“Significant Misdemeanor”

Author: Kaushik Ranchod

Applicants for Benefits under the Deferred Action for Childhood Arrivals

Recently, several individuals with certain criminal convictions have contacted our offices with a concern as to their eligibility for benefits under the Deferred Action for Childhood Arrivals (DACA) based on their prior criminal history.

For their information, the DACA rules categorized three specific groups under which an applicant with a criminal past would not be eligible for DACA benefits as a matter of law. These three groups are:

Group 1: is composed by those individuals who have been convicted of any type of felony. For immigration purposes, a felony is a federal, estate, or local offense punishable by a term of imprisonment for one year or more;

Group 2: is composed by those individuals who have been convicted of any of the “significant misdemeanors”, regardless of the sentence imposed: the significant misdemeanors are:

• domestic violence;
• sexual abuse;
• sexual exploitation;
• burglary;
• unlawful possession of a firearm;
• unlawful use of a firearm;
• drug distribution;
• drug trafficking
• driving under the influence of drugs.

Group 3: is composed by those individuals who have been convicted of a misdemeanor not listed under the second group, listed above, but who were sentenced to time in custody of more than 90 days.

Self-applicants share a common confusion when reading the DACA guidelines found in the USCIS’s website, which refer to “Non-significant Misdemeanor” offenses. This confusion possibly arises from the fact that the “Non-significant Misdemeanor” column also lists the same type of offenses listed under the “Significant Misdemeanor” column. A Non-significant Misdemeanor is essentially a conviction for a crime not listed under the second or third groups.

So, if your crime is one not listed in group two, and you were sentenced to time in custody of less than 90 days, you are eligible to apply for DACA benefits.

Warning!

The DACA regulations, confer discretionary authority to Service Officials to look at the facts surrounding a non-significant misdemeanor before rendering a decision on an applicant’s case: in other words, even if an applicant is eligible because the crime does not render the applicant absolutely ineligible for DACA benefits, the Service may still deny it at the Service’s discretion. Therefore, it is important that applicants with any type of criminal conviction consult with an experienced legal professional before submitting their applications for DACA benefits.

In its News Alert, the USCIS stated that it cannot accept a Form I-601A unless the applicant provides proof that he or she paid the necessary Immigrant Visa Application Fee to the Department of State (DOS).

So before applying for the provisional unlawful presence waiver, applications should be careful to:

• Pay the Fee. Pay the Immigrant Visa Application Fee to DOS before applying for the waiver;
• Send Proof of Payment. Include the application fee receipt with your I-601A application. You should make sure that the receipt you send is the official DOS-issued receipt with the National Visa Center Case Number visible on the receipt. You should not provide other types of receipts that you may have such as money order receipts;
• Obtain Proof of Payment. If you do not have a DOS-issued receipt, there are several ways you can get an official receipt depending upon how you paid. If you paid online, you can get an official receipt by going to the Consular Electronic Application Center (CEAC) site and printing the receipt. If you paid over the mail, you have to request a copy of the receipt from the NVC.

Get Help From a Hardship Waiver Attorney

For almost two months, the USCIS has been accepting applications for the I-601A provisional unlawful presence waiver. In this time, the USCIS has stated that it has noticed obvious trends in defects with individuals’ applications that has forced the government agency to return and reject applications.

We too at the Ranchod Law Group have noticed many of these defects in applications brought to us from clients in the Sacramento area. Fortunately, we were able to fix many of the defects in the applications that clients gave us. Some of the defects include:

• Removal Proceedings. Many applicants fail to answer Question 25 of Part 1 of the I-601A application that asks whether the application is currently in removal proceedings. While someone in removal proceedings may be ineligible to apply, those whose removal proceedings are administratively closed and have not been put back on calendar may still apply for the waiver;
• Receipt Number for I-130 or I-360. In question 1 of Part 2 of the application, an individual is required to provide the receipt number for an approved Form I-130 or I-360. You need to have an approved immediate relative immigrant visa petition classifying you as an immediate relative to be eligible for the waiver. If you are unsure if you are eligible, you should talk to a hardship waiver attorney;
• Consular Case Number. In question 4 of Part 2, the applicant must provide the NVC consular case number. Your NVC case number is located on your receipt for the DOS immigrant visa processing fee
• Scheduling of Immigrant Visa Interview. In question 5 of part 2, you have to answer whether the Department of State scheduled you for your immigrant visa interview before January 3, 2013. If the interview was scheduled before this date, you may be ineligible to apply for the provisional unlawful presence waiver
• Signature and Date. Inexplicably, many applicants forget to sign and date their application

A surprising question we received at our Sacramento office is what happens once an individual’s I-601A application for a provisional unlawful presence waiver is approved.

After all, it may be the goal of many applicants to secure the waiver so that they will not be barred from reentering the U.S. for up to a ten-year period. However, many individuals may not realize what happens next after their waivers are approved. So it may come as a shock that they will in fact need to pack their bags and depart the country despite being approved for the waiver.

Attending Your Visa Interview Abroad

After the USCIS approves an I-601A application, it will notify the National Visa Center (NVC) of its decision. The NVC will then send you documentation setting up a visa interview usually at your home country.

You will not be able to schedule a visa interview in the U.S. and you must depart the country to participate in the interview. However, the benefit of having the provisional unlawful presence waiver is that you will be allowed to reenter the U.S. following the interview even if a bar to reentry would have previously applied.

If you don’t leave the U.S. to attend the interview, your provisional unlawful presence waiver will not take effect and it may no longer be considered valid.

What Happens if My I-601A is Denied

If your provisional unlawful presence waiver is denied, you still have a couple options:

• Reapply for the Waiver in the U.S. Your application may have been denied for a variety of reasons not having to do with your basic ineligibility for the waiver. For example, you may have failed to provide evidence proving an extreme hardship or you may have made other mistakes in the application. In this case, you may want to work with a hardship waiver attorney in Sacramento to help you complete a new I-601A waiver application.
• Leave the Country and Apply for an I-601 Waiver. Another option may be to leave the U.S. and attend your visa interview abroad without any guarantee that you can reenter the U.S. immediately. You can then apply for an I-601 waiver for any reasons barring your entry to the U.S. You will want to talk to any attorney before taking this step

Documenting an Extreme Hardship

An extreme hardship to a qualifying relative generally means that you have to show a hardship such as a:

• health condition
• financial harm
• loss of education opportunity

Or other special factors.

Proving an extreme hardship is a very personal action and no two applications may be exactly the same.

That is why documenting the hardship and proving it to the USCIS can be very difficult. Nevertheless, some ways to evidence the hardship can include:

1. Providing Affidavits. An affidavit is a sworn statement that can be from the qualifying relatives who can testify to the hardships they will encounter should you be prevented from returning to the U.S.
2. Expert Opinions. For more technical hardships like health considerations, you may want to seek out expert opinions as to how your family will suffer. This can take the form of a doctor’s note or medical opinion
3. Pay Records. If your hardship is related to financial concerns, you can provide things like an employment letter, tax statements, and payroll records. In addition, records of your expenses may also be useful to show how your earning potential is indispensable for your family
4. Memberships. If you are an active and contributing member of your local community, you could better your chances for approval. Records of things like community organizations, volunteer work, and affiliations can help strengthen your application
5. Birth and Marriage Records. If you are supporting multiple children, you may want to provide documents proving these relationships

Many of my San Francisco and Sacramento clients have been asking me about the possibility of immigration reform. Obama has been expecting an immigration bill this year from the “Group of Eight,” a group of eight bi-partisan senators working together to create comprehensive immigration legislation. Senator McCain has stated that he expects the Group of eight to have reached an agreement on the path to citizenship as well as a system to aid and secure state border security.

The agreement entails a 13 year path to citizenship. What this entails: to get a green card it would take undocumented workers 10 years, and another three years to gain citizenship. Throughout this period of time, undocumented workers would have to pay a fine and back taxes as well as pass a background check. The fine has yet to be decided and is unclear at this time. Additionally, there may be an increase in the H-1B cap of 65,000.

Under this legislation no undocumented worker however, will be eligible for citizenship until the border is considered secure. To measure border security a commission would be created. The commission would be made up of officials named by state and federal leaders.

Who is in the Gang of Eight?
The includes:

• Sen. Marco Rubio of Florida
• Sen. Lindsey Graham, South Carolina
• Sen. Jeff Flake, Arizona
• Sen. John McCain, Arizona
• Sen. Robert Menendez, New Jersey
• Sen. Dick Durbin, Illinois
• Sen. Michael Bennet, Colorado
• Sen. Chuck Schumer, New York