e California International Law Journal Official Publication of The State Bar of California International Law Section http://international.calbar.ca.gov/ Vol. 21, No. 2, Summer/Fall 2013 Contents Editor’s Comments 2 Letter From the Chair 3 Pr actitioner’s Spotlight: Interview With Debra Wong Yang 4 The Responsibility to Protect: Emerging Customary International Law and its Application to Present Conflict in Syria 7 By Jonathan P. Schmidt How EverGreen? An Update on the Novartis AG’s Battle to block Indian Generics 19 By Sajai Singh Top 10 Tips on Negotiating Contracts with Russian Counterparties 22 By Brian L. Zimbler Two Steps Forward, One Step Back: The Genocide Trial of RÍos Montt and What It Means for Guatemala's Progression Toward a Stronger Rule of Law 28 By C. Genevieve Jenkins The Alien Tort Statue: Its Birth, Evolution and Demise? 44 By Nayiri Keosseian and Brent Caslin ImMigration Policy Shift on Unlawful Presence Waivers Benefits U.S. Citizens Facing Long Separation From their Immigrant Loved Ones 51 By Heather L. Poole, Esq. Global Legal Research 57 By Neel K ant Agr awal Editor-In-Chief William K. Pao Los Angeles, California The statements and opinions here are those of the contributors and not necessarily those of the editors, the State Bar of California, the International Law Section, or any government body. Further, this publication is made available with the understanding that the publisher is not engaged in rendering legal or other professional services. If legal advice or other expert assistance is required, the services of a competent professional should be sought. ©2013 The State Bar of California, 180 Howard Street, San Francisco, CA 94105 Immigration Policy Shift on hold, never knowing when U.S. Immigration and Customs Enforcement (ICE) would come knocking Unlawful Presence Waivers on their door. Benefits U.S. Citizens Facing The new regulation provides a limited solution to Long Separation From their this problem and has reduced the risk of long-term separation for some couples previously afraid to Immigrant Loved Ones legalize their immigrant spouse’s status. Despite this positive change in USCIS policy, the new proposal By Heather L. Poole, Esq.* restricts those who can benefit from it and leaves many questions unanswered as to its implementation. I. INTRODUCTION II. CURRENT LAW AND PROCEDURE On January 3, 2013, the Department of Homeland Security (DHS) published a final rule in the Federal Under the Immigration and Naturalization Act Register outlining a new procedure intended to (INA) 212(a)(9)(B)(i)(I), an immigrant who has been reduce the long separation periods U.S. citizens unlawfully present in the U.S. without valid status have experienced when their undocumented spouses for more than 180 days but less than one year faces a leave the U.S. to apply for waivers of inadmissibility three-year bar of re-entry once the immigrant departs due to unlawful presence in the U.S. Prior to this the U.S. This bar applies even if the immigrant new procedure, an immigrant spouse had to wait departs to process and interview abroad for his or outside the U.S. for several months while U.S. her permanent U.S. residency. If the immigrant has Citizenship and Immigration Services (USCIS) been in the U.S. for one year or more without lawful adjudicated the waiver.1 The need for these unlawful status, the INA bars the immigrant from returning to presence waivers first arose in 1996, when Congress the U.S. for ten years once the immigrant departs.3 enacted the Immigration Reform and Immigrant Responsibility Act (IIRAIRA). The Act contains These three- and ten-year bars create a “catch-22” “three- and ten-year bars,” which prohibit the for an immigrant and the U.S. citizen family member admission of immigrants who previously stayed in who petitions for the immigrant’s visa and green the U.S. illegally unless USCIS grants a subsequent card. An immigrant typically is ineligible to apply waiver.2 An immigrant could request the waiver for adjustment of status – the process to become a only at a U.S. consulate abroad, leading to a long permanent resident while remaining in the U.S. - if waiting period for adjudication outside of the U.S. the immigrant entered the U.S. without inspection The new rule, which offers relief to some affected (“illegal entry”).4 Even if the immigrant is married immigrants, became effective on March 4, 2013. to a U.S. citizen and USCIS approves the immigrant’s visa petition in the U.S., the immigrant who illegally Many U.S. citizens have postponed filing immigrant re-entered must still interview at a consulate abroad visas to legalize their spouses’ U.S. residence because for issuance of an immigrant visa so the immigrant they feared a long separation in the future, when may return to the U.S. as a permanent resident. But the immigrant would need to obtain the waiver leaving the U.S. for the immigrant visa interview before returning under an immigrant visa. Often the often triggers the three- or ten-year bar and thus immigrant spouse plays a key role in the U.S., taking a waiver is critical. The immigrant can apply care of the children, providing financial support to for the waiver only after the U.S. Department of the household, or helping with the physical care of State consular officer abroad determines that the elderly family members. The risk that after leaving immigrant has triggered one of the unlawful presence the U.S. the immigrant spouse would wait abroad bars when reviewing his or her immigration history for a decision for several months, and then if denied for issuance of an immigrant visa. To qualify for a would face a bar to re-entering the U.S., potentially waiver of the three- or ten-year bar, the immigrant for years, was just too great. Many also feared for must not only show that he or she deserves the the safety of their loved one waiting in a foreign waiver to be granted through an act of discretion, country. As a result, immigrants who would be but also that his or her U.S. citizen (USC) or lawful 51 eligible for legal status have remained hidden in the permanent resident (LPR) spouse or parent would U.S., off the radar, and families put their lives on suffer extreme hardship if the immigrant were not THE CALIFORNIA IN TERNATIONAL LAW JOURNAL • http://international.calbar.ca.gov/ • VOL. 21, NO. 2, SUMMER/FALL 2013 allowed to return to the U.S. within that three- or conduct.8 The new process does not provide a ten-year period.5 An immigrant cannot qualify for provisional waiver for any of these grounds of an unlawful presence waiver through a USC or LPR inadmissibility as the rule addresses only waivers for child. Until the new regulation, there was no way unlawful presence (the three- or ten-year bars). If an an immigrant could apply for a waiver without first immigrant seeking an unlawful presence waiver also traveling abroad for his or her consular interview. needs a waiver of another ground of inadmissibility, the immigrant must apply for both waivers only III. WHY NOW? after the immigrant has been found inadmissible at his or her consulate interview abroad.9 The U.S. The unlawful presence waiver process has citizen spouse then applies in the U.S. for one or caused problems for years. DHS proposed the more waivers on behalf of the immigrant based on new regulation in January 2012 in response to the grounds of inadmissibility originally found by President Obama’s Executive Order 13563 calling the consulate officer. The immigrant must remain for “agencies to consider how best to promote outside of the U.S. until USCIS grants all applicable retrospective analysis of rules that may be outmoded, waivers. Thus, even if married to a U.S. citizen and in ineffective, insufficient, or excessively burdensome, possession of an approved immigrant visa requested and to modify, streamline, expand, or repeal them by his or her U.S. citizen spouse, an immigrant who in accordance with what has been learned.”6 The used fake documents to enter the U.S. will not benefit Obama Administration and DHS have also faced from the provisional waiver process. external pressure to make the waiver process more efficient and cut down processing times, B. Limited to immediate relatives of U.S. especially with recent and repeated news coverage of citizens immigrants who have been killed or harmed while awaiting adjudication of their waivers under violent The new regulation reduces the time abroad only and unsafe conditions abroad.‡ This regulation does for an immigrant who is an immediate relative of not eliminate the requirement that the immigrant a U.S. citizen. The immigrant must be considered travel abroad for the immigrant visa interview; an “immediate relative” in both the immigration however, under the new process, USCIS grants the visa petition and the waiver process to qualify for immigrant a provisional waiver prior to leaving the the provisional waiver process. For purposes of the U.S., potentially reducing processing time from a immigration visa petition, an “immediate relative” is matter of months to a matter of days or weeks. a child under 21, parent or spouse of a U.S. citizen. The immigrant must also have a qualifying relative IV. THE NEW PROCEDURE who is either a U.S. citizen (USC) spouse or parent for purposes of the waiver. It is possible for one to DHS’s new regulation allows immigrant's who are qualify for the immigration visa petition but not the subject to the three- or ten-year bars for unlawful provisional waiver.