they fail to comply with the letter, their deferred action and employment authorizations will be terminated “at some future date.”

USCIS customer service representatives plan to call affected individuals and provide instructions for returning erroneously issued EADs. Plain-clothed USCIS officers will also begin visiting individual homes to retrieve these 3-year EADs.

Recipients may appear at any USCIS field office during the hours stated in the letter to return their card. Recipients should bring the letter to the field office to facilitate entry into the building.

Individuals whose DACA is terminated because they did not return their cards have no recourse for reinstating DACA at this time.

 

 

Supreme Court Legalizes Same Sex Marriage

The U.S. Supreme Court announced a decision today legalizing same sex marriage throughout the United States. This is a constitutional right protected under the Equal Protection and Due Process clauses. Religious institutions, however, still have a first amendment right to advocate against same sex marriages.

The Constitution applies to all persons in the United States, citizens and non-citizens alike. The immigrant community is included in these protections and rights. With the decision announced today, Immigration benefits cannot be denied in any state on the basis of same-sex marriages.