I-601A Provisional Waiver Expanded to Include Permanent Resident Spouses and Parents as Qualifying Relatives
The rule change that was first proposed in July 2015 will go into effect on August 29, 2016. The previous rule required that I-601A waiver applicants show that refusal of a visa would cause a US citizen spouse or parent extreme hardship. Hardship to permanent resident spouses or parents was not considered a valid basis for the waiver. With the new rule, applicants can qualify for the waiver by showing hardship to US citizen or permanent resident spouses or parents. The new regulations can be found here. This will open the door to many more I-601A applicants.
Department of State, charged with operating the US consulate in Ciudad Juarez, recently released notes and information regarding the processing of visa applications at the Ciudad Juarez office.
For years the Department of State has paid attention to the presence of tattoos on visa applicants, but recently they have become more strict on the issue.
Although tattoos are not a basis for denying an individual a visa, the Department of State takes the position that certain tattoos may indicate gang involvement. INA §212(a)(3)(A) provides an inadmissibility ground based on “reasonable ground to believe [the applicant] seeks to enter the United States to engage in . . . unlawful activity.”
The FBI provides annual training to consular officers in Ciudad Juarez regarding which tattoos potentially indicate gang-related affiliations. Ciudad Juarez officers look at a variety of factors for indications of gang membership, not just tattoos (e.g. shaved head or scars indicating bullet wounds or knife attack).
When a visa applicant applies for an immigrant visa at Ciudad Juarez, a medical exam is required. The panel physician will report all skin abnormalities (tattoos, scars, etc.) discovered during the exam. The visa applicant must remove all clothes during the exam. Blacklights are used to detect invisible tattoos and tattoos that have been removed or covered up by other tattoos. Doctors do not make a determination on the symbolism of the tattoos, but instead report any skin abnormalities in the Medical Report.
When the applicant attends the visa interview at the consulate, the officer will ask the applicant to explain the significance of any suspicious tattoos and scars. If the officer suspects gang involvement, he will report the case to the Visa Office for an advisory opinion, which could take several months (keep in mind that the visa applicant cannot return to the United States until the visa is approved).
If you are considering consular processing a visa at Ciudad Juarez or another consulate and you have tattoos, you should consult an immigration attorney to learn more about the potential delay or denial of the visa. Of course, only you know the true significance of your tattoo, but beware that anything that can be interpreted as gang-affiliated could result in substantial delays or even a denial. Remember – just because you have an I-601A waiver approval and no criminal record, you may still be denied based on INA §212(a)(3)(A).
We recently received an approval for a joint I-751 we filed in fall 2015. I originally represented the couple with their marriage-based adjustment case. The wife had entered the United States legally but overstayed. The husband was a US citizen and they had met at work. They married after living together for a few years.
Because their marriage was less than two years old at the time of adjustment, she received a conditional resident card with a two year expiration.
After two years, they came back to me to handle the removal of conditions process. We prepared the evidence to show that the couple was still living together and the marriage was entered in good faith. A few months later, we received an interview notice. However, just a few days before the interview USCIS contacted me and canceled the interview. Today we received an approval of the I-751 application.
The couple is very excited and they plan to start the naturalization process for the wife within the next few months.
Ninth Circuit Holds that I-864 Affidavit of Support Trumps Family Law Court Decision Regarding Prenuptial Agreement and Alimony
In Erler v. Erler, the plaintiff ex-wife sued her former husband to enforce the I-864 Affidavit of Support he signed as part of the adjustment of status process. By signing the affidavit of support, the affiant promises to support the beneficiary at 125% of the poverty line.
In the Erler case, the couple entered into a prenuptial agreement prior to marrying and the family law court order for the divorce reflected this; however, the 9th Circuit panel held that the defendant husband agreed to provide the plaintiff with any support necessary to maintain her at an income that was at least 125% of the Federal Poverty Guidelines for her household size. The affidavit became a contract between the defendant sponsor and the US government for the benefit of the plaintiff.
The 9th Circuit panel found that despite the divorce, the defendant had a continuing obligation to support the plaintiff. The Court held that the income of the plaintiff's adult son, with whom plaintiff was living, could not be included in the household income equation when determining how much support the ex-husband must provide. Essentially, the husband must provide support to the beneficiary at the amount of 125% of the Federal Poverty Guidelines regardless of other income being earned in the beneficiary's household.
This is an important case that family law attorneys and US citizens considering the spousal adjustment of status process should understand before signing the I-864 affidavit of support.
Jay authors these blog postings. Please contact Jay with any questions.