Blackwell Law Group Immigration Blog

When Should You Start Your Waiver Case?

Now the government has announced the intention to allow concurrent filing of the I-130 (the petition for lawful permanent resident status for a family member) and the I-601 (the hardship waiver to overcome inadmissibility), when is the best time to start?

The government is likely to take another 6-9 months to get the new regulations issued but now is the time to start contacting an immigration attorney to start the process for several reasons.

First, you need to know whether you qualify for not only the hardship waiver but also for concurrent filing of the I-130 and the I-601.  Not everyone will qualify for concurrent filing.  If you are not qualified, better to know that sooner than later to avoid even greater disappointment from months of believing you might be qualified.

Second, demand for immigration attorney time will go up.  There are a lot of people who have been "sitting on the fence," afraid to start the process of getting legalized because of anxiety about separation from a spouse or child for months, if not years.  This new process will ensure separation of just a few weeks for those who qualify, and when your spouse or child goes for their immigration interview, you will have greater confidence they will come back.  More people will finally start the legalization process.  If you consult with an immigration attorney now, you are ahead of the crowd and it will be easier to get an appointment to have that initial assessment of your case and begin work if you qualify.

Third, while I-130 petitions can be assembled quickly, the hardship waiver takes a considerable amount of time.  In my practice, a waiver involves about 25-30 hours of work. The work cannot be done in a week because there need to be multiple meetings with the clients and the clients have to gather documents to support their hardship claims.   If you wait until the regulations are published, it will very likely be several months before your case gets filed.  If you start to work with an immigration attorney now, then by the time the regulation is published, your case will be ready to file.

Fourth, you are likely to get better prices.  Attorney fees for hardship waivers vary considerably.  The differences reflect the experience of the attorney and how much effort the attorney puts into the application.  Most immigration attorneys do hardship waivers and I-130 petitions on a flat fee basis because the workload is predictable.  As demand for immigration attorney time increases in the coming months, fees will go up in response.   If you retain an attorney now, your attorney fees will be locked in.

Anxious about starting a process for fear the government might decide not to make the change?  That's unlikely.  New processing centers have been established in the U.S. already. USCIS staff who have been adjudicating the hardship waivers abroad have been brought back to the U.S. already.  The Democrats know that if the regulation change does not happen by September/October, thousands of potential voters will not vote because they do not find Republican candidates an attractive alternative.

Speak with an immigration attorney about your situation.  There are risks to any immigration process, especially to harship waivers.  If you try to do this process without any assistance from an immigration attorney, you greatly increase your chances of a mistake that either cannot be fixed or can be fixed only at considerable expense. 

 

Concurrent Filing of Hardship Waiver and I-130

USCIS has issued advance notice of its intent to allow concurrent filing of the I-130 petition and the hardship waiver for spouses of U.S citizens who are inadmissible to the U.S. only because they have lived here illegally for more than a year. This is a major development because it will significantly shorten the time the families are separated.

Under the current process, the hardship waiver does not get filed until after the I-130 interview at the consulate. Sometimes the hardship waiver cannot be filed for 6-8 weeks after the interview. Once filed, the applicant then has to wait for 3 to 15 months until a decision is made. If the waiver is approved, there might still be another 2-3 months until the applicant can finally re-enter the U.S. In the best case scenario (i.e. filing the waiver in Mexico), families are separated for about 5 months.   If the applicant is from any country other than Mexico, the time apart is usually at least 15 to 18 months.

Under the new process, the hardship waiver will be filed at the same time as the I-130 petition. The applicant still will have to leave the U.S. for the I-130 interview at that consulate, but the hardship waiver will have been approved already so families will be separated for just 2-3 weeks, a much more manageable situation.

This is a sensible initiative.  Not only because it help families avoid the emotional trauma of separation but because it also helps families (and the government) avoid severe economic hardship.  Separation of families often forces the US citizen spouse to rely on public benefits, particularly FoodStamps and childcare assistance because household income has dropped dramatically.  The government can ill-afford to have even more people on public benefits and this helps to avoid that.

This initiative gives incentive to people to sort out their immigration status.  That's smart. 

 

Hardship Waiver Denied: Appeal or Re-file?

You've just received devastating news: your inadmissible relative's hardship waiver has been denied.  The denial letter said you can appeal the decision, but is that the best thing to do?

It depends.

Assuming the inadmissible relative has qualifying relatives and is otherwise eligible for the hardship waiver, these are general rules that I follow.

Re-File

1) The inadmissible relative is outside the U.S.

Why re-file rather than appeal?  A re-file is faster. 

Appeals are sent to the Administrative Appeals Office (AAO).  The AAO takes a long time to make a decision on an appeal: typically about 2 years.  If the inadmissible relative is outside the U.S., then that is another 2 years apart, more if the appeal is denied. 

By the time a waiver is denied, most inadmissible relatives have already been outside the U.S. for a year or more.  So an appeal means at least 2 more years apart.

Depending on the consulate, your inadmissible relative could be re-filing the hardship waiver in about 4-6 months with a decision another 2-12 months after filing.  That's 6-18 months, i.e. less than 2 years.

I re-file consulate waivers even if I think the evidence suggests the waiver was wrongly denied for no other reason than re-filing is faster.  My fee structure is set so there is no difference to the client whether the case is appealed or re-filed.

2) The inadmissible relative is inside the U.S. and eligible for adjustment of status and little evidence or the wrong type of evidence was submitted  with the waiver application.

An appeal is based on the evidence and facts presented in the original application.  New evidence cannot be submitted.  If the original evidence suggests USCIS was correct to deny the waiver, then re-filing makes more sense because the appeal is likely to be denied. 

Re-filing needs to be done relatively promptly.  Wait too long and the inadmissible relative risks being referred to immigration court for removal proceedings.

Appeal

Spouse or child is inside the U.S. and eligible for adjustment of status and the application had  lots of good evidence consistent with case law on hardship waivers.

Why appeal instead of re-file? 

Because sometimes USCIS does make mistakes, particularly the district offices.  District offices do not adjudicate hardship waivers as often as some consulates so lack familiarity with some of the case law. 

While the appeal is pending, your inadmissible relative will not be placed into removal proceedings. 

What about inadmissible relatives who are in the U.S. and not eligible for adjustment of status?

This group is the most difficult because they often are not eligible to re-file the hardship waiver at the consulate (usually because they have triggered the so-called "permanent bar").  For these clients, neither a re-file nor an appeal is appropriate.  Instead, the inadmissible client has to be assessed for possible cancellation of removal for non-permanent residents.

Hardship Waiver: Do I Need a Psychological Evaluation to Prove Extreme Hardship?

As an attorney, my job when preparing a hardship waiver is to identify and prove the hardships the client's qualifying relatives suffers.  Almost always, I identify hardships the clients themselves had not considered.   That's the advantage of using an attorney for a hardship waiver.

Clients often ask if they should get a psychological evaluation done to prove their hardships.  I can think of circumstances when a psychological evaluation would be useful, i.e. for a weak case.  But the vast majority of my clients have enough hardships going on in their lives that a psychological evaluation is not necessary.

Psychological evaluations are not cheap.   Typically they cost around about $1,000 to $3,000.  My clients are usually suffering considerable financial distress, so I am reluctant to ask them to spend even more money unless I think it is absolutely necessary.

The absence of psychological evaluations for the hardship waiver applications that I prepare has had no impact on my approval rate.   I've filed over 50 hardship waivers and had only two denied.

 

 

 

Hardship Waivers: Practice Makes Efficient

I have been preparing hardship waivers for 4 years now.  It's definitely true I've been able to increase my efficiency in waiver application preparation over those years.

So exactly what goes into a hardship waiver?

1) A detailed interview of the applicant's qualifying relative to identify the hardships. 

Usually I spend an hour or so talking with the qualifying relative to better understand their life.   The interview also helps me identify what documents I need to get from the qualifying relative as well as from other sources.

For almost all clients, I wait until the applicant has already left the country so the qualifying relative can speak from experience about the hardships of separation. 

2) Draft the qualifying relative's affidavit.

This is the most time consuming part of the waiver process.  Most of the affidavits are 8-12 pages.  Typically it will take me 6-7 hours to prepare the affidavit to make sure it touches on the various hardships and tells a coherent and compelling story.

Some attorneys ask the qualifying relative to write a letter.  I've tried that approach and found it to be more time consuming.  At least some of my clients also find writing such a letter intimidating, even if they are fluent in English.  They can speak eloquently about what they are going through, but they cannot express themselves on paper.  It takes me longer to edit a letter than to draft an affidavit.

3) Review letters from friends and relatives about the qualifying relative's hardships.

I always ask to see drafts of the letters to be sure the letters properly address the hardships.  A letter that does not address the hardships properly does not add anything to the hardship waiver.  This review process usually takes about an hour.  If the letters have to be translated first, then that adds to the time needed.  Typically I'll ask to have the draft letters about 2 weeks prior to the deadline for completing the application.  This gives time to get the letters back to the relatives for their signatures.

4) Review the evidence provided by the qualifying relative.

Sometimes as I draft the affidavit, I identify some other evidence needed.  This also is when I locate reference information, e.g. costs of travel, wage information, medical information relating to diagnoses. 

5) Meet with the qualifying relative to finalize the affidavit and sign the various forms.

The qualifying relatives always review the affidavit for accuracy before signing. After all, it is their story.   This step usually takes about 45 min to an hour.

6) Organize the evidence

It takes about 20 minutes to get the evidence into the order I want.  At that point, I pass the package to my assistant who puts together the table of contents and numbers the pages.

7) Prepare the cover letter

The cover letter pulls the evidence together to show how the qualifying relative's hardships are consistent with case law.  About 2 pages of my cover letter review the relevant case law on hardship waivers to provide the legal background.  Beyond that, the letter will explain the hardships of the applicant's qualifying relative.  The final letter is usually 9-12 pages long and takes me about 5 hours to write.  This step goes quite quickly because by then, I know the qualifying relative's story inside out.  For me, that is the other advantage of doing an affidavit.

8) Prepare the application for shipping

Once the cover letter is done, then my assistant scans the entire application to create a file copy and then prepares the FedEx package.  For our Mexican clients, we send the package to the FedEx office in Ciudad Juarez because we have learned from experience that is the most reliable way to get the application to the client.  Typically the package arrives in Ciudad Juarez 2 days after shipping.  I usually time the package to arrive 3 days prior to the waiver appointment date so it does not hang around the FedEx office for too long while still allowing a margin for error should the package get delayed in customs.

Together with the initial intake, liaison with the CSC visa center and the client, it takes about 20 hours to prepare a waiver application.

Usually I will start the hardship waiver package 5-6 weeks before the waiver appointment.  By then, the applicant and the qualifying relative will have been separated for at least 4 weeks.  

If necessary, a hardship waiver can be assembled in 2 weeks, but I charge more for doing waivers on short notice because meeting the deadline will involve re-scheduling other client work and often demands working weekends or evenings.  Doing a waiver in 2 weeks also demands a very high level of cooperation from the qualifying relative for gathering documents.  

Most waiver application packages prepared by Blackwell Law Group have 90-110 pages.   Rarely will a package have less than 90 pages.  More likely is a package with more than 110 pages.  Clients often express surprise when they see the final package.  They think the package will have 30-40 pages.  I believe in being very thorough and prefer to err on the side of caution because the stakes are so high. 

My thoroughness means my prices may be higher than other attorneys, but there's a lot of truth to the adage "You get what you pay for."  If there is too little evidence or no clear explanation for how the facts demonstrate the hardships, then the case gets delayed and even denied.  That's bad news for clients because it means they are separated for longer. 

Being Prepared for the Worst: ICE Detention

Being detained by Immigration & Customs Enforcement is the worst nightmare of any person who is not a U.S. citizen.   Preparing for the possibility of detention can make it slightly less of an ordeal.  What can be done to prepare for the possibility?

1)  Have funds set aside for possible immigration bond.  Alternatively, make a list of friends and family who agree to provide financial assistance and give the list (with contact details) to someone you know and trust.  The person you choose should be known and trusted by your family and friends too.  Immigration bonds are typically $3,000 to $8,000.

2)  Identify an immigration attorney in advance.  If you meet with an immigration attorney before ICE picks you up, you will know what to expect, what your rights are and what your options might be.   Keep the attorney's business card with you at all times.

3) If the attorney identifies a way to help you remain in the U.S., there may be documentation that you can assemble in a safe place in advance that could help with your representation.  Always make copies of the documents and keep the copies separate from the originals.  Important documents include: birth certificates (you, your children, your spouse), marriage certificate, passport, proof of presence in the U.S. (e.g. residential leases, medical bills, bank account statements, utility bills, paystubs) and judgments of conviction/dismissal for any criminal offenses. 

4) If you are picked up by ICE, ask to speak with your immigration attorney.  Do not sign any documents until you have spoken with your attorney.

If you are prepared for the worst, you and your family will suffer less distress and your attorney will be able to represent you efficiently and effectively.

 

 

 

Waiver Appointments in Ciudad Juarez: Delays with "Clearly Approvable" Determinations

Something is going on at the consulate in Ciudad Juarez but nobody knows exactly what.

Prior to late July, when a client filed a hardship waiver application, the consulate made a decision in 2-3 weeks about whether the application was "clearly approvable."  If "clearly approvable," the consulate immediately issued the immigrant visa and the client returned to the U.S. after a separation of about 10 weeks.

In late July, without any warning or public explanation, the consulate suddenly started taking 6-8 weeks to make the decision on whether the application is "clearly approvable."

Clients and attorneys alike get very frustrated when these changes happen.  Clients are upset (naturally) about the increased time apart from their spouse.   They also often think the attorney must have known and not told them in advance.  Not so.  I often learn about changes to consulate procedure through my clients.  I like to prepare my clients for what will happen, so these unannounced changes leave me looking a little foolish in the eyes of my clients as well as creating tension in the attorney/client relationship.

Will the processing times revert to 2-3 weeks?  Nobody knows for certain.  I suspect not.  More likely, the processing time will remain at 8 weeks or get longer.  Not ideal, but as I tell all my clients: enter into this process with the expectation that you will be apart for 15 months, then if you are apart for less than 15 months, e.g. for 3 months, you will be ecstatic.

Wisconsin Latino Family Expo October 28-29, 2011

Blackwell Law Group is delighted to be part of the 2011 Latino Family Expo being held at the Wisconsin State Fair Grounds on October 28-29.  We'll be there doing mini-seminars on four important immigration law issues:

1. Family-based green cards and hardship waivers
2. Naturalization: Becoming a U.S. citizen
3. Live Safely.  Protect Your Status.
4. Know Your Rights.  Be Prepared.

There will be six seminars each day, starting on the hour from 10am to 5pm.   After each seminar, there will be time for questions.  We'll also take a break every two hours so there also will be time for brief consultations.

Stop by and see us!  We'll be located on the upper level of the Expo building.

Garden of Martyrs

Some things never change.  Attitudes toward immigrants is the perfect example of that adage.  I recently finished reading an excellent book called "Garden of Martyrs" by Michael White.   The story is set in Massachusetts in 1806 and though fictional, it is based on true events.   Two young Irish men are charged with murdering a man.  Societal attitudes toward the Irish at the time unduly influence the legal system, resulting in a conviction based completely on circumstantial evidence.  The two men hang.  One is a married man with a young child.  In 1984, they were posthumously pardoned by the Governor of Massachusetts.  The proclamation of their pardon declared:

"The trial and execution of Dominic Daley and James Halligan are reminders that we must constantly guard against the intrusion of fear and prejudice in all judicial and government decisions, and to resolve to not allow the rights of any racial, ethnic or religious groups to be denied or infringed as a result of such prejudices."

We should think carefully about that declaration every day.  Too often we allow our prejudices to color our decisions and actions and people's lives suffer as a result, sometimes in ways that cannot be changed.

 

Hardship Waiver Approved on Appeal

Quite the excitement yesterday: I received a letter from the Administrative Appeals Office (AAO) about a hardship waiver that was on appeal.  The AAO decided the local immigration office had improperly concluded my client's husband did not suffer extreme hardship.

I'm usually reluctant to appeal a hardship waiver denials.  It takes so long to get a decision;  usually about 2 years.  It's often easier (and faster) to just re-file the case.  But I opted to appeal this case for two reasons.  First, I was convinced the immigration officer was wrong.  Second, the client was already in the U.S. and filing an appeal ensured she would be in the U.S. for at least another two years.  She could not be deported and separated from her family while the appeal was pending.  (And who knows what might have happened while her case was on appeal. Reform, anyone?)

Her waiver was for misrepresentation.  Although waivers for misrepresentation should be judged by the same standard as waivers for other types of inadmissibility, the approval statistics suggest otherwise. Only 24% of misrepresentation waivers are approved compared with 85% of waivers for living in the U.S. illegally.

I am thrilled for my client and her family. She gets to remain here with her family. Blackwell Law Group succeeds again at keeping a family together.  Winning on appeal does not always happen.  When it does happen, it really makes my day and brings a smile to my face.