The Ninth Circuit Court of Appeals released its decision in Olivas-Motta v. Holder, – F.3d – (9th Cir. May 17, 2013) which OVERRULES Matter of Silva-Trevino, 24 I&N Dec. 687 (AG 2008).

In Matter of Silva-Trevino, the Attorney General held that if the record of conviction is inconclusive on the issue of whether a conviction is for a crime involving moral turpitude, the immigration judge could consider evidence that was not part of the record and could conduct a fact-based hearing on the actual conduct underlying the offense to determine if the conduct involved moral turpitude.

Today, the Ninth Circuit held that the immigration judge is limited to the reviewable record of conviction when determining whether a conviction is a crime involving moral turpitude and may not consider evidence outside the record of conviction, including police reports, presentence reports, probation reports, dropped charges, etc.

Kudos to attorney Kara Hartzler for the exceptional legal work she dedicated to this case to obtain this victory for her client and for the many, many immigrants who will benefits from this decision.

Read the Court’s decision here: Olivas-Motta v. Holder, – F.3d – (9th Cir. May 17, 2013).

Under the new program, an individual who entered unlawfully, and is not grandfathered, can apply for a provisional waiver of his or her unlawful presence in the United States prior to departing the country to complete the immigration visa application process. The waiver will be adjudicated by the Immigration Service before a person leaves the United States for his or her visa interview at the consulate. Prior to implementation of this process, individuals could not apply for an inadmissibility waiver until after they appeared for their interview in their home country and were forced to remain in their home country, separated from family, during the time that his or her waiver was being considered by immigration. This new process will significantly decrease the length of time an applicant will be separated from his or her family.

Am I eligible to apply for a provisional waiver?

In order to qualify for the provisional waiver program, an individual:

• Must be at least seventeen (17) years of age;
• Must be an immediate relative of a United States citizen (spouse, parent, child under age 21);
• Must have an approved I-130 (Petition for Family Relative) or I-360 (Petition for a special immigrant or abused spouse);
• Must have an immigrant visa case pending with the Department of State (National Visa Center) and paid the immigrant visa processing fee;
• Must NOT have been notified by the National Visa Center prior to January 3, 2013, that a consular interview has been scheduled.
• Must be present in the United States to appear for fingerprinting and biometrics processing upon filing of the waiver application;
• Must be able to demonstrate extreme hardship to a United States citizen spouse or parent;

Can I apply if I am in removal proceedings?

An individual in removal proceeding can only apply for the provisional waiver if the proceedings are terminated or administratively closed.

How much does it cost to file the waiver?

The fee for filing the form I-601A is $585.00.  An additional fee of $85.00 for biometrics processing must also be submitted with the waiver application.

What information should I provide to establish extreme hardship?

There are a number of factors that USCIS considers when deciding whether to grant a waiver application based on extreme hardship. Generally, the applicant should present evidence that establishes that the hardship in their case would be more than what the average family would suffer if separated or forced to relocate to preserve family unity.  A waiver applicant should present evidence to answer as many of these questions as possible and discuss how relocation and separation would impact his or her family:

• Does the U.S. citizen spouse/parent have a significant health condition, physical or psychological? If so, what is the quality of medical care in the home country of the applicant?
• Does the U.S. citizen spouse/parent have significant family ties in the U.S.?
• Does the U.S. citizen spouse/parent have family ties outside the U.S.?
• Does the U.S. citizen spouse/parent speak the language of the applicant’s home country?
• What will the financial impact of departure be upon the family if the waiver is not granted?
• What are the conditions in the country of relocation?

These questions are not exhaustive of the possible issues that could or should be addressed in a waiver application.  Each case is different.

Unfortunately, hardship to U.S. citizen children is not a factor that USCIS will consider, but it is still important to discuss it in the waiver application.  Undoubtedly, hardship to a child impacts the U.S. citizen spouse/parent and can create hardship for him or her.

Do I need an attorney?

Waivers are very fact specific and must meet a high legal standard in order to be granted.  I would personally recommend that every individual considering whether to apply for a waiver via this process at least consult with an immigration attorney before applying.  This process is only available to certain individuals and it is best to determine eligibility before spending money on filing fees with USCIS that will not be refunded if the waiver is denied or the applicant is deemed ineligible. After meeting with an attorney and learning more about the process, you can make your own decision about whether you should hire an attorney to assist you and give you the best chance of success.

In the last few months I have consulted with many individuals who would like to apply for the recently announced provisional waiver of unlawful presence.  USCIS announced this program last month and it will take effect on March 4, 2013.  However, only certain individuals with unlawful presence will qualify.

The “B” bar, also referred to as the “ten year” bar 

Under Section 212(a)(9)(B)(i)(II) of the Immigration and Nationality Act, a person who has resided in the United States for more than a year without permission, who then departs the country for any reason, is not admissible or eligible to receive a visa.  Unlawful presence prior to turning eighteen is not counted against the applicant.  This section of the law allows an individual to apply for waiver of inadmissibility if he/she can prove that his/her spouse or parent who is a lawful permanent resident or U.S. citizen will suffer extreme hardship if he/she is not granted lawful permanent resident status.*

For example: In 1985, John enters the U.S. as a child with his parents.  They entered the U.S. without inspection or any valid visa allowing them to enter.  In 2011, John marries Mary, who is a U.S. citizen.  Mary files an I-130 petition for John based on their ongoing marriage and it is approved and forwarded to the National Visa Center.  When John finally departs the United States to attend his consular interview he triggers this “B” bar, or “ten year” bar, thus requiring him to apply for a waiver of his inadmissibility.   The provisional waiver process will allow John to apply for the hardship waiver before he departs to shorten the time he is separated from his wife and family in the United States.

The “C” bar, also called the “permanent” bar

Under Section 212(a)(9)(C) of the Immigration and Nationality Act, a person who resides in the U.S. for a year or more without permission and then departs and reenters the U.S. without inspection or valid visa (or attempts to enter the U.S. without inspection and are stopped at the border and turned back) is inadmissible for ten years.  Unlawful presence as a minor will be counted when immigration calculates whether an individual has accrued a year of unlawful presence. This bar does not allow an individual to apply for any form of waiver, under any circumstance.

The “C” bar also applies to individuals who left pursuant to an order or removal, exclusion, deportation, or grant of voluntary departure and thereafter reenter the U.S. without inspection.

For example: In 1985, John enters the U.S. as a child with his parents.  They entered the U.S. without inspection or any valid visa allowing them to enter.  In 1999, John travels to Mexico to visit family that still resides in Mexico.  After his visit, he reenters the U.S. again without inspection or a valid visa.  John was unlawfully present for more than a year (from April 1, 1997 until his exit in 1999) and then reentered the U.S. without inspection.  He is subject to the permanent or “C” bar and cannot apply for a waiver of his inadmissibility.  He must reside outside the U.S. for ten years and then obtain permission to apply for admission.

It is important to make sure that you are eligible to apply for the provisional waiver before applying. I would recommend consulting with an immigration attorney to make certain that there are no other remedies available to you and that the provisional waiver process is your best option. Feel free to contact me to answer any questions you may have about whether either of these bars applies to you and, if so, which one.

*Please note:  The provision waiver process is only available to certain immediate relatives of U.S. citizens, specifically spouses, parents of adult U.S. citizens, and minor children.

More information about unlawful presence and the inadmissibility bars under INA Sec. 212(a)(9)(B) and 212(a)(9)(C) can be found on the USCIS website.

The FAQ is posted on their website and can be accessed here.

This new process is not yet in effect and USCIS will not accept any applications until March 4, 2013. However, it is important to consult with an attorney as soon as possible to determine if you or a loved one is eligible to utilize this process and to begin collecting evidence to support your case.

On March 30, 2012, USCIS set forth a proposal for the in-country processing of certain unlawful presence waivers.  This is important because, currently, an individual who must apply for permanent residence by returning to their home country and attending a consular interview could be separated from his or her family for many months while waiver application is reviewed and adjudicated.  The new process would allow an individual to apply for the waiver and receive a provisional decision before proceeding abroad to a consular interview. You can read the Service’s proposal here.

On June 15, 2012, President Obama announced that the Department of Homeland Security would offer deferred action to individuals brought to the United States as children who satisfy certain criteria.

Eligible individuals must:

• Be 15-30 years old, and have entered before age 16
• Have been present in the U.S. for 5 years as of June 15, 2012
• Have maintained continuous residence
• Have not been convicted of a felony, a significant misdemeanor or multiple minor misdemeanors
• Be currently in school, graduated or have a GED, or is an honorably discharged veteran

The deferred action offer will be available to those in proceedings, as well as to those who apply affirmatively.

The Department has posted its Announcement on its site in both English and Spanish. The Department has also posted an FAQ about the announcement.

What exactly is “deferred action?” 

Deferred Action is temporary protection against deportation/removal for those who are eligible and approved. If approved, a person is eligible to stay and work in the U.S for a period of time.  However, the decision to grant or deny a request for deferred action is a purely administrative act and it is not subject to review by either administrative or federal courts. Deferred action does not confer any immigration status on an individual and it can be revoked at the discretion of immigration officials.

What documents should I gather to support my application for deferred action under the Department’s new policy?

Documents that can establish your eligibility include the following:

• A certified copy of your birth certificate and, if necessary, have it translated.  This information will be required to establish both your age and identity.
• Financial/bank records, medical records, school records, and employment records if you worked with a valid social security number or taxpayer ID number, can establish your date of entry, continuous physical presence, and presence in the U.S. on June 15, 2012.
• Court records and police reports can establish that you meet the eligibility criteria of not having been convicted of a felony or significant misdemeanor resulting in a sentence exceeding on year.  These documents will also assist legal counsel in assessing whether you are eligible to apply for deferred action.
• A copy of your military records, diploma, GED certificate, report cards, and school transcripts will establish that you have met the education or military service requirement.

If you have any criminal conviction, misdemeanor or felony, I would strongly advise you to seek the counsel of a competent immigration attorney who can advise you whether your conviction could result in a denial of your application and possibly subject you to removal proceedings.

PLEASE NOTE:  USCIS is striving to prevent immigration scams and has provided useful information to protect the legal interests of applicants for immigration benefits. It has also published a flyer to assist the public and help identify and prevent unauthorized legal assistance.

The application for applying for Deferred Action for Certain Childhood Arrivals (Form I-821D) and its instructions can be found here.

It is the Service’s goal to process waiver applications more quickly and more efficiently and to ensure consistent adjudication.

The change affects filings for:

Form I-601, Application for Waiver of Grounds of Inadmissibility
Form I-212, Application for Permission to Reapply for Admission into the United States After Deportation or Removal
Form I-290B, Notice of Appeal or Motion, (if filed after a denial of a Form I-601 or Form I-212).

This change in waiver filing and processing should not be confused with the “provisional waiver proposal” set forth by USCIS on Mar. 30, 2012. (see below)

On November 17, 2011, the Principal Legal Advisor for Immigration and Customs Enforcement published a memorandum to all the attorneys that prosecute cases in immigration court, directing them to review incoming removal cases and those cases currently pending in immigration court. For cases currently in immigration court, ICE attorneys are reviewing cases and may affirmatively offer to exercise prosecutorial discretion. This review remains an ongoing process.

UPDATE: On October 5, 2012, Department of Homeland Security issued written guidance that extends discretionary relief to lesbian, gay, bisexual and transgender (LGBT) immigrants with same-sex partners in the U.S. The new guidance instructs Immigration and Customs Enforcment (ICE) officers, agents, and attorneys to recognize these LGBT families for purposes of relief on a case by case basis as defined by a June 2011 memo from ICE Director John Morton.