Where to File Hardship Waiver Applications

Creation of the two separate regulatory systems for hardship waiver applications established recently by the Administration’s promulgation of the Provisional Waiver regulations rendered many people confused as to where to file waiver applications for individuals who are NOT eligible for Provisional Waiver and intent to navigate the ordinary, well-established waiver rout.  People are especially confused because they are routinely told now that the U.S. consulate posts do not accept waiver applications any longer. As recently as yesterday, I received a call from a person from Georgia who, sounding very frustrated, complained of this confusion.

Historically, that is for the last almost a decade or so and until very recently, the procedure had been that determination of whether an immigrant visa applicant was indeed inadmissible and thus warranted a waiver, was supposed to be formally made by the U.S. consulate in that person’s country of residence. Once made, the applicant would be served with what is known as a rejection letter, stating that he or she were found inadmissible and that a waiver could be potentially available for that type of inadmissibility. The significance of this letter is hard to overstate. It is not so because it broke the bad news that the individual was found not desirable and thus could not be allowed into the United States. Instead, the letter would formally start the process of the waiver application. The waiver application would then need to be submitted at the same consulate and the fee paid there. The consulate responsibility then would be to transfer the application to the USCIS foreign post having jurisdictional power over adjudicationof the USCIS applications by residents of that country.

The situation has changed last year when USCIS announced that U.S. Department of State will no longer collect waiver applications. Instead, once rejection letter is received, the application along with the applicable fee would need to be forwarded to the USCIS designated processing facility inside there the United States. This change sparked a new procedure discussed in this blog entry and the confusion that ensured.  Currently, aliens, who are abroad of the USA and are applying for immigrant or K or V non-immigrant visas to the USA, but are found ineligible by the Consular Officers, have a new and more streamlined way of obtaining waivers of inadmissibility.  This change is not the same as the Provisional Waiver, and is distinct from it. Again, it only applies to individuals who are taking traditional rout and seeking waiver from abroad.

The waiver requests will now be sent to a Lockbox facility within the USA, and will be processed domestically.  Although the policies and standards for adjudications will remain unchanged, this change is implemented to provide a more speedy and consistent adjudication of such waivers, and it will enable the USCIS to diminish the backlog of waiver applications.  The applicants will be able to track the status of their applications online, at uscis web site  by using the website’s Case Status window.

The filings for the following forms will be affected:

I-601, Application for Waiver of Grounds of Inadmissibility

I-212. Application for Permission to Reapply for Admission in to the United States After Deportation of Removal

I-290B, Notice of Appeal or Motion, but only if referring to a denial of I-601 or I-212.

Addresses for the Lockbox facility:

For U.S. Postal Service:                                 

USCIS
P.O. Box 21600
Phoenix, AZ 85036

For Express Mail and Courier Deliveries:

USCIS
ATTN: 60½12 Foreign Filers
1820 E. Skyharbor, Circle S, Suite 100
Phoenix, AZ 85034 

Please visit the nyc immigration lawyers website for further information. The Law Offices of Grinberg & Segal, PLLC focuses vast segment of its practice on immigration law. This steadfast dedication has resulted in thousands of immigrants throughout the United States.

Lawyer website: http://myattorneyusa.com

Bankruptcy and Citizenship

COMMON MISINTERPRETATION

Way too often, I run into a client who asks whether a Legal Permanent Resident is allowed to file for bankruptcy and more importantly, whether doing so would carry negative consequences for their potential bid for the US Citizenship through Naturalization process. This question comes from a common and widespread misconception, which is addressed in this article.

APPLICABLE LAW

One would be hard-pressed finding any direct reference to bankruptcy in our statutory and regulatory immigration system. There is simply neither a law nor regulation that directly forbids filing bankruptcy by a noncitizen, or views it as an immigration violation. Unless an LPR has failed to pay taxes, which is directly addressed in Part 1- Section A, questions 4 and 5 of the N-400 Naturalization Application, at which point it would be a problem, bankruptcy simply does not come up in any of the statutory text of the INA, nor it’s implementing regulations in the context of the naturalization or citizenship. The only context in which it does come up is employer suctions. OCARO (Federal Agency adjudicating employers’ compliance) takes the position that sanctions hearings fall under an exception to the automatic stay provision in bankruptcy. The Agency construes 11 U.S.C.· §362(a) to permit the enforcement of its regulatory and police authority in collecting against the employer when sanctions are imposed.

THE REAL QUESTION

So, the real question is whether bankruptcy can indeed play a role in adjudicating naturalization applications. It is unclear whether the Agency can take the fact of bankruptcy into account when doing so. USCIS is not particularly helpful on the issue as it has produced no policy guidance on the subject. Hence, the answer to this question is not very apparent and requires some analysis. INA §. 324(b) imposes upon an applicant for naturalization a requirement to prove good moral character during the last five years immediately preceding his or her application for naturalization. The implementing regulations empower USCIS to look beyond the five years, if anything in the applicant’s record opens the door for further inquiry.  This inquiry extends forward to the point in time when the applicant is naturalized and can go back for as far as the Agency would like it to go, if the record of the last five years does indeed warrant further inquiry.

USCIS makes good moral character considerations on a case by cases basis. This evaluation is committed to the broad Agency’s discretion. In adjudicating this issue the Agency takes into account the immigration laws in effect at the time of the adjudication, while looking at the facts from the standpoint of an average citizen in the community of the LRP’s residence. 8 C.F.R. § 316.10(a)(2). When viewed from this standpoint some acts including for example, willful failure or outright refusal to pay child support, are considered by the Agency as evidences of poor moral character. 8 C.F.R. § 316.10(b)(3). Hence, depending on the circumstances the case, the Agency, in the exercise of its broad discretionary powers, may deem filing for bankruptcy as evidencing poor moral character. In other words, there could be circumstances, when the applicant’s actions and financial decisions leading up to bankruptcy, may be consider so improper, negligent or even reckless as to suggest intent to defraud, foul play or outright fraud.

Please visit the nyc immigration lawyers website for further information. The Law Offices of Grinberg & Segal, PLLC focuses vast segment of its practice on immigration law. This steadfast dedication has resulted in thousands of immigrants throughout the United States.

Lawyer website: http://myattorneyusa.com