Immigration Lawyers In New Jersey Prepare To Use Obama’s Executive Actions To Prevent Their Client’s Deportation

Recently, President Obama announced many prospective changes on immigration policy in the United States, particularly as it relates to those who are in removal.  Both the expansion of DACA and the provisional waiver programs can be used to terminate an alien’s removal proceeding.  Now, immigration lawyers in NJ have additional tools to prevent the deportation of their clients who have proceedings in Newark Immigration Court.

How Can DACA be used to Terminate a Removal Proceeding? 

President Obama proposed to enlarge the first deferred action program, extending the physical presence requirement to January 1, 2010 and making individuals of all age groups eligible.   He also announced a second program whereby aliens who have USC and LPR children in the US and who also have been in the United States since January 1, 2010, can be eligible to terminate their removal proceeding provided their children were born before November 20, 2014.

Aliens who qualify for DACA and are in removal proceedings should submit a complete DACA application immediately.  If an alien has a final individual hearing scheduled, after a receipt for the DACA application has been received that alien should immediately apply for a continuance so that the DACA application may be decided.  If DACA is granted, the alien should immediately make a motion to terminate his or her case.  

How Can a Provisional Waiver be used to Terminate a Removal Proceeding?

An alien may not apply for a provisional waiver lawyer if they are in removal proceedings.  However, the alien can seek an administrative closure or termination so that the provisional waiver application can be decided.  This may require establishing facial eligibility in immigration court.  However, it important to note that termination should be received before leaving the United States and reentering on a visa.

To find out more about how Obama’s changes could affect you, call the Law Firm of Sethi & Mazaheri at 646-405-9846 or e-mail us at sethi@sethimaz.com.

What does the Provisions Waiver mean?

Recently, the U.S. government finally approved the provisional waiver, with the corresponding procedures to follow in the coming months.  Under the previous 601 waiver policy, individuals who entered the country without inspection could not apply for permanent residence without leaving the country during the duration of the waiver process.  The new provisional waiver has been applauded by immigration activists throughout the tri-state area; and immigration lawyers in NJ, NY and throughout the country see the new act as an important step in providing status to law abiding immigrants with family in the US. 

Who can apply for the Provisional Waiver? 

First, in order to be eligible for the provisional waiver, one must be the immediate relative of an individual who is a citizen of the United States.  Under US immigration law, US citizens may petition for the following immediate relatives:

1.      Spouses;

2.      Unmarried children under the age of 21;and

3.      Parents (so long as the U.S. citizen is 21 or older). 

Second, one must have entered the country without inspection (or entered the country without coming through a port of entry) and stayed for over 6 months.  The overwhelming majority of this group of people crossed into the United States through the border with Mexico.  For individuals who have entered into the country legally and overstayed their visa, they can apply for a green card and stay in the country without having to apply for a waiver. 

However, a person cannot apply for a provisional waiver if he or she in inadmissible for a reason other than the fact that they were unlawfully present in the US.  This primarily applies to those who have a criminal conviction that necessitates a waiver of its own.

What is the 601A waiver application and what must it show? 

USCIS will release a new application called at 601A waiver.  This is a complex procedure that is best handled by a provisional waiver lawyer, with a background in the previous 601 waiver application process.  Much like the conventional 601 waiver, the applicant must show that the rejection of the waiver application will result in extreme hardship to his or her US citizen immediate relative (note that the current USCIS statement on the provisional waiver states that the hardship must be shown on a US citizen spouse or parent only; so it is not clear whether hardship can be shown to children). 

What are the procedures?

Though the exact procedures will be clear in the coming weeks, there are certain general features that are known.  First, the applicant will apply for a green card though their immediate relative, and send the application to the embassy in their country of origin. Then, the applicant will submit the 601A waiver application.  Next, the applicant will inform the National Visa Center that he or she is applying for the provisional waiver from USCIS.  Finally, the applicant will leave the country in order to appear at the visa interviewin their home country’s US embassy.   While there is still much to be decided, the new rule will relieve the burden on countless number of immigrants who have immediate relatives in the US but are living without status.