Visa Lawyer Blog

Articles Posted in I-601 Waivers

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The United States Citizenship and Immigration Services (USCIS) has published a new final rule that will expand the class of individuals who are eligible to apply for a ‘provisional’ waiver of certain grounds of inadmissibility (Form I-601A) based on their accrual of unlawful presence in the United States.

The provisional unlawful presence waiver allows certain individuals, unlawfully present in the United States, to request a provisional waiver before departing the United States for consular processing of their immigrant visas.

Previously, only immediate relatives of U.S. Citizens were eligible for this waiver. The provisional waiver is beneficial because it does not require the applicant to wait until the consular interview, to apply for a waiver, as in the case of the I-601 waiver. Provisional waivers also substantially reduce the time of separation between the applicant and his or her U.S. Citizen or legal permanent resident (LPR) relatives.

The rule was published in order to improve efficiency and reduce the amount of time that a U.S. Citizen/LPR spouse or parent is separated from his or her relatives while the relative completes the immigrant visa process. According to the 2013 rule, parents, spouses and children of U.S. Citizens were eligible to apply for provisional waivers of the 3- and 10-year unlawful presence bars before departing the United States for their immigrant visa interviews. The new rule expands upon the 2013 rule extending that benefit to family members of LPRs.

Who benefits?

The rule will expand the provisional waiver process to certain individuals who are family members of U.S. Citizens and lawful permanent residents (LPRs) who meet the statutory requirements to be eligible for an immigrant visa. The rule will expand eligibility to all individuals statutorily eligible for the waiver. In order to qualify, applicants must be able to establish that their U.S. Citizen or LPR spouse or parent would experience an “extreme hardship” if the applicant was not allowed to remain in the United States. The final rule will take effect on August 29, 2016.

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Every year USCIS receives and adjudicates approximately 6 million applications from foreign nationals seeking to immigrate to the United States, and U.S. companies seeking to employ foreign workers temporarily.  According to the Department of Homeland Security’s Office of Immigration Statistics, “an estimated 13.1 million lawful permanent residents (LPRs) were living in the United States on January 1, 2013.” Of these permanent residents, more than half–8.8 million–were eligible to apply for naturalization. Additionally, the United States issues approximately 700,000 temporary non-immigrant work visas for a variety of temporary workers including: highly skilled foreign workers employed in specialty occupations in the STEM fields, fashion models, internationally acclaimed athletes and entertainers, aliens of extraordinary ability, religious workers, intra-company transferees, treaty traders/investors, foreign media workers, and agricultural and seasonal workers.

The reason the issuance of temporary worker visas is so low, when compared to the issuance of permanent resident cards, is because most of the temporary foreign worker visa programs are subject to a congressional cap, that limits the amount of non-immigrants that can be admitted per fiscal year. Additionally, certain temporary nonimmigrant worker visa classifications are granted for a specified period of time, although in most cases at least one extension may be granted. The cap applies primarily to the H nonimmigrant worker classifications, and non-minister religious workers. The H visa category accounts for approximately 54% of all visas issued for temporary workers. That is why the H visas are the most talked about visas among politicians when discussing immigration reform. The cap does not apply to treaty traders/investors, aliens of extraordinary ability, intra-company transferees, NAFTA professionals (Canada and Mexico), and foreign media workers. In comparison to developed countries, the United States admits a relatively low number of temporary foreign workers. Foreign workers are typically admitted either to fill labor shortages in the American job market, or because of their exceptional, or highly technical skills, as is the case for the H-1B visa classification.  Only highly skilled foreign nationals, aliens of extraordinary ability, aliens holding advanced degrees, high capital investors, nurses and physical therapists, doctors in undeserved area, and recipients of national interest waivers, have the unique opportunity to obtain permanent residence based on employment.

The mammoth task of meaningful immigration reform will not be easy and it will not happen overnight. The presidential nominees have failed to outline a clear strategy to overhaul our immigration system. None of the presidential candidates have addressed the most contentious areas of immigration policy that must be revised, in order to repair our broken immigration system.

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mayaFor this month’s staff spotlight, we invite you to learn more about Paralegal, Maya Elkain.

Ms. Elkain began her journey with the Law Offices of Jacob J. Sapochnick in 2014 as an intern. She quickly learned the ins and outs of employment based immigration law and was offered a position. Today, she assists attorneys with the preparation of H-1B applications, E-2 investor visas, L-1A visas, O visas, National Interest waivers, provisional waivers of unlawful presence, and much more. Ms. Elkain specializes in employment-based immigration and investor petitions. With her assistance, our law office has been able to receive affirmative decisions in numerous cases.

“The best part of my job is having the opportunity to make a difference and actually help our clients succeed in their immigration process. It is the most rewarding feeling.”

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It is our pleasure to introduce our readers to our esteemed Paralegal and Case Manager Katie Foley who has worked at the Law Offices of Jacob J. Sapochnick since 2010. Ms. Foley, originally from Santa Cruz, California holds a Bachelor’s Degree in Liberal Studies from Cal State East Bay and her paralegal certificate from San Diego Miramar College. Throughout her career, Katie Foley has assisted our attorneys with various different types of immigration petitions including family-based petitions, employment based petitions (H-1B, E-2 etc.), deferred action, marriage visas, I-751 petitions, fiancé visas, consular processing, naturalization, temporary visas (B-1/B-2, J-1, F-1 etc), deportation and removal cases.  She has successfully processed hundreds of applications and in the process has formed long standing relationships with our clients. In her role as case manager, she assists our legal assistants with their case loads and provides direction as needed. Ms. Foley is an outstanding member of our firm for her impressive attention to detail, her understanding of the law, and the extensive guidance she provides our clients to ensure every case has a successful outcome. She provides all of our client’s strong personal support and comprehensive step-by-step instructions for each immigration process. If you are an international or out of state client, not to worry, Ms. Foley has perfected an easy online case processing system to assist clients with their immigration concerns no matter where they reside. In her free time, she enjoys lap swimming, barbecues, and gardening. To read more about Ms. Foley please click here.

For immigration questions please call our office. Your Immigration is our Passion.

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It is our pleasure to introduce our incredibly skilled operations manager and immigration consultant, Lupe Lopez. If you have called or stopped by our San Diego office for a consultation, chances are you have already met with her to discuss your needs. Throughout her immigration career, Ms. Lopez has assisted thousands of clients with their immigration concerns. There is no situation or immigration story she hasn’t heard and no shortage of extraordinarily challenging cases she has assisted with. Her compassion and empathy working with clients who have faced family separation and other adversities is unmatched.

Ms. Lopez holds over 12 years of experience in the field of immigration legal services. Her expertise includes filing waivers of inadmissibility, I-360 VAWA petitions, removal proceedings, nonimmigrant waivers, business, investment, and family immigration petitions. Ms. Lopez possesses a B.S. in Human Resource Management and a Certificate in Labor Relations. She is currently in the process of becoming Dale Carnegie certified. Aside from serving as an immigration consultant, Ms. Lopez is also our Operations Manager, ensuring that we deliver the highest level of customer service with proven results. She helps train, organize, and improve our operations systems which allow us to gain the customer trust, loyalty, and satisfaction. In her capacity as operations manager, she addresses both internal concerns and client concerns keeping our standards for excellence above our competitors.

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Last week, we reported to our readers that on September 25th the Department of State and USCIS re-issued the October Visa Bulletin and changed the date of filing chart drastically, rolling back the ‘Dates of Filing’ for heavily used visa categories, including employment based and family-sponsored petitions. The American Immigration Lawyers Association, along with policymakers, and immigration advocates, are urging Congress, the White House, USCIS, and Department of State to restore the initial dates of filing that were authorized and released on September 9th 2015 with the October Visa Bulletin.

If you would like to pressure the government to honor the initial dates of filing, released on September 9th, we invite you to sign the White House petition by clicking here. We must hold the government accountable for their actions by advocating for the restoration of the initial dates of filing. With the release of the October Visa Bulletin, the DOS introduced a dual chart system for the first time in history which included a new ‘date of filing’ chart. The new date of filing chart would have allowed thousands of foreign nationals to file their adjustment of status and employment authorization applications, before a visa became available to them. This action was made by the DOS in an effort to modernize and streamline our immigration system as part of President Obama’s Executive Actions on Immigration announced on November 20th of last year. Due to the recent drastic changes that have been made to the date of filing chart, we encourage you to become involved by signing the petition or writing to your local Congressman/Congresswoman. Thousands of foreign workers and family members of foreign nationals have been impacted by the recent changes, given that the majority of applicants who would have been eligible to file for their green card applications and employment authorization cards, will no longer be able to do so. They must continue to wait until their priority date becomes current on the date of filing chart.

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It is our pleasure to introduce our readers to our senior case manager, Inese Grate, one of the original members of the Law Offices of Jacob J. Sapochnick. Ms. Grate joined our firm when there were merely 2 employees working at the office. In addition to studying law in Latvia, Ms. Grate received her Master’s in Law in International Business Transactions from Temple University Beasley School of Law and attended the International Law Institute at Georgetown University School of Law.

Ms. Grate specializes in business and family immigration, corporate, international trade, and international transactions. Ms. Grate provides consultation on strategic investment in the United States for international clients and corporations to identify potential opportunities, create jobs, and develop successful businesses. Throughout her professional career, she has taken several international and U.S. startup companies from an ideation phase through to establishment and registration. Ms. Grate is unique in that she thinks outside of the box and is able to utilize her professional network of financial advisors, real estate brokers, investors and industry experts to assist our clients based on their unique needs. Throughout her career, Ms. Grate has helped numerous corporations and individuals in the United States as well as several European countries in various immigration/business related issues. Ms. Grate evaluates business plans and works on all related immigration issues including visas, licenses, and permits. She has helped in numerous cases in this area for the past few years.

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imagePresident Obama closed off the year by announcing his highly anticipated executive action on November 20, 2014 which will go into effect early this year, but the executive action was only one of many important initiatives that occurred in 2014.

2014 was a big year for immigrants for several reasons:

  • AB 60 California Driver’s License Applicants: Beginning January 01, 2015 undocumented immigrants can start the process of obtaining their driver’s licenses under AB 60 at their local DMV field office
  • Executive Action: Beginning February 2015, eligible applicants can apply for the expanded DACA program which shields undocumented individuals from deportation who were brought to the United States illegally as children, our office will be providing you with further updates early this year
  • Beginning May 2015 eligible parents of U.S. Citizens and lawful permanent residents can apply for deferred action thereby protecting them for deportation and allowing millions of parents to be eligible for employment authorization

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Jose came into our office yesterday.  He had been here before.  About a year ago he came in to have a consultation with us and it seems we didn’t have the “right” answers that he wanted to hear.  This led to Jose searching for what he really wanted to hear.

For the past year, Jose has visited several immigration attorneys to confirm the information we had already given him.  The answer was always the same; except one day he found one attorney who gave him hope.  Unfortunately, the attorney took his hope, his money, and didn’t do anything to help.

We hear this story often and there isn’t a week that goes by where we don’t see a person who has entrusted their life and their savings to an inexperienced attorney, or worst yet, to an unscrupulous attorney or immigration consultant.  There are times that we have to give people the bad news – that there is nothing that can be done to help them.  The person is usually devastated and in their desperation will state “I’ll find a better attorney and he will be able to help me.”  The truth is, if you search for the answer you want to hear, you will always find someone who are willing to help you; that is they are willing help you be separated from your money – leaving you hopeless.

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Jose Antonio Vargas has quickly become the face that has humanized the struggle for immigration reform. Unlike other immigrants, Jose is a Pulitzer Prize winning journalist, Washington Post reporter, activist, and the founder of an immigration awareness campaign called ‘Define American’. Back in June of 2011, Vargas courageously revealed to the world that he was undocumented in a column he wrote for New York Times magazine. In it he describes what his move to the United States was like, the lengths he went to as a child to fit in to the American lifestyle, and what it has been like residing in the United States unlawfully. Jose’s journey to the United States began much like that of any other immigrant. He was smuggled into the United States from the Philippines when he was only 12 years old by an individual he believed to be his relative. Once in the United States, Vargas was raised by his hardworking grandparents who afforded him a better future. From the outset, his upbringing in the bay area of San Francisco appeared to be much like that of any other American child.

It was not until he made a visit to the DMV to obtain his driver’s permit that he realized the green card he was given by his grandfather was in fact fake when he was told by the woman at the DMV window not to come back there again. For years, Jose Antonio Vargas has dedicated his life to standing in solidarity with the thousands of undocumented immigrants residing in the United States illegally. He has done this by serving as the voice of the undocumented, attending hundreds of conferences and speaking engagements, in addition to writing as a distinguished columnist.

Up until July 15th Vargas was able to advocate for the plight of undocumented immigrants without being apprehended despite constantly being in the public eye. A few days prior to July 15th Vargas appeared at a shelter housing Central American children and refugees and attended a vigil to honor them near the Rio Grande Valley. His presence in the region was meant to call attention to the humanitarian nature of the subject. In order to attend the event, Vargas crossed the McAllen, Texas TSA checkpoint, an area known to be highly secured and militarized. Vargas had not given much thought to the possible risk of being detained once he would return to the United States through the same checkpoint. According to the Department of Homeland Security Vargas was detained once he told TSA officials that he was residing in the country illegally. He was then taken to the McAllen Border Patrol Station and was given a Notice to Appear before an immigration judge. He was released within the same day after speaking with Immigration and Customs Enforcement officials. Unfortunately for Vargas, until comprehensive immigration reform is passed, he will continue to be forced to live under the radar. Vargas was not able to qualify for the Dream Act or for DACA, because his age did not meet the cutoff age as required by law. Shortly after being released Vargas issued a statement saying that the undocumented are constantly having to live in fear as a result of the failure of Congress and President Obama to act and bring about a viable solution to the problem. Jose Antonio Vargas challenges Congress to act by asking them the question: how do we define American?

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