Moderation starts.

Laurel(P) Good morning everyone. In last week's chat we discussed the proposed rule change for Provisional Waivers. The transcript of that chat has been posted. Hopefully many people will find it useful.

Laurel(P) Let's jump in to the questions for this week.

jay(Q) USCIS to propose changing the process of certain waivers on unlawful presence jan,6 2012.This is on the news tab for USCIS.GOV website page.Can u please tell me if this is in effect and who it applies to. thanks

Laurel(A) Recommend you read the transcript for last week's chat and then come back with questions. This week's chat will be on until noon. You should have time to read the transcript and still get your questions in before we close. To see the transcript, click on "Chat Transcripts" on the tab above. It will navigate away from this page and log you out, but you can come back and log back in after.

TSK(Q) Good morning Laurel! There is an AP story in many major papers talking about new changes in how ICE & BP will process those EWI'ing in the border states. Mainly that they're going to go away from throwbacks and start prosecuting them instead. Have you heard about this new change in direction? I knew about it in the Tucson area but was surprised to hear that they want to make it a standard. Thanks!

Laurel(A) I saw the headline in the Houston Chronicle this morning, but have not yet had a chance to read the article. You mean they plan to prosecute criminally? Or they plan to put them through an expedited removal the first time? To be honest, I've long wondered why the whole 'voluntary return' policy was so widespread. It should've been an exception for special cases, and not something that should have ever been used as much as it was.

Laurel(P) But if they are talking about criminal prosecution, I wonder about financial resources because that's very expensive.

Tage(Q) Good Morning Laurel! Hubby EWI from Mexico 9/94-left 12/99 returned EWI 2/2000. We have consulted with a local attorney and he suggests we file for Asylum (based on my husband being robbed at gunpoint in MX in the past, recent increased crime in his home state) though it will likely be denied it will make way to eventually file Cancellation of Removal, we have strong hardships with mine and one of my daughters medical history, definitely good moral character, 10 years here etc.. We are on the fence with the whole asylum thing since the incident in MX was quite some time ago and he of course never reported it. Realizing our options are limited looking for any suggestions/comments? Thanks!

Laurel(A) It's not an asylum claim if the government wasn't involved and you weren't a member of a protected social group. Yes, we've seen an increase in possibly bona fide asylum cases from Mexico, but the burden is high: in addition to proving credible fear, you must prove that the people who attacked you or threatened you are involved with the government, and you must prove that your whole family has specifically been targeted. The burden is actually quite high. If you apply for asylum with something that weak and lose, the denied asylum claim will complicate your case. I understand that the attorney is looking toward Cancellation and the asylum is a way to get into proceedings, but there have been some attorneys brought before the various state bars for that type of thing, i.e. filing an asylum claim that you know does not meet the definition, when your true goal is to get in proceedings so you can apply for cancellation. The ethics of that strategy have been challenged by some. I'm not saying it's clearly unethical - only that it has been tried by other attorneys and the question of ethics has been raised.

TSK(Q) From: Palomina In reading the information about the new process being proposed, I noticed that it applies to people with no criminal history. What do they consider "no criminal history?" Are they including parking tickets, speeding tickets, No license, DUI??? I am asking because my husband had a DUI in May of 2007. He has been here since early 2002. We are trying to weigh our options with the process, and are wondering if he would potentially benefit from the new process or if we should just go ahead and start things now.

Laurel(A) No. It applies to people who are not criminally inadmissible. We don't know what the final rule will be, but nothing stated so far says that you cannot have criminal history at all.

Laurel(P) There could be people who are regurgitating the proposal and posting on the internet that those with any arrests will not be eligible. But the actual Notice of Intent for the rule makes no such statement.

TSK(Q) mandm2011: My 2 yr old son originally had my last name when he was born (that was more my parents influence that had me do that), but we changed it around June 2011 to my husband's last name. We have his original birth certificate and the revised one with the new/current last name. We have multiple copies of both birth certificates, so we will probably send in both to the NVC to show the name change. My question is, do I need to send the official court document showing the change of his name?? Wouldn't the birth certificate be proof that we officially changed his name...We only have one official court document of his name change!

Laurel(A) NVC is easily confused. Don't confuse the NVC. Just send the birth certificate with the name you want to use. Good enough. If they ask for more then give it to them at that time. Bring all the above-mentioned documents with you to the interview in case they are requested.

ColdinIL(Q) EWI/Mexico- if waiting for both FOIA to come back, is it best to wait for these before doing a consult with you? Already have FBI back, question is about a 1 week 'stay' in jail in Nebraska after crossing the border on the way to IL, then bussed back to Loredo (this is on the FBI, but does not state what happened)

Laurel(A) I can do the consultation before you get the results of the FOIA.

andrewrasa(Q) Hi Good Morning Attorney Scoot I am a new to this chat. My question is I am married to a Mexican gal. . we went for a waiver appt on dec 6th the officer was baffled why she did not get the visa and asked her which officer put her through the waiver. The officer took the passport and stated 6-8 weeks. With the current LOI to change the process does it affect her process in CDJ. I am a USC. is there anything or should i be doing anything that could be done to speed up the process. please advice.

Laurel(A) Right now the proposed rule will not affect her process as she is already abroad. Currently I am telling clients to expect the initial decision on the waiver in FOUR MONTHS, not 6-8 weeks. There is nothing you can do to speed up the process.

Laurel(P) There was a post by "rmstafford", but it includes the full name of the alien and I prefer not to post full names in the chat as it is too public.

TSK(Q) from caniread: Is there any time frame given, implied, or a rough estimate you can give on the proposed changes you talked about last week for being able to file I601 from the USA. I ask this because we are in the middle of filing our NVC papers and would like to know if we should keep going or maybe wait a little to see what happens. Thank you for all the help and advice you give to all of us.

Laurel(A) We're looking at being able to file in-country I-601s in October, November or December. Probably December. Rough estimate. I am recommending to all clients who are expected to be eligible for this that they hold their cases. Unlike a change in law, a change in procedure is extremely likely to occur once the proposal is officially announced. We're not talking 100% certainty, but we are talking 95% certainty. Also, please note that if you have a Mexican case, there is a large bubble of cases filed in the latter half of 2011 that has to be resolved. During that time period, USCIS in CDJ experienced extreme staff shortages, resulting in a large backlog of cases. Until that gets resolved, expect to see much longer processing times than previous. This means that if you have a Mexican case, there is all the more reason for you to at least wait a few months before departing the US. If you have are currently here and have a consular interview scheduled in CDJ before May, speak to your attorney before departing the US. And this has nothing to do with the new rule change. Even if it weren't for the proposed rule change, I would still be postponing Mexican consular interviews that were supposed to take place in the few months. Now, if you are already outside the US, there is no benefit to postponing, so you might as well move foward.

jpcsemm(Q) Hi Laurel, thanks for this opportunity. My mother has a visa interview at the Mumbai Consulate in a few weeks. We expect her to get denied b/c she acrued Unlawful Presence 365+ days - She came back to India on Voluntary Departure 3 years ago. If she does not submit an I-601 during her interview, is there a chance that her case might be lost in an "Administrative Blackhole?" Based on your exprience with I-601s in Mumbai [i.e. Delhi], how much more/less rigid are the evaluators of I-601s compared to other consulates?

Laurel(A) The "administrative blackhole" is a roving blackhole that always has the chance of consuming any case for any reason or for no reason. But I don't know that submitting your waiver after your interview, rather than at the interview makes the blackhole more likely to consume your case. At this time I would not say that one USCIS office abroad is harsher than any other. You see a difference in approval rates, but that has more to do with differences in typical grounds of inadmissibility at the various offices.

TSK(Q) from Megganclaudio: Lima applied the 5 year ban for inabsentia, after the consulate did not.only applied the 2 10 years bans at Rio. Should we appeal. My lawyer is saying yes.

Laurel(A) Appealing is probably your only option other than waiting it out. You can't refile if that was the finding. You could do an MTR, but I think an appeal is more conservative.

TSK(Q) artemis031: I was wondering for how long is the medical good for?

Laurel(A) Usually the overall medical is good for a year, but the TB test (depending on the type of test performed) is good for six months. The TB testing done in Mexico is good for six months. Some other consulates abroad are still using the old TB test that's good for a year. If you are medically inadmissible and get a medical waiver, sometimes they want a new medical in less than six months before issuing the visa. If you did a medical for a K visa, you will still need to get the vaccination update when you go to adjust status even if the medical at the consulate was less than a year ago.

TSK(Q) From Lucesitas: Husband has an illegal entry from 1989. Deportation in absentia given in 1998 (due to political assylum filed by notary). He didn't receive the notice, but I don't have complete proof to show he didn't receive it. If he gets an appointment in Ciudad Juarez, is there a type of waiver he can file for the Deportation he has? Does he qualify for the I-601? Thank you.

Laurel(A) It doesn't matter whether he got the notice. It only matters that the government sent it to the last address he provided them. Note that 6B - the five year inadmissibility ground for missing a hearing - only applies if the Notice to Appear was issued after April 1, 1997.

TSK(Q) from Phoenixc99: Hi Laurel. I have read several things on this forum about tattoos and how they may be deemed "gang affiliated". Apparently, because of these tattoos some people's waivers have been denied. This worries me because my husband has two tattoos (one on each arm). One is a picture of a phoenix which is named after our son and the other is just a tribal armband. Would these tattoos possibly hurt him in the approval process for the 601 waiver?

Laurel(A) It is unlikely to cause the waiver to be denied. Rather, it is likely to cause the consulate to refuse to 'clear' the applicant to even file the waiver in the first place. Your husband should be prepared to explain his tattoos. These don't sound too bad. We run into more issues if (a) it's a gang symbol, such as the number '13', (b) it's on the hand, face, neck or sometimes forearm (as opposed to upper arm) or wrist, or (c) the person has A LOT, A LOT, A LOT of tattoos. If you've got a 13 tattooed on your hand, I'm not even taking the case. But I don't have a problem with the butterfly on your ankle.

TSK(Q) from Amanda: ust wondering under the new waiver process in the US. Reynaldo had a wreck the other day. He got a ticket because the cop said his international drivers license is not valid in the US. He also had a ticket once for no seat belt. He's never been arrested. Does this exclude him from filing through the new process? He has insurance and his truck is registered in his name. Thanks!

Laurel(A) The international driver's license is good for one year in the US. If it's within that one year, he should fight the ticket. If he wasn't wearing his seat belt, he needs to learn to wear a seatbelt. As for whether he can file through the new process ... To be clear, the final rule has not yet been announced. I do not know exactly what the final rule will be. But I do not expect that driving without a license will be a basis for preventing people from being able to file.

allen(Q) about to file waiver in wife's home country. she was out of status on K1 visa. what to consider to write on the hardship letter? I read that they only approve waiver for medical reason.

Laurel(A) Your question amounts to "how do we present our case"? Answering this question usually takes 6 to 12 weeks and costs about $6000 to $8000.

TSK(Q) Laurel, according to the article they said that they will take even first offenders to court. The article stated that they plan to give minors the throwback policy but that's about it. I'm just imagining the court system overwhelmed at the moment. They're also talking about relocating them - giving them tickets to Mexico City or to the other side of Mexico from where they're caught.

Laurel(A) I have to read the article. I'm not sure whether they are talking about criminal court or immigration court or an expedited removal. These are very different things. I don't know whether a first offense is an attempt to enter without inspection or an attempt to enter after prior removal. Putting them on a plane to Mexico City sounds expensive.

Bettina(Q) My husband took a voluntary departure in 2010. He had been in the united states for 19year with only a DUI on his record. He has been in mexico since 9/19/2010. He had his first interiew in Juarez on 12/13/2011. he was given a 1yr ban/bar for illegal drug use( he has never done any drus before). So my question is. Is there any way to get the bar/ban lifted? I need him here to help me and the kids because I an undergoing cancer treetment. Thanks!!!

Laurel(A) There is no way to get the ban lifted, but if you are undergoing cancer treatment and have kids, you might be able to get him humanitarian parole.

TSK(Q) from fanygirl: the new 601 waiver thats being propose does it have any effect on someone that would fall under the 9c ban or is that still undecided

Laurel(A) The new procedure is only a new procedure. It is not a new statute. The procedure will not make people eligible for a waiver who were not previously eligible.

TSK(Q) from elenabraginski: hi laurel. what will this new rule( if its inplimented)mean to those who have already left USA voulanterily for the waiver process, have no criminal record, and are waiting on their waiver aproval in their country. Do you think they will be allowed to come back to continue waiting here or will they not be helped by this new rule

Laurel(A) The proposed new rule regarding Provisional Waivers will not affect them. I had thought it might reduce processing times, but I just wrote an article for the Texas State Bar - to be published in February - in which I argue that in fact the Provisional Waiver procedure will not reduce processing times for other waiver applications filed abroad. In the near future, expect to hear a new rule proposed for Lockbox Waivers. This will affect those filing abroad. It will not enable them to come to the US while the waivers are pending, though.

TSK(Q) From angelique08 My Canadian husband was denied entry to visit me in the U.S. due to a 30 yr old marijuana conviction for about half a gram. He has been to the States several times since then but this has just shown up in CBP computers. He was given a packet to apply for I-192 waiver. Can you tell me about this process please? He was told it would take a couple of months by CBP but the website says more like a year. I'm very confused.

Laurel(A) It will probably take more like a year. He's permanently inadmissible because of this drug conviction. CBP erred in allowing him to come to the US all those times. As a matter of law he should've been denied entry. On the I-192 waiver he will be asking to come as a nonimmigrant despite his inadmissibility. It's pure discretion, meaning he he just has to explain straight-up why he thinks they should give it to him (well, it's been 30 years ...) and they decide whether they like him or not.

TSK(Q) from ristenk: Hi Laurel Do you think it is possible to get a presidential pardon for INA 212 a6b from President Obama if he is not reelected? Is there a form or bill (any kind of set process) that one needs to fill out/ write to request a pardon and submit reasons/proof/etc.? Also does your firm do this? Thank you.

Laurel(A) No, no, and no. Sorry. 6B is strict.

TSK(Q) from jmalpica84: Hi laurel, I was referred on April 13 2010, on Feb 13th my ten months are up. I gonna be able to call and find out more about my case. What kind of answers should I expect? Will my case get approve faster after 10 months? thanks Laurel!

Laurel(A) I presume you mean April of 2011. My experience with making inquiries on cases referred in CDJ is that you will be talking to a brick wall. You're more likely to get a response by throwing a quarter into the fountain at the mall. Go ahead and make your inquiries and make a detailed catalog your inquiries so that when you don't get a response, you can show your Congressman that you attempted the correct steps before taking the case to him to make a Congressional inquiry.

TSK(Q) from locashelly: Hi, My husband has an approved I-130 and is scheduled for his interview in Juarez in Feb. We are debating on whether to go or see if the new regulation can help us. My question today though is around his biographic data in the paperwork. When we originally filed for his I-130 the attorney did not advise us on INA 2129c and the paperwork submitted shows that he was in the US for more than 1 year after 1997, left, and then returned. When I submitted the DS 230 I was concerned about putting in different dates so I put the same ones from the I-130 BUT my husband assures me that it is not the case and the attorney wrote down the wrong information on the form. I know this is our fault for not reviewing the information but our updated history will show that he's not subject to INA 212 9C because his aggregate time before he left to Mexico the second time was only 7 months. Not 1 year. I may not understand the law correctly but his real dates of entry are: US. Jan 96 - Jan 97 - EWI Mex - Feb 97 - Apr 98 US May 98 - Dec 98 - EWI Dec 98 - Feb 99 (VR to Mexico) US - Mar 99 - present - EWI Is he subject to INA 212 9c? If he's not, then what are valid documents to prove he was in Mexico for the period in question? He doesn't own anything (lived at home with parents) and worked for a local farmer who paid him in cash. He was 20 at the time. Thanks, Michelle

Laurel(A) If you're concerned that there will be a 9C issue at the consulate due to a mix-up in the dates provided to the government, then I would recommend waiting for the new procedure. If the consulate determines that 9C applies, they will stop listening to you and tell you to go away.

ColdinIL(Q) With respect to every case being different and circumstances unique, are there any 'preparatory' things that you would like to see a couple do leading up to I-130/waiver process to make your collection of materials easier or their case better in the eyes of the consulate (EWI-Mexico)? In other words, ideally, what would you tell a couple to begin doing or continue doing?

Laurel(A) Have a 'real' wedding in a church or 'wedding venue' - as opposed to a private home or courthouse. Wife should wear a traditional wedding dress that does not appear to be something she would wear again to another occasion. To the extent humanly possible, parents of bride and groom should attend and should be in the photos.

Laurel(P) It is noon. Time really flew this week. I have a window full of pending questions in front of me. But I do need to get back to my clients. I will see you all next week.