January 9, 2012

Comments on common questions I am getting from clients regarding the new waiver procedure:

1. How likely is this to happen?

It is a near certainty. There is a process the Executive Branch has to go through to put the new rule in place, but it is not subject to a vote. Proposing a new procedure is completely different from proposing a new law. While it is possible that the Executive could withdraw the proposal before it is implemented, I have actually never seen that happen. It makes the Executive look weak when they do this. The President and his staff carefully considered the political ramifications of this before proposing it. They are extremely unlikely to back down as there would be a backlash from the other side for withdrawing it. They’ve made the proposal. They are now politically committed to it. As it is a unilateral decision, there will not be any ‘watering down’ of the proposal before it is implemented the way you see happen with proposals of law changes. Also, please note that the process has started far enough in advance that it will almost certainly take effect before any change in administration at the end of the President’s term. One caveat: a near certainty is not an absolute certainty. Yes, there is a very small chance that this will not happen.

2. Can I get an EAD (employment authorization document) while my I-601 is pending?

No EAD was mentioned in the proposal to change the law. I’m sure this will be discussed in the Jan 10 stakeholders’ meeting (tomorrow). But at this time we do not expect that an EAD will accompany the pending I-601.

3. When will this happen and when will I be departing the country?

Should go into effect near the end of the year, perhaps as early as September or as late as January 2013. Waivers will not be adjudicated in a matter of days and once your waiver is approved, you need to finish up with the NVC. So, you’re looking at Spring or Summer of 2013 as a possible departure time.

4. Are processing times going to speed up for people who are still filing abroad?

I had previously thought they would, but as I study the numbers, I think they will not. Most of the previously-filed simple unlawful presence waivers were concentrated in Mexico. In other parts of the word, this will not significantly reduce the number of waivers filed. In Mexico, they had been sending half their cases to the US for adjudication. I expect that will stop. And they have already cut their staff at CDJ in half. This means their new waiver processing capacity will be ¼ what it was, which is about what the number of waivers filed will be, meaning their processing times are likely to remain constant.

5. Should we get as far into the process as possible before putting the case on hold?

Not necessarily. You can file your I-130, but for the immediate relative of a US citizen, it does not make sense to file your DS-230 and I-864 with NVC now as the information on those forms is likely to expire before your waiver is approved and you will have to do the work all over again. If you are in the middle of NVC processing and have decided to put your case on hold, there is no benefit to finishing up with the NVC. The best place to stop right now is after you file the I-130. If you are the adult child (age 21 or older) of a US citizen, then you will be subject to certain priority dates and deadlines associated with that date. Speak to your attorney about how long you can put your case on hold.

6. Can I have a telephone meeting with you this week to discuss?

If you are a current client, and would like to have a telephone meeting about this new procedure and how it impacts your case, I would prefer to speak next week or the week after. We are flooded with consultations requests and requests to contribute to professional publications and blogs, at the same time that we are working on cases that will not be able to benefit from the new process and have upcoming deadlines. We are also revamping our schedule in light of cases being put on hold. And we are revising our standard contract as it no longer fits what is underway.