Articles Posted in I-601 Waivers

Welcpuzzle-g75f3e575f_1920ome back to Visalawyerblog! We hope you had a wonderful holiday break and wish you a prosperous new year ahead.

We kick off the new year with some important updates in the world of immigration.

Today, the United States Citizenship and Immigration Services (USCIS) officially announced a Notice of Proposed Rulemaking (NPRM) that will be posted in the Federal Register tomorrow Wednesday, January 4, 2023 that will increase filing fees for certain types of immigration benefits. An unpublished version is already available in the Federal Register.

A 60-day public comment period will follow the publication of the NPRM on January 4, 2023 and will close on March 5, 2023.

Fees will not change until the final rule goes into effect, and only after the public has had the opportunity to comment and USCIS finalizes the fee schedule in response to such public comments. USCIS will host a public engagement session on the proposed fee rule on January 11, 2023.

According to USCIS, the proposed fee increases are necessary to ensure that the agency will have enough resources to provide adequate services to applicants and petitioners moving forward. The agency has said that after having conducted a review of current fees, it has determined that it cannot cover the full cost of providing adjudication and naturalization services without a fee increase.

The agency cited the COVID-19 pandemic as one of the factors leading the agency to increase its fees. As you may recall, the pandemic caused a dramatic reduction in the filing of new applications, leaving USCIS with a substantial decrease in revenues of 40 percent. This unfortunate drop in applications led USCIS to reduce its workforce accordingly.

With current resources, the agency has said it is incapable of adjudicating applications in a timely manner, when considering that agency caseloads are now returning to pre-pandemic levels.

Among the new proposals included in the NPRM are measures that:

  • Incorporate biometrics costs into the main benefit fee and remove the separate biometric services fee
  • Require separate filing fees for Form I-485 and associated Form I-131 and Form I-765 filings
  • Establish separate fees for Form I-129, Petition for Nonimmigrant Worker, by nonimmigrant classification.
  • Revise the premium processing timeframe interpretation from 15 calendar days to 15 business days
  • Create lower fees for certain immigration forms filed online.

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Have you ever wondered: is there an exception to the COVID-19 vaccine requirement mandated by the U.S. Citizenship and Immigration Services (USCIS) for those undergoing the green card process?

In this blog post, we share with you how our office was able to obtain successful waivers of the COVID-19 vaccine requirement, information about what exceptions exist to the vaccine requirement, the criteria that must be proven to obtain a vaccine waiver, and the resulting victories we gained on behalf of our clients.

We also describe how we were able to accomplish vaccine waiver approvals, by presenting an abundance of documentary evidence to help these individuals prove their case.


An Overview: What is the COVID-19 Vaccination Requirement


In response to the rapid rise in Coronavirus cases, the U.S. government announced that starting October 1, 2021, those applying for permanent residency (a green card) within the United States, or an immigrant visa abroad, would be required to be fully vaccinated against COVID-19 (one or two doses depending on the vaccine taken).


The Medical Examination Form I-693

As part of the green card process, applicants are required to complete a medical examination conducted by a civil surgeon on Form I-693, to establish that they are not inadmissible to the United States on public health grounds. The government made it a matter of policy as of October 1, 2021, to require all those subject to the medical examination requirement to complete the COVID-19 vaccination to prove their admissibility (and therefore) receive approval of their green cards.

The U.S. Citizenship and Immigration Service announced that this policy would apply “prospectively to all Forms I-693 [medical examinations] signed by the civil surgeons” on or after October 1, 2021. The agency also took steps to revise Form I-693 and its instructions to include the new vaccination requirement.

Its policy guidance followed the recommendations of the U.S. Centers for Disease Control and Prevention’s (CDC) August 17, 2021, update to the Technical Instructions for Civil Surgeons. The CDC update requires applicants subject to the immigration medical examination to “complete the COVID-19 vaccine series [in addition to the other routinely required vaccines] and provide documentation of vaccination to the civil surgeon or panel physician in person before completion of the medical examination.”


Does the COVID-19 vaccination requirement also apply to those seeking immigrant visas at U.S. Embassies and Consulates abroad?


Yes. The government made clear that the COVID-19 vaccination requirement applies to those seeking to adjust their immigration status within the United States, as well as applicants applying for immigrant visas at U.S. Embassies and Consulates abroad. That is because complete vaccination is necessary for a medical examination conducted by a civil surgeon or physician abroad, as part of the green card admissibility process.

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For years you have 8276375308_d5f2721898_zput your trust in our office for all of your immigration needs and for that we thank you. We consider ourselves very fortunate to be able to serve you and your families. Throughout the years, we have helped thousands of immigrants from all over the world attain their American dream. Learning about their lives and their struggles has

always been an important part of our practice. Although many challenges lie ahead for immigration, we are confident that important changes will come about in the new year. Do not despair and know that our office will be with you every step of the way. We wish you and your families the happiest of holiday seasons.

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For persons who have entered the United States illegally or who have accrued unlawful presence after having overstayed their visa, the possibility of obtaining lawful permanent residence (a green card) is very limited. In the United States there are generally two ways to adjust status to permanent residence. With few exceptions, a green card may generally be obtained through employment-based sponsorship, or family sponsorship based on a qualifying family relationship, such as a U.S. Citizen or Legal Permanent Resident relative. Unlawful presence is a very serious immigration offense that is subject to punishment depending on the amount of time a person has accrued unlawful presence in the United States.

Undocumented immigrants who accrue unlawful presence in the United States, and subsequently leave the country, and attempt to re-enter the United States lawfully, may be subject to either a 3- or 10-year bar, based on the amount of time they have accrued unlawful presence in the United States. Specifically, under the Immigration and Nationality Action Section §212(a)(9)(B)(i)(I) a person who has accrued more than 180 days of unlawful presence in the United States, is subject to a 3-year bar automatically triggered once the person departs the United States. The bar would thereby prevent a person from being re-admitted into the United States, depending on the amount of time they were previously unlawfully present in the country. Similarly, under the Immigration and Nationality Act §212(a)(9)(B)(i)(II), a person who has accrued one year or more of unlawful presence in the United States, is subject to a 10-year bar preventing a person from being re-admitted to the United States, once they have departed from the United States.

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In this segment, we answer 5 of your most frequently asked questions received on our social media platforms and our website. Please remember that every case is different and every immigration journey is unique. You should not compare your situation to anyone else’s. We hope that our answers will provide you with further guidance while you embark on your immigration journey. If you have any further questions, please call our office to schedule a free first time consultation. We serve international clients and domestic clients in all 50 states. We thank you for your continued trust in our law office. For more information on the services we offer please click here.

Fiancé Visa

Q: I am a U.S. Citizen who is planning to marry a Moroccan citizen. I am interested in applying for the K-1 fiancé visa for him. The problem is that we have not met in person and it is hard for me to travel to his country because I am a single parent. I know one of the requirements for this visa is to meet in person. Are there any other visa options available to us since we have not met in person? I have heard of people obtaining waivers due to traveling hardships. Please advise.

A: Thank you for your question. This is a very common fiancé visa question. In order to file the K-1 fiancé visa you must meet the following requirements:

  • You (the petitioner) are a U.S. citizen.
  • You intend to marry within 90 days of your fiancé(e) entering the United States.
  • You and your fiancé(e) are both free to marry and any previous marriages must have been legally terminated by divorce, death, or annulment.
  • You met each other, in person, at least once within 2 years of filing your petition. There are two exceptions that require a waiver:
    If the requirement to meet would violate strict and long-established customs of your or your fiancé(e)’s foreign culture or social practice.

    2. If you prove that the requirement to meet would result in extreme hardship to you.

As indicated above there are only two exceptions that would allow you to seek a waiver of the K-1 visa two-year meeting requirement. The first requires the petitioner to demonstrate that compliance of the two-year meeting requirement would violate strict and long-established customs of either your fiancé’s foreign culture or social practice or of your own foreign culture or social practice. While it is difficult to prove this, it is not impossible, however the couple should be aware that substantial evidence is required to prove that either your or your fiancé’s culture explicitly prohibits you from meeting the two-year requirement. Of course this element is largely at odds with traditional Western norms and practices, therefore it is extremely difficult to explain to an immigration officer why you and your fiancé cannot meet in person before you are to be married.  This waiver should only be considered in very limited circumstances.

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Q: What qualifies as a bar of “Unlawful Presence?”

A: If you have accrued more than 180 days of unlawful presence in the United States, you are subject to a 3-year bar preventing you from being re-admitted to the United States under the Immigration and Nationality Action Section §212(a)(9)(B)(i)(I). The bar is triggered once you have departed the United States.

If you have accrued one year or more of unlawful presence in the United States, you are subject to a 10-year bar preventing you from being re-admitted to the United States under §212(a)(9)(B)(i)(II).

If upon your entry to the United States, you were not inspected, admitted, or paroled by a U.S. Customs Official, then you are ineligible to adjust your status to lawful permanent resident (LPR) within the United States, even if you have an approved visa petition. This means that in order to legalize your status, you are required to depart the United States and apply for an immigrant visa at a United States embassy or consulate abroad. Your departure from the United States will then trigger a 3- or 10-year bar to readmission, preventing you from returning to the United States, depending on the amount of “unlawful presence” you accrued prior to your departure.

There are ways to waive these 3- and 10-year bars to readmission only if you can demonstrate that your refusal of admission to the United States would cause an “extreme hardship” to your U.S. Citizen immediate relative or Legal Permanent Resident spouse or parent.

Q: Can I apply for the provisional waiver if I was previously deported, removed, or excluded from the United States?

If you received a final order of removal, deportation, or exclusion you may apply for a provisional waiver of unlawful presence, however you must first apply for the I-212 Application for Permission to Reapply for Admission into the United States After Deportation or Removal, and the application must be conditionally approved.

If ICE or CBP has reinstated a prior removal order under 8 CFR §241.8, before filing of the provisional waiver application or while the application is in process, you are no longer eligible to receive a provisional waiver of unlawful presence. A provisional waiver approval would be automatically revoked if the applicant is found inadmissible under INA §212(a)(9)(C) for unlawful return to the United States after prior removal or prior unlawful presence.

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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.