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I 601A Provisional Waiver: Step by Step Guide

March 27, 2018

I 601A Provisional Waiver: Step by Step Guide

Author: Provisional Waiver Attorney Alena Shautsova

A provisional  I 601A waiver waives the unlawful presence bar for those who have certain LPR or USC relatives in the US. An unlawful presence bar applies to all who accumulated unlawful presence in the US, left the US, and now are applying for Immigration benefits from outside the US.  The positive side of this waiver is that  unlike many waivers that can be filed only once the person departed the country, I601A can be filed for while the person is still in the US; and second, recently US relaxed the standard for granting the waiver, and now, the person can win the waiver either by providing that the relative will not be able to move with him/her outside the US (will suffer extreme hardship in case of a move) or that the relative will have extreme hardship in case the immigrant is removed out of the US.

Here are the steps for the waiver:

First Step: An approved Immigrant Petition

A person who is planning on filing for the waiver has to have an approved immigrant petition. It can be I 130, I 140, or even a selection in the DV lottery.

Second Step:

The petition has to the sent for processing to the National Visa Center, and a person has to pay the Immigrant Visa and Affidavit of Support Fees (when necessary)

Third Step:

Submitting I 601A to USCIS with a filing fee and supporting documents. Once the waiver is accepted by USCIS, the clock in the NVC is stopped.

Fourth Step:

Once the waiver is approved, USCIS informs NVC about the approval, the applicant has to submit DS 260 immigrant visa form and supporting documents for the visa. Then he/she has to wait for the visa interview; schedule the medical exam overseas and plan for the departure.

Fifth Step

An applicant will have to travel overseas for their visa interview. A consulate will use an immigrant visa that will be stamped in the passport. Upon arrival to the US, the applicant will have the actual “green card” mailed to the address they left on file with USCIS.

These are the most common steps for those who have never been in court and do not have other inadmissibility issues.

 

US Asylum System is Under Attack

October 16, 2017

US Asylum System is Under Attack

Author: US Asylum Attorney Alena Shautsova

The US asylum system has saved the lives of thousands, maybe hundreds of thousands of people who would have been tortured, humiliated, beaten, arrested and deprived of all possible freedoms and rights in their home countries.  The system is structured to have two tracks: an administrative (or affirmative) and a judicial (or defensive). It does not provide any interim benefits, except for an employment authorization after six months from the filing of the first application. It also establishes a crucial deadline: one year since entry, that an applicant has to meet in order to file for asylum in the US.

Yet, many, including Attorney General Jeff Session criticize the system. They state that the US allows too many applicants in, and provides them with an opportunity to “game” the system.

The US Asylum system and many of its parts are built on the International Conventions. The most crucial document here would be the 1951 Refugee Convention.  In 1967 followed its Protocol. It is not only the US, but virtually all the countries in the world that drafted and joined this Convention and the Protocol recognizing one huge issue: there are people in the world who need the protection of countries other than the ones they were born in. It happens that not all world leaders and not all people in the world are playing by the rules. There are places with great evil, and we cannot just turn our backs on brothers and sisters and little children that suffer from deprivation and persecution. Hence, the countries agreed to recognize that status of refugees, people who do not want to, or are unable to, to return to their home countries to some very serious reasons.  Therefore, the US, asylum seekers or Immigration attorneys did not invent “asylum.” It is all based on a long history of humankind and International norms.

What differs from country to country is the way various governments implement the International norms. Some, provide financial benefits to the seekers before their applications are decided. Some, allow only an administrative path, without a judicial review.  Some, are not parties to the Convention at all and there is no opportunity to apply for asylum in those countries at all.

What is different about the US, is that it allows one to claim or apply for asylum at the US border, before they enter the country. The procedure is known as a “credible fear” interview. A person comes to the border, surrenders herself to the border agents and states that she would like to seek asylum in the US. Such a person is usually detained. Then, such a person has an interview with an Immigration officer who determines if such a person has a “credible fear” of returning to their home country. If the answer is positive, the person is freed from the detention (often on bond) and can present her claim in the US Immigration Court. In court, an Immigration Judge decides if such a person’s claim will be granted.

Further, in the US, under the Real ID Act, an asylum seeker must present evidence to corroborate his/her claim or provide sufficient explanation if such evidence is missing.  The government, and the Immigration Judge (“IJ”), both challenge the evidence and make sure that the applicant’s testimony is consistent and credible. If the IJ denies a person’s claim, he/she can file an appeal.

Attorney Gen. Sessions recently stated that the US Asylum system is being gamed. It is unclear what exactly he referred to. The US Asylum system is built partially on International law and partially on principles of due process and access to justice.  To deny asylum seekers a fair and just opportunity to save their lives in the US due to fear of fraud, would be the same as to execute every person charged with a crime without giving them a chance of due process and the presumption of innocence.

Finally, the US has very serious consequences for those who file false asylum claims: if a person is found to file a false asylum claim, he/she will be forever inadmissible into the US.

 

National Visa Center: Processing Times and More

November 16, 2016

National Visa Center: Processing Times and More

Author: New York Immigration attorney Alena Shautsova

National Visa Center  (NVC) is an agency that processes documents of petitioners before an appointment is scheduled in U.S. consulates. Every time somebody from the United States is sponsoring a family member or a worker, NVC would be involved.

Those lucky applicants who have an attorney working for them, would probably not worry about the points that I will be discussing below. However, if you represent yourself, and you are the one who has to deal with the NVC these points might be helpful.

1. Before any process for an immigrant visa would start, the beneficiary has to pay appropriate fees: an affidavit of support fee (currently $125) and an immigrant visa fee (currently $325).  The fees should be paid online. NVC is departing from the practice of collecting the fees by mail.

2. One can find a list of documents that he/she should submit to the NVC on Department of State website: https://travel.state.gov/content/visas/en/immigrate/immigrant-process/documents/Submit_documents.html.

3. All the documents, including an original of the affidavit of support form I 864 should be submitted, preferably, at once. However, it is possible to submit documents gradually.

4. How fast does NVC work? It takes about 10-15 days for the NVC to enter the case into their system once the case is received. It takes about 30 days to review a submission, and about 60 days to schedule an appointment for a complete case.

5. A mailer should use a cover letter provided by the NVC, and if a petitioner is sponsoring multiple beneficiaries, separate packages should be created for each.

It is possible for some applicants from certain countries to submit documents to the NVC via email. For the rest of the countries, NVC accepts documents by mail only.

NVC accepts only copies of the documents. All the originals, an immigrant visa applicant has to bring with him/her to the consulate.