Monday, September 30, 2013

How a 2013 Government Shutdown Might Affect Your Immigration Case

As happened only a couple of years ago, we are faced yet again in 2013 with the threat of a government shutdown. I am re-posting this article which was originally published in 2011 with some modifications.

Because the U.S. federal government may shut down, it's important to know how your immigration case may be affected.  

If you have a case pending before the U.S. Citizenship and Immigration Services (USCIS) your adjustment or naturalization interview will most likely take place as scheduled.  The same would apply for naturalization ceremonies.  Because USCIS is funded primarily through application fees, it is expected that most of its services and centers will operate normally.  However, because USCIS works with other agencies to adjudicate pending cases, temporary delays should be expected. 

If you have a removal or deportation case pending before the Executive Office for Immigration Review, most likely only detained cases will go on as scheduled.  Non-detained master or individual hearings would be rescheduled. Also, the front window of the immigration court would be closed and the immigration court phones would not be answered. 

If you have a case pending before the National Visa Center, an agency within the U.S. Department of State, DOS would cease non-emergency visa services and non-US citizen services at U.S. Consular Posts abroad. As a result, no new visas are expected to be issued and visa application interviews would be rescheduled. Also, no passport applications will be accepted during a government shutdown.  

If you have a case pending before the U.S. Department of Labor, their offices will be closed.  This will delay the processing of PERM cases, as well as the processing of Labor Condition Applications for non-immigrant visas such as H-1Bs, E-3s, etc.  Also affected would be requests for Prevailing Wage Determinations with the U.S. Department of Labor.

Hopefully the government will not shut down as feared and the processing of all immigration-related cases will not be affected. 

Thursday, January 3, 2013

Unlawful Presence I-601 Waiver: Advance Copy of USCIS Final Rule

The long awaited "Advance Copy of USCIS Final Rule to Support Family Unity During Waiver Process" was just released.  This final rule relating to the unlawful presence waiver is not effective yet, but at least we're getting a sneak peek at the regulation.  With this new change, spouses, parents, or children of U.S. citizens can file their unlawful presence waiver applications while still in the United States.  Once approved, they would still have to leave the United States but this time:
  1. For a much shorter time (weeks instead of months or years); and
  2. With an assurance that the applicant will be allowed to return to the United States after consular processing (ok, maybe not an assurance, but we'll unpack this on a different post)
Although this is a welcomed change that is sure to benefit many families, it's important to keep in mind that the "extreme hardship" standard is still very much in place.   What is "extreme hardship"? No one really knows for sure, since it's not defined in our immigration laws, but USCIS claims to know one when it sees one (hmm..).  In any case, many years of case decisions give us a good idea.
 
As an attorney who has successfully assisted many families in preparing waiver petitions throughout the years, it is very important that interested parties consult with a qualified immigration attorney before proceeding with the unlawful presence waiver.  In future posts we will discuss the "extreme hardship" standard, when is a waiver needed, what is a waiver, who is a "qualifying relative", how to apply, what questions to ask your immigration attorney, what documents to prepare, and other similar topics.  Stay tuned and thank you for reading.