TABLE OF CONTENTS CHAPTER

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1 TABLE OF CONTENTS CHAPTER OVERVIEW OF PROVISIONAL WAIVER ADJUDICATION... 7 Scope of This Book... 7 Purpose of the Provisional Waiver... 8 Eligibility for Provisional Waiver... 8 Basic Eligibility Requirements... 8 Immediate Relatives... 9 Inadmissible Based Only on Unlawful Presence Followed by Leaving United States Hardship to U.S. Citizen Spouse or Parent Present in the United States Approved I-130 or I-360 and Receipt of Immigrant Visa Processing Fee Provisional Waiver Disqualifications Applicant Under Age Removal Proceedings and Reinstatement of Removal Pending Application for Adjustment of Status Pre-January 3, 2013, Scheduled Consular Appointment Revocation of Visa Application and I-130 Petition Due to Inaction Revocation of Visa Application Due to Petitioner s Withdrawal of I-130 Petition Revocation of Visa Application Due to Applicant s Withdrawal of Application and Different Petitioner Files New Petition Filing the Provisional Waiver Notifying the NVC or Consulate Filing Fees Circumstances in Which USCIS Rejects Provisional Waiver Applications Adjudication of Provisional Waiver Possible Interview of Applicant Request for Evidence Decisions Denials Approvals CHAPTER UNLAWFUL PRESENCE What Is Unlawful Presence? Definition of Unlawful Presence Statutory Exceptions to Unlawful Presence Further Agency Exceptions to Unlawful Presence Triggering Unlawful Presence Basic Principles: Three- and Ten-Year Bars

2 2 PROVISIONAL WAIVERS: A PRACTITIONER S GUIDE Effect of Leaving on Advance Parole How to Advise Clients Who May Have Unlawful Presence CHAPTER OTHER GROUNDS OF INADMISSIBILITY Review of Selected Grounds of Inadmissibility Health-Related Grounds Communicable Diseases Lack of Vaccination Physical or Mental Disorders Drug Abusers or Addicts Criminal Grounds Introduction Crimes of Moral Turpitude What Is a Crime of Moral Turpitude? Exceptions Multiple Criminal Convictions Controlled Substance Violations Traffickers in Controlled Substances Prostitution and Commercialized Vice Significant Traffickers in Persons Crimes and Provisional Waiver Eligibility Illegal Entrants and Previous Immigration Violations Aliens Present Without Permission or Parole Failure to Attend Removal Proceedings Fraud or Willful Misrepresentation False Claim of U.S. Citizenship Stowaways Smugglers and Encouragers of Unlawful Entry Aliens Previously Removed Prior Removals Reentering the United States Without Authorization Reinstatement of Removal Conclusion CHAPTER EXTREME HARDSHIP Extreme Hardship in Unlawful Presence Waivers Qualifying Relatives in General Qualifying Relative for Provisional Waiver... 42

3 : TABLE OF CONTENTS 3 What Is Extreme Hardship? Extreme Hardship Factors Extreme Hardship and Regulations USCIS Instructions on Extreme Hardship Factors and Provisional Waiver Ordinary Hardship Insufficient Factors Considered Cumulatively Analysis of the Five Factors Health-Related Factors Financial Considerations Educational Factors Personal Factors Special Factors Discretionary Factors CHAPTER WORKING WITH THE CLIENT Developing the Facts of the Case Interviewing the Client Building Trust with Your Client Explain Confidentiality Explain the Process Describe What You Are Looking for Listen Carefully to Your Client s Story and Ask Questions Retain the Information Team Review of Case Interviews How Much Is Enough? Inadmissibility Issues Accessing Records Regarding Criminal History FBI Record Check State Record Check Accessing Information through FOIA Form to Use for a FOIA Request Filing the FOIA Request Building a Strong Theory of the Case How and When to Create a Theory of the Case Preparing Effective Declarations What is a Declaration? Whose Declaration? What Makes Declarations Effective How to Prepare Declarations... 61

4 4 PROVISIONAL WAIVERS: A PRACTITIONER S GUIDE Incorporating Non-Qualifying Relatives Qualifying Relative Can t Leave and Can t Live Without Applicant Establish a Nexus Between Hardship and Absence or Residence Abroad Be Consistent CHAPTER DOCUMENTING THE CASE Personalized Evidence Regarding Hardship The Importance of Personal Documents Declarations from the Applicant and the Qualifying Relative Types of Personal Documents Expert Evidence Locating Experts Orienting Experts Practice Tips Experts on Conditions in Mexico Experts on Health Care and Conditions in Mexico Academic Institutions and Nonprofit Organizations on Health Issues Authors of Articles on Health Conditions Recommendations by Practitioners Experts on Financial Considerations in Mexico Organizations and Institutions Authors of Articles on Financial Considerations Experts on Education in Mexico Organizations and Institutions Authors of Articles on Education Experts on Special Factors in Mexico Organizations and Institutions Authors of Articles Objective Evidence Regarding Hardship Including Conditions in Mexico Health-Related Hardship General Information on Disease and Consequences of the Failure to Provide Medical Treatment.. 71 Reports on Availability of Medical Treatment in Mexico Reports on Numbers of Doctors and Hospital Beds in Mexico Cost of Medical Treatment and Access to Health Insurance in Mexico Information about Availability of Health Care Treatment in Mexico Based on Gender Statistics on Infant Mortality Reports on Leading Causes of Death in Mexico Information on Environmental Conditions in Mexico Affecting Health... 74

5 : TABLE OF CONTENTS 5 Financial and Economic Hardship Reports on Financial Situation in Mexico Education-Related Hardship Reports on Standard of Education in Mexico Personal Factors Special Factors Documenting Discretionary Factors Putting It All Together Health-Related Hardship Financial-Related Hardship Education-Related Hardship Personal Factors Special Factors CHAPTER PUTTING THE CASE TOGETHER Exhibits Basics Reviewing Exhibits An Organized Approach Using Placement of Documents to Reflect Importance of Evidence Readability and Legibility Matters Cover Letter Format of Cover Letter Length of Cover Letter Legal Arguments Index of Exhibits Contents of Index of Exhibits Preparing the Index of Exhibits CHAPTER FILING PROCEDURES Completing the Form I-601A Part 1 Information About the Applicant Part 2 Information About Immediate Relative Petition and Immigrant Visa Processing Part 3 Information About Qualifying Relative Part 4 Statement from the Applicant Part 5 Additional Information Part 6 Signature of Applicant Part 7 Signature and Contact Information for Preparer Part 8 Signature and Information of the Interpreter Filing Requirements... 96

6 6 PROVISIONAL WAIVERS: A PRACTITIONER S GUIDE The Application and Biometrics Fee USCIS Address for Filing Waiver Packet Copy of the Immigrant Visa Application Fee Bill Receipt Name of Applicant and USCIS Receipt Number on Supporting Documents Copy of the I-797 Approval Notice Copy of Administrative Closure Order Biometrics Appointment Applicant and Qualifying Relative Declarations Documents Proving Extreme Hardship and Discretion CHAPTER REQUESTS FOR EVIDENCE AND DENIALS RFEs RFE: Reason to Issue and Form of Request Time-Frame to Respond to RFE NOID Application Rejected and Returned Failure to Attend Biometrics Appointment Denials Appeals Motion to Reopen or Reconsider Removal Proceedings Following Denial CHAPTER APPROVALS AND WHAT COMES NEXT Approval Notices Significance of an Approved I-601A Advising the Client Preparing the Client for Consular Processing Instruction Letter and Packet Appointment Letter for Immigrant Visa Applicants The Medical Examination Consular Interview USCIS Immigrant Fee Termination of Registration