Immigration Matters

USCIS Publishes Proposed Rule Change to Hardship Waiver Filing

USCIS has published the proposed rule change that will allow for filing of provisional hardship waivers.  The publication opens a 60-day consultation period that ends on June 1, 2012.  Some time after the consultation period finishes, the government will publish the final rule.  I am expecting the final rule in September/October 2012.

The proposed rule is not the final rule.  There is no filing of provisional hardship waivers at this time.  The proposed rule though does outline what the final rule is likely to be. 

General Process

The waiver will be filed after approval of the I-130 petition and payment of the $492 fee to the National Visa Center.  Applicants will have to prove the approval of the I-130 and payment of the $492.  

Applicants must be inadmissible only for unlawful presence (living illegally in the U.S.).  Anyone who is inadmissible for other reasons (e.g. criminal convictions) will not be eligible for the provisional hardship waiver, though they may still be eligible for the regular hardship waiver.

After filing the provisional waiver application, the applicant will be scheduled for a biometrics (fingerprint) appointment.  This means the applicant must be in the U.S. at the time of filing the application.  The applicant can leave the country any time after the biometrics.  Most applicants will leave a couple of days prior to their immigration interview.

After approval of the hardship waiver, the National Visa Center schedules the applicant for the immigration interview at the designated consulate.  As long as the consulate officer does not find any other inadmissibilities, the immigrant visa will be approved and the applicant can immediately return to the U.S.  Applicants who get their visas immediately can expect to be out of the U.S. for only 2-3 weeks.

Important Points

• The waiver will be available only to applicants who have a spouse or parent who is a U.S. citizen.

For applicants who are the spouse or the child of a U.S. citizen, this rule is easily understood.  They are eligible for the provisional hardship waiver.

For applicants who are the parent of a U.S. citizen, this rule can seem a bit confusing because most of the time, the parent of a U.S. citizen is not eligible for any waiver, let alone the provisional harship waiver.  But this ineligibility for the waiver is usually because both parents of the U.S. citizen child are living in the U.S. illegally and the U.S. citizen child's grandparents also are not U.S. citizens or lawful permanent residents.  The waiver does not recognize hardship to a U.S. citizen child.  It recognizes only hardship to spouses and parents.  The key is to look at the situation from the perspective of the applicant, not the person who sponsored the applicant.  Does the applicant have a spouse or a parent who is a U.S. citizen?  If the answer is "Yes," then the applicant qualifies for the provisional hardship waiver. 

If the applicant has a spouse who is an LPR and a U.S. citizen child, the applicant will not be eligible for the waiver until and unless the LPR spouse becomes a U.S. citizen.   This provision is very likely to cause confusion because the applicant will be eligible for regular hardship waiver processing, just not provisional hardship waiver processing.  This rule is most likely to cause problems for individuals who try to do the waiver process without first consulting with an immigration attorney.  

•   Only one provisional waiver application can be filed for each applicant.

This rule means it will be very,very important to file a well-prepared waiver application.  There will be no appeals and no re-filings allowed for provisional waiver applications. 

A withdrawn provisional waiver will count toward that limit of one provisional waiver per applicant.  This means that if you file a weak application, you can improve your chances only by responding with more evidence after receiving a request for additional evidence.  You will not be able to improve an application by withdrawing and re-filing.

However, if the application is denied or withdrawn, the applicant still will be allowed to file under the regular waiver application procedure, i.e. after a consulate interview.  Applicants for waivers filed after consulate interviews should expect to be outside the U.S. for about 8 months. 

• The applicant must be in the U.S. when the waiver application is filed, must have an approved I-130 petition and must continue to be in the U.S. until after attending a biometrics appointment.

 This particular rule will make it very difficult for individuals who are in removal proceedings and eligible for voluntary departure.   Even if they can get to the point of an approved I-130 petition, their application under the current rules will get denied because they will still be in removal proceedings when the waiver application is filed.  Removal proceedings don't end until the individual leaves the country or proceedings get terminated.  Getting proceedings terminated is impossible if the individual has even minor criminal convictions that do not make the person inadmissible.  If the individual has left the country, then they cannot file the provisional hardship waiver.

What Can People Do Now?

• U.S. citizen spouses and parents: File an I-130 petition for their spouse or child over age 17.

• LPR spouses and parents: File for naturalization.

• Consult with an immigration attorney to determine eligibility for the provisional hardship waiver.

 

 

Provisional Hardship Waivers: What If The Waiver Gets Denied?

The government currently is doing a public consultation on proposed new regulation that will create provisional hardship waivers.  Approval of a hardship waiver allows the applicant to enter the U.S. even though they are inadmissible.  Being "inadmissible" means not being eligible to enter the country.

Provisional hardship waivers are specifically for the spouses, children and parents of U.S. citizens who entered the country illegally, who presently are in the U.S. and who are inadmissible only because they have lived in the U.S. illegally for more than a year.  Nobody else qualifies for the provisional hardship waiver.

After their I-130 petition for alien relative (filed by their spouse, parent or child) is approved, they will be able to file their provisional hardship waiver and leave the country after the application is approved.  This will significantly reduce the time they have to spend outside the U.S. from months to a matter of a couple of weeks.

But the question on the minds of many is "What will happen if my provisional hardship waiver gets denied?"

First, depending on the reason for the denial, you may still be eligible to file a regular hardship waiver, i.e. one filed after the immigration appointment at a U.S. consulate.  Denial reasons that would allow for re-filing after an immigration appointment include the following:

• More than one ground of inadmissibility (e.g. inadmissible for criminal convictions or misrepresentations as well as living in the U.S. illegally for more than a year)
• Insufficient evidence of hardship
• Spouse or parent who is an LPR, not a U.S. citizen

Although you may still have some basis for getting a hardship waiver approved, you will have to wait outside the U.S. for the decision.  This will be about 8-9 months.  (There's no denying that 8-9 months is a long time, but it is actually an improvement to current waiting times.  Waiting times will drop in the coming months because government is changing the filing procedure for all hardship waivers filed overseas: they will be filed at a U.S. lockbox and adjudicated in the U.S. rather than abroad.)

Second, if you are denied and not eligible for the hardship waiver, at least you will still be in the U.S.  with the hope you might qualify for a green card through immigration reform.  (There's no sign Congress is going to pass immigration reform, but it may happen at some point.) Examples of reasons why you might be ineligible for a hardship waiver include:

• Making a false claim of U.S. citizenship
• Having drug convictions other than one conviction for possession of less than 30gm of marijuana
• Re-entering the country illegally after living in the U.S. illegally for more than a year (i.e. multiple illegal entries to the U.S.)

 Third, you will be at risk for being placed into removal proceedings.  The government likely would not initiate removal proceedings for at least 6-12 months to give you the chance to leave the country, attend your immigration appointment and re-file your hardship waiver after the interview. 

If you choose to stay in the U.S. and risk removal proceedings, whether that would be a good thing or a bad thing will depend on your circumstances.

Removal proceedings may be good for you if you have been here more than 10 years and your provisional hardship waiver was denied for "insufficient evidence" or because you have re-entered the country illegally after living in the U.S. illegally for more than a year (as long as you were not outside the U.S. for more than 90 days before re-entering).  You will have an opportunity to seek cancellation of removal through the immigration court.  If successful, you will become a lawful permanent resident. 

Please be aware: cancellation of removal is extremely difficult to get.  It requires proving extreme hardship and exceptionally unusual hardship.  (In contrast, the hardship waiver requires proving only extreme hardship.)   Furthermore, you also will wait 2-3 years just to get to the final hearing because the immigration courts are overwhelmed with cases.  Finally, the government only issues 4,000 immigrant visas a year based on cancellation of removal.  The government starts with a new batch of 4,000 every October 1.  This year, the 4,000 visas were gone by February.  Next year, the 4,000 will probably be gone even earlier.  Anyone whose hearing date happens after the 4,000 allocation is used up goes on a waiting list.  The waiting list is only going to get longer. 

If your provisional hardship waivers get denied and you get referred to immigration court, you also should not assume you will be able to get your case closed through prosecutorial discretion.  Prosecutorial discretion occurs when the government attorney agrees to close a case pending in immigration court.  If someone gets prosecutorial discretion, they remain in the U.S. without any status.  The government also can re-open the court case at any time. 

Prosecutorial discretion is extremely difficult to get.  The initiative started in August 2011 and less than 2% of cases have closed.  At least in the Chicago immigration court, having any type of criminal conviction, no matter how minor, renders an individual ineligible for prosecutorial discretion.   For example, having an OWI conviction or a disorderly conduct conviction does not make you inadmissible because of a criminal conviction, but either conviction would disqualify you from prosecutorial discretion.

Removal proceedings will be bad for people who qualify only for voluntary departure in the immigration court.  They will have the expense and stress of removal proceedings and then they will have to leave the country anyway.   Anyone who has been in the U.S. for less than 10 years or who has no proof of being in the U.S. for 10 years will qualify only for voluntary departure. 

For those who still qualify for a hardship waiver filed after an immigration interview, the situation will be bad but not dire since they still might be approved for the hardship waiver even though they will have to wait for 8-9 months outside the country.

For those who do not qualify for the hardship waiver filed after an immigration interview, the situation is particularly unpleasant because they will be forced to leave the country with no way to return.

So what should you do??

1. Talk with an immigration attorney and find out if you already qualify for the hardship waiver or what you need to do so you do qualify.  Also find out what you would qualify for in immigration court if your provisional waiver were denied and the government started removal proceedings against you.
2. If you don't qualify for any type of waiver, then don't file an I-130 petition and don't file a provisional hardship waiver.  If the I-130 is already filed, then don't leave the country for an immigration interview and don't file a provisional hardship waiver.  Your hope lies with immigration reform.
3. If you do qualify for a provisional hardship waiver, work with an experienced immigration attorney.
4. If your provisional hardship waiver application gets denied and you are eligible for the regular hardship waiver, seriously consider moving forward with your immigration appointment and find out if you might qualify for an expedited decision.  Many couples with young children qualify for large tax refunds that will careful planning can help offset the loss of the primary earner's income.  Going through removal proceedings will only be an additional expense. 

 Call me today.  I'd be happy to talk with you.  414-964-1900.

Upcoming Changes to Filing Procedures for the Hardship Waiver When the Applicant is Not in the U.S.

Sometime in late spring/early summer, USCIS will be changing how hardship waivers are filed for applicants who are not in the U.S.

Under current procedures, the applicant returns to the consulate to file the hardship waiver application after the immigration appointment.  The time lapse between the two appointments varies considerably around the world.  For example, applicants in Mexico have to wait about 2 months for the waiver filing appointment at Ciudad Juarez.  In other countries, the wait is more likely to be a couple of days . 

Insisting applicants return to the consulate to file the hardship waiver can cause considerable financial hardship, especially for Mexican applicants (and the vast majority of applicants are Mexican).  First, it lengthens the time they must stay apart from their families so adding to the emotional and financial hardships their families suffer.  Second, if they don't live in the same city as the consulate, then they must pay the cost of either staying near the consulate until their waiver appointment or traveling back to the consulate at a time.

Under the new filing procedures, the hardship waiver application will be filed at a lockbox in Phoenix, Arizona.  No more trips back to the consulate just to file the waiver!

Once the waiver is filed at the lockbox, it will be transferred to the Nebraska Service Center for further processing.  The official goal is to have the waiver application adjudicated within 6 months.

After the Service Center makes the decision, the consulate responsible for the applicant's case will be notified electronicially.  USCIS anticipates communicating with the responsible consulate within a week after the decision is made and busier consulates (such as Ciudad Juarez)  may receive communications several times a week.

Once the Consulate receives the decision, it then communicates with the applicant to complete the visa process.  The time lapse will be vary between consulates, but most applicants should receive a notice instrcting them to return to the consulate to get their immigrant visa within 4-8 weeks.

This change in filing procedure is a significant improvement and goes some way to reducing the hardships families currently suffer. 

The only downside to the change: Mexican applicants will lose the "clearly approvable" determination that has sometimes reduced the decision-making time on the waiver application.  However, the loss of the "clearly approvable" determination is minimal because in the last 6 months, the time between filing the waiver application and USCIS making the "clearly approvable" determination has lengthened from 2-3 weeks to 8-12 weeks.  Add in the 2-3 month wait for waiver appointment, and lo and behold, the time lapse between the immigration appointment and the "clearly approvable" determination is about 6 months, i.e. the government's processing goal for waiver decisions under the new filing procedure.

 

 

Naturalization Statistics for Wisconsin

This country was born because people who lived here wanted the right to vote and decide their own destiny.

I became a U.S. citizen in 2006 and voted in my first presidential election in 2008.  I was thrilled to have that right to say who I wanted to be President of the United States.

I also love to dig around for esoteric information.  It's an election year (in case you didn't already know that) so naturalization is a hot topic because only U.S. citizens can vote.

Today's interesting tid bits come from the Immigration Policy Center's report called "New Americans in Wisconsin."

• There are 245,920 immigrants living in Wisconsin
• 40.3% of immigrants living in Wisconsin are naturalized citizens

If 40.3% of immigrants in Wisconsin are naturalized, that means 59.7% or 146,814 are not U.S. citizens.  Some are not eligible for citizenship because they have not had their green cards long enough.   But there are a lot of people who have had a green card long enough and have not applied for citizenship.

USCIS estimates that 2.7 million people became LPRs through the 1986 amnesty.  Most of them became LPRs between 1990-1993, which means a lot have been LPRs for 20+ years.  Most of them would have been 20 years old or more in 1986, which means a significant number are now over age 50.  At the end of 2009 though, only 1.1 million out of 2.7 million had become U.S. citizens.  That's a naturalization rate of 41%. Within the Mexican community (and the majority of LPRs from the 1986 amnesty are Mexican), the naturalization rate is just 28%.

The biggest obstacle to naturalization for many immigrants, especially in the Hispanic community, is fear their English is not strong enough to pass the English test.  But once someone reaches age 50 and has been an LPR for at least 20 years, then they no longer have to pass an English test and they can do the civics test in their own language! 

Imagine that half the immigrants in Wisconsin who are not already U.S. citizens are eligible to naturalize.  That's 73,407 people.  If just half chose to naturalize this year, that would be 36,703 new voters.

Immigrants in Wisconsin tend to cluster in certain parts of the state.  In certain counties, some of which have significant immigrant populations, the gap between the winning candidate and the second place candidate is 5,000 to 7,000. In other words, if 36,703 LPRs in Wisconsin became US citizens this year, it could change the outcome of this year's election in some counties.

This presidential election is important.  There is a terrible polarization in politics that is alienating many people and making some think they just won't bother to vote.  Yet that is precisely why everyone who can vote, should vote.  And why as many eligible immigrants as possible should choose 2012 as the year to become a US citizen. Because otherwise, a vocal, politically active minority will decide the destiny of this nation. That is dangerous. That is the equivalent of taxation without representation, the very reason why the U.S. was first created.

Because this election is so important, I am giving a 50% discount on my fees for helping people become US citizens.  This discount will be available from February 2, 2012 until April 30, 2012.  People who file applications by April 30, 2012 stand a good chance of being sworn in as U.S. citizens in time for the elections in November.

Not everyone who wants to become a U.S. citizen can do so safely, so call today to schedule for a consultation.  414-964-1900.  Let this be the election where your voice is heard and your vote is counted.

 

 

 

Managing The Risk of Denial Under the New Hardship Waiver Process

There is considerable excitement about the government's announcement that concurrent filing of the I-130 and I-601 will soon be allowed.  But what if the hardship waiver (I-601) gets denied?  The government has already made clear that anyone whose I-601 gets denied will be at risk for removal proceedings, so how can you reduce the risk of denial? 

There will be two types of denials: those who do not qualify for the concurrent filing and those who do not prove extreme hardship.

Who will not be eligible for concurrent filing?

• Your qualifying relative for the I-601 (hardship waiver) is a lawful permanent resident

The hardship waiver requires proving extreme hardship to certain relatives (i.e. a spouse or a parent) who are either US citizens or lawful permanent residents.  (Please remember: a child is not a qualifying relative.) The new filing procedure though will be limited to qualifying relatives who are U.S. citizens. 

If you have a parent or a spouse who is a U.S. citizen, you will qualify for concurrent filing of the I-130 and I-601.

If your qualifying relative is a lawful permanent resident, you will not be eligible for concurrent filing of the I-130 and I-601.  Your I-130 will be approved, but the I-601 will be denied. 

What's the solution if your qualifying relative is a lawful permanent resident?  Apply for U.S. citizenship. 

Many lawful permanent residents who are qualifying relatives for the hardship waiver have had green cards long enough to qualify for naturalization.  The biggest barrier to their naturalization is anxiety about English language skills and possibly a misunderstanding about how fluent they need to be to pass the English test. This is now an incentive for those lawful permanent residents to apply for naturalization and brush up on their English.  Not only will that qualify their spouse or child for concurrent filing of the hardship waiver, it will also mean they can vote in U.S. elections.

•  You are  inadmissible to the country for reasons other than just "unlawful presence."

There are many grounds of inadmissibility, but the most common are: unlawful presence, criminal convictions, misrepresentations and smuggling relatives into the U.S.

The government has said the waiver applications of applicants who are inadmissible for reasons other than "unlawful presence" will be denied if the waiver is filed concurrently with the I-130. 

What's the solution?  The only solution is to know whether any of those other grounds apply to your case and not file the waiver concurrently if you are inadmissible for anything other than unlawful presence. You then will have to decide whether you will pursue a hardship waiver filed at a consulate after you have left the country. 

The issue of criminal convictions will be the most complicated one because not all criminal convictions make a person inadmissible.  Whether a particular criminal conviction makes someone inadmissible depends on the language of the statute.  An immigration attorney is the best person to help you figure out whether your criminal conviction makes you inadmissible.

If my application gets denied because I am not eligible for concurrent filing, does that mean I can never get the hardship waiver approved?

If your waiver application gets denied because you are not eligible for concurrent filing, this does not mean you cannot prove extreme hardship.   You may have a very strong hardship waiver case. It means only that you have file your waiver application at a designated consulate after you've had your immigration interview, then wait possibly 9-12 months before being allowed to re-enter the U.S. (assuming the waiver is approved).

You can avoid the expense (and disappointment) of being denied for lack of eligiblity by talking with an immigration attorney before you start anything. 

What if I am eligible for concurrent filing of the I-130 and I-601 but my waiver gets denied?

If your hardship waiver gets denied even though you are eligible for concurrent filing, that will mean you have failed to show your U.S. citizen spouse or parent will suffer extreme hardship.

You will have two choices: re-filing the I-601 or appealing the I-601.  If it was a well-documented application, then appeal is the better route.  If it was a poorly documented application, then re-file is the better route.

Most hardship waivers are denied because they are poorly documented.  The hardships exist and meet the criteria of "extreme," but the applicant has not provided sufficient documentation to persuade the government about the hardships.  These types of denials typically happen to individuals who try to do the application by themselves or use a notario or retain an attorney who lacks experience doing hardship waivers.

An immigration attorney will be able to tell you whether your case should be appealed or re-filed.  Please remember to keep a copy of your hardship waiver to help the attorney make the decision about which route you should follow.

If you re-file or appeal, the government very likely will not put you into removal proceedings.   This then gives you time to try again.   You best chance at success is through an immigration attorney with experience preparing hardship waivers.

The change to regulations will provide a good opportunity for some people to legalize, but the process does have risks.  Talking with an immigration attorney will help you manage those risks and avoid unnecessary expense and disappointment.

 

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.