WAIVERS, APPEALS and MOTIONS TO RECONSIDER

WAIVERS

The first question most of our client's ask about waiver is: "What exactly is a waiver?". A waiver is a detailed legal brief, similar to what an attorney would file in an appellate court,asking forgiveness of the United States Government for something that makes the client ineligible for the immigration visa or change of status they seek. Waivers may be required for a number of reasons:

1. The client has a criminal record that makes then inadmissible to the United States.

2. The client previously overstayed a visa and has received a 3 or 10 year bar to admittance to the United States.

3. The client has a medical condition that makes them inadmissible to the United States.

4. The petitioner (The person filing in order to bring someone into the country) has a criminal record for child abuse or domestic violence.

5. The petition is seeking a fiancee visa and has previously filed a fiancee visa within the past two years.

Please note that the above list is not comprehensive. There are a number of reasons that a waiver may be required. Waiver law is very complicated. In order to prepare a properly written waiver, an experienced immigration attorney must gain a complete understanding of the facts of the case from the client. The attorney must then do an exhaustive search of the case law using a legal database such as WESTLAW in order to find cases similar to the clients. The attorney must then write a legal brief that argues the facts in light of the case law and demonstrates why his client should receive the relief they seek. A waiver is like a custom made suit, specifically tailored to the facts and law. They are usually 15 to 20 pages long and require a comprehensive understanding of the immigration case law and the waiver process.

WARNING

The most important thing you need to know about waivers is that filing the government form does not mean you have filed a proper waiver. This is suicide in today's immigration climate. Trying to do your own waiver, unless you are an experienced immigration attorney is like trying to perform heart surgery on yourself. The results are usually fatal.

MOTION TO RE-OPEN AND RECONSIDER

One of the most useful tools in the immigration lawyers tool bag is the motion to re-open and reconsider. Often, you can save the one-year or longer wait of an appeal by filing a motion to re-open and reconsider. Often you can receive an answer in 60 days. There is a catch! As is the case with an appeal, you only have 30 days in which to file a motion to reopen and reconsider. If you search the USCIS web site, it is not listed there, nor is there a form available for Motion. However, it does exist and can save a case from a length appeal. Like a waiver, it requires a comprehensive understanding of the immigration case law. It is not a "do it yourself" endeavor for the untrained amateur. The motion to re-open and reconsider is a useful tool when vital evidence has been lost or overlooked by the USCIS (Which, trust me, they do a lot.)

APPEALS

Immigration cases can be appealed to the Board of Immigration Appeals (BIA) and eventually on to the federal courts and all the way to the Supreme Court of the United States. Immigration Appeals are complex, take a long time and require an attorney who is very skilled both in immigration law and in the art of appellate advocacy. At American Immigration Attorneys, we have extensive experience in dealing with immigration appeals all the way to the U.S. Supreme Court level. An immigration appeal must be filed within 30 days of the date of the denial from the USCIS.

EMERGENCY PROCESSING

Although we don't think it's a good idea to wait until the last minute, we are fully equipped to handle case processing on short notice as we work in legal teams. However, if we receive many emergency cases, we cannot take on more so we can complete our work properly. If you have a short time line, please call us as soon as possible to know whether we have availability for one more.....