In my Consulta Migratoria® column this week, I answer a question from a reader who wishes to apply for a waiver for unlawful presence in the United States.
Each case is different and the answers vary depending on each person's immigration history.
Here I provide general answers to your questions. Please consult with an immigration attorney to receive personalized legal advice before starting any procedure.
This is the column:
I live in California and a notario is helping me prepare an application for a pardon for having lived in the United States illegally. I have heard that immigration could deny my application if I don't send enough documentation to support my case and not give me the opportunity to correct errors. Is this true? -Dalia J.
Dalia, first of all, you should stop the process you are doing with the notary. That person who is supposedly helping you could hurt you, since he or she is not an attorney and could possibly make mistakes that could cause your case to be denied. In addition, by law, notarios, immigration consultants, paperwork fillers and multi-services are not allowed. no can give you legal advice.
An application for a provisional unlawful presence waiver (pardon) is a delicate process and you must be certain that you are eligible before submitting it. This requires an analysis of your case - something the notary cannot do.
U.S. Citizenship and Immigration Services (USCIS) can deny your application for a waiver if you are not eligible or if you do not present sufficient evidence to support your case, without giving you an opportunity to correct them.
For example, USCIS will deny your case if you do not have a parent or spouse who is a U.S. citizen or permanent resident. Also, it may deny your application if you do not submit enough evidence to show extreme prejudice to them.
USCIS Policy Changes
USCIS has updated its policy for the evaluation and approval of certain applications or petitions.
Previously, USCIS limited denials without a Request for Evidence (RFE) or Notice of Intent to Deny (NOID) to denials required by law when the applicant did not have a legal basis to apply for the immigration benefit or filed an application for an immigration benefit or relief under a program that had terminated.
In all other cases, USCIS was required to issue an RFE unless there was "no possibility" of approval. This "no possibility" policy limited the application of the adjudicator's full discretion.
But as of September 12, 2018 an update of its previous policy went into effect. USCIS may now use its discretion to deny certain applications or petitions if the immigrant does not submit the required evidence to prove eligibility at the outset.
According to USCIS, the purpose of the updated policy is to restore an immigration officer's full discretion to deny applications or petitions without first issuing an RFE or NOID.
USCIS wants to discourage the filing of "frivolous or substantially incomplete applications or petitions that are used as "placeholder" filings, and urges applicants and petitioners to be diligent in gathering and presenting the required evidence."
Applications or requests not affected by the updated policy
The updated USCIS policy does not affect applications or petitions filed with USCIS. formerly September 12, 2018. It also does not affect applications for DACA, asylum or refugee status.
Recommendations
Dalia, you should consult with a licensed and experienced immigration attorney before beginning any immigration proceedings.
Before applying for any immigration benefit, you and your immigration attorney must be sure that you are eligible. This includes reviewing all laws and regulations related to the immigration benefit you will be applying for. Also, you should read and comply with the instructions on the form or application that will be sent to USCIS.
Do not send your application to USCIS until you have all the evidence you need to apply for the immigration benefit. If you file incorrectly, USCIS may deny your application without refunding the application fee and send you a Notice to Appear ordering you to appear in immigration court to begin removal proceedings against you.
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