March-April 2013

Issue link: http://ailahub.aila.org/i/118030

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Page 25 of 39

BRIDGING THE GAP by Sheeba Raj USCIS Chief Counsel Speaks on I-601A, DACA at D.C. Chapter Meeting U SCIS Chief Counsel Stephen H. Legomsky and Claudia Salem, Chief of the Office of Chief Counsel's (OCC) Adjudications Law Division, provided an overview of OCC's operations and addressed questions from several of the 121 attendees of the January 16, 2013, AILA D.C. Chapter meeting at the Hyatt Regency on Capitol Hill. After explaining the nature of the I-601A provisional unlawful presence waiver to newer practitioners in the audience, Legomsky said that it has its limitations. "Not everybody who would qualify for the traditional waiver overseas will qualify for the provisional waiver …," Legomsky commented. "The hope of the agency is that once we get a fairly good feel for the volume of applications that we're going to receive so that we can get the operational apparatus going, we will consider expanding it to cover additional groups of people within the statutory confines." Legomsky noted that a person who is eligible for prosecutorial discretion "probably" doesn't establish USCIS Publishes Final Rule on I-601A O n January 3, 2013, USCIS published a final rule in the Federal Register, "Provisional Unlawful Presence Waivers of Inadmissibility for Certain 26 V OICE enough hardship for a provisional waiver because both benefits promote different objectives. That is, a grant of prosecutorial discretion gets the applicant out of removal proceedings for the time being, but the provisional waiver is the first step toward lawful permanent residence, so the latter would require more hardship than the former, he explained. As for any appeals process, there won't be any for now because the agency has yet to determine the volume of applications it will receive and its impact on resources. Legomsky also talked about Deferred Action for Childhood Arrivals (DACA). He expressed disappointment because the number of applications has fallen short of expectations of most in the public and private sector, and wanted to know from the audience what the agency can do to encourage eligible candidates to apply. But for those who did apply for DACA and later sought and received advance parole, he said that a departure outside the United States isn't a "departure" for purposes of INA §212(a)(9)(B). "The Board [in Matter of Arrabally and Yerrabelly, 25 I&N Immediate Relatives," with an effective date of March 4, 2013. This rule allows certain immediate relatives of U.S. citizens (spouses, parents of adult U.S. citizens, and minor children), who are physically present in the United States, to request a provisional waiver of the unlawful presence bars to admissibility under INA §212(a)(9)(B)(i) prior to traveling abroad for consular processing of their immigrant visa applications. For information on eligibility requirements, the application process, and more, see AILA's practice advisory.

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