Visa Lawyer Blog

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Recently there has been an increase in denials for the Provisional Unlawful Presence Waiver based on the “Reason to Believe” standard that USCIS officers are implementing when adjudicating the case. To understand the importance of this new standard, there are a few facts to understand regarding the Provisional Hardship Waiver.

The Provisional Unlawful Presence Waiver was implemented so that those who were in the U.S. already and were seeking this waiver so they could legally adjust their status in the U.S. would not have to be separated from their family members for too long. In order to qualify for the Provisional Unlawful Presence Waiver, there are several eligibility requirements one must meet in order for it to be granted. These requirements are as follows:

– Be 17 years of age or older.

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As many of our readers know, Green Card holders can not confer immediate benefits on Spouses and Children under 21. There is a waiting period determined by the Visa Bulletin. But according to the August 2013 Bulletin, the F2A category (Spouses and Children of Permanent Residents), will become current.

What does that mean?

If you are a Permanent Resident (Green Card holder), and your spouse is currently legal in the United States, as of August 1, 2013 you could file for Adjustment of Status (I-485 Benefits). That will include an application for a Green Card, Work Authorization, as well as a travel permit. The work card will be issued in 60-90 days in most jurisdictions.

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In a recent news report, Former President George W. Bush made statements that threw his weight behind comprehensive immigration reform during an interview that aired Sunday on ABC’s “This Week,” saying it is “very important” Congress fixes a “broken” immigration system, and predicting that a comprehensive bill “has a chance to pass.”

In the interview, Bush’s thoughts were that “I think it’s very important to fix a broken system, to treat people with respect, and have confidence in our capacity to assimilate people.” He did not explicitly endorse a recently passed Senate immigration reform bill, only saying the legislative process can be “ugly,” but it appears as if Congress is “making progress.”

“It’s a very difficult bill to pass because there is a lot of moving parts,” he explained. “I understand sometimes you get legislation through that you want….But sometimes…it takes time for some of these complex issues to evolve. And looks like immigration, you know, has a chance to pass.”

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With the focus now shifted to the House to work on the immigration bill the Senate recently passed, it would seem like common sense that the situation for DREAMers would see some improvement since Obama instituted his own Dream Act. A recent look at the laws of some states clearly suggest otherwise.

One question came up once this policy was instituted was whether or not Dreamers should be able to apply for a driver’s license. Nearly every state has since reached the right conclusion, that Dreamers who now live here legally should be able to drive legally, too, as a straightforward matter of public safety and common sense. Some states have gone further to grant licenses to all qualified applicants regardless of immigration status. New Mexico and Washington already had such laws and were joined this year by Illinois, Oregon, Maryland, Vermont, Connecticut, Nevada and Colorado. California is considering doing the same. Utah issues a certificate to the undocumented that is valid for driving but not for identification. At least based on the actions of these states it appears that more states want to ensure that there are licensed drivers on the road that can be held accountable for anything that happens.

Arizona and Nebraska are two states that persist in keeping immigrants out of the driver’s seat, singling out Dreamers as ineligible for driver’s licenses. In Arizona, made infamous for its anti-immigrant laws, such action is all-but-official state policy. In Nebraska, Gov. Dave Heineman, said in a news release in August: “The State of Nebraska will continue its practice of not issuing driver’s licenses, welfare benefits or other public benefits to illegal immigrants unless specifically authorized by Nebraska statute.”

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As many Americans are about to celebrate 4th of July, we have to remember that many others among us who truly feel American, can not legally state they are one of us. Let us hope that by the end of this year we could allow many many good people among us to become legal and be proud to some day become Americans!!

Here is a post by Annaluisa Padilla from AILA that is so relevant as we celebrate July 4th, 2013:

This past week was truly a historic week for our nation. The Supreme Court ruled that section 3 of the Defense of Marriage Act (DOMA) was unconstitutional as its “demonstrated purpose is to ensure that if any State decides to recognize same-sex marriages, those unions will be treated as second-class marriages for purposes of federal law.”

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I am still at the American Immigration Lawyers Association Annual Conference in San Francisco. We just finished a panel about LGBT Same Sex Immigration Issues. The confusion is whether Gay Couples can now file for Immigration benefits and how will that work. The representative from Marriage Equality was very helpful and pointed us to their site, see below an initial FAQ From Marriage Equality:

What did the Supreme Court say about DOMA?

The U.S. Supreme Court held that Section 3 of the Defense of Marriage Act (“DOMA”) is unconstitutional. Section 3 of DOMA was a federal law that limited federal marriage recognition to different-sex couples. Because immigration law is federal, DOMA prevented lawfully married lesbian and gay couples from obtaining lawful permanent residence (“green cards”) through marriage. Now that DOMA has been struck down, American citizens and lawful permanent residents can submit green card applications for their same-sex spouse.

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I am attending the American Immigration Lawyer’s Association National Conference in San Francisco. USCIS Alejandro Mayorkas just stepped down from the podium. He specifically stated that Same Sex couples that are legally married could file I-130 Petitions and Adjustment cases. He said the USCIS kept records of all denied I-130 petitions for same sex couples and will re open on via internal motion. Not clear yet on all the details.

Still, many couples are trying to figure out how exactly the ruling will impact them.

Can all same-sex couples get legally married now?

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The Senate has voted to approve of the Immigration Bill they have drafted and allow the House to consider its proposal by a strong vote of 68-32. With 14 Republicans voting in favor, the Democratic leadership and the bipartisan group of eight senators who drafted the original bill seemed determined to savor the moment. Vice President Joseph R. Biden Jr. presided over the vote as senators announced their positions from their desks, in a ceremonial procedure reserved for special occasions. The Senate bill provides a 13-year path to citizenship for the 11 million unauthorized immigrants in the country, as well as tough border security provisions that must be in place before the immigrants can gain legal status.

As the bill heads to the House, Republican elites and their well-financed pro-immigration groups are running up against opposition from the chamber’s most conservative members. Speaker John A. Boehner threw cold water on any hope that the House would vote on the Senate plan, and he insisted that whatever immigration measure his chamber took up would have to be supported by a majority of his Republican conference. “I issued a statement that I thought was pretty clear, but apparently some haven’t gotten the message: The House is not going to take up and vote on whatever the Senate passes,” he said Thursday morning. “We’re going to do our own bill.”

The legislation — drafted largely behind closed doors by the bipartisan group — brought together an unlikely coalition of Democrats and Republicans, business groups and labor unions, farmworkers and growers, and Latino, gay rights, and immigration advocates. Along the way, the legislation was shaped and tweaked by a series of backroom deals and negotiations that, in many ways, seemed to mirror its inception.

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Today, the United States Supreme Court struck down the Defense of Marriage Act (DOMA), describing the federal law as an assault on fundamental human rights. In his opinion, Justice Kennedy said the law served “no legitimate purpose” to justify the effect of the law, and was a way to “disparage and to injure those whom the state, by its marriage laws, sought to protect in personhood and dignity.”

In concluding the decision, the Supreme Court concluded that “DOMA’s principal effect is to identify and make unequal a subset of state-sanctioned marriages. It contrives to deprive some couples married under the laws of their State, but not others, of both rights and responsibilities, creating two contradictory marriage regimeswithin the same State. It also forces same-sex couples to live as married for the purpose of state law but unmarried for the purpose of federal law, thus diminishing the stability and predictability of basic personal relations the State has found it proper to acknowledge and protect.”

In response to this decision, President Obama stated in a statement released by the White House the federal law “treated loving, committed gay and lesbian couples as a separate and lesser class of people,” He said the Supreme Court has “righted that wrong, and our country is better off for it.”

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The Senate’s immigration-reform bill this week moves into its most critical stretch, with a major border-security amendment under consideration and a final vote on the landmark legislation expected before senators leave Washington for their Fourth of July break.

“It is the crucial week — the crucial week,” Sen. John McCain, R-Ariz., told The Arizona Republic on Friday.

A compromise negotiated last week by Sens. John Hoeven, R-N.D., and Bob Corker, R-Tenn., has reinvigorated supporters of the “Gang of Eight” bill, a comprehensive immigration-system overhaul that would include a pathway to citizenship for most of the estimated 11 million immigrants now in the country illegally.

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