Moderation starts.

Laurel(P) Good morning. We have much to discuss today. This will be an extended chat. If this is your first time on the chat, you will notice that above the chat window there is a sentence that reads, “To learn how the chat works and how to get the most out of the chat, click here”. I recommend you click where it states, “click here”. This will log you out of the chat, but you can log back in after reviewing the instructions.

Laurel(P) Please note that the chat is not a substitute for a consultation as I will not have the opportunity to review all of the facts of the case and ask a series of important questions. Always have a consultation with an attorney before departing the country or taking action on your case. The chat should not be construed as legal advice. Rather, it is legal information. I do not recommend that you take action on your case based on what is said in the chat; I recommend that you schedule a consultation.

Laurel(P) If you would like to review prior chat transcripts, they are available above under the link “Chat Transcripts”. We keep about six months of transcripts online. Please note that because immigration law and procedure changes in small ways quite frequently, information can go out of date quite quickly and archives of information should not be considered entirely reliable.

Laurel(P) If you would like to know more about the Waiver of Inadmissibility, please read the following overview article: http://www.scottimmigration.net/content/i601memo Bear in mind that when you click on this link, you will navigate away from the chat. You can always log back on.

Laurel(P) As many of you know, on Friday the Department of Homeland Security issued a Notice of Intent to change the procedure for filing an application for a waiver of inadmissibility in limited circumstances. The specifics of the rule are still under consideration, but the Notice of Intent indicates that the only people currently slated to benefit are the spouses and minor children (under age 21) of US citizens, whose only ground of inadmissibility is simple unlawful presence, and where the qualifying relative is the I-130 petitioner. Under the new rule, this group of people will be able to file their I-601 waiver applications in advance of the consular interview, while still in the United States. It is important to understand that this does not give the applicant permission to remain in the United States. The applicant is still deportable should ICE choose to commence deportation proceedings, the same as any person who has not filed an I-601. It is NOT expected that the applicant will be issued an EAD, though this is still under review. It IS expected that if the I-601 is denied, the applicant will be issued an NTA (notice to appear), which is the first step in deportation (removal) proceedings, though this policy is also under review.

Laurel(P) Those who have other grounds of inadmissibility, such as criminal history or misrepresentation will still be required to have the consular interview take place first and will not benefit from the proposed rule. Also, those who are not the spouses or minor children of US citizens will need to have the consular interview take place first. I learned yesterday at the stakeholders meeting that for those who will be filing abroad, the government still plans to implement “Lockbox Filing”, which will allow people abroad to mail in their waiver applications to an address in the US after the consular interview instead of filing at the consulate. A stakeholders meeting on Lockbox Filing is expected in the next few months. A prior stakeholders meeting on Lockbox Filing had been scheduled for October 4, 2011, but was abruptly cancelled at the last minute without explanation.

Laurel(P) This new rule is what immigration attorneys have been wanting for a very long time. It is in no way a perfect solution to the situation many families find themselves in. There is no perfect solution. But this new procedure will be a marked improvement over the current procedure. In my opinion, waivers were always meant to be adjudicated prospectively, i.e. in advance. The law states that such waivers should be granted if denial "would be" an extreme hardship to the qualifying relative. The use of the words "would be" in INA 212(a)(9)(B)(v) - as well as the other waiver sections - indicates that Congress meant for the waivers to AVOID family separation. In that respect, the new rule allows the President to better comply with the instructions of Congress.

Laurel(P) The new rule will not make waivers easy, cheap or stress-free. Waivers will still be gruelling. And there is no guarantee of success. It is still case-by-case and you have to prove that you deserve the waiver. It is not a simple matter of filing a form and paying a fee. And the only ones eligible for the new process are some of the most 'deserving' of candidates for relief from the harsh penalties of immigration law. If one is against even this gruelling, expensive, lengthy, stressful, discretionary form of relief for some of the most deserving unlawfully present immigrants, then it is reasonable to say that one does not want relief for any unlawfully present immigrant under any circumstances whatsoever. This is an unyielding, angry position to take.

Laurel(P) We are ten minutes into the chat. I am going to start taking questions.

Shadea(Q) Laurel all of your updates regarding the waiver proposal have been greatly appreciated...

Laurel(A) No problem.

mike(Q) has waiver approval increased world wide in 2011?

Laurel(A) Waiver approval rates have generally remained constant over the past decade.

Laurel(P) Approval rates for criminal history and misrepresentation about about 1 in 3. Approval rates for simple unlawful presence are about 17 in 20.

Laurel(P) What's changed over time is the number of filings abroad. The unlawful presence ground of inadmissibility did not come into existence until 1997 and then rule 245i - which allowed those who entered without inspection to adjust status without departing in many circumstances - did not end until April 30, 2001. So the numbers of waivers filed abroad started climbing in 2002. Prior to 1997 there were still waivers filed abroad for misrepresentation and criminal history as both of those grounds of inadmissibility existed before 1997. But it was in 2002 that we really start to see an increase in the numbers filed abroad. Warren Janssen, the former officer-in-charge at the CIS office in Ciudad Juarez said that when he started in (I think) 2003, there were about 3000 waiver applications filed in Ciudad Juarez each year. By 2008 there were 18,000 filed in Ciudad Juarez alone. The USCIS offices abroad were never meant to handle that kind of volume. This is part of why the cases are being sent back to the US.

TSK(Q) From Adriane Jaeckle Meneses: Thank you for the great questions at the stakeholders meeting yesterday- hopefully USCIS will think about those points. I know the proposed rule may change before it is implemented, and also that it doesn't cover persons in removal proceedings. If it passes in its current form, what do you think is the likelihood that administrative closure would be available/ directed via policy memo, for persons currently in removal proceedings who would otherwise be eligible for this process? Thanks.

Laurel(A) I don't think it is clear that those in removal proceedings wouldn't be eligible to file. It wouldn't be an alternative to people filing the I-601 with the judge if they are trying to prevent removal, but that's a jurisdiction issue that USCIS has no control over. And it wouldn't delay removal proceedings, but I wouldn't expect it to do that either. That's not what the new procedure is about.

Laurel(P) I don't see any reason why someone who plans to get Voluntary Departure couldn't file the I-601 under the new procedure.

Laurel(P) I know it was discussed at the stakeholders' meeting, but I missed that part and would have to go back over exactly what was said if I can get a hold of a transcript.

TSK(Q) from mandm2011: My attorney helped me send an I-130 for my husband in October 2011. We did not send anything to prove bonafide marriage because our lawyer said we would need that later. We were married just this September. We have a 2 yr old son, he has no criminal record and he is already back in Mexico so that he has the 3 yr ban instead of 10. What do you think our chance is of getting an RFE for the petition? Also, can we do the NVC part of the process without him here (as in signing papers)? Thanks!

Laurel(A) I agree with your attorney. If the I-130 was completed correctly and your husband has never been in proceedings, you are unlikely to get an RFE on the petition. Yes, the NVC part of the process can be done here. He will have to sign some stuff, but you can use Fed Ex. It sounds to me like your attorney has everything under control.

TSK(Q) from sgarcia: I have seen and heard that a lot of waivers have been sent out to other agencies for approvals or referrals, is there anyway of finding out where our waiver packet actually is? I have tried calling the 703 # and 202 #. They assure it is in CJ, however I do not believe they know anything.

Laurel(A) It is extremely difficult to find out where your waiver was sent to. Please understand that the people who would be able to retrieve and log that information are the same ones managing the waiver case load. And time they spend responding to inquiries like this is time not spent getting these waivers adjudicated, decided and otherwise administratively processed. Inquiries increase processing times. I know it's frustrating not to have the information, but requesting the information makes it take longer. This is one of the things the new processes - Provisional Waivers and Lockbox Waivers - will resolve as you would get a receipt notice indicating where your case is located and a tracking number that you can use to track the progress of your case online.

TSK(Q) from ktmnep: The NVC has received the information you submitted and placed it in your case file. You will be contacted when your petition is sent to the U.S. Embassy or Consulate for further processing. [S8S 01/05/2012] KDU2011xxxxx Is this mean my case is closed? Do you guys know how long does it take NVC to send petition? Since my wife is LPR my priority date is Dec 03,2009. Do i have to wait in line( wait till visa is available) at US embassy also?

Laurel(A) Really all it means is that the NVC received what you sent them. It is not a promise not to send another RFE. But right now you wait for them to do whatever comes next. To check whether your priority date is current, Google "Visa Bulletin" and check your priority date against the chart. Presuming your case is complete at the NVC and your priority date is current, you will be scheduled for the next available date at the consulate. How long that will be depends on the consulate and what their backlog is. Sometimes you are scheduled in a matter of weeks, sometimes months. It varies.

hr270724(Q) hubby came in w tourist visa, left 3 yrs ago, awaiting i130 approval does he need to provide evidence of lawful entrance, he o/v stay visa, no deportation,I am usc

Laurel(A) No

Laurel(P) Prior unlawful entry, by itself, is not a ground of inadmissibility for an alien who has departed the country. Sometimes an unlawful entry in combination with another factor will complicate the case. But nothing you've said tells me you would fall into such a category. I would have to ask a bunch more questions to be sure it's not an issue.

TSK(Q) From paradise7n: Hi Laurel, could you please tell us what implications, if any, the provisional waiver proposal by Janet Napolitano might have for "lifers" like my family? My husband was permanently banned due to suspected gang affiliation. Thanks!

Laurel(A) Great question. This is still under review, but I think this will be good for people like you who want to contest this finding. Right now the government is accepting comments before creating its final rule. Some other attorneys and I are preparing comments to submit as a group. One the comments is that on the application for a waiver for unlawful presence, we would like to be able to request a specific affirmative finding regarding some other ground of inadmissibility. For example, if I think my client is only inadmissible for unlawful presence, but I know there is a POTENTIAL fraud issue - e.g. my client lied on an application when he was age 15. If USCIS adjudicates the waiver for unlawful presence and makes no remark on the fraud issue, the consulate could still find fraud and demand ANOTHER waiver when the client gets to the consulate. However, if USCIS 'affirmatively' states that INA 212(a)(6)(C)(i) [misrep] does NOT apply, then the consulate is bound by that finding as rulings on inadmissibility by DHS over-rule such findings by DOS and DOS is bound by inadmissibility decisions of DHS. So, this is a possible venue for us to bring these legal and factual questions of inadmissibility to USCIS and subsequently to the AAO, rather than being stuck with the findings of the consulate, which are non-appealable. It will give us a new venue in which to present our arguments for these other grounds of inadmissibility.

Laurel(P) This will be huge for grounds for which no waiver exists, such as false claim of US citizen and 9C, especially as they relate to minors. We would finally be able to bring these issues to the AAO.

TSK(Q) from memi1111,hi laurel i heard about the new waiver processing.my waiver got denied three years ago.my US fiancee was petionining for me .will my situation be changed with the new procedure or do we have to get married .i have the 10 years bar for unlawful presence

Laurel(A) You would have to get married in order to benefit from the new procedure. But realize that the new procedure will not be in place until the end of the year. You should consider getting married and refiling through the existing process. Discuss it with your attorney.

TSK(Q) from Epica: The Proposed New Rules will benefit, Daughters and Sons of American Citizens only under 18 years old, or it also benefit those who are over 21? Thank You

Laurel(A) Under 21. It is not clear whether the Child Status Protection Act would apply, but it is expected that it would. Meaning, as long as the petition is filed while the child is under 21, then for the rest of the process until the visa is issued, the beneficiary is treated as though he/she were under 21, even after the 21st birthday.

Shadea(Q) This propasal is really intended for 9b correct? those who would face a 9c due to multiple EWIs with no other issues/removals would have no benefit correct?

Laurel(A) To be clear. 9C is not triggered by 'multiple EWIs'. It is triggered in one of two situations: (a) the alien is unlawfully present for more than a year in the aggregate after April 1, 1997, departs and comes back or attempts to come back without inspection, and (b) the alien is removed/deported at any time and comes back or attempts to come back without inspection after April 1, 1997. An alien who overstays a visa, departs and comes back without inspection could trigger 9C with a single EWI. And alien who enters without inspection three times, staying a month each time, has not triggered 9C despite multiple EWIs. Now, to answer your question, the proposal will not help people who are clearly 9C inadmissible. It will, however, probably provide a venue for people to contest a possible 9C issue if they think it does not apply to them, but are concerned that the consulate may apply it.

miguel(Q) can i start working on my i-601 now while waiting for the final rule from uscis?

Laurel(A) No. A pending I-601 does not give the applicant the right to apply for an EAD (employment authorization document) under current rules or the proposed rules. If you have a pending I-485, that would give you the opportunity to apply for an EAD.

Laurel(P) There are many questions pending that do not have to do with the current rule change proposal. I will go ahead and start answering those, but if there are more questions about the rule change, please go ahead and ask.

TSK(Q) from mary105: My husband has filed a petition of his mother who lives in Mexico. Our next step is NVC and I am a little confused and in hope that you can tell what to do or is best. i followed a link on information on the NVC process. It list 2 forms that need to be submitted and they also state that they can be emailed. The forms are Ds230 choice of agent, and ds230 immigrant visa application. both of these forms require my mother in laws signature as the applicant. we will be paying for the all fees required. what is the best way to handle this. should i fill everything out and mail the forms to Mexico and have her sign them and wait to get them back and then mail them? as far as emailing the documents, how is it that the siganture would be obtained? would i have to still wait for the forms and then scan them and email them? This is really hard for us, because she does not get mail directly where she lives. thank you so much for all your help.

Laurel(A) I prefer not to provide this level of detail during the chat as I would really need to know what is going on with the case, which is not what the chat is intended for. I recommend you hire an attorney to assist with your case. The chat is really an opportunity to obtain general information about waiver cases. Sometimes we get a little specific, but you're asking for some very specific information about what to do next.

TSK(Q) Mariposa1223:Hello I have a friend that is currently going through the process in Mexico and she said that they got a paper that said they are waiting on a government record check for her spouse she is confused because she said they already submitted biometrics. So my questions are what is the difference between biometrics and a government record check? why would this being done now? Thanks for your help.

Laurel(A) They check for different things at different times and sometimes where they look for information is different. Also, you can get a false hit on a name check where you didn't have one before if someone with the same name as you has been arrested since your last name check.

Laurel(P) Also note that false hits seem to come up again and again, so even if a false hit was resolved in the past, you should expect it to be an issue each and every time they do a name check for you, which will be many times throughout the process.

TSK(Q) from rmstafford: Hi Laurel, just wanted to let you know that we had a lone I-212 through the Houston Field Office approved on 12/30/2011. It was filed in July, so it took only 6 months. The Embassy was notified of the approval on 01/04/2012. Would you know what happens next? Do we call them for an appointment or do they notify us? Do we have to go through another interview, bring more documents etc? Thank you very much. Sorry, I forgot. The Embassy is in El Salvador.

Laurel(A) You wait for them to contact you. Should be about 30 to 60 days. If you haven't heard from them by early March, start bugging them.

TSK(Q) from phoenixc99: Hi Laurel. Do you know the current 2011-2012 wait time in between appointments (visa and waiver) in Juarez? Also, the approximate wait time after the waiver appointment to recieve a decision?

Laurel(A) It's about two months between visa interview and waiver appointment. You can then expect it to be 3-4 months for an initial decision, presuming the "Pilot Program" is still in place by the time you file, which I doubt it will be. We will probably be doing Lockbox filing by then.

lalolla(Q) I sent my husbend's finger prints to the FBI and he came clean. I also sent back in May the FOIA to the border and have not received the response back. Do you think that is safe for us to start the application process for his green card with the new rule?

Laurel(A) Well, no one can start yet because right now the rule is a proposal and is not in effect yet.

Julie(Q) HI Laurel, in Feb 2002 my fiance went to USA and overstay his tourist visa, he left in 2007, but when he tried to get in again in 2009 they gave gim a removal and a 5 years bar (212 a 7 a i I) now we want to get married , so I was wondering if I could apply for his K1 visa, 212 and 601? or it would be easier if we just wait his bar expired in 2014 please

Laurel(A) INA 212(a)(7)(A) is not a five year bar. It is a bar at the moment you attempt to enter. It means you don't have the correct document to enter, i.e. you are trying to enter with a nonimmigrant visa when really you are an immigrant. He does have a 5-year bar under INA 212(a)(9)(A) for the expedited removal, which will end in 2014. He also has a ten year bar under INA 212(a)(9)(B) for more than a year of unlawful presence, which will end in 2017. It is also quite likely that the consulate will find that he has a lifetime bar under INA 212(a)(6)(C)(i) for trying to enter as a nonimmigrant with immigrant intent. You might as well get the process started. It will not benefit you to wait.

Laurel(P) Sorry about the smiley face. Sometimes I forget that the chat software does that when I type (9)(B), which should be 9B.

Laurel(P) It is almost noon, which is when I usually end the chat. But because of the proposed rule change, I am going to keep going until I either run out of questions, or we get to 12:30, whichever happens first.

a_dreamer(Q) we started the immigration process over a year ago and now i am thinking of finally changing my last name from my maiden name to my husbands last name. Do you think this would raise any flags or cause any confusion or do you recomend that i just wait? Thanks!!

Laurel(A) Don't change your name in the middle of the process. You'll just make your lawyer cry.

Laurel(P) It's an administrative complication in the case. It doesn't lower your chances of approval or anything, but it could cause delays and confusion.

dodo(Q) what the second inspection mean in the port of entry?

Laurel(A) It means they want to study you further

Nawfal(Q) From Nawfal : our case has been returned for further review , after NOIR we responded to it and they revoked our case they were saying our evidence arent enough we ignored appeal and our attorney file for us another i-130 with some evidence. do you think so we will get RFE for the petition ?

Laurel(A) Maybe. It depends on what it was they didn't like the first time.

Nawfal(Q) how much you charge for consultation ?

Laurel(A) $200. Please see the website or call the office before 3pm Houston time: 713-467-5800

me_glo(Q) Hi I came here on a k-3 visa and I over stay here for 6 years now. On the top of that my I-130 was denied. Now My husband and I are trying to apply for AOS. What do I need to do? Do I need to apply first for my I-130?

Laurel(A) It depends on whether it's the same husband. If your current husband was also the K3 petitioner, then filing a new adjustment packet with new I-130 (I-130/I-485/I-864/I-765) is probably the way to go, though you will need to address the reason the prior I-130 was denied. If this is a new husband, you are not eligible to adjust status, will have to apply for an immigrant visa abroad, and will need a waiver for the unlawful presence. You will need to prove not only that the current marriage is real, but also that the prior marriage was real. You need an attorney either way, but if it's the latter scenario - where your current husband was not the K3 petitioner - then you really, really need an attorney.

shar22(Q) Is there anything going on in Washington that would have any impact on someone with a 212 a 9 c ban?

Laurel(A) no

dodo(Q) last time when i entered the states the officer tooke me to the second inspection and after that i got 6 month on my i -94 i left after 1 month , is this mean that everytime i enter the states must get the same cycle ?

Laurel(A) Not necessarily, but maybe.

Aubrey(Q) I think Miguel was asking you if he can start the waiver process now, while waiting for the procedural change to occur. But I might be missing other info he wrote that only you saw.

Laurel(A) People present in the US who are interested in the new procedure, can file their I-130s now. There's no reason to wait to file the I-130.

miguel(Q) i'm sorry but what i meant was should i gather all the document that needed for i-601? so that when they implement the new guidelines i will be ready to send the application.

Laurel(A) It is a bit early to start gathering the documents for the I-601. You want your documents to be current at the time they are submitted. For my clients who hope to benefit from the new procedure, I plan to start gathering documents probably in June. For clients and potential clients who wish to do the new procedure, you must be willing to go ahead with the current procedure if the new rule falls through and doesn't actually get implemented, otherwise I am not allowed to accept your money to work on your case. It is extremely LIKELY that the rule will pass as this is a change in procedure, not a change in the law. If you want to wait for the rule to actually be implemented before hiring an attorney, I respect that, but realize that once the rule actually changes, the demand for experienced waiver attorneys will skyrocket and you may have difficulty getting an experienced waiver attorney to take your case as they will all already be fully booked. But the attorney cannot ethically take money for your case if you indicate that you will only file if the rule passes. Bear in mind that you can intend to file under the current process and change your mind later.

mellymel(Q) Hello! With the changing process for waivers (yippee), is it now (in most cases) better to get married and file rather than file for fiancee (and better meaning less time outside of the country if you are both in the US). I believe I saw this this change does not apply to the fiancee process?

Laurel(A) Correct on all counts. If the alien fiance(e) is present in the US, it is best to marry.

mommyof2(Q) I have my cousin doing COR but in my opinion it will just be denied because of not a lot of very extreme hardship so do you think she can benefit from this new proposal instead of going further with COR

Laurel(A) I would have to review the case.

catraesposa(Q) Husband and I did I-130 we received notices but did not proceed with our case with NVC..did not respond to them because of 10yr ban...with this new change we would like to know what to do at this point?

Laurel(A) If you have an attorney, talk to him/her. If you don't have one, hire one. Other than that, you sit and wait for more news about the proposed rule.

Laurel(P) Folks, to clarify ... Right now this is a PROPOSED rule change. It has not yet been implemented. It is fully expected to be implemented by the end of 2012. There is a small chance that the rule change will not actually happen. But it is different from a proposed law change in the proposed changes to the law are much harder to pass than proposed rule changes. There is no immediately available benefit that was not available last week.

ImmiNY(Q) Hi Laurel, What address do I send a CBP FOIA to? The instruction for the G-639 are not clear, the CBP address is states "Human Resources." Also can I do a CBP FOIA without the form being notarized? The subject of the FOIA is abroad.

Laurel(A) I don't have the address handy, but it is a different address from the one on the G-639 instructions.

Shadea(Q) For those hoping to take advantage of new waiver proposal at what stage would you recommend holding off? For instance We are starting the NVC stage..

Laurel(A) I don't see any reason at this time to continue with anything past the point where the I-130 is approved. If you send forms and financials to the NVC now, they will expire before you depart the US and you will have to have them re-done, so it's a lot of wasted time and effort. If you are in the middle of NVC processing and have decided - after consultation with your attorney - to hold your case for the new rule, then just stop whatever you are doing with the NVC. You will be picking the NVC process up again after your I-601 is approved, which may be summer 2013.

dodo(Q) if the officer allow alien to enter the states , isthat mean that the record clear ? my friend asking

Laurel(A) Yes and no. It means they let you in this time, but they may still find you suspicious.

Laurel(P) No questions are pending. Thanks everyone for coming to this extended version of the chat. I will see you all next week at 11:00.