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USCIS Publishes Proposal for Stateside Provisional Unlawful Presence Waiver Process

 

On April 2nd, the USCIS published a proposed regulation to permit certain spouses & children of US citizens subject to the bars for unlawful presence and ineligible to adjust status within the United States to apply for an I-601 Provisional Waiver before traveling abroad for their immigrant visa interview.  See below and the following links to the USCIS website for more information. There is a 60 day comment period for the proposed regulation which ends on June 1st.

 

Proposed Provisional Unlawful Presence Waivers

Reminder: This proposed process is not in effect. To learn more, read this alert.

What USCIS Proposes

On March 30, 2012, U.S. Citizenship and Immigration Services (USCIS) posted a Notice of Proposed Rulemaking (NPRM) in the Federal Register requesting public comment on its plan to create an alternative process for certain immediate relatives of U.S. citizens to apply for and receive a provisional waiver of the unlawful presence ground of inadmissibility while still in the United States, if they can demonstrate that being separated from their U.S. citizen spouse or parent would cause that U.S. citizen relative extreme hardship. The goal of the proposed process change is to reduce the time that U.S. citizens are separated from their immediate relatives while those family members go through the consular process overseas to obtain an immigrant visa.

Why We Propose It

Currently, immediate relatives of U.S. citizens who have accrued a certain period of unlawful presence in the United States are barred from returning to the United States for as long as 3 or 10 years if they leave the country. Immediate relatives can obtain a waiver of the unlawful presence bar if they show that a U.S. citizen spouse or parent will experience extreme hardship if they are required to remain outside the United States. The immediate relative also would have to show that they warrant a favorable exercise of discretion.   But in order to obtain the waiver, these individuals must depart the United States and wait abroad while the waiver is processed.

Under the current process, therefore, U.S. citizens suffer unnecessarily long periods of separation while family members go through consular processing overseas to obtain an immigrant visa. The proposed process change lessens the length of separation by reducing inefficiencies in the current immigrant visa process. USCIS believes that this proposed change will streamline the immigrant visa process for immediate relatives whose only ground of inadmissibility is unlawful presence. USCIS plans to adjudicate the provisional waiver application in the United States before the immediate relative departs for his or her immigrant visa interview, which will reduce the length of time immediate relatives must spend abroad for consular processing.

What the Proposed Process Would Do

Under the proposed process, immediate relatives of U.S. citizens who would need a waiver of unlawful presence in order to obtain an immigrant visa could file a new Form I-601A, Application for Provisional Unlawful Presence Waiver, before leaving the United States to obtain an immigrant visa at a U.S. Embassy or Consulate abroad. All individuals eligible for this streamlined process are still required to depart the United States and must meet all legal requirements for issuance of an immigrant visa and admission to the United States.

An individual may seek a provisional unlawful presence waiver if he or she:

  • Is physically present in the United States;
  • Is at least 17 years of age;
  • Is the beneficiary of an approved immigrant visa petition (I-130) classifying him or her as an immediate relative of a U.S. citizen;
  • Is actively pursuing the immigrant visa process and has already paid the Department of State immigrant visa processing fee;
  • Is not subject to any other grounds of inadmissibility other than unlawful presence; and
  • Can demonstrate that the refusal of admission would result in extreme hardship to a U.S. citizen spouse or parent.

An immediate relative would not be eligible for the proposed process if he or she:

  • Has an application already pending with USCIS for adjustment of status to lawful permanent resident;
  • Is subject to a final order of removal or reinstatement of a prior removal order;
  • May be found inadmissible at the time of the consular interview for reasons other than unlawful presence; or
  • Has already been scheduled for an immigrant visa interview at a U.S. Embassy or Consulate abroad.

Allowing immediate relatives of U.S. citizens to receive provisional waivers in the United States before departure for their immigrant visa interview at a U.S. Embassy or Consulate means that:

  • Immigrant visa processing times will improve because of greater capacity in the United States and fewer case transfers between USCIS and the Department of State;
  • Immigrant visas will be issued without unnecessary delay (if the individual is otherwise eligible); and
  • The period of separation and hardship many U.S. citizens would face due to prolonged separation from their family members will be minimized.

Next Steps

This new process will be implemented only after USCIS publishes a final rule in the Federal Register with an effective date. USCIS will consider all comments received as part of the proposed rulemaking process before publishing the final rule. The current waiver process remains in place and will continue to remain for those who may not be eligible for a provisional waiver.

DO NOT file an application or request a provisional waiver at this time. Any applications filed with USCIS based on this NPRM will be rejected and the application package returned to the applicant, including any fees, until the final rule is issued and the change becomes effective.

For additional information, please see our I-601A Questions and Answers document, linked at the upper-right side of this page.

This page can be found at: http://www.uscis.gov/provisionalwaiver

 

Last updated: 03/30/2012

Petitioning Cuomo, at City Hall, to get involved in the Dream Act in Albany

Petitioning Cuomo, at City Hall, to get involved in the Dream Act in Albany

Capital New York.

BY ELIZABETH GONZALEZ 1:06 pm Mar. 21, 2012

Against a backdrop of more than 50 students holding banners and chanting “si se puede” on the steps of City Hall at high noon on Tuesday, council members and immigration advocates took turns demanding passage of the so-called New York State Dream Act, a proposal on which Governor Andrew Cuomo has yet to take a position.

The legislation would give undocumented young immigrants access to tuition aid, and Cuomo’s support is crucial if the bill is to get through Albany. But the governor has kept his distance so far, possibly out of concern that support for it could adversely affect a bid for president in 2016.

Participants in the event included Council speaker Christine Quinn and Councilmen Ydanis Rodriguez and Daniel Dromm. Most of them appealed to the governor directly, urging him to include the act in the state budget.

“It makes economic sense,” Councilwoman Gale Brewer. “It makes student sense. It makes all kinds of sense.”

“Governor Cuomo, we were so proud of you with what you did with gay marriage last year,” said Jose Calderon, of the Hispanic Federation. “Do the same thing you did for the gay community, for the immigrant community.”

An hour after the rally, a portion of the same crowd filed into a committee room at 250 Broadway, where a joint hearing of the Council’s committees on immigration and higher education pursued the subject further, calling for a “New York Dream Fund” to accompany the act.

“New York has always been a leader in immigration law,” said Quinn. “We must continue to be.”

While Dream acts have been passed in California and Texas, and a fund created in Illinois, New York State’s immigration population arguably stands to benefit the most from passage of such a bill.

Of the nearly 1.8 million young undocumented immigrants in the United States, 400,000 of them could benefit from a New York Dream Act, according to Emerald Isle Immigration Center, an organization that advocates for the legislation.

According to the EIIC, workers in New York with a bachelor’s degree earn a median income of $25,000 more than those with only a high school diploma.

(See EIIC written testimony in support of NY DREAM Act and Fund)

Ydanis Rodriguez, chair of the Council’s higher education committee, said it’s vital to provide tuition help to give the immigrant population a chance to enter the middle class.

Katherine Tabares, who spoke at the rally and at the committee hearing, called the legislation “investment in intellectual capital.”

“The money you spend now will be returned,” she said.

Tabares, 16, emigrated from Colombia two years ago and is now a senior and president of her class at International High School at La Guardia Community College, with a 3.9 grade-point average and hopes of a career in environmental engineering.

“With the G.P.A. that you have, there shouldn’t be any obstacle,” said chairman Ydanis Rodriguez, standing up and addressing Tabares along with three other students who testified.

“You will graduate from college,” Rodriguez said, pointing at the students. “You are a role model.”

EIIC written testimony in support of NY DREAM Act and Fund

Free Public Immigration/Tax Seminars March 15, 2012

April 17, 2012 Tax Deadline

THE EIIC WILL BE HOSTING FREE PUBLIC INFORMATION SEMINARS AT OUR WOODSIDE AND WOODLAWN OFFICES ON WEDNESDAY, MARCH 14th  AND THURSDAY, MARCH 15th , RESPECTIVELY, FROM 6-8pm.

OUR IMMIGRATION ATTORNEY, IMMIGRATION COUNSELOR AND PRIVATE ACCOUNTANTS WILL BE ATTENDING TO PROVIDE UPDATES AND INFORMATION AND ANSWER QUESTIONS ON GENERAL IMMIGRATION AND TAXES.

FOR FURTHER DETAILS PLEASE CALL THE WOODLAWN OFFICE AT 718-324-3039 OR THE WOODSIDE OFFICE AT 718-478-5502.

Download as PDF: Public Information Seminar Queens 2012

Download as PDF: Public Information Seminar Bronx 2012

All immigrants residing and working in the United States are generally required by law to file income taxes every year, which are due around mid-April. Besides the legal requirement, there are other good reasons to file income tax returns, including eligibility for citizenship and other immigration benefits and potential tax refunds, credits or exemptions.

Lawful permanent residents, or green card holders, must demonstrate that they have complied with the tax laws to apply for US citizenship and to maintain their permanent resident status. To become an American citizen, they will have to show evidence that they have filed taxes during the five years prior to their application for naturalization or proof that they were not required to file a tax return. Failure to file a required tax return may be considered an act of bad moral character which is a temporary bar to attaining U.S. citizenship.

The U.S. Supreme Court recently ruled that a legal resident who makes a false statement on a tax return could not only face tax charges but also automatic deportation. The Court found that a criminal tax violation involving fraud or deceit against the government for more than $10,000 is considered an “aggravated felony” under immigration law. An “aggravated felony” under immigration law  makes a legal permanent resident deportable. This ruling sends a warning to legal immigrants, especially small business owners. For instance, legal immigrants could be deported for failing to report foreign bank accounts as required by the IRS.

Undocumented immigrants living and working in the United States are also required to file an income tax return to report their US earnings. They must apply for and use an Individual Tax Identification Number (ITIN) in place of a Social Security number to file a tax return and report income. An ITIN is a nine-digit number issued to people who are not eligible for a Social Security number. It does not authorize someone to work in the United States. An ITIN is used only for record keeping purposes and for filing taxes. One must complete a W-7 form and file it with their first tax return to get an individual tax identification number. Afterwards, the ITIN may be used to file future returns and also for opening a bank account, taking out a mortgage or for other financial transactions.

For the 2011 tax year, a single individual under 65 must generally file a tax return if his or her income was above $9,500 as a regular employee with no dependents. Individuals who are independent contractors, including those who are self-employed or whose employer does not report their income to the IRS, are required to file a tax return if they earned more than $400 last year. Those who do file a tax return may be eligible for a tax refund if taxes have already been deducted from their salary, may be eligible to claim the Child Tax Credit or exemptions for dependents.

The IRS does not currently share any information from taxpayers with other government agencies due to privacy provisions in the tax laws. It is also not in the IRS’s tax collection interest to disclose any information to the immigration authorities, since it will discourage those who are undocumented from filing tax returns.

It is in the best interest of undocumented immigrants to file their taxes in anticipation of a legalization program or other immigration reform. Tax filing may be used as evidence of physical presence in the United States and also demonstrates good moral character. Each may be a requirement towards a path to citizenship under new legislation.

H-1B Visa Cap Reached for Fiscal Year 2012

Released Nov. 23, 2011

WASHINGTON – U.S. Citizenship and Immigration Services (USCIS) announced today that it has received a sufficient number of H-1B petitions to reach the statutory cap of 65,000 for fiscal year (FY) 2012. USCIS is notifying the public that yesterday, Nov. 22, 2011, was the final receipt date for new H-1B specialty occupation petitions requesting an employment start date in FY 2012.

Properly filed cases will be considered received on the date that USCIS physically receives the petition; not the date that the petition was postmarked. USCIS will reject cap-subject petitions for new H-1B specialty occupation workers seeking an employment start date in FY 2012 that arrive after Nov. 22, 2011.

As of Oct. 19, 2011, USCIS had also received more than 20,000 H-1B petitions filed on behalf of persons exempt from the cap under the ‘advanced degree’ exemption. USCIS will continue to accept and process petitions that are otherwise exempt from the cap. In addition, petitions filed on behalf of current H-1B workers who have been counted previously against the cap will not be counted toward the FY 2012 H-1B cap. Accordingly, USCIS will continue to accept and process petitions filed to:

  • extend the amount of time a current H-1B worker may remain in the U.S.;
  • change the terms of employment for current H-1B workers;
  • allow current H-1B workers to change employers; and
  • allow current H-1B workers to work concurrently in a second H-1B position.

U.S. businesses use the H-1B program to employ foreign workers in specialty occupations that require theoretical or technical expertise in specialized fields such as scientists, engineers or computer programmers.

For more information on USCIS and its programs, please visit www.uscis.gov.

 

New York State Education Officials Vote to Open Up Educational Opportunities for Students Regardless of Status

For Immediate Release

Press Contact: Thanu Yakupitiyage
212-627-2227 x235; tyaku@thenyic.org

 

 

* Press Release *

NEW YORK STATE EDUCATION OFFICIALS VOTE TO OPEN UP EDUCATIONAL OPPORTUNITIES FOR STUDENTS REGARDLESS OF STATUS

Immigrant Youth and Faith, Community, Labor and Civic Leaders Join Commissioner King and Chancellor Tisch to announce Regents Vote on Tuition Assistance for DREAMers

Tuesday, November 15th, 2011 (NEW YORK, NY) –   Undocumented immigrant youth, faith, labor, and civic leaders joined Merryl H. Tisch, Chancellor of the New York State Board of Regents, and State Education Department Commissioner John B. King, Jr., today in front of the New York Public Library in Manhattan to announce yesterday’s vote by the Regents to support the extension of the state’s Tuition Assistance Program (TAP) to all students, regardless of immigration status. This change would make it possible for young New Yorkers who were raised in this country without status to attend college and fulfill their potential. Today’s vote comes on the heels of the Regents’ resolution last month in support of the federal DREAM Act, which would provide a path to citizenship for young people who meet eligibility requirements such as attending college and performing military service.

[Photo Above] Chancellor Tisch, Commission King, and DREAM Student

(Photo Credit: G.Pazmino/ManhattanTimes/BronxFreePress)

“There are thousands of students in New York who have been condemned to a life of poverty simply because they were brought to the United States as children,” New York State Board of Regents Chancellor Merryl H. Tisch said. “Their immigration status is determined solely by the status of their parents, and they’re being denied opportunities that the rest of New York takes for granted.  It makes no sense.  It’s an on-going tragedy that not only hurts these students, it hurts our society. The Board of Regents want to make sure they have the opportunity to go to college. The Education Equity for DREAMers Act will help make that happen.”

“Right now, no matter how long they’ve lived here or how young they were when their parents brought them here, these students are far too often forced into the shadows of poverty and desperate existence,” New York State Education Commissioner John B. King Jr. said.  “The Education Equity for DREAMers Act opens up a pathway out of the shadows. New York was built in no small part by the energy and vitality of immigrants.  Giving these students a chance to go to college will not only help them, it will help our economy grow.”

“The City University of New York has a longstanding tradition of service to New York’s immigrants and to the children of immigrants, enabling them access to a high-quality higher education,” said Matthew Goldstein, Chancellor of the City University of New York (CUNY). “Students who graduate from a New York State high school should be eligible to receive government-supported financial assistance. If they have earned their high school degrees in New York, and under state law are eligible to attend public colleges, they ought to have access to the support they need to advance their education–especially at a time when New York needs a skilled workforce.”

“The New York State Youth Leadership Council (NYSYLC), wants to extend its gratitude and express its great pleasure to the New York State Board of Regents for introducing a tuition bill for undocumented students and making a powerful statement on equal access to education for all students in New York, regardless of their immigration status,” said Jaqueline Cinto, a student and member of the NYSYLC. “In a time when the federal government has failed to act and states are implementing divergent policies affecting immigrants, New York must lead and take a stand. California has established that undocumented youth deserve equal opportunity by passing the California Dream Act while states like Georgia and Alabama are undermining the right to education by barring undocumented children from school. ”

[PHOTO ABOVE] DREAM Youth stand on steps of New York City’s Public Library this morning in support of the Regent’s vote to expand tuition assistance to students regardless of status

“New York State is, appropriately, at the forefront of advocacy for a more enlightened national immigration policy, which includes helping resident students, regardless of their status, gain the education that will allow them to contribute to our economy,” stated Kathryn Wylde, President & CEO, Partnership for New York City.

“New York is a City built by immigrants and it continues to thrive today because of new waves of immigration. For most of those immigrants, college means CUNY,” said Barbara Bowen, President of the Professional Staff Congress, the union that represents more than 25,000 faculty and staff at the City University of New York (CUNY) and the CUNY Research Foundation.   “Every student deserves an opportunity to attend college and every student with financial need should get TAP, regardless of their documentation status.”

“In our daily work, New York City public school educators teach thousands of students who are the children of undocumented immigrants,” said Michael Mulgrew, President, United Federation of Teachers. “We know them to be hard-working and diligent young people, eager to pursue post-secondary education in their quest to improve their own lives and to contribute to American society. Yet unlike most of their fellow students, they are denied access to publicly provided financial assistance that could make their dreams of a college education into a reality. The United Federation of Teachers and our national union, the American Federation of Teachers, supports the federal DREAM Act legislation that would remedy this problem by providing access to federally provided funds. The UFT supports the DREAM Act before the New York State Legislature that would provide access to financial assistance provided by New York State.

The New York State Catholic Conference, which represents the Catholic Bishops of New York State in public policy matters, said, “The New York State Catholic Conference applauds the New York State Board of Regents and the State Education Department, which today proposed state legislation similar to the federal DREAM Act. While the DREAM Act would extend access to federal higher education grants, the state bill would expand access to the New York State Tuition Assistance Program (TAP) as well as scholarships that are available to SUNY and CUNY students, without regard to immigration status. It would also provide a mechanism allowing students who are currently excluded from participation in the 529 College Savings Accounts to open and benefit from such accounts. The United States Conference of Catholic Bishops, Catholic Charities USA, the New State Catholic Conference and the New State Council of Catholic Charities Directors have all voiced support for the federal Development, Relief and Education for Alien Minors (DREAM) Act (H.R. 1842 / S. 952). The Catholic Conference likewise commends the Board of Regents and State Education Department for advancing this initiative in New York State. New York State has long been a leader in programs for English learners and college readiness programs for immigrant students. The action recommended to the New York State Legislature would open doors to higher education to many students who are currently barred from these pursuits due to a lack of access to financial aid. The achievement of a higher education degree will allow these students to realize their potential and allow them to make a greater contribution to New York State.”

“Congratulations to the Board of Regents for moving NYS one step closer to affording young immigrants greater opportunities for higher education,” applauded Monsignor Kevin Sullivan, the Executive Director of Catholic Charities of the Archdiocese of New York. “Providing opportunities to young people brought here by no fault or action of their own, is one specific step NY can take to ensure newcomers to our state are well prepared for the future.  NYS Dreamers have talents that we must help develop – for they will be the future talents of this country, the only one they know and call home.  As we continue to work together for comprehensive immigration reform, there are significant specific administrative and legislative initiatives that can be tackled by federal, state and local governments.  We need to work together to achieve these.”

Francisco Curiel, a first year college student and youth leader and board member of Make the Road New York,  the largest participatory immigrant organization in New York with 10,000 members in Bushwick, Brooklyn; Jackson Heights, Queens; Port Richmond, Staten Island; and Brentwood, Long Island, said, “For undocumented students like me, who have been working for years to advance equity in educational opportunity for other undocumented students, the support of Chancellor Tisch in this fight is incredibly meaningful. We look forward to moving forward together in this fight.”

Daniel, a student at Flushing International High School, said, “As a student and an immigrant, I can understand how other immigrants feel about not being a citizen and having to go back to your country after graduating from high school. If the Dream Act would pass I would feel really happy and relieved because I could stay and study in the United States. Everyone should have the opportunity to go to college and fulfill their American dream. As of today, America has been deporting a great amount of immigrant youth who are smart and hard-working people. This nation is losing all these amazing people whose only intention is to be productive in our society. We need them to contribute to this nation to make it a better place for all people.  If we kept all of our undocumented students it’s a way of investing in America’s future.

[Photo Above] Chung-Wha Hong, Executive Director of the NYIC with Commission King and youth leaders

Chung-Wha Hong, Executive Director of the New York Immigration Coalition, an umbrella organization for approximately 200 groups that work with immigrants across New York State, said, “I am inspired to see the NYS Board of Regents and state education department exerting their leadership in the DREAM debate.  In the face of Washington DC’s inaction, the Regents’ vote yesterday sends a powerful message that New York State will do everything in its power to remove barriers to college education. We look forward to working with the Regents, State Ed, the Governor and legislature to make it happen.”

Yajaira Saavedra, a student and founder of DREAM Scholars, said, “The Regents decision to offer an equal opportunity towards tuition assistance for undocumented students will contribute to a higher graduation rate in both high school and college levels. For this reason Dream Scholars, an activist group founded by undocumented students, is grateful and proud to be part of the New York educational system.”

“NYSUT is a strong supporter of the Dream Act. We know that higher education makes a difference in the lives of students and their communities,” said NYSUT President Richard C. Iannuzzi. “We commend the Regents for their support of this legislation, which will help create new paths to success for immigrant students and make ‘college to career’ more attainable for students who now are generally in the shadows.”

“We applaud the Board of Regents on taking an important stand to help New York’s young immigrants achieve their dreams regardless of their status,” said Steven Choi, Executive Director of the MinKwon Center for Community Action.  “We look forward to working closely with the Regents and our coalition of allies to move New York State’s elected officials to offer all immigrant youth a full opportunity to attend college.”

“As people of faith who are required to pursue justice, act with compassion, and welcome the stranger,” said Dr. Diane Steinman, Director of the NYS Interfaith Network for Immigration Reform, “we applaud the Board of Regents for proposing a change to NYS law that would enable young undocumented immigrants to afford to attend college, so they can follow their dreams and contribute to a brighter future for our state and nation.”

State legislation addressing the Board of Regents’ proposals is expected to be introduced into the Assembly and Senate in coming weeks.

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