News Update - March 5, 2012

I-601 Provisional Waivers; ICE Public Advocate; and CSPA News

U.S.C.I.S. sent out an alert on February 22, 2012, that the I-601 provisional waiver is not in effect at this time and warning persons to avoid scams in which people wrongly claim that they can currently file the I-601. The agency is expected to come up with a proposed rule sometime in the springtime and to implement the procedure by the end of the year.  On March 2nd, it posted a teleconference invitation for all interested parties to participate in a teleconference on March 9th on Form I-601 centralized lockbox filings. Although U.S.C.I.S. says that this is not related to the provisional waiver, it certainly looks related.
Expectations are high in the immigrant community over this imminent change of law which U.S.C.I.S. announced through a notice of intent to publish a regulation on January 6, 2012, and held a stakeholders meeting over on January 10, 2012.  Under the plan, immediate relatives of U.S. citizens (parents, spouses, and children under the age of 21 and unmarried) who entered the U.S. without inspection would be able to file and have adjudicated in the U.S. an I-601 waiver of being illegal in the U.S. for 180 days or one year.  Being illegal by 180 days or one year generally brings the penalty of a 3 or 10 year bar respectively from returning to the U.S.  The plan would not excuse any other grounds of excludability and the waiver if granted would be provisional and conditioned upon the applicants' departing the U.S.  Qualified applicants would have their U.S. citizen petitioners file I-130 petitions and at some point I-601 waiver applications which if approved would allow them to attend consular interviews for immigrant visas knowing in advance that the 3 or 10 year bars would no longer apply to them.  Present law requires such applicants who wish to take the chance of returning overseas for green card interviews to be interviewed at the consulates, refused immigrant visas, and only then allowed an opportunity to file I-601 waivers. 

ICE now has a public advocate, Andrew Lorenzen-Strait, who will report directly to the Enforcement and Removal Operations (ERO) Director Gary Mead and be responsible for assisting individuals and community stakeholders in addressing and resolving complaints and concerns in accordance with agency policies and operations, particularly concerns related to ICE enforcement actions involving U.S. citizens; informing stakeholders on ERO policies, programs and initiatives, and enhance understanding of ERO's mission and core values; engaging stakeholders in building partnerships to facilitate communication, foster collaboration and solicit input on immigration enforcement initiatives and operations; and advising ICE leadership on stakeholder findings, concerns, recommendations and priorities as they relate to improving immigration enforcement efforts and activities.  No contact information was given in the February 7, 2012 announcement. 

Pro-immigrant advocates interested in the CSPA (Child Status Protection Act) issue of whether a child who ages out before his/her parent's priority date is reached can assume the parent's priority date for a later petition by the parent under the F-2B category (unmarried sons or daughters over the age of 21 of lawful permanent residents) received a boost on January 24, 2012, when the Fifth Circuit denied the government's request for rehearing.  Currently two circuit courts, the Second in Li v. Renaud and Ninth in De Osorio v. Mayorkas, have upheld the government's position of non-eligibility while the Fifth Circuit in Khalid v. Holder, has ruled in favor of the petitioner. The Second Circuit in Li denied the petitioner's request for rehearing on October 26, 2011, while the Ninth Circuit rehearing petition remains pending.  The government has 90 days to appeal the Supreme Court for a writ of certiorari from the Khalid decision. 

† The author is a 30+ year practitioner of immigration law based in New York City holding an AV preeminent rating in the Martindale-Hubbell Law Directory and registered in the Bar Register of Preeminent Lawyers. He was also recently named to the New York Super Lawyers list. He was awarded the Sidney A. Levine prize for best legal writing at the Cleveland-Marshall College of Law in 1977 and has written extensively on immigration over the past years for Interpreter Releases, Immigration Daily, and the ethnic newspapers, World Journal, Sing Tao, Pakistan Calling, Muhasha and OCS. He has testified as an expert on immigration in civil court proceedings and was recognized by the Taiwan government in 1985 for his work protecting human rights. His article, "The Bush Temporary Worker Proposal and Comparative Pending Legislation: an Analysis" was Interpreter Releases' cover display article at the American Immigration Lawyers Association annual conference in 2004, and his victory in the Second Circuit Court of Appeals in a case of first impression nationwide, Firstland International v. INS, successfully challenged INS' policy of over 40 years of revoking approved immigrant visa petitions under a nebulous standard of proof. Its value as precedent, however, was short-lived as it was specifically targeted by the Bush Administration in the Intelligence Reform Act of 2004.

‡ This article © 2012 Alan Lee, Esq.

Copyright © 2003-2012 Alan Lee, Esq.
The information provided here is of a general nature and may not apply to any particular set of facts or circumstances. It should not be construed as legal advice and does not constitute an engagement of the Law Office of Alan Lee or establish an attorney-client relationship.