Families & Immigration: A Practical Guide [5 ed.]

Table of contents :
Introduction
Table of Contents
Chapter 1: Qualifying Family Relationships & Eligibility for Visas
§ 1.1 Overview of the Family Immigration Process: A Two-Step Process
§ 1.2 The Immediate Relative Category & Definition of “Child” and “Spouse”
§ 1.3 “K” Visas for Fiancé(e)s, Spouses, and Children of U.S. Citizens
§ 1.4 Petitions under the Preference System: Definition of Siblings and Sons and Daughters
§ 1.5 The Preference Categories
§ 1.6 Derivative Beneficiaries
§ 1.7 How the Preference System Works
§ 1.8 Using the State Department Visa Bulletin to Make an Estimate of When Your Client Can Immigrate
§ 1.9 Advising Your Client about When a Visa May Become Available
§ 1.10 The Child Status Protection Act (CSPA)
§ 1.11 “V” Visas for the Spouses and Children of Lawful Permanent Residents
§ 1.12 Protection for the Beneficiaries of a Family Petition When a Qualifying Relative Dies
§ 1.13 When Is a Visa Petition Terminated or No Longer Valid?
§ 1.14 Diversity Immigrants, Employment Visas, and Children in Juvenile Court Proceedings
Appendix 1-A
Appendix 1-B
Appendix 1-C
Chapter 2: Submitting the Petition
§ 2.1 Completing Government Forms
§ 2.2 Completing the Visa Petition, Form I-130
§ 2.3 The I-130A and Photograph: Required in a Petition for a Husband or Wife
§ 2.4 Documenting the Visa Petition
§ 2.5 What Documents Are Needed to Prove Family Relationship?
§ 2.6 Obtaining Documents in the United States to Show Family Relationship
§ 2.7 Obtaining Documents from Other Countries
§ 2.8 Making Proper Copies of Documents
§ 2.9 Making Certified Translations of Documents
§ 2.10 Documenting the Immigration Status of the Petitioner
§ 2.11 Filing the I-130 Packet
§ 2.12 USCIS Challenges to a Marriage
§ 2.13 The Legal Standard for a Marriage
§ 2.14 Documentation to Show that a Marriage Is Bona Fide
§ 2.15 What Will Happen at the Marriage Fraud Interview?
§ 2.16 Preparing Your Client: Self-Defense Techniques for USCIS Interviews
§ 2.17 Special Rules That Affect Spousal Visa Petitions
§ 2.18 Appealing a Denial by USCIS of an I-130 Petition
Appendix 2-A
Appendix 2-B
Appendix 2-C
Appendix 2-D
Chapter 3: Adjustment of Status & Conditional Residence
§ 3.1 What Is Adjustment of Status?
§ 3.2 Who Is Eligible for Adjustment of Status Based on a Family Petition?
§ 3.3 Red Flags: Identifying Potential Risks to Adjustment
§ 3.4 245(a): Adjustment for Those Who Were Inspected & Admitted or Paroled and Meet Other Requirements
§ 3.5 Section 245(i): Adjustment for Those Who Entered without Inspection or Do Not Qualify for § 245(a) Adjustment
§ 3.6 The Three- and Ten-Year Bars and Adjustment of Status
§ 3.7 Preparing and Submitting the Adjustment Packet
§ 3.8 The Effect of Leaving the Country
§ 3.9 What Will Happen at the Adjustment Interview?
§ 3.10 The Decision: Approvals and Denials
§ 3.11 Marriage-Based Cases and Conditional Residence
§ 3.12 What Is Conditional Permanent Residency?
§ 3.13 Who Is a Conditional Permanent Resident?
§ 3.14 Removal of Conditional Residency if the Marriage Still Exists after Two Years: The I-751 “Joint Petition”
§ 3.15 When to File the I-751 Joint Petition
§ 3.16 Completing the I-751 Joint Petition
§ 3.17 Application Procedure: Filing, Extension of Status, and Interview
§ 3.18 Denials and Appeals
§ 3.19 Termination of Conditional Residency by USCIS during the “Testing Period”
§ 3.20 Introduction to Waivers of the I-751 Joint Filing Requirement
§ 3.21 When to File
§ 3.22 How to File a Waiver
§ 3.23 The “Good Faith” Waiver
§ 3.24 How to Show Extreme Hardship
§ 3.25 The Battery or Extreme Cruelty Waiver
§ 3.26 Proof of Battery or Extreme Cruelty
§ 3.27 Additional Help for Battered Spouses and Children
§ 3.28 Filing a Waiver if the U.S. Citizen or Permanent Resident Spouse Has Died
§ 3.29 Dependent Sons and Daughters
§ 3.30 Failing Marriages and Waivers
Appendix 3-A
Appendix 3-B
Appendix 3-C
Appendix 3-D
Appendix 3-E
Appendix 3-F
Chapter 4: Applying for Permanent Residence through Consular Processing
§ 4.1 Introduction to Consular Processing
§ 4.2 How Consular Processing Responsibilities Are Divided among Agencies
§ 4.3 Finding the Rules: The Statute, Regulations, Foreign Affairs Manual, and NVC Instructions
§ 4.4 Overview of Consular Processing Steps and Utilizing the Visa Bulletin
§ 4.5 Step I: Establishing Email Correspondence and a Point of Contact
§ 4.6 Step II: Paying the Fees
§ 4.7 Step III: Submitting the Online Application for an Immigrant Visa
§ 4.8 Step IV: Submitting the Affidavit of Support with Financial Documentation and the Supporting Civil Documents
§ 4.9 Step V: Preparing for the Consular Interview
§ 4.10 Step VI: The Consular Interview
§ 4.11 The Alien Registration Card or Permanent Resident Card (“Green Card”)
Appendix 4-A
Appendix 4-B
Appendix 4-C
Appendix 4-D
Appendix 4-E
Appendix 4-F
Appendix 4-G
Appendix 4-H
Appendix 4-I
Appendix 4-J
Appendix 4-K
Appendix 4-L
Chapter 5: Grounds of Inadmissibility
§ 5.1 Overview of Admissibility, Deportability, Admission, and Removal
§ 5.2 Health-Related Grounds: Communicable Diseases, Required Vaccinations, Dangerous Disorders, and Addiction and Abuse
§ 5.3 Alien Smuggling: Grounds of Inadmissibility and Deportability
§ 5.4 Fraud and Misrepresentation
§ 5.5 Document Fraud: Ground of Inadmissibility and Deportability
§ 5.6 Insufficient Documentation
§ 5.7 False Claim to U.S. Citizenship
§ 5.8 Likely to Become a Public Charge
§ 5.9 Terrorists, Draft Dodgers, Unlawful Voters, Stowaways, Polygamists
§ 5.10 Entry, Admission, and Effective Dates
§ 5.11 Unlawfully Present in the United States without Being Admitted or Paroled
§ 5.12 Three- and Ten-Year Bars for Those Unlawfully Present Who Depart and Then Apply for Admission and the Family Hardship Waiver
§ 5.13 “Permanent Bar” to Persons Who Were Unlawfully Present for More than One Year or Were Ordered Removed and Who Enter or Attempt to Enter without Being Admitted
§ 5.14 Failure to Attend Removal Proceedings
§ 5.15 Past Removal or Deportation/Exclusion
§ 5.16 Reinstatement
§ 5.17 Clients with Criminal Records
§ 5.18 What Is a Criminal Conviction?
§ 5.19 What Evidence Can the DHS Submit to Show a Conviction?
§ 5.20 What Is a Sentence for Immigration Purposes?
§ 5.21 How to Analyze a Past Conviction: The Categorical Approach
§ 5.22 Overview of Immigration Consequences of Crimes
§ 5.23 Inadmissibility Based on Drug Offenses
§ 5.24 Crimes Involving Moral Turpitude
§ 5.25 The Crime Involving Moral Turpitude Petty Offense and Youth Exceptions
§ 5.26 Other Grounds: Prostitution, Two Convictions with Five-Year Sentence Imposed, Alien Trafficking, Money Laundering, High-Speed Flight from Immigration
§ 5.27 Aggravated Felonies
§ 5.28 Clearing Up a Criminal Record
Appendix 5-A
Appendix 5-B
Appendix 5-C
Appendix 5-D
Appendix 5-E
Appendix 5-F
Appendix 5-G
Chapter 6: Waivers of Inadmissibility
§ 6.1 Waivers of Grounds of Inadmissibility
§ 6.2 What Is a Waiver?
§ 6.3 What Is Discretion?
§ 6.4 Guiding Principles
§ 6.5 Waiver of Inadmissibility for Visa Fraud
§ 6.6 Invalid Documents and Document Fraud Waiver of Inadmissibility
§ 6.7 Waiver of Inadmissibility/Exemption for Alien Smuggling
§ 6.8 Waiver for Communicable Disease, Lack of Vaccinations, or Dangerous Mental Disorders under INA § 212(g)
§ 6.9 Waivers for Unlawful Presence, Past Removal, and Other Related Immigration Offenses
§ 6.10 Waiver for Certain Crimes under INA § 212(h)
§ 6.11 Procedure for Applying for a Waiver
§ 6.12 How Do You Establish Extreme Hardship?
Appendix 6-A
Appendix 6-B
Chapter 7: Special Issues: The Violence Against Women Act
§ 7.1 Overview of Self-Petitioning under the Violence Against Women Act (“VAWA”)
§ 7.2 Requirements for VAWA Self-Petition of an Abused Spouse
§ 7.3 Requirements for a VAWA Self-Petition for an Abused Child
§ 7.4 Requirements for a VAWA Self-Petition for an Abused Parent
§ 7.5 Procedures for Self-Petitioning under VAWA
Appendix 7-A
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ILRC.Fam&ImCov5thEd.final.qxp_. 11/22/17 6:30 PM Page 1

This guide provides a comprehensive overview of family immigration law with clearly worded explanations, samples, and charts. It reaches all aspects of family-sponsored immigration, including a thorough examination of issues related to immigration through marriage. Both the legal requirements and procedural instructions are covered in detail. This tool is intended to guide you step-by-step through the process of filing a family-based visa petition, an adjustment of status, immigrant visa application or any other related form or application. You will find a comprehensive discussion of each of the following topics:

• Adjustment of status • Consular processing • Child Status Protection Act • Conditional residence and the Petition to Remove the Conditions of Residence, including the corresponding waivers • Grounds and waivers of inadmissibility, including the Provisional Unlawful Presence Waiver • Petition for Alien Relative • 245(i) eligibility and grandfathering

Families & Immigration: A Practical Guide also walks readers through the Violence Against Women Act and explains the self-petitioning process for immigrant victims of domestic violence. The guide presents alternate immigration remedies that are available for victims of domestic violence.

Families & Immigration: A Practical Guide

Families & Immigration: A Practical Guide is an essential tool for practitioners who assist in all aspects of family-sponsored immigration. This single volume resource is designed for everyday practice by new and seasoned immigration attorneys, immigration paralegals, community-based organizations or family immigration advocates.

Families & Immigration A Practical Guide

TEACHING, INTERPRETING AND CHANGING LAW SINCE I 979

a publication of the

IMMIGR ANT LEGAL RESOURCE CENTER

5th Edition By ILRC Staff Attorneys

1663 MISSION STREET SUITE 602 SAN FRANCISCO, CA 94103

T 415.255.9499 / F 415.255.9792

WWW.ILRC.ORG

5th Edition

Families & Immigration A Practical Guide 5th Edition By ILRC Staff Attorneys

The Immigrant Legal Resource Center

A

Copyright 2017 Immigrant Legal Resource Center 1663 Mission Street, Suite 602 San Francisco, CA 94103 (415) 255-9499 www.ilrc.org

The Immigrant Legal Resource Center (ILRC) is a national, nonprofit resource center that provides legal trainings, educational materials, and advocacy to advance immigrant rights.  Since 1979, the mission of the ILRC is to work with and educate immigrants, community organizations, and the legal sector to continue to build a democratic society that values diversity and the rights of all people. WHAT WE DO Legal Professionals & Advocates 

Trainings: Throughout the year, the ILRC staff attorneys provide classroom seminars and webinars on a wide range of topics that affect the immigrant community.

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Publications: ILRC publishes some of the top reference manuals on immigration law.

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Technical Assistance: Our unique, nation-wide consultation service called the Attorney of the Day (AOD) provides legal assistance to attorneys, staff of nonprofit organizations, public defenders, and others assisting immigrants. Immigrants 

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Leadership Training: ILRC trains immigrant leaders how to be more effective advocates for their communities.

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Know Your Rights Presentations: ILRC attorneys regularly conduct “know your rights” trainings with immigrant-based organizations to inform immigrants about their rights under the immigration laws and the United States Constitution, how to protect themselves from becoming victims of immigration fraud, changes in immigration law and policy, and a host of other issues that affect the lives of immigrants. Laws, Policies & Practice 

Monitoring Changes in Immigration Law: ILRC attorneys are experts in the field of immigration law, and keep abreast of the frequent changes in immigration case law and policy so that we can inform our constituents of those changes as soon as they occur.

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Policies: ILRC conducts ongoing dialogues between Immigration Service officials and the community agency representatives to help ensure that government policies and procedures are more reasonable and fair, and to make sure that information about these policies is provided to the immigrant advocacy community in a timely manner.

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Advocacy: ILRC advocates for reasonable changes in immigration law to get closer to our ideal of a system that will recognize the contributions immigrants make to our society, respect their dignity, and insure a workable, secure, and humane immigration system. How to Contact Us 

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INTRODUCTION We are pleased to present Families & Immigration: A Practical Guide. Within these pages, we provide immigration attorneys and advocates with the hands-on information and tools necessary to assist their U.S. citizen and Lawful Permanent Resident clients through the complex task of helping their family members gain lawful status in the United States. Included in this manual you will find seven chapters containing the following: Chapter One covers the immigration definitions for qualifying family relationships, eligibility requirements for family-based visas, a discussion of how the preference system works and how to use the State Department visa bulletin, and information about the Child Status Protection Act and the V nonimmigrant visa. Chapter Two is a detailed description of the petitioning process, including how to complete Form I130 and provide all of the necessary corresponding documentation. Also included in this chapter is a more detailed discussion of issues that arise in the spousal petitioning process. Chapter Three covers both the adjustment of status process and the additional requirements for conditional permanent residents. Included is a discussion of the procedure for filing Form I-485, tips on preparing for the USCIS interview, and information about how to assist conditional residents to remove the conditions on their status. Chapter Four covers consular processing, including how to file the immigrant visa application and the affidavit of support with the National Visa Center, as well as how to prepare for the interview at a U.S. consulate. Chapter Five includes an explanation of the most common grounds of inadmissibility that family members may face as bars to their admission, with a special emphasis on the unlawful presence and criminal grounds. Chapter Six is a separate discussion of the potential waivers to the grounds of inadmissibility described in Chapter Five and a discussion of the procedure for applying for a waiver, including the Provisional Unlawful Presence Waiver. Chapter Seven is a special discussion of the self-petitioning process under the Violence Against Women Act (VAWA) when battery or extreme cruelty in the family relationship interferes with the regular family-based petitioning process. A team of current and past ILRC staff also helped make this manual possible, including ILRC attorneys Ariel Brown, Allison Davenport, Alison Kamhi, Sally Kinoshita and Erin Quinn as well as our former colleagues Lourdes Martinez, Su Yon Yi, and Dan Torres. A special thank you to Ann Block and Nora Privitera for their important contributions to the update of this manual. Our Publication & Program Coordinator Timothy Sheehan is responsible for the production, formatting and copyediting of this manual. We are fortunate to have a community of such talented individuals to support the ILRC in continuing to produce such quality materials. The production of this manual was made possible by generous financial support from the Legal Services Trust Fund Program – Equal Access Fund of the State Bar of California. The Immigrant Legal Resource Center October 2017

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Families & Immigration September 2017

FAMILIES & IMMIGRATION: A PRACTICAL GUIDE 5TH EDITION TABLE OF CONTENTS Chapter 1

Qualifying Family Relationships and Eligibility for Visas

§ 1.1 § 1.2

Overview of the Family Immigration Process: A Two-Step Process................. 1-2 The Immediate Relative Category & Definition of “Child” and “Spouse” ...................................................................................................... 1-6 “K” Visas for Fiancé(e)s, Spouses, and Children of U.S. Citizens .................. 1-13 Petitions under the Preference System: Definition of Siblings and Sons and Daughters .......................................................................................... 1-17 The Preference Categories................................................................................ 1-18 Derivative Beneficiaries ................................................................................... 1-24 How the Preference System Works .................................................................. 1-27 Using the State Department Visa Bulletin to Make an Estimate of When Your Client Can Immigrate ................................................................... 1-28 Advising Your Client about When a Visa May Become Available ................. 1-34 The Child Status Protection Act (CSPA) ......................................................... 1-34 “V” Visas for the Spouses and Children of Lawful Permanent Residents ........................................................................................ 1-42 Protection for the Beneficiaries of a Family Petition When a Qualifying Relative Dies .................................................................................. 1-46 When Is a Visa Petition Terminated or No Longer Valid? .............................. 1-48 Diversity Immigrants, Employment Visas, and Children in Juvenile Court Proceedings ............................................................................................ 1-53

§ 1.3 § 1.4 § 1.5 § 1.6 § 1.7 § 1.8 § 1.9 § 1.10 § 1.11 § 1.12 § 1.13 § 1.14 Appendix 1-A

USCIS Policy Memorandum, “Approval of Petitions and Applications after the Death of the Qualifying Relative under New Section 204(l) of the Immigration and Nationality Act.” December 16, 2010

Appendix 1-B

“Revised Guidance for the Child Status Protection Act (CSPA)” by Donald Neufeld, Acting Associate Director, Domestic Operations, April 30, 2008

Appendix 1-C

USCIS Interoffice Memorandum on “Section 6 of the Child Status Protection Act” by Joe Cuddihy, Director of International Affairs. March 23, 2004

Chapter 2

Submitting the Petition

§ 2.1 § 2.2 § 2.3

Completing Government Forms ......................................................................... 2-1 Completing the Visa Petition, Form I-130 ......................................................... 2-3 The I-130A and Photograph: Required in a Petition for a Husband or Wife.............................................................................................................. 2-10 Documenting the Visa Petition......................................................................... 2-10 What Documents Are Needed to Prove Family Relationship? ........................ 2-11

§ 2.4 § 2.5

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Immigrant Legal Resource Center September 2017

§ 2.6 § 2.7 § 2.8 § 2.9 § 2.10 § 2.11 § 2.12 § 2.13 § 2.14 § 2.15 § 2.16 § 2.17 § 2.18 Appendix 2-A Appendix 2-B Appendix 2-C Appendix 2-D

Obtaining Documents in the United States to Show Family Relationship ......................................................................................... 2-12 Obtaining Documents from Other Countries ................................................... 2-13 Making Proper Copies of Documents .............................................................. 2-14 Making Certified Translations of Documents .................................................. 2-15 Documenting the Immigration Status of the Petitioner .................................... 2-15 Filing the I-130 Packet ..................................................................................... 2-16 USCIS Challenges to a Marriage ..................................................................... 2-18 The Legal Standard for a Marriage .................................................................. 2-18 Documentation to Show that a Marriage Is Bona Fide .................................... 2-20 What Will Happen at the Marriage Fraud Interview? ...................................... 2-21 Preparing Your Client: Self-Defense Techniques for USCIS Interviews ............................................................................................. 2-22 Special Rules That Affect Spousal Visa Petitions ............................................ 2-23 Appealing a Denial by USCIS of an I-130 Petition ......................................... 2-26 Sample Completed I-130 Form I-94 Filing Freedom of Information (FOIA) Requests Sample Completed I-130A

Chapter 3

Adjustment of Status and Conditional Residence

§ 3.1 § 3.2

What Is Adjustment of Status? ........................................................................... 3-2 Who Is Eligible for Adjustment of Status Based on a Family Petition? ................................................................................................. 3-2 Red Flags: Identifying Potential Risks to Adjustment ....................................... 3-3 245(a): Adjustment for Those Who Were Inspected & Admitted or Paroled and Meet Other Requirements............................................................... 3-4 Section 245(i): Adjustment for Those Who Entered without Inspection or Do Not Qualify for § 245(a) Adjustment ..................................... 3-8 The Three- and Ten-Year Bars and Adjustment of Status ............................... 3-15 Preparing and Submitting the Adjustment Packet ............................................ 3-16 The Effect of Leaving the Country................................................................... 3-21 What Will Happen at the Adjustment Interview? ............................................ 3-21 The Decision: Approvals and Denials .............................................................. 3-24 Marriage-Based Cases and Conditional Residence .......................................... 3-26 What Is Conditional Permanent Residency? .................................................... 3-26 Who Is a Conditional Permanent Resident? ..................................................... 3-27 Removal of Conditional Residency if the Marriage Still Exists after Two Years: The I-751 “Joint Petition”............................................................. 3-28 When to File the I-751 Joint Petition ............................................................... 3-29 Completing the I-751 Joint Petition ................................................................. 3-31 Application Procedure: Filing, Extension of Status, and Interview ................. 3-33 Denials and Appeals ......................................................................................... 3-34 Termination of Conditional Residency by USCIS during the “Testing Period”.............................................................................................................. 3-35

§ 3.3 § 3.4 § 3.5 § 3.6 § 3.7 § 3.8 § 3.9 § 3.10 § 3.11 § 3.12 § 3.13 § 3.14 § 3.15 § 3.16 § 3.17 § 3.18 § 3.19

Table of Contents 2

Families & Immigration September 2017

§ 3.20 § 3.21 § 3.22 § 3.23 § 3.24 § 3.25 § 3.26 § 3.27 § 3.28 § 3.29 § 3.30 Appendix 3-A Appendix 3-B Appendix 3-C Appendix 3-D Appendix 3-E Appendix 3-F

Introduction to Waivers of the I-751 Joint Filing Requirement ....................... 3-37 When to File ..................................................................................................... 3-37 How to File a Waiver ....................................................................................... 3-38 The “Good Faith” Waiver ................................................................................ 3-39 How to Show Extreme Hardship ...................................................................... 3-39 The Battery or Extreme Cruelty Waiver .......................................................... 3-41 Proof of Battery or Extreme Cruelty ................................................................ 3-41 Additional Help for Battered Spouses and Children ........................................ 3-42 Filing a Waiver if the U.S. Citizen or Permanent Resident Spouse Has Died ........................................................................................................... 3-42 Dependent Sons and Daughters ........................................................................ 3-43 Failing Marriages and Waivers ........................................................................ 3-44 Comparison of 245(a) and 245(i) Adjustment Provisions Section 245(i) Memoranda Section 245(i) Memorandum dated March 9, 2005 Section 245(i) Memorandum dated April 14, 1999 Memorandum dated April 3, 2009, “I-751 Filed Prior to Termination of Marriage” Memorandum dated December 23, 2012, “Revised Guidance Concerning Adjudication of Certain I-751 Petitions” Sample Letters to Clients Regarding Conditional Residence

Chapter 4

Applying for Permanent Residence through Consular Processing

§ 4.1 § 4.2

Introduction to Consular Processing .................................................................. 4-1 How Consular Processing Responsibilities Are Divided among Agencies ................................................................................................. 4-2 Finding the Rules: The Statute, Regulations, Foreign Affairs .......................... 4-4 Overview of Consular Processing Steps and Utilizing the Visa Bulletin ....................................................................................................... 4-6 Step I: Establishing Email Correspondence and a Point of Contact................. 4-10 Step II: Paying the Fees .................................................................................... 4-11 Step III: Submitting the Online Application for an Immigrant Visa ................ 4-12 Step IV: Submitting the Affidavit of Support with Financial Documentation and the Supporting Civil Documents ...................................... 4-14 Step V: Preparing for the Consular Interview .................................................. 4-21 Step VI: The Consular Interview...................................................................... 4-25 The Alien Registration Card or Permanent Resident Card (“Green Card”) ................................................................................................. 4-31

§ 4.3 § 4.4 § 4.5 § 4.6 § 4.7 § 4.8 § 4.9 § 4.10 § 4.11 Appendix 4-A

Screenshot of the DOS NVC Homepage

Appendix 4-B

Sample NVC Notification Letter Warning of Impending Termination Proceedings with Instructions

Appendix 4-C

Sample NVC Cover Letter and Instructions Initiating Consular and Establishing Communication

Table of Contents 3

Immigrant Legal Resource Center September 2017

Appendix 4-D

Sample NVC Fee Invoices for Immigrant Visa Application and Affidavit of Support

Appendix 4-E

Two Different NVC Sample Document Cover Sheets

Appendix 4-F

Sample Electronic Form DS-260 Immigration Visa Application

Appendix 4-G

Immigration Visa Application (DS-260) Prep Questions for the Client in English and Spanish

Appendix 4-H

Immigration Visa Application (DS-260) Prep Questions for the Client in Spanish

Appendix 4-I

Sample NVC Notice of Missing Item Letter

Appendix 4-J

Two Sample NVC Letters Scheduling Immigrant Visa Interview at Different US Consulates with Instructions Regarding Interview and Documents

Appendix 4-K

U.S. Consulate, Ciudad Juarez Visa Registration, ASC Appointment and Courier Selection Site with Medical Examination and Interview Guidelines in English and Spanish

Appendix 4-L

Sample Immigrant Visa Stamped in Passport

Chapter 5

Grounds of Inadmissibility

§ 5.1 § 5.2

Overview of Admissibility, Deportability, Admission, and Removal ............... 5-2 Health-Related Grounds: Communicable Diseases, Required Vaccinations, Dangerous Disorders, and Addiction and Abuse......................... 5-8 Alien Smuggling: Grounds of Inadmissibility and Deportability .................... 5-13 Fraud and Misrepresentation ............................................................................ 5-17 Document Fraud: Ground of Inadmissibility and Deportability ...................... 5-20 Insufficient Documentation .............................................................................. 5-21 False Claim to U.S. Citizenship ....................................................................... 5-22 Likely to Become a Public Charge ................................................................... 5-27 Terrorists, Draft Dodgers, Unlawful Voters, Stowaways, Polygamists ........... 5-45 Entry, Admission, and Effective Dates ............................................................ 5-50 Unlawfully Present in the United States without Being Admitted or Paroled ......................................................................................................... 5-51 Three- and Ten-Year Bars for Those Unlawfully Present Who Depart and Then Apply for Admission and the Family Hardship Waiver ................... 5-53 “Permanent Bar” to Persons Who Were Unlawfully Present for More than One Year or Were Ordered Removed and Who Enter or Attempt to Enter without Being Admitted ....................................................... 5-60 Failure to Attend Removal Proceedings ........................................................... 5-65 Past Removal or Deportation/Exclusion .......................................................... 5-67 Reinstatement ................................................................................................... 5-68 Clients with Criminal Records ......................................................................... 5-70 What Is a Criminal Conviction? ....................................................................... 5-71

§ 5.3 § 5.4 § 5.5 § 5.6 § 5.7 § 5.8 § 5.9 § 5.10 § 5.11 § 5.12 § 5.13

§ 5.14 § 5.15 § 5.16 § 5.17 § 5.18

Table of Contents 4

Families & Immigration September 2017

§ 5.19 § 5.20 § 5.21 § 5.22 § 5.23 § 5.24 § 5.25 § 5.26

§ 5.27 § 5.28 Appendix 5-A Appendix 5-B Appendix 5-C Appendix 5-D Appendix 5-E Appendix 5-F Appendix 5-G

What Evidence Can the DHS Submit to Show a Conviction? ......................... 5-72 What Is a Sentence for Immigration Purposes? ............................................... 5-73 How to Analyze a Past Conviction: The Categorical Approach ...................... 5-73 Overview of Immigration Consequences of Crimes ........................................ 5-76 Inadmissibility Based on Drug Offenses .......................................................... 5-77 Crimes Involving Moral Turpitude .................................................................. 5-80 The Crime Involving Moral Turpitude Petty Offense and Youth Exceptions ............................................................................................. 5-83 Other Grounds: Prostitution, Two Convictions with Five-Year Sentence Imposed, Alien Trafficking, Money Laundering, HighSpeed Flight from Immigration ........................................................................ 5-84 Aggravated Felonies ......................................................................................... 5-86 Clearing Up a Criminal Record ........................................................................ 5-89 USCIS, Vaccination Requirements USCIS, Section 212(a)(6) of the Immigration and Nationality Act, Illegal Entrants and Immigration Violators (Mar. 3, 2009) USCIS, Form I-864: 2017 HHS Poverty Guidelines for Affidavit of Support USCIS, Fact Sheet: Public Charge (Apr. 29, 2011) USCIS, Public Charge Questions and Answers (May 25, 1999) Instructions for Obtaining Criminal Record Checks and Requests for Criminal Records ILRC, Warning for Immigrants on Medicalized and Legalized Marijuana

Chapter 6

Waivers of Inadmissibility

§ 6.1 § 6.2 § 6.3 § 6.4 § 6.5 § 6.6 § 6.7 § 6.8

Waivers of Grounds of Inadmissibility .............................................................. 6-1 What Is a Waiver? .............................................................................................. 6-2 What Is Discretion? ............................................................................................ 6-2 Guiding Principles .............................................................................................. 6-3 Waiver of Inadmissibility for Visa Fraud........................................................... 6-4 Invalid Documents and Document Fraud Waiver of Inadmissibility ................. 6-5 Waiver of Inadmissibility/Exemption for Alien Smuggling .............................. 6-7 Waiver for Communicable Disease, Lack of Vaccinations, or Dangerous Mental Disorders under INA § 212(g) ........................................... 6-10 Waivers for Unlawful Presence, Past Removal, and Other Related Immigration Offenses ....................................................................................... 6-13 Waiver for Certain Crimes under INA § 212(h) .............................................. 6-21 Procedure for Applying for a Waiver ............................................................... 6-24 How Do You Establish Extreme Hardship? ..................................................... 6-25

§ 6.9 § 6.10 § 6.11 § 6.12 Appendix 6-A

Appendix 6-B

Sample Waiver Application including Cover Letter, Declaration and List of Supporting Documents in Support of Waiver of Unlawful Presence Bar Sample Provisional Unlawful Presence Waiver

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Immigrant Legal Resource Center September 2017

Chapter 7

Special Issues: The Violence Against Women Act (VAWA)

§ 7.1

Overview of Self-Petitioning under the Violence Against Women Act (“VAWA”) .................................................................................................. 7-1 Requirements for VAWA Self-Petition of an Abused Spouse ........................... 7-3 Requirements for a VAWA Self-Petition for an Abused Child ....................... 7-11 Requirements for a VAWA Self-Petition for an Abused Parent ...................... 7-14 Procedures for Self-Petitioning under VAWA ................................................. 7-15

§ 7.2 § 7.3 § 7.4 § 7.5 Appendix 7-A

Aytes memo, April 11, 2008, “Adjustment of Status for VAWA selfpetitioner who is present without inspection: Revision of Adjudicator’s Field Manual (AFM) Chapter 23.5” which can be found in 85 No. 17 Interpreter Releases 1272 (April 21, 2008)

Table of Contents 6

CHAPTER 1 QUALIFYING FAMILY RELATIONSHIPS AND ELIGIBILITY FOR VISAS

This chapter includes: § 1.1 § 1.2 § 1.3 § 1.4 § 1.5 § 1.6 § 1.7 § 1.8 § 1.9 § 1.10 § 1.11 § 1.12 § 1.13 § 1.14

Overview of the Family Immigration Process: A Two-Step Process................. 1-2 The Immediate Relative Category & Definition of “Child” and “Spouse” ...................................................................................................... 1-6 “K” Visas for Fiancé(e)s, Spouses, and Children of U.S. Citizens .................. 1-13 Petitions under the Preference System: Definition of Siblings and Sons and Daughters .......................................................................................... 1-17 The Preference Categories................................................................................ 1-18 Derivative Beneficiaries ................................................................................... 1-24 How the Preference System Works .................................................................. 1-27 Using the State Department Visa Bulletin to Make an Estimate of When Your Client Can Immigrate ................................................................... 1-28 Advising Your Client about When a Visa May Become Available ................. 1-34 The Child Status Protection Act (CSPA) ......................................................... 1-34 “V” Visas for the Spouses and Children of Lawful Permanent Residents ........................................................................................ 1-42 Protection for the Beneficiaries of a Family Petition When a Qualifying Relative Dies .................................................................................. 1-46 When Is a Visa Petition Terminated or No Longer Valid? .............................. 1-48 Diversity Immigrants, Employment Visas, and Children in Juvenile Court Proceedings ............................................................................................ 1-53

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§ 1.1

Overview of the Family Immigration Process: A Two-Step Process GENERAL 2-STEP PROCESS Step 1: Petitioner (USC/LPR) files petition for relative  Step 2: Beneficiary (relative) files an application to immigrate 



Consular Processing: Department of State

Adjustment of Status: USCIS

United States citizens and lawful permanent residents can help certain family members immigrate to the United States. Please note that throughout this manual we may refer to U.S. citizens as “USCs” and lawful permanent residents as “LPRs,” “permanent residents,” or “green card holders.” Additionally, when we use the term “immigrate,” we are referring to the process by which a person becomes a lawful permanent resident of the United States, whether the person is already in the United States or is applying from abroad. See the distinction between “adjustment of status” (applying from within the United States) and “consular processing” (applying from abroad) below. Immigrating through family is a two-step process. The first step is the family visa petition, filed by the U.S. citizen or lawful permanent resident family member on behalf of the person who will be immigrating. The second step is the application to become a permanent resident, filed by the person who will be immigrating. Each step involves different legal and factual issues.

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A.

Step One: The Petition QUALIFYING FAMILY RELATIONSHIPS: IMMEDIATE RELATIVES AND THE PREFERENCE CATEGORIES

Immediate Relatives (IR) INA § 201(b)(2)(A)(i)

Preference Categories INA § 203(a)  Married & unmarried sons & daughters of USC’s  Brothers & sisters of USC’s  Spouses, children and unmarried sons & daughters of LPR’s

 Children of USC’s  Spouses of USC’s  Parents of USC’s No waiting list: visas immediately available.

Subject to numerical cap: must wait in line.

In order for a person to immigrate to the United States through a U.S. citizen (USC) or lawful permanent resident (LPR) family member, the USC or LPR first has to prove to the U.S. government that their foreign national relative fits within one of the family relationship categories recognized by the immigration laws. In other words, the USC or LPR must formally request, or petition, the U.S. government to allow the foreign national to apply for an immigration benefit (lawful permanent residency, or a “green card”). Therefore, the USC or LPR relative is called the “petitioner” and the foreign national relative is called the “beneficiary.” The form that starts the immigration process for a family member is called the “Petition for Alien Relative,” Form I-130, often referred to as the “visa petition.” Only a U.S. citizen or permanent resident can file a visa petition on behalf of a family member. Two facts must be established in support of a visa petition: 1. The petitioner and the beneficiary have a qualifying family relationship (for example, parent and child), and 2. The petitioner has the immigration status required for the petition—either U.S. citizenship or lawful permanent residence. If the petitioner is able to prove these two elements, U.S. Citizenship and Immigration Services (USCIS) must approve the visa petition; it is not discretionary. Once the I-130 is approved, the first step in a family-based immigration case is complete. In some cases people can prove these two elements relatively easily, with minimal documentation. For instance, a U.S. citizen daughter applying for her mother could submit a copy of her birth certificate to prove both elements—her U.S. birth certificate is one way to prove she is a U.S. citizen, and it also lists her mother’s name as proof she is her mother’s biological daughter. Other cases may require more documentation. A married couple, for example, must show not only that they are legally married but also that the marriage is bona fide (legitimate) and not a fraud or sham undertaken solely for immigration purposes. Additionally, if either spouse has been married before, they must submit their divorce decree or the death certificate of their prior spouse to show that their current marriage is legally valid (i.e., they are not married to two people at once). Some children may have to submit extra documents to show that they qualify as the child of the parent under the Immigration and Nationality Act (INA or “the Act”).

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These include stepchildren, adopted children, orphans, and children born out of wedlock. Also, an adopted child cannot petition for his biological birth parents or birth siblings. See Chapter 2 for a detailed discussion of supporting documents submitted with the visa petition. NOTE: While the I-130 process may appear relatively straightforward, there are a few important considerations before submitting an I-130, including whether the prospective beneficiary has a prior removal or deportation order, or the prospective petitioner was convicted of a “specified offense” against a minor. If either of these instances apply, it may be risky to submit an I-130. If the prospective beneficiary has a prior removal or deportation, she will be alerting the DHS to her whereabouts by providing her current address on the Form I-130, and they could take enforcement action against her. Some clients are uncertain about their immigration history, but may recall contact with immigration authorities at the border. It is important to gather information through background checks so all the facts are known and the client can make an informed decision. See Chapter 2 for more information about how to request immigration records. If the prospective petitioner was convicted of a specified offense against a minor, the I-130 may be denied even though the beneficiary otherwise meets all the requirements and is otherwise eligible.The Adam Walsh Child Protection and Safety Act prohibits someone from filing a visa petition for a fiancé(e), spouse, or minor child if the petitioner was convicted of a “specified offense” against a minor, listed in the statute, unless USCIS determines that the petitioner poses no risk to the beneficiary. The “minor” must have been under 18 and the convictions specified are broadly defined, involving primarily sexual or related offenses. 1 Practitioners are accustomed to inquiring about the intending immigrant’s criminal history, but it is important to also ask the petitioner about their criminal record. When the visa petition is filed, using Form I-130 along with the necessary supporting documents, the beneficiary is categorized according to the particular family relationship that qualifies her for an immigrant visa and also based on the immigration status of the petitioner. For example, relatives who fit the definition of a “child” or “spouse” of a lawful permanent resident fall under the family-based category 2A. These categories are discussed in more detail in the sections that follow, but generally speaking they each represent a queue or waiting list of foreign nationals on behalf of whom their U.S. citizen or lawful permanent resident relatives have filed visa petitions. The reason for these waiting lists is that the number of people who can immigrate each year in the various categories is limited by the law. Therefore, after the visa petition is approved, the beneficiary may have to wait in the queue until an immigrant visa becomes available to them. We will talk in later sections about how to know when a visa is available, and what kind of notification the beneficiary will receive when she can move on to the next step. B.

Step Two: Application to Immigrate

How soon the beneficiary can apply to immigrate depends on which queue or waiting list she is in. In other words, it depends on which category of relatives eligible for family visas she belongs 1

See Aytes memo, “Guidance for Adjudication of Family-Based Petitions and I-129F Petition for Alien Fiancé(e) Under the Adam Walsh Child Protection and Safety Act of 2006,” dated February 8, 2007, which can be found at www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/Static_Files_Memoranda/adam walshact020807.pdf.

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to. For example, a person who qualifies as an “immediate relative” of a U.S. citizen can immigrate right away. 2 If this beneficiary is physically present in the U.S. and eligible for adjustment of status, she can apply for permanent resident status at the same time as filing the visa petition or as soon as the visa petition is approved. This is because immediate relatives always have immigrant visas available to them so there is no waiting in line. However, because other relatives of U.S. citizens and lawful permanent residents have a limited number of visas available to them, they must wait for such availability, which can often take several years. These relatives are organized into groups referred to as “preference categories” and they are categorized according to the relationship that qualifies them for an immigrant visa. Further, the wait times for the same preference categories also vary depending on the beneficiary’s “country of chargeability,” usually their country of birth. 3 Under this “preference system,” beneficiaries who are not immediate relatives may have to wait many years, after the visa petition is approved, before they can actually proceed with the second step and immigrate. 4 For example, at the time of this manual’s writing the current wait time for adult Mexican siblings of U.S. citizens is more than twenty years. On the other hand, a U.S. permanent resident’s spouse from China would have to wait just a few years for a visa to be available. See § 1.8 for an explanation of the U.S. Department of State’s Visa Bulletin, which posts the wait times for visas within the preference categories. The end goal is referred to as: becoming a lawful permanent resident, obtaining an immigrant visa, or obtaining a green card. These terms are often used interchangeably, and basically they all mean the same thing: the person becomes a lawful permanent resident of the United States and gains the right to live and work in the United States permanently. People often mistakenly assume that if someone “immigrates” to the United States that means the person has become a U.S. citizen. However, becoming a U.S. citizen is another, separate process that can only be undertaken after someone becomes a permanent resident, 5 if they so choose and meet all the eligibility requirements. C.

Adjustment of Status versus Consular Processing

While everyone, no matter their situation, has the same process at step one, filing the I-130, people’s paths diverge at step two. Family members can immigrate in one of two ways: one, by applying for an immigrant visa at a U.S. consulate in a foreign country, referred to as “consular processing,” or two, by applying at a U.S. Citizenship and Immigration Services (USCIS) office in the United States, referred to as “adjustment of status.” Both ultimately result in a green card/permanent resident status, but for people who are abroad and consular processing, they are first issued an immigrant visa that allows them to travel to the United States as a permanent resident, and then the actual green card comes by mail soon thereafter. People who do adjustment of status also receive their green cards by mail, but there is no intermediary immigrant visa in their cases, as they are already in the United States.

2

See § 1.2. For more on country of chargeability, see § 1.8 B. 4 See §§ 1.4–1.6. 5 With the exception of some members of the U.S. military, who may be able to skip this step and apply directly for U.S. citizenship. 3

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When applying to immigrate, whether through adjustment of status or consular processing, the applicant must prove that she is admissible. An applicant is admissible if no ground of inadmissibility applies. 6 The grounds of inadmissibility include criminal conduct, fraud, and immigration violations, among other issues. An applicant who is inadmissible may still be able to immigrate if USCIS agrees to waive (forgive) the ground of inadmissibility. 7 Otherwise, she cannot immigrate. See Chapters 5 & 6 for more on the grounds of inadmissibility. Thus, three facts must be established at step two: 1. The applicant is not inadmissible, or if she falls into a category of inadmissibility, she can obtain a waiver of the inadmissibility ground; 2. The visa petition is still valid (the petitioner-beneficiary relationship still exists and the petitioner still has the required immigration status); and 3. The applicant is eligible to immigrate now, without having to wait (i.e., a visa is available). Special rules apply to married couples. Some people who immigrate through their marriage must go through a third step to immigrate. Under the Immigration Marriage Fraud Amendments, applicants through marriage who have not been married two years when they immigrate obtain conditional permanent residency. The married couple must submit an additional petition to USCIS after receiving the “green card” but before two years have passed, in order to have the condition, or limitation, on their permanent resident status removed. See Chapter 3 for a detailed discussion of conditional permanent residency. While step one, the visa petition, can be relatively straightforward, an approved visa petition does not necessarily mean the relative will be able to proceed with step two, either now or in the future. They may not be able to proceed with step two right away, because they have a fifteenyear wait under their preference category and country of chargeability. Or, without a change in the immigration laws, they may never be able to proceed to step two if they have certain insurmountable inadmissibility issues. Further, it may be risky for some individuals to even have someone submit an I-130 petition on their behalf. For all these reasons, these issues should be explored and discussed with the client in advance so that a long-term strategy is mapped out, and to manage expectations about the process. § 1.2

The Immediate Relative Category & Definition of “Child” and “Spouse”

Certain people can immigrate as the immediate relative of a U.S. citizen. A person qualifies as an immediate relative if he or she is the: 1. Spouse of a U.S. citizen, 2. “Child” of a U.S. citizen, or 3. Parent of a U.S. citizen, if the citizen is at least 21 years old. 8

6

The inadmissibility grounds are listed at INA § 212(a). See Chapters 5 and 6. 8 INA § 201(b)(2)(A)(i). 7

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Examples: Alfredo is married to a U.S. citizen. Laura has a U.S. citizen son who is 30 years old. Kwan is 12 and his father is a U.S. citizen. Alfredo, Laura, and Kwan are all immediate relatives. Immediate relatives can immigrate very quickly, without having to wait for a visa to be available, because visas are always available for immediate relatives. They can proceed to the second step as soon as their visa petition is approved, or if they are applying for adjustment of status, they can even submit their permanent resident application at the same time as the visa petition (See “OneStep” Adjustment Applications below). Visa availability never delays immigration for immediate relatives, but the application process itself may take several months. “One-Step” Adjustment Applications: Immediate relatives who qualify for adjustment of status under INA § 245(a) or § 245(i) can often submit the I-130 visa petition along with the adjustment application. See Chapter 3 for an in-depth discussion of adjustment of status. A separate visa petition must be filed for each immediate relative, and immediate relatives cannot include “derivative beneficiaries” in their visa petitions. This means that if a U.S. citizen is petitioning their spouse and they have a child, a separate immediate relative petition must be filed for the child. However, this is only the case for immediate relative spouses—immediate relative children or parents do not have the option of having their children independently petitioned for by the U.S. citizen petitioner. This is one reason why it is important to understand the rules about which relative qualifies under which category, such as who is considered a child and who is considered a spouse, and whether they are classified as “immediate relatives,” in order to understand how to properly include everyone who wants to, and is able to, immigrate along with the primary beneficiary. NOTE: The following sections defining “child” and “spouse” apply to any reference to “child” or “spouse” in the INA and the regulations, including the sections regarding preference categories as well as immediate relatives. WHO IS A “CHILD”? In all immigration work, remember that “child” is a term with a special legal meaning. 9 Learn to associate the word “child” with the technical legal definition. When referring to adult children (kids who have grown up), the INA uses the term “son or daughter.” See § 1.4 below for a discussion of “sons and daughters.” To be a “child” a person must meet two important criteria. A.

Unmarried and Under 21 Years of Age

A “child” for immigration purposes is someone who is unmarried and less than 21 years old. A person who is divorced or widowed at the time of petitioning is considered unmarried and may therefore qualify as a “child” if they also meet the age requirement, even though they were married in the past.10 Examples: A daughter who is 21 years old when her U.S. citizen parent’s petition is filed is not a “child” under the INA and cannot be petitioned for as an immediate relative. (She 9

See INA § 101(b)(1). INA § 101(a)(39).

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may, however, be able to immigrate as a “daughter” through a preference petition. See § 1.4 below). A married 19-year-old daughter is also not a “child.” But a 19-year-old divorced daughter is a “child” under the Act. However, note that if USCIS or the immigration court finds that the divorce was sought purely for purposes of obtaining an immigration benefit (to restore someone to being an unmarried “child”), they may deem the petition and corresponding application fraudulent and consequently deny the applications. 11 NOTE: The Child Status Protection Act (CSPA) allows children of U.S. citizens who turn 21 while a parent’s visa petition is pending to immigrate as if they were still children, even though they no longer meet the definition of a “child” under the Act because they are over 21 years of age when the I-130 petition is finally approved. For example, in the case of a naturalizing lawful permanent resident (LPR) petitioner, the age of the child locks in on the date of the parent’s naturalization if the LPR parent already filed a petition for that child. If the child is under 21 on that date, the petition will convert into an immediate relative petition and remain as such until the child immigrates. The CSPA rules are complicated, especially for the children of lawful permanent residents. See § 1.10 for a detailed explanation of the CSPA. In addition, the National Defense Authorization Act 12 allows some children to maintain immediate relative status after turning 21 if they are children of deceased U.S. citizen or permanent resident members of the armed forces who died “as a result of an injury or disease incurred in or aggravated by combat.” The child must have been under 21 and unmarried at the time the parent died and must selfpetition within two years of the parent’s death. B.

Child-Parent Relationship That USCIS Recognizes

Biological children who were born in wedlock are considered children under the immigration laws. But other children, such as stepchildren, adopted children, adopted orphans, and children born out of wedlock, may also qualify. These other children must meet specific additional requirements. Here is an overview of the other categories of “children”: Stepchildren. A common situation involves stepchildren. This rule is simple. A stepchild is a child for immigration purposes if the marriage that creates the stepparent-stepchild relationship takes place before the child turns 18. 13 Example: Olga, a lawful permanent resident, marries Sandra. Sandra has a 10-year-old daughter, Teresa. Can Olga petition Teresa as her child? Yes. Since Olga and Sandra married before Teresa reached the age of 18, Teresa is Olga’s “child” for immigration purposes. Teresa became Olga’s stepchild as of the date of Olga and Sandra’s marriage. If the marriage creating the stepparent-stepchild relationship has been terminated by death, divorce, or legal separation, the Board of Immigration Appeals (BIA) has ruled that the petitioner

11

See Matter of Aldecoaotalora, 18 I&N Dec. 430 (BIA 1983). See INA § 329A. 13 See INA § 101(b)(1)(B) and 8 CFR § 204.2(d)(2)(iv). 12

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must prove that the step-familial relationship between petitioner and beneficiary (step-parent and step-child or step-siblings) continues to exist as a matter of fact. 14 NOTE: Some children born outside the United States can derive U.S. citizenship through a parent’s citizenship. However, a stepchild born outside the United States cannot derive U.S. citizenship by virtue of his or her relationship to a stepparent, unless that stepparent also legally adopts the child. 15 Therefore, if Olga in the example above were a U.S. citizen, she would still need to file a separate I-130 petition on behalf of Teresa, who could then become a lawful permanent resident. Adopted Children Generally. Children who are adopted while under the age of 16 and who have been residing with and in the legal custody of the adoptive parents for at least two years may qualify as children under the Act. 16 The two years residing together and two years’ legal custody requirements do not need to be fulfilled at the same time. In addition, the burden is placed on the parent to establish primary parental control during the two-year period of joint residence. 17 There are two exceptions to these requirements. First, if the same adoptive parents adopt the biological brother or sister of a child they have already adopted, the parents must meet the same requirements for the second child except that they have until the second child’s 18th birthday, rather than the child’s 16th birthday, to complete the adoption. Second, the Violence Against Women Act of 2005, § 805(d) removed the two-year custody and residency requirements for abused adopted children by allowing adopted children to obtain permanent residency even if they have not been in the legal custody of, and have not resided with, the adoptive parent for at least two years, if the child has been battered or subject to extreme cruelty by the adoptive parent or by a family member of the adoptive parent. Adopted Orphans. Orphans either adopted abroad or coming to the United States to be adopted who are under the age of 16 may qualify as children under the INA. 18 One of the adopting parents must be a U.S. citizen. “Orphan” under the INA has a different meaning from common usage and does not necessarily require that the child’s birth parents be deceased. In order for a child to meet the definition of “orphan,” the child must be residing outside the United States when the petition is filed. In addition, the adopting parent must obtain a valid home study, which usually entails interviews with the prospective adoptive parents, background checks, and a home visit to make sure it is a safe environment, before adopting and must also meet many other requirements.19 If the same adoptive parents adopt a brother or sister of an orphan, the second child must meet the

14

See Matter of Breier, 8 Immig. Rptr. B1-57 (BIA 1997); Matter of Mowrer, 17 I&N Dec. 613 (BIA 1981); Matter of Mourillon, 18 I&N Dec. 122 (BIA 1981) (step-siblings). 15 See Matter of Guzman-Gomez, 24 I&N Dec. 824 (BIA 2009). 16 INA § 101(b)(1)(E), 8 CFR § 204.2(d)(2)(vii). 17 See Matter of Marquez, 20 I&N Dec. 160 (BIA 1990). This is particularly important if the adopted child is a relative of the adoptive parents. USCIS will closely examine whether the biological parent has truly given up “parental control” to the adoptive parents, or whether the adoption is a “sham” for immigration purposes. 18 INA § 101(b)(1)(F), 8 CFR § 1101(a)(1)(F). 19 See 8 CFR § 204.3.

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same requirements but can be considered an orphan as long as the orphan petition is filed while he or she is under the age of 18. Children Adopted Abroad/Hague Adoptions. On April 1, 2008, the Hague Adoption Convention went into effect. This is an agreement between the United States and many other countries that governs international adoptions. The Hague Convention changed the rules under which U.S. citizens can adopt children from the other countries that are signatories to the Convention. Special rules apply to children who are habitual residents of Hague Convention countries. 20 U.S. citizens who wish to adopt a child from one of these countries must be careful to comply with the rules of the Convention or their adoption will not be recognized by USCIS. 21 A child adopted from a Hague Convention country by a U.S. citizen who habitually resides in the United States qualifies for a visa as an immediate relative. 22 If a child is adopted from a nonConvention country, this adoption is classified as an “Orphan Adoption” and different rules apply (see “Adopted Orphans” above). Note: if your client is adopting a child from a Convention country, the client must make sure that he or she is in compliance with the Hague Convention as well as adoptions laws of the country in which the adopted child resides. Children Born Out of Wedlock. The immigration laws historically have referred to certain children as “illegitimate” if their parents were not married at the time of the children’s birth. Partly in response to criticisms that this language was insensitive, Congress changed the INA’s definition of “child” by replacing the words “illegitimate child” with “child born out of wedlock,” and “legitimate child” with “child born in wedlock.” 23 The legacy INS sent instructions to the field on this change in the definition of “child” and “father.” 24 While advocates should use this language in visa work, the change does not appear to affect substantive law—with the possible exception of some impact on the definition of an orphan. Whether a child who was born out of wedlock is later “legitimated” remains relevant under the law. If a child’s parents are not married at the time of birth, he or she is considered a “child born out of wedlock.” Such a child can immigrate through his or her mother without any problems. But if the child tries to immigrate through the father, there are additional requirements. 25 The father must either prove a bona fide parental relationship with the child before the child reaches the age of 21, or prove the father has “legitimated” the child under the law of the child’s or father’s residence or domicile. To prove a “bona fide parental relationship,” the father must have shown “an actual concern for the child’s support, instruction and general welfare.” 26 The family also must prove that the father is the natural father.

20

22 CFR § 42.24. The current list of Hague Convention member countries can be found on the U.S. Department of State’s website at http://adoption.state.gov/hague_convention/countries.php. 22 INA § 101(b)(1)(G). 23 See INA §§ 101(b)(1)(A), 101(b)(1)(D), and 101(b)(2). 24 See INS Cable HQ 204.21-P, 204.22-P reprinted in Interpreter Releases, January 2, 1996. 25 INA §§ 101(b)(1)(C)–(D). 26 8 CFR § 204.2(d)(2)(iii); see also Matter of Pineda, 20 I&N Dec. 70 (BIA 1989). 21

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Example: Geraldo has a daughter, Eliza. He and Eliza’s mother never married. Geraldo lived and worked in the United States for years, but he always sent money to Eliza’s mother for her upbringing in Mexico. He visited Eliza every year when he returned to Mexico, and they sometimes wrote letters to each other. Everyone in the village knows that Geraldo is Eliza’s father. Geraldo’s mother in Mexico is a devoted grandmother to Eliza and often cares for her. Geraldo has become a permanent resident and wants to petition for Eliza, who is 16. To prove that they have had a bona fide relationship he will submit copies of receipts for money orders he sent to her mother to assist with Eliza’s financial support, copies of letters he and Eliza exchanged, and affidavits of friends, neighbors and others who can attest to the fact that he and Eliza had a father-child relationship. To prove that he is Eliza’s natural father, Geraldo will submit her birth certificate listing him as her father, or some other proof such as DNA tests proving he is her father. In other cases, the family may prove that the child has been “legitimated” under the law or that the child should not have been considered illegitimate in the first place because the laws of the particular country where the child was born do not distinguish between children born in or out of wedlock. 27 Note, however, that some countries have passed laws to eliminate discrimination against children born out of wedlock but still require a marriage of the parents for the child to be considered legally “legitimated.” 28 If relying on a foreign country’s “legitimation” laws, it is critically important to research the current law of that country or consult with an expert in that country’s laws. PRACTICE TIP: Always ask clients to tell you about all children they may have, inside or outside of marriage. Some people are not aware that children born out of wedlock are also “children” for immigration purposes, or sometimes the existence of these children may be a sensitive issue, and so the parents fail to list them on their immigration petitions and applications. They should be told that if they fail to include any such children on petitions filed with USCIS, it will be more difficult later to help these children immigrate through that petition or at a later date. WHO IS A “SPOUSE”? People who are legally married and have a bona fide marriage relationship are spouses under the Act. See Chapter 2, § 2.13. Same-Sex Spouses. The INA does not define the word “spouse” in terms of the sex of the parties. However, because immigration law is federal law, USCIS follows the federal definition of “spouse.” Previously, the federal Defense of Marriage Act (DOMA) defined “spouse” as a person of the opposite sex. This prohibited same-sex couples from filing immigrant visa petitions based on marriage. In 2013, the Supreme Court in U.S. v. Windsor struck down DOMA, declaring it unconstitutional. Now, USCIS accepts and processes visa petitions for same-sex spouses who are legally married the same as petitions for opposite-sex spouses. 29 To this end, USCIS has stated 27

See, e.g., Matter of Patrick, 19 I&N Dec. 726 (BIA 1988). See Matter of Hines, 24 I&N Dec. 544 (BIA 2008). 29 U.S. v. Windsor, 570 U.S. __ (2013), 133 S.Ct. 2675 (2013); see also Matter of Zeleniak, 26 I&N Dec. 158 (BIA 2013) (DOMA no longer impediment to recognition of lawful same-sex marriages under the INA 28

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that it will look to the law of the place where the marriage took place when determining whether it is valid for immigration law purposes. Couples who do not currently live in a state or country that recognizes same-sex marriage may obtain a lawful marriage in another state or country that does, so long as the laws of that place permit out-of-state residents to marry there. Transgender Spouses. Before the Windsor decision, in the case of Matter of Lovo-Lara, 23 I&N Dec. 746 (BIA 2005), the BIA held that a marriage is valid for immigration purposes so long as it is considered a valid heterosexual marriage between two people of the opposite sex according to the law of the state where the marriage was celebrated. The petitioner in Lovo-Lara had undergone sex-reassignment surgery and legally changed her sex under the law of the State of North Carolina. USCIS had initially stated it would approve I-130 petitions only where the transgender spouse had undergone sex reassignment surgery and the surgery had resulted in a legal change of sex under the law of the place of marriage. Therefore, a heterosexual married couple involving a transgender individual would need to prove not only the validity of the marriage for a marriage-based petition, but also that the marriage was a heterosexual one. After the 2013 U.S. Supreme Court decision in Windsor, which opened the way for same-sex couples to file marriage-based immigration petitions on behalf of a foreign spouse, transgender individuals in heterosexual marriages should no longer be subjected to any special requirements or conditions in order to prove that their marriage is in fact a “heterosexual” marriage. Familiarity with the April 2012 USCIS Policy Memorandum regarding the adjudication of benefits for transgender individuals may still be helpful for guidance on how to document a gender identification change so that it will be reflected on immigration documents. 30 This memorandum clarifies that sex reassignment surgery is not necessary and it acknowledges a broader range of clinical treatments and other steps that can result in a legal change of gender under the various laws of the states. Widow and Widower Spouses. The Immigration Act of 1990 added a new definition of “spouse” to allow widows and widowers who had been married to a U.S. citizen for at least two years to remain immediate relatives. However, as of October 28, 2009, the INA has been amended to eliminate the two-year requirement. Therefore, the widow or widower of a U.S. citizen, who was not legally separated from the U.S. citizen at the time of his or her death, will continue to be considered an immediate relative for two years after the U.S. citizen’s death, or until the time he or she remarries, whichever comes first.31 Persons widowed before October 28, 2009 and who did not have a pending I-130 petition but otherwise met the above stated criteria could file a self-petition via Form I-360; however, such a petition must have been filed by October 28, 2011. 32

if the marriage is valid under the laws of the state where it was celebrated), “Implementation of the Supreme Court Ruling on the Defense of Marriage Act” on the USCIS website, and USCIS Post-DOMA Training Materials, available at www.aila.org, AILA Doc No. 14050649. 30 USCIS Policy Memorandum, “Adjudication of Immigration Benefits for Transgender Individuals; Addition of Adjudicator’s Field Manual (AFM) Subchapter 10.22 and Revisions to AFM Subchapter 21.3 (AFM Update AD2-02),” April 13, 2012. 31 INA § 201(b)(2)(A)(i). 32 P.L 111-83, § 568(c)(2)(B).

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Note that the widow or widower will need to file a Form I-360 as a self-petitioner rather than filing Form I-130. 33 Example: Jacqueline married a U.S. citizen in June of 2008. Her husband died on February 1, 2010. Jacqueline may immigrate as an immediate relative until January 31, 2012, or until she remarries, whichever comes first. The fact that she was only married to her U.S. citizen husband for less than two years is no longer a barrier. § 1.3 A.

“K” Visas for Fiancé(e)s, Spouses, and Children of U.S. Citizens

Fiancé(e) Petition (K-1 Visa)

U.S. citizens (but not permanent residents) may bring their fiancé(e)s to the United States using a “K-1” visa before getting married, to then marry in the United States. This is not an immediate relative visa petition, although there are quasi-immigrant visa requirements which the beneficiary must meet before the U.S. consulate will issue the visa. A K-1 is in fact a non-immigrant visa petition (Form I-129F), that allows the fiancé(e) to enter the United States for a limited time and purpose: to marry their U.S. citizen fiancé(e) within 90 days of arrival. To qualify for this visa, the couple must show that they met at least once in person within the past two years, that they intend to marry, and that they are legally able to marry. 34 Under certain circumstances, USCIS will waive the requirement that the couple has met in person within the past two years. 35 For example, if the marriage is arranged, and arranged marriages are customary within that culture, then USCIS may waive the “having met in person” requirement, if the petitioner demonstrates that complying with this requirement would cause extreme hardship or would “violate strict and long established customs of the beneficiary’s foreign culture or social practice.” 36 A request for a waiver will be examined on a case-by-case basis, taking into account the totality of the petitioner’s circumstances. Generally, circumstances that are not within the power of the petitioner to control and are likely to last for a considerable duration are considered persuasive, although financial hardship alone is usually insufficient. 37 If the couple does not get married within 90 days, the fiancé(e) may be required to leave the United States, and if the fiancé(e) does not leave the United States, she or he will be removed. The only exception is if the couple gets married after the 90 days and the same petitioner then submits an I-130 petition, the fiancé(e) may then adjust using an approved I-130 instead of the fiancé(e) petition. 38 The K-1 fiancé(e) cannot change status or ever adjust through a different visa petition filed by a different petitioner. 33

See P.L. 111-83§ 568(c)(2)(B) and INA § 204(a)(1)(A)(iii); see also USCIS Policy Memorandum, “Approval of Petitions and Applications after the Death of the Qualifying Relative under New Section 204(l) of the Immigration and Nationality Act.” December 16, 2010 (“USCIS Memo on INA § 204(l)”) included in this manual as Appendix 1-A. See § 1.12 below for information regarding beneficiaries who become widows or widowers after the I-130 petition had already been filed. 34 See INA § 314(d). 35 See 8 CFR § 214.2(k)(2). 36 8 CFR § 214.2(k)(2). 37 Matter of _ _, (AAO Jan. 2, 2009) (unemployment insufficient because “financial constraints are a common concern for those filing the Form I-129F petition”). 38 See Chapter 3 on adjustment of status.

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A U.S. citizen petitioner files a K-1 visa petition on Form I-129F, at the USCIS Service Center with jurisdiction over the petitioner’s residence in the United States. If both the petitioner and fiancé(e) live outside the United States, the I-129F must be submitted to the USCIS Service Center with jurisdiction over the petitioner’s last place of residence in the United States. The K-1 fiancé(e)’s unmarried children under the age of 21 can be included in the petition and enter the U.S. with the fiancé(e) parent. Children of K-1 fiancé(e)s are designated as “K-2” visa holders. Generally, K-2 visa holders can adjust status and become permanent residents as long as they still qualify for the K-2 visa. This means that they must be unmarried and they must have been admitted to the United States on their K-2 nonimmigrant visa while still under 21 years old. 39 See Chapter 3. NOTE: A fiancé(e) petition can be helpful in particular instances: First, where the fiancé(e) has a child under 21, but who is over the age of 18, as the fiancé(e) petition will allow the child to immigrate. Otherwise, if the couple marries after the child’s 18th birthday, the child would be too old to qualify as a stepchild. Second, where same-sex marriage is not legal in the noncitizen’s country of origin, and therefore the couple is unable to avail themselves of the marriage-based immigration process because they cannot legally marry as long as the noncitizen remains in her home country, the fiancé(e) visa is a way to bring the intended spouse to the United States so that the couple can legally marry and the U.S. citizen petitioner can confer immigration benefits on her spouse. Example: Christine is a U.S. citizen. Her girlfriend, Althea, lives in the Philippines. They met online two years ago, and Christine has traveled multiple times to visit Althea in the Philippines. They plan to marry and live together in the United States. However, same-sex marriage is not legal in the Philippines. Therefore, although an opposite-sex couple could get married in the Philippines, then the U.S. citizen could return home and petition to immigrate her spouse, Christine does not have that option. But, Christine can file a fiancé(e) visa petition to bring Althea to the United States, where they will then be able to marry and complete the adjustment of status process so that Althea can obtain permanent residence. Two other laws affect U.S. citizen petitioners directly. The International Marriage Broker Regulation Act (IMBRA) provides that noncitizen fiancé(e)s and spouses coming to the United States with K visas must be informed about other K petitions previously filed by the petitioner and when filing the I-129F, petitioners must provide information regarding certain criminal convictions, which will be shared with the beneficiary prior to the issuance of a K visa. The petitioner for a K-1 fiancé(e) visa must request a waiver if he or she has filed two or more K-1 visa petitions at any time in the past or had a prior K-1 petition approved within the last two years. 40 The other law, the Adam Walsh Child Protection and Safety Act, prohibits a U.S. citizen petitioner from filing a K nonimmigrant visa petition for a fiancé(e), spouse, or minor children if the petitioner was convicted of a “specified offense” against a minor, listed in the 39 40

Matter of Le, 25 I&N Dec. 541 (BIA 2011). See INA § 214(d)(2)(A) & (B).

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statute, unless USCIS determines that the petitioner poses no risk to the beneficiary. The Adam Walsh Act also applies to other family-based petitioners, not just petitioners filing K nonimmigrant visa petitions. After the marriage, the immigrant spouse must apply for adjustment of status to permanent residency at a USCIS office in the United States. The couple does not need to file an I-130, however. 41 If the marriage is less than two years old at the time of the adjustment interview, as is usually the case with people who enter on fiancé(e) visas, USCIS will grant the immigrant spouse conditional resident status for two years. The couple will subsequently have to apply to remove the condition during the 90-day window immediately before the date the conditional residence expires, so that the immigrant spouse can remain in the United States. 42 K-2 children will also be granted conditional residence status. 43 If the U.S. citizen spouse dies before the K-1 visa holder adjusts his or her status, the immigrant spouse may file the adjustment application just as they would have done if the U.S. citizen petitioner had not died. It is, therefore, not necessary for such a K-1 visa holder to file Form I-360 as a self-petitioning widow or widower. The adjustment application will be approved pursuant to INA § 204(l) and the surviving spouse will be granted unconditional lawful permanent resident status. 44 B.

Petitions for Spouses and Children of U.S. Citizens (K-3 and K-4 Visas)

On December 21, 2000, the Legal Immigration and Family Equity Act (LIFE) became law. Among other provisions, LIFE created two new nonimmigrant visa categories, one for the spouses and minor children of lawful permanent residents, 45 and one for spouses and minor children of U.S. citizens residing abroad. Spouses and minor children (unmarried and under 21) of U.S. citizens are able to request K-3 (spouse) and K-4 (minor children of the K-3 spouse) visas in much the same way that K-1 fiancé(e) petitions are currently processed, using the same type of petition (Form I-129F). Example: Vijay, who is a U.S. citizen, recently traveled to India to get married. He just returned to the United States to file immigration papers for his new bride. While waiting for an I-130 approval notice and the usual consular processing, he can file a “K” visa petition for his new wife to allow her to come to the United States sooner. Instead of doing immigrant visa consular processing, she will be able to file for her green card once she arrives, from within the United States. In order to obtain a K-3 visa, the U.S. citizen spouse must have submitted an I-130 petition for the K-3 spouse (but not for her children) and received the Notice of Action (Form I-797) from the USCIS indicating that the Service has received the petition. The U.S. citizen spouse can then file

41

See INA §§ 101(a)(15)(K), 214(d), and 8 CFR § 214.2(k). INA § 245(d). 43 See Chapter 3. 44 See USCIS Memo on INA § 204(l), cited above on note 34 and included as Appendix 1-A. INA § 204(l) concerns the surviving beneficiaries of qualifying relatives on certain petitions and applications and was added by § 586(d)(1), DHS Appropriations Act, 2010, Act of October 28, 2009. 45 The “V” Visa—see § 1.5 for more information. 42

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a Form I-129F Petition for Alien Fiancé(e). 46 Follow the instructions at www.uscis.gov/i-129f for where to file the K-3 petition from within the United States. For petitions filed from abroad, contact the U.S. embassy or consulate nearest your residence for current filing instructions. In addition to allowing spouses of U.S. citizens to enter the United States to apply for adjustment of status, Congress created a K-4 visa to allow the under 21 and unmarried children of K-3 eligible applicants to enter the United States as well. Example: Vijay’s new wife has a twelve-year-old daughter. Vijay can request a K-4 visa to bring his wife’s daughter (i.e., Vijay’s new stepdaughter) into the United States. PRACTICE TIP: Before filing a K-3 visa petition, check processing times for the I-129F K-3 category and compare to the processing times for immediate relative spouse I-130s (you can do this by going to www.uscis.gov and plugging in “case processing times”). It has often been the case in the past that the K-3 does not in fact result in faster adjudication allowing the immigrant spouse of a U.S. citizen to travel to the U.S. more quickly than through an I-130 petition. Additionally, some consulates hold the K-3 petition until the I-130 is approved, at which point the K-3 becomes moot, defeating the purpose of filing the K-3 to begin with. Another point to consider when deciding whether to attempt a K-3 petition to bring the spouse of a U.S. citizen to the United States more quickly (which as noted above may be hit or miss), or to proceed with immigrant visa consular processing, is whether it is important that the noncitizen spouse have employment authorization as soon as she sets foot in the United States. Someone who enters on a K-3 will not have employment authorization until after they have a pending adjustment of status application, several months later, whereas someone who does immigrant visa consular processing will have employment authorization, as a lawful permanent resident, as soon as they arrive in the United States. K-3 and K-4 visa holders cannot change status to another nonimmigrant status such as a student or temporary worker. 47 Additionally, neither a K-3 nor a K-4 can adjust status except through an I-130 filed by the USC who was the petitioner for the K-3 visa on Form I-129F. Termination of K-3/K-4 occurs 30 days after the denial or revocation of the I-130 or the adjustment of status. A K-3 visa also terminates upon the K-3’s divorce from the USC. A K-4’s visa terminates upon termination of the K-3 visa, or the K-4’s marriage. 48 In the case that the U.S. citizen petitioner dies before the K-3 or K-4 has adjusted their status, the I-130 petition filed for the K-3 spouse is automatically converted into an I-360 self-petition. The K-4 becomes a derivative beneficiary on the I-360 who will be “following-to-join” the K-3 spouse.

46

Even though Form I-129F is titled “Petition for Alien Fiancé(e),” it is also used for K-3 spouses. 8 CFR § 248.2(a)(2). 48 See 8 CFR § 214.2(k)(10). 47

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§ 1.4

Petitions under the Preference System: Definition of Siblings and Sons and Daughters

Family members who do not qualify as immediate relatives may be able to immigrate through the preference system. Unlike an immediate relative, the beneficiary of a preference petition may have to wait for some period of time between approval of the visa petition and immigrating. The waiting period is discussed in §§ 1.8–1.9. Before discussing preference petitions, we must define two new categories of family members: “sons and daughters” and “siblings” (brothers and sisters). A.

Who Is a Son or Daughter?

A son or daughter is a person who once qualified as a child, but is now over 21 and/or married. 49 Example: Gina, an LPR, marries Juan who has a five-year-old daughter, Soledad. Soledad qualifies as a child under the stepchild rule discussed above. Years later, when Soledad is twenty-five, she wants to immigrate through Gina. She is not a child because she is over 21. Can she qualify as Gina’s “daughter”? Did Soledad ever qualify as Gina’s “child”? Yes. Since Soledad once qualified as Gina’s child, she now can qualify as her daughter. B.

Who Is a Sibling (Brother or Sister)?

Siblings are persons who were once “children” with at least one parent in common either by adoption or blood relation. 50 However, an adopted child cannot file a visa petition for his or her biological siblings or parents if the adoption is one that meets the definition of “adopted child” under the immigration laws. After such an adoption, the biological siblings or parents can immigrate through the adopted child only if no immigration benefit was received due to the adoption, the adoption has been legally terminated, and the original parent-child relationship has been lawfully reestablished. Example: Suppose that when Soledad from the example above was thirty years old, Gina and Juan divorced and Gina had another child, Fidel, with another man. Years pass. Now Fidel is 30 years old and Soledad is 60. Are Fidel and Soledad siblings under the INA? Yes. It does not matter that they were not children at the same time, or that Soledad was a stepchild, and Fidel a child born out of wedlock. At one time, they both qualified as Gina’s “children” under the INA. Example: A U.S. citizen couple adopts Lim, born in China. They petition for her as their child and she immigrates, later becoming a naturalized U.S. citizen. When Lim grows up, she travels to China and meets her birth parents and biological siblings. Lim wants to petition for her natural sister. Can she?

49 50

22 CFR § 40.1(s). Matter of Lin Lee, 19 I&N Dec 435 (BIA 1987).

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No. Although Lim and her sister have the same biological parents, Lim’s adoption canceled her ability to file visa petitions for her birth parents and her biological siblings. 51 If Lim had not immigrated through her adopted parents but had immigrated another way, and her adoption was ultimately terminated, she might have been able to petition for her natural parents and siblings. § 1.5

The Preference Categories

People who are not immediate relatives will immigrate through a preference visa petition which will fall into one of four categories. The preference categories are: 52 Category

Beneficiaries Covered by This Category

First Preference (F1) 53

Unmarried sons and daughters, 21 years of age or older, of U.S. citizens.

Second A Preference (2A)

Spouse or child of a lawful permanent resident.

Second B Preference (2B)

Unmarried sons and daughters, 21 years of age or older, of lawful permanent residents. *If an unmarried son or daughter of a lawful permanent resident marries, he or she loses eligibility to immigrate as the son or daughter of an LPR.

Third Preference (F3)

Married sons and daughters, of any age, of a U.S. citizen.

Fourth Preference (F4)

Brothers and sisters of U.S. citizens. The petitioner must be at least 21 years old. Both siblings must at some time have been the children of one common parent.

The date that the preference visa petition is filed with USCIS is called the priority date. Because the preference visa categories are subject to a quota system, there is a limited number of visas available each year for each of these categories. Due to these limitations, there are often more people who file petitions than there are visas available, resulting in long waiting periods for prospective immigrants—for some, twenty years or more. The priority date determines when the prospective immigrant can immigrate. Its function is equivalent to a number on a waitlist. Earlier priority dates are further up on the waitlist for an immigrant visa or green card. When a prospective immigrant finally gets to the top of the list, their priority date is “current.” 54 51

See INA § 101(b)(1)(E); Matter of Xiu Hong Li, 21 I&N 13 (1995); Matter of Li, 20 I&N Dec. 700 (BIA 1993); Matter of Kong, 17 I&N Dec. 151 (1979). 52 These categories are set forth at INA § 201(b)(1). Note that the preference categories were renumbered, in part, by the Immigration Act of 1990. Previously, 2A and 2B were collapsed into the same second preference category, third preference married sons and daughters were designated as fourth preference and siblings were designated as fifth preference. Employment preference categories, which are now completely separate from the family categories, filled in the other preference numbers (third and sixth). 53 Many practitioners prefer to refer to family-based preference categories as “Family-based first preference,” or “Second Preference, 2B,” etc. to avoid confusion with nonimmigrant visa categories such as the “F-1” student visa. 54 See §§ 1.7 and 1.8 below, which describe how the preference visa system works.

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A.

Conversion of the Petition to a New Category

In instances where a child ages out (turns 21), there is a change in the beneficiary’s marital status, or the petitioner naturalizes, the petition may shift to a new category with a new waitlist. In most circumstances, the beneficiary retains her priority date. 55 The basic rule is: If the new petitionerbeneficiary relationship will support a family petition, the beneficiary retains the petition and priority date. Remember that “immediate relatives” (spouses, parents and minor unmarried children of U.S. citizens) are not subject to the preference system or priority dates unless, potentially, their family status changes (the Child Status Protection Act, discussed later in this section and in greater depth in § 1.10, prevents an immediate relative minor child of a USC from converting to the third preference category when the child turns 21). First Preference to Third Preference (and Vice Versa): The single daughter or son of a U.S. citizen marries while waiting for his or her first preference priority date to become current. Because a U.S. citizen can also petition a married daughter or son in the third preference visa category, the first preference petition converts to a third preference petition. The conversion happens automatically, but it is usually a good idea to update the National Visa Center with updated documents to support the conversion from one preference category to another to make sure that the change is registered in the system as well. If the beneficiary then divorces during the long wait for a current date, he or she again converts—this time back to the first preference.

55

8 CFR § 204.2(1)(i); see also § 1.8 below for a further explanation of priority dates.

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Second Preference, 2A to 2B: The child of an LPR (2A preference) reaches the age of 21 while she awaits a current priority date. Her petition converts to 2B preference and she retains the priority date. There are some exceptions to this rule under the Child Status Protection Act. 56 For more information on the Child Status Protection Act (CSPA), see § 1.10.

Immediate Relative to Third Preference: The minor (under 21) child of a U.S. citizen (an immediate relative) marries (thus becoming a third preference beneficiary). He or she retains the original petition and priority date that was set based on the date USCIS originally received the petition.

Second Preference 2B to First Preference: An LPR petitions her unmarried son or daughter and then naturalizes so that the beneficiary is now the son or daughter of a U.S. citizen. A beneficiary 56

See § 1.10 below.

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could move from 2B to first preference and then to third preference upon getting married. Also see discussion under § 1.10 below regarding a situation where, under the CSPA, a beneficiary might opt to retain his or her 2B classification.

Second Preference 2A to Immediate Relative: When an LPR petitioner naturalizes and becomes a U.S. citizen, the 2A spouses and unmarried children under 21 become immediate relatives. The naturalization would have to take place before the child turns 21. This allows them to escape the preference quotas and potentially process immediately their applications for green cards. In addition, for certain beneficiaries, it may allow them to adjust status—an option they may not have had as 2A beneficiaries. See discussion of adjustment of status in Chapter 3.

Note: Previously, an immediate relative child who turned 21 would automatically convert to first preference. However, under the Child Status Protection Act (CSPA), the visa petition beneficiary remains an immediate relative even after turning 21, unless he or she opts to convert to first

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preference. 57 Converting to a preference category results in a wait but also allows for the inclusion of derivatives. See § 1.6. Changes in preference categories such as those described here imply a switch from one waitlist to another. With that switch comes a corresponding change in waiting times, such that going from one preference category to another may mean a longer or shorter wait to apply for an immigrant visa. 58 If, however, the newly created petitioner-beneficiary relationship will not support a family petition, in other words because there is no corresponding category for such a relationship, then the beneficiary loses the petition and the priority date. 59 Most significantly, this applies to children of LPRs who marry while waiting for their priority date to become current (see explanation below). Child or Daughter/Son of a Lawful Permanent Resident (Preference 2A or 2B) Marries: If the child or daughter/son of an LPR marries, he or she has nowhere to go in the preference system because there is no visa category for married sons and daughters of lawful permanent residents. This means the visa petition is automatically revoked and the beneficiary loses her priority date. When and if her parent naturalizes, the newly naturalized parent can file a new petition and the wait begins again.

Note: If the parent naturalized first, before the child or daughter/son married, then the parent’s naturalization would first result in the change in category—from preference 2B to first preference in the case of an unmarried son/daughter. The subsequent marriage of the son/daughter would then change the petition to a new category—from first preference to third preference. Throughout all the changes, the beneficiary would retain the petition validity and the priority date, which would determine her place in each new waitlist. 60

57

See § 1.10 below. See §§ 1.7 & 1.8 below. 59 See § 1.12 below on automatic revocation of visa petitions. 60 Note that if the son/daughter of the naturalized USC parent in this example qualifies as a “child,” he or she may have become an immediate relative when his or her parent naturalized, and now qualify to apply 58

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PRACTICE TIP: Sequence matters! If your client is married and has a preference petition that a parent filed for her, always make sure to check 1) when your client married and 2) if her petitioning parent is now a U.S. citizen. Depending on the timing of her marriage and her parent’s naturalization, she may have lost that petition. If the naturalization date comes first, the petition is alive. If the child or daughter/son married first, the petition and priority date are lost. Example: See the chart below for examples as to whether the specified relative can have a family visa petition filed on his or her behalf, as well the appropriate immigration category. Relative

Category

Carmen is an LPR who wants to petition for her husband.

F2A

Joaquin would like to immigrate through his son, Cannot immigrate. LPRs cannot petition their parents. an LPR. Martin, who is 35 and a USC, wants to petition for his brother.

F4

Martin also wants to petition for his uncle and cousins.

Cannot immigrate. Aunts, uncles, cousins, and grandparents are not recognized relationships under immigration law.

Yes, John can immigrate as an immediate relative child, John, who is single and 20 years old, would like so long as his mother files the visa petition before he to immigrate through his USC mother. He has turns 21. This way, his age will be “locked-in” under the delayed getting his birth certificate to you. Will CSPA, which would allow him to remain an immediate his next birthday have any effect on the petition? relative indefinitely. Michelle is an LPR who wants to petition her 25F2B year-old son Jacques, who is unmarried. Jacques hopes someday to marry his girlfriend, Renee. Would that affect the visa petition Michelle wants to file?

If Jacques marries, he cannot immigrate through his LPR mother. A permanent resident cannot petition for a married son or daughter.

Michelle becomes a USC. What kind of petition could she file for Jacques now? What if he marries Renee?

Michelle could file a F1 petition for her unmarried son. If Jacques marries after Michelle naturalizes, the petition will convert to a F3 petition for her married son. Renee could be a derivative beneficiary of that petition.

Zoila is a lawful permanent resident who wants to petition for her married daughter. Zoila is about to apply for U.S. citizenship. Will Zoila’s becoming a U.S. citizen help her daughter immigrate?

Yes, once she becomes a U.S. citizen she will be able to immigrate her married daughter as a third preference. As long as she remains an LPR, however, she cannot petition for her married daughter.

Sofia is a U.S. citizen who is 18 years old. Her mother would like to immigrate.

Sofia cannot petition for her mother until she turns 21.

for a green card immediately. In addition, once child becomes an LPR, she may automatically become a U.S. citizen by derivation, depending on the facts.

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§ 1.6

Derivative Beneficiaries

People who immigrate under the preference system have an important right: their spouses and children can immigrate along with them, on the same petition, so the family will be processed together. 61 The principal beneficiary is the person immigrating under the preference system. The spouse and children who immigrate with him or her are the derivative beneficiaries. There is a very easy way to see if someone can immigrate as a derivative beneficiary. Simply ask two questions: 1. Will the principal beneficiary immigrate through a preference visa petition? 2. Does that person have a spouse or child? If the answer to both questions is yes, the spouse and/or child qualify as derivative beneficiaries. Example: Ramona, a U.S. citizen, files a visa petition on behalf of Rafael, her son. Rafael is married and has 18- and 25-year-old sons. When the time comes for Rafael to apply for lawful permanent resident status, who can apply along with him? First ask: Will Rafael (the principal beneficiary) immigrate on a preference visa petition? Yes, he will immigrate as a third preference immigrant because he is the married son of a U.S. citizen. Then ask: Does Rafael have a spouse or children? Yes, Rafael has a wife and an 18-yearold child. They can immigrate as derivatives. His 25-year-old son is not a “child” under the INA because he is over 21. 62 Therefore, the elder son cannot immigrate as a derivative beneficiary, unless he is helped by the Child Status Protection Act (CSPA) (see § 1.10 below). Derivative beneficiaries depend on the status of the principal beneficiary. The I-130 petition is not filed on behalf of the derivative, but rather on behalf of the principal beneficiary. This is often the only way for a derivative to immigrate through a family petition, because derivatives do not often qualify on their own as principal beneficiaries. For example, there is no category for “nephews or nieces” of U.S. citizens, so they must immigrate as derivative children of the sibling of a U.S. citizen, who is the principal beneficiary in the F4 category. A major exception is where a principal beneficiary in the 2A category has a child who could also be the principal beneficiary in a separate 2A petition filed by the petitioner, as the petitioner’s own child, independent of the principal beneficiary parent. It is often a good idea for petitioners to file separate 2A petitions for their spouse and their children, especially where the petitioner is likely to naturalize in the near future. 63 Each family member must file his or her own separate application for an immigrant visa or adjustment of status at the second and final step in the immigration process. They also must prove their family relationship to the principal beneficiary. Example: Rafael’s U.S. citizen mother filed just one I-130 visa petition, for third preference classification for Rafael. When Rafael immigrates, he, his wife and his younger son each must each submit a separate application for lawful permanent 61

INA § 203(d). See § 1.2, above. 63 See the Practice Tip, below. 62

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residence. 64 Plus, his wife must submit a marriage certificate and his son a birth certificate to prove that they are Rafael’s relatives—just as they would do if Rafael had filed a separate visa petition for each of them. If a 2A derivative beneficiary (child) turns 21 before immigrating (meaning, before completing consular processing and being inspected and admitted at the border or port of entry to the United States or going through the process of adjustment of status and receiving final approval to become a permanent resident), the person might “age-out” and no longer qualify as a derivative beneficiary at the time his or her parent immigrates (unless the Child Status Protection Act (CSPA) prevents that). 65 If the CSPA does not prevent the person from aging out, the petitioner should file a separate I-130 on behalf of that son or daughter, under preference category 2B. The beneficiary in the 2B classification will retain the priority date of the principal beneficiary parent from the 2A petition (referred to as recapturing a priority date) to avoid being placed at the end of the waiting list. 66 There are no derivative beneficiaries of immediate relative visa petitions.67 Anyone who immigrates as an immediate relative must qualify in his or her own right and the petitioner must file separate visa petitions for each person. Example: Mario is a U.S. citizen who files an immediate relative petition for his husband, Luke. Luke’s six-year-old daughter, Lisa, cannot immigrate as a derivative beneficiary of the petition. Mario must file a separate immediate relative visa petition for Lisa as his stepchild. PRACTICE TIP: Submitting a separate family petition, even if the relative would qualify for derivative status, may be advisable. An LPR, especially one who is planning to naturalize, should submit separate family petitions for a spouse and children. Once the petitioner has naturalized, a beneficiary spouse becomes an immediate relative, and any children who were derivatives of the spouse’s application are no longer eligible as derivatives. Example: Examples of when the accompanying family members can immigrate as principal and derivative beneficiaries based on the two-step analysis. 1. Roberto is the brother of a U.S. citizen. He has a wife and 6-year-old son. a. Will Roberto immigrate through a preference visa petition? Yes. Roberto is a fourth preference (F4) because he is the brother of a U.S. citizen. b. Does Roberto have a spouse or child? Yes. His wife and 6-year-old son qualify as spouse and child, so they can be derivative beneficiaries.

64

Also called an application for an “immigrant visa.” See § 1.10 below. 66 See § 1.8 below for an explanation of priority dates. 67 See § 1.2 above. 65

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2. Marta is the daughter of a U.S. citizen. She has a husband, a married 19-year-old son, and an unmarried 21-year-old son. a. Will Marta immigrate through a preference visa petition? Yes. Marta is a third preference relative. b. Does she have a spouse or child (as defined in the INA)? Only Marta’s husband can qualify as a derivative beneficiary, unless the CSPA helps the 21-year-old unmarried son. 3. Li is the wife of a lawful permanent resident. She has a 3-year-old daughter from a previous marriage. [Note: Is there another way Li’s daughter could immigrate?] a. Will Li immigrate through a preference petition? Yes. Li is a second preference relative. b. Does she have a child who can immigrate with her? Yes. Li has a child who qualifies as a derivative beneficiary. Her child could also immigrate through a separate petition as her spouse’s “stepchild.” 4. Susanna is the unmarried 20-year-old daughter of a U.S. citizen. She has a baby girl. a. Will Susanna immigrate through a preference petition? No. Susanna is an immediate relative, and therefore will immigrate through an immediate relative petition. b. Can her child immigrate with her? No. Her child cannot be a derivative beneficiary because Susanna is not a preference petition beneficiary. If Susanna waits to immigrate until she is over 21, her petition will convert to first preference, and her child could then immigrate with her as her derivative. However, converting to the first preference category would also mean that an immigrant visa would no longer be immediately available for Susanna, and she may have to wait several years on the first preference waitlist in order to apply for permanent residence. Therefore, an alternative option could be for Susanna to immigrate now as an immediate relative of her USC parent and once she becomes an LPR, she can file an I-130 petition for her child under the 2nd preference category, 2A. 68 5. Soheyla has just become a U.S. citizen. She wants to petition for her parents, but her mother is concerned about leaving Soheyla’s 16-year-old twin sisters behind. Soheyla can petition for her parents as immediate relatives, but there are no derivatives of immediate relatives so the twins cannot immigrate with Soheyla’s parents. Soheyla can file fourth preference petitions for her twin sisters, but the wait to immigrate would be very long. However, once the parents have immigrated as immediate relatives, they can 68

See §§ 1.8 & 1.9 for a further explanation of how to evaluate a person’s options in light of the various waitlists.

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file I-130 petitions for their 16-year-old daughters under the 2A preference category. Sometimes, one parent immigrates first so that the second parent can stay in the home country with the minor children. § 1.7

How the Preference System Works

The first question most clients with a family-based case will ask is how long it will take for the beneficiary to immigrate. As discussed above, immigration through a family petition is a two-step process. The first step is submitting a visa petition and the second step is applying for the immigrant visa and permanent resident status. As soon as the petition is approved, an immediate relative beneficiary may proceed to step two and apply to immigrate. A preference petition beneficiary, however, must wait until a visa is available (or, in some circumstances, will soon be available—see discussion of “Dates for Filing” chart below) under the preference system before going on to step two. Understanding how the preference system works will help you analyze visa cases. The Preference System. When we discuss family visas in the preference system, we are talking about people who immigrate through the first, second, third, and fourth family-based preference categories. 69 USCIS can approve an unlimited number of preference visa petitions each year. But not everyone with an approved petition will be able to immigrate. Only a certain number of people can immigrate to the United States each year under the family preference system. Each time someone immigrates to the United States under the preference system, one visa is charged to (subtracted from) the numbers of visas set aside for the country where the person was born. If more people per year want to immigrate than there are visas, that country develops a waiting list or “visa backlog.” In sum, the more people who want to immigrate from a country each year over its visa allotment, the longer the waiting list for that country will be. Additionally, only a certain number of people can immigrate to the United States from any one country each year. The “country of chargeability” is, in almost all circumstances, determined by a person’s country of birth, so even if a person gains citizenship in a second country, their country of chargeability remains the country where they were born.70 Each year many thousands more people from Mexico apply to immigrate to the United States than the maximum allotted per country. For this reason, Mexican nationals face a wait of several years to immigrate through the preference system. Each year, a far smaller number of people apply to immigrate to the United States from France or Uruguay. For this reason, someone from France or Uruguay may be able to immigrate much faster than someone in the same preference category from Mexico. The Immigration Act of 1990 set up this complicated system for how many visas go to each preference category. However, one of the most important changes in the Act was to allow extra visas for the second preference category, and especially for the spouses and “children” 69

See § 1.13 for a discussion of persons immigrating through the Diversity Program, or Employment Visas. In some circumstances, a person might be able to claim the country where their spouse was born, in what is called “cross-chargeability.” See § 1.8 B, below, for more information on this topic. 70

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(unmarried and under 21) of permanent residents, category 2A. In the past, this category had a wait of 10 to 12 years for some countries. Under the current system the backlog is now approximately two years, even for countries with the biggest preference backlog, such as Mexico and the Philippines. However, for unmarried sons and daughters of permanent residents, who are also in the second preference, but in category 2B, the backlog as of this writing is approximately eight to 21 years, depending on the country. § 1.8

Using the State Department Visa Bulletin to Make an Estimate of When Your Client Can Immigrate

Each month the U.S. State Department issues a Visa Bulletin.71 With the right information, you can consult the State Department Visa Bulletin to see if your client is eligible to immigrate. For example, below is the visa bulletin for October 2017. As you can see, it lists the preference categories on the far left column and then shows the priority dates that are current for each category. Note the four countries that are assigned their own queues of chargeability, listed along the top. Everyone else goes into the queue for all other chargeability areas. See more information below. VISA BULLETIN FOR OCTOBER 2017 FamilySponsored

All China, Chargeability MainlandAreas Except Born Those Listed

India

Mexico

Philippines

F1

22DEC10

22DEC10

22DEC10

01MAR96

01JAN07

F2A

22OCT15

22OCT15

22OCT15

15OCT15

22OCT15

F2B

08NOV10

08NOV10

08NOV10

15JUL96

01JAN07

F3

22JUL05

22JUL05

22JUL05

22APR95

22FEB95

F4

08MAY04

08MAY04

10OCT03

01OCT97

01JUN94

In late 2015 DOS changed the organization of the Visa Bulletin, to not only show which priority dates are current, but also to show which are getting close to being current. Previously, the Visa Bulletin only showed “current” priority dates. One chart is titled “Final Action Dates for FamilySponsored Preference Cases,” and the other is titled “Dates for Filing Family-Sponsored Visa Applications.” The Visa Bulletin also has these same two charts for employment-based cases. “Final Action Dates” shows priority dates that are “current.” The other chart, “Dates for Filing,” serves two purposes. One, it can be helpful to see what the DOS views as priority dates that are getting “close” to being current, and two, in some months USCIS may allow people who will be filing applications for adjustment of status to file early, based on the “Dates for Filing” chart, even though their priority dates are not yet current. Soon after the upcoming month’s Visa Bulletin is posted, USCIS will announce whether it will allow use of the second chart. Visit www.uscis.gov/visabulletininfo to find out whether USCIS has stated that the “Dates for Filing” 71

The Visa Bulletin can be accessed through the State Department’s website at http://travel.state.gov/visabulletin.

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chart may be used for a particular month. The benefit of being able to apply for adjustment of status early is that applicants can get employment authorization more quickly, once they have a pending adjustment application, while they continue to wait for their priority date to become current and for their interview with USCIS. When a backlog exists, predicting exactly when the client will be able to immigrate is impossible. But the Visa Bulletin may be used to make a very rough estimate of when the client might be able to immigrate in the future. To do this you need to know the following information about the intending immigrant: 1. 2. 3. 4. A.

The priority date of the visa petition The country of chargeability The preference category How fast the preference category has been advancing in the last 2–3 years Priority Date

The date that the I-130 visa petition is filed with USCIS—the date USCIS received the petition and accepted the fee—becomes the beneficiary’s “priority date” in the preference system, not the date the petition was approved. 72 That date establishes the person’s place in line to wait for a visa and to determine when the person can immigrate. This is only fair, because in some cases the petition might not be approved for several months or even years after filing it. Example: Ana filed a petition for her sister Elsa on May 2, 2002. The petition was approved on July 9, 2002. Elsa’s priority date is May 2, 2002. PRACTICE TIP: Shortly after the petitioner files the I-130 at the USCIS Regional Service Center, usually a few weeks, he or she should receive a receipt notice on Form I-797. It is possible, however, that USCIS will reject the filing for an error and return the packet with a notice that describes the error. A rejected filing does not establish a priority date. Once the filing is accepted by USCIS, the receipt notice issued will indicate when USCIS received the accepted petition, and this will be the priority date. 73 The approval notice will be issued once the petition is adjudicated, up to two to three years after filing in some cases, with the processing time dependent on the kind of petition. The priority date should be listed on the approval notice but separately from the date of approval. 1. “Recapturing” old priority dates In a limited number of situations, immigrants can take advantage of earlier priority dates: 1. Western Hemisphere nationals who established a priority date prior to January 1, 1977 may use that date in any other visa petitions. Before 1977, people who had U.S. citizen children could register and obtain a priority date. Some of these people may carry so72

22 CFR § 42.53(a), 8 CFR § 204.1(c). Occasionally USCIS errs in assigning priority dates, or is slow in receipting a petition or application, and sometimes that makes a difference for the beneficiary or applicant. Also, sometimes whole petitions and applications have been lost or mistakenly shredded by USCIS. Visa petitions (and everything else filed with USCIS) should always be sent by certified or express mail or courier and proof maintained of delivery, along with a copy of what was filed. 73

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called “Silva letters” as beneficiaries of the lawsuit, Silva v. Bell, 605 F.2d 978 (7th Cir. 1979). Other people may have had a parent or spouse immigrate before 1977 and, as a result, may qualify for an earlier priority date. Still others may have had a petition filed on behalf of a parent or spouse prior to 1977 (registration), and though they themselves were born after 1977, they may still qualify to use the pre-1977 priority date. Old Western Hemisphere priority dates show up increasingly rarely. When they do, however, the pre-1977 priority date can be used in any family preference category. Example: Eduardo had a U.S. citizen child and registered with a U.S. consulate on June 1, 1976. He never immigrated. Now his brother is a U.S. citizen and has filed a 4th preference for him. Eduardo can use his old priority date of June 1, 1976. Example: Berta’s grandmother filed a petition for Berta’s mother in 1975, who was at that time married to Berta’s father. Berta was born in 1991, and her mother is presently an LPR. Berta’s mother is just now filing a petition for Berta, who is over 21. Berta can use the priority date established by her grandmother on behalf of her mother, from 1975, to immigrate now without waiting in the 2B preference line. 2. Children who were 2A derivative beneficiaries (discussed in § 1.6) but now have turned 21 and are NOT protected by the CSPA age calculator may nevertheless be able to use the priority date of their parent’s I-130, where the parent was the principal beneficiary, upon the filing of a new I-130 under preference category 2B, in which they—the children—are now the principal beneficiary. Example: Gina is an LPR who files an I-130 petition for her husband under the 2A preference category. Since their child, Soledad, is a minor, Juan and Gina believe that she will be able to immigrate as a derivative with her father before her 21st birthday, hence they do not want to spend the money to submit a separate I-130 for her. Juan’s priority date is May 1, 2000. However, visas advance slowly and in 2006 Soledad turns 21 before she can complete consular processing and immigrate. On June 1, 2011, Gina submits a new I-130 for Soledad. Fortunately, because Soledad was a derivative beneficiary of a 2A petition filed by Gina, she can retain the filing date of the petition for the principal beneficiary (her father). So, she can “recapture” or “retain” the priority date of May 1, 2000—not the date of filing for the I-130 her mother submits on her behalf, June 1, 2011. 74 In 2014, the U.S. Supreme Court held that INA § 203(h)(3) allows derivative beneficiaries of I-130 petitions filed under preference category F2A to automatically convert into the F2B category without having to file another visa petition, but that the CSPA only allowed “conversion” (recapturing) of priority dates for F2B preference beneficiaries that had aged out of F2A eligibility as derivatives, in the scenario described in the paragraph above. In other words, individuals who were derivative beneficiaries in I-130 petitions filed under any other preference category may not recapture the priority

74

See 8 CFR § 205.1(a)(3)(ii)(E). Note that Soledad might still qualify as a “child” under the Child Status Protection Act (CSPA). See § 1.10 below, which describes how the CSPA works.

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date from those petitions upon the filing of a new petition where they are now the principal beneficiary. 75 To “recapture” an earlier priority date, the visa petition must not have been revoked. 76 If the petition has not been revoked, USCIS deems the approval of the new petition to be a reaffirmation of the initial petition and reinstates the priority date from the original.77 PRACTICE TIP: To request the acquisition of an old priority date, send a letter requesting the earlier date with an explanation of the reason you believe the beneficiary is entitled to that date. You can send the request as a cover letter with the I-130 or, if necessary, later while the petition is pending or to the National Visa Center after the petition has been approved by USCIS and forwarded to the NVC. B.

Country of Chargeability

Sometimes a question comes up about the country to which the person’s visa will be charged. This can make a tremendous difference, since the visa backlog from one country may be a few months, while the wait may be several years from another. As a general rule, a person’s place of birth is the country or territory to which a visa will be charged. This is true even if the person has become a citizen of another country. Example: Enrique was born in Mexico but has acquired citizenship in Guatemala. His country of chargeability is Mexico. In some situations, an exception may apply and immigrant applicants can “cross-charge” to a different country. Spouses who are immigrating together, but were born in different countries, can pick the most beneficial country of chargeability. Similarly, a 2A beneficiary whose lawful permanent resident spouse was born in a different country may use the lawful permanent resident spouse’s country of chargeability, if more favorable. And, children can cross-charge to the country of chargeability of the parent with whom he or she is immigrating or following to join.78 Finally, if a person is born in a country where neither parent had citizenship or permanent residence, the person’s country of chargeability can be either his mother’s or his father’s country of birth. C.

Preference Category

This is the category of the visa petition, for example “second preference 2A” for the immigrating spouse of a lawful permanent resident.

75

Scialabba v. Cuella de Osorio, 134 S. Ct. 2191 (2014). See § 1.12, below, on revocation. 77 See 8 CFR § 204.2(h)(2). 78 See INA § 202(b), and 22 CFR § 42.12. 76

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HOW TO READ THE VISA BULLETIN Look at the Final Action Date chart in the Visa Bulletin for Family Sponsored immigrants below. VISA BULLETIN FOR OCTOBER 2017 FamilySponsored

All China, Chargeability MainlandAreas Except Born Those Listed

India

Mexico

Philippines

F1

22DEC10

22DEC10

22DEC10

01MAR96

01JAN07

F2A

22OCT15

22OCT15

22OCT15

15OCT15

22OCT15

F2B

08NOV10

08NOV10

08NOV10

15JUL96

01JAN07

F3

22JUL05

22JUL05

22JUL05

22APR95

22FEB95

F4

08MAY04

08MAY04

10OCT03

01OCT97

01JUN94

First, notice the date at the top. This shows the month to which this visa bulletin is pertinent. The State Department issues a new visa bulletin each month, posting the upcoming month’s visa bulletin about two weeks in advance. Most of the information in the bulletin changes from month to month, so checking it each month is important. Along the left side of the bulletin chart are all the categories of preference visas. Across the top is a list of countries called the “areas of chargeability.” The first category says “All Chargeability Areas Except Those Listed.” Known as the “worldwide” category, it includes all countries besides the ones that are listed separately (China, India, Mexico, and the Philippines). For example, Argentina does not have a separate listing in the bulletin. Therefore, a person from Argentina should use the numbers listed in the “All Chargeability” column. The countries that fall into this category usually have the smallest backlogs and thus the shortest waiting periods. If the person is from a country that has its own separate listing, such as China, India, Mexico or the Philippines, he or she must consult that country’s column of information. You will note there are two separate charts for family preference categories. One is titled the “Final Action Dates for Family-Sponsored Preference Cases” and the other is titled “Dates for Filing Family-Sponsored Visa Applications.” You read both the charts the same, drawing a line from the relevant preference category across to the corresponding country of chargeability to where you will find a date. The difference is the significance of the date. The date in the “Final Action Date” chart is the priority date of persons from that country, and in that preference category, for whom immigrant visas are available now, or “current.” The date in the “Dates for Filing” chart is the priority date of persons from that country, and in that preference category, for whom DOS has determined immigrant visas will soon be available. Most of the time the “Final Action Dates” chart will govern, but occasionally USCIS may announce in a given month that people who are applying for adjustment of status can use the “Dates for Filing” chart to file early, even though according to the “Final Action Dates” chart their priority date is still not current. For consular processing cases, the “Final Action Dates” chart will be the exclusive chart relevant to

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these cases, and there is no need to consult the “Dates for Filing” chart, which only pertains to adjustment of status cases in months where USCIS has stated it will accept these early filings. The rule to reading the Visa Bulletin is: In the “Final Action Dates” chart, if your client’s priority date falls before the date listed, a visa is now available and she can immediately apply for lawful permanent resident status. If your client’s priority date falls on or after the date listed, no visa is available to her that month and she must wait longer. Example: Look at the Visa Bulletin above, for October 2017. Sarwan, who is single, was born in India in 1981. On October 5, 2010, his permanent resident mother filed a second preference visa petition for him. The petition was approved in 2012. The priority date for second preference 2B visa petitions from India on the Final Action Dates chart is November 8, 2010. Sarwan’s priority date, October 5, 2010, is before the priority date listed in the Visa Bulletin as the Final Action date. Therefore, Sarwan is eligible to immigrate now. Example: Again look at the Visa Bulletin above. Louise was born in Haiti. On September 20, 2004, her U.S. citizen sister filed a visa petition for her. Louise is in Haiti, and will be consular processing. The priority date for fourth preference petitions worldwide is May 8, 2004. Louise is not eligible to immigrate now, because her priority date falls after the Final Action date in the Visa Bulletin. Example: Assume instead that Louise from the example above is already in the United States and eligible for adjustment of status, in which case the “Dates for Filing” chart might pertain to her. In a month where USCIS has stated it will allow usage of this chart, if Louise’s priority date falls before the date listed she can submit her application for permanent residence even though she will still have to wait until her priority date is current according to the “Final Action Dates” chart to be approved and granted permanent residence. Therefore, if USCIS were accepting filings based on the Dates for Filing chart in the Visa Bulletin above, Louise could file her adjustment application even though her priority date is not yet current because her priority date, September 20, 2004, falls before the date in the Dates for Filing chart on the Visa Bulletin, November 15, 2004. Sometimes, categories show the letters “C” or “U” instead of a date. The letter “C” means that the category is current and there is no waiting for a visa, no matter when the petitioner filed the petition. The letter “U” means that the category is unavailable. All the visas in that category and country have been used up for the current year. Some visas may become available at the end of the fiscal year or the beginning of the next year’s accounting in October (USCIS operates on a fiscal year basis, which begins every October 1st). Until then, the person cannot immigrate no matter when his or her visa petition was filed. To Order the State Department Visa Bulletin: You can receive the monthly State Department Visa Bulletin by e-mail. There is no charge. To be placed on the Department of State’s e-mail subscription list for the Visa Bulletin, send an e-mail to the following address: [email protected] and in the message body type: “Subscribe Visa-Bulletin.” To be

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removed from the Department of State’s e-mail subscription list for the Visa Bulletin, send an email message to the same address, [email protected], but in the message body type: “Signoff Visa-Bulletin.” 79 § 1.9

Advising Your Client about When a Visa May Become Available

Predicting exactly when a visa will become available for a person waiting to immigrate under the preference system is impossible. The priority dates in the Visa Bulletin do not advance consistently because the number of people who apply in a particular preference category can vary from month to month, the number of people who are on the waiting list who still want to immigrate is unknown, and the number of derivative beneficiaries is unpredictable. Some beneficiaries may have died, changed preference categories, or changed their minds. Some may have had children, adding to the number of derivative beneficiaries ahead of you. The dates in one category may jump ahead several months from one month to the next; they may freeze for several months, or they may even go backwards (“retrogress”). Review past Visa Bulletins and read the comments in the State Department mailing to get an idea of where a preference category may be moving, and how quickly. For example, over the course of one month, from September 1, 2017 to October 1, 2017 (comparing September 2017 and October 2017 Visa Bulletins), second preference 2B final action dates for India advanced just seven days, from November 1, 2010 to November 8, 2010. Some months, for some countries and categories, final action dates may advance only one or two days, or not at all. Others may jump more quickly, or retrogress. However, no one can guarantee exactly what will happen. You can only make rough estimates as to when a client will be able to immigrate when there is a backlog. You must explain this uncertainty to clients. With experience, rough estimates can be made, but changing worldwide visa demands or changes in the law can create drastic changes. PRACTICE TIP: Your client may have more than one family member who can file a petition for her. In general, when the wait between the time of filing and the time the priority date becomes current is long, consider advising your client to ask more than one family member (and perhaps all who can) to file a petition. Long waits coupled with life’s uncertainties can result in loss of the ability to immigrate after many years of waiting, for example due to divorce. Filing two or more petitions is a relatively inexpensive insurance policy against future loss of a petition and priority date. In addition, if the petitions are in different categories, the beneficiary can also hedge his or her bets about which category will advance more quickly. § 1.10 The Child Status Protection Act (CSPA) Recall from § 1.2 that a “child” is someone who is unmarried and under 21 years old. For immigration purposes, what happens when a “child” grows up and turns 21 while still waiting to immigrate? For some, it could mean they no longer qualify to immigrate. The Child Status Protection Act (CSPA), which went into effect on August 6, 2002, was created to help with the 79

The Visa Bulletin can also be accessed through the State Department’s website at http://travel.state.gov/visabulletin. Additionally, a recorded message with visa final action dates can be accessed at: (202) 485-7699. The recording is normally updated by the middle of each month with information on final action dates for the following month.

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problem of children “aging out” of their eligibility to immigrate when they turn 21. This section describes how CSPA works. A.

Children of U.S. Citizens

Children of U.S. citizens benefit the most from CSPA. If their parents file I-130 visa petitions for them before they turn 21, they will never age out. 80 They will remain immediate relatives, even though they are no longer children as defined in the INA. Before the CSPA was enacted, their petitions would have converted automatically into first preference petitions when they turned 21. By remaining immediate relatives, these beneficiaries will be able to immigrate more quickly, because they do not have to wait for a priority date to become current. While these beneficiaries must remain unmarried, there is no time limitation regarding when they must actually apply for adjustment or an immigrant visa. Such a beneficiary might prefer to convert to first preference if he or she has a child of her own. This is because an immediate relative petition does not include derivative beneficiaries, meaning that if the parent immigrates as an immediate relative, her child cannot immigrate with her. Instead, the child would have to wait until the parent becomes a lawful permanent resident and can then turn around and petition for her. This could take years. However, all preference petitions can have derivative beneficiaries, so if the parent immigrates through her own U.S. citizen parent, as a first preference immigrant, her child can immigrate with her. Fortunately, the CSPA allows the immediate relative beneficiary to opt out of remaining an immediate relative upon turning 21. Therefore, if the beneficiary wants, she can convert to first preference, so that when she immigrates her child will be able to immigrate with her as a derivative beneficiary. 81 The BIA has held that the CSPA also allows former immediate relatives who aged out before the CSPA became effective on August 6, 2002 to file an application for an immigrant visa or adjustment of status, if they have not already done so, no matter how long ago the visa petition was filed and approved. 82 Example: Paula, a U.S. citizen, filed an I-130 for her daughter, Isabel, on June 7, 1997. The petition was approved on December 2, 1997. Isabel did not file for adjustment of status and then turned 21 on January 5, 1998. The petition was at that time converted to first preference. The BIA has recognized that visa petition beneficiaries such as Isabel can qualify for CSPA. So, Isabel filed an adjustment of status application on August 1, 2008, although she is now 30 years old. Isabel is considered an immediate relative and is allowed to adjust her status now.

80

INA § 201(f)(1). See item 30 in the U.S. Department of State’s revised cable of January 3, 2003, “The Child Status Protection Act: ALDAC 2,” which is posted on AILA InfoNet at Doc. No. 03020550 (Feb. 3, 2003). 82 See In re Avila-Perez, 24 I&N Dec. 78 (BIA 2007); see also Neufeld memorandum, “Revised Guidance for the Child Status Protection Act (CSPA),” issued April 30, 2008 and included as Appendix 1-B. 81

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B.

Children of LPR Parents Who Naturalize While the Petition Is Pending

If an LPR parent petitions for a child, and then naturalizes before that child turns 21, the child becomes an immediate relative. Under the CSPA, the child will remain an immediate relative even if he or she turns 21 before he or she can immigrate.83 Sometimes an LPR petitioner will file only one I-130 for his or her spouse and assume that their children will immigrate in derivative status. Keep in mind that when these parents naturalize, they will need to file a separate I-130 petition for each child, since the children will lose their derivative status. What happens to those children when they turn 21? Under the CSPA, derivative children under 21 at the time the lawful permanent resident parent naturalizes are protected. Their age freezes on the date that the parent naturalizes. should be considered immediate relatives, even if the parent did not file new petitions for them until after they turned 21; the relevant petition should be the original petition filed by the LPR parent for the spouse, with the children included as derivatives. However, the CSPA is not totally clear on what happens to children in this situation. To be on the safe side, you should make sure that once the lawful permanent resident parent naturalizes, the new petitions for the children are filed before they turn 21. That way, they will be sure to retain their status as immediate relatives after they turn 21. Like other children of U.S. citizens, if the petitioner’s child has a child of his or her own, he or she might not want to remain an immediate relative after turning 21, because he or she would not be able to bring the child as a derivative beneficiary. Again, CSPA allows the beneficiary to opt out of classification as an immediate relative if he or she wants to. 84 C.

Married Children of U.S. Citizens (Third Preference Category)

Married children benefit from the CSPA if they divorce while still under 21. 85 They become immediate relatives, instead of just converting to first preference (unmarried son/daughter of a U.S. citizen). If they are over 21 when they divorce, then they convert to first preference. It is not clear under the CSPA whether married children who are under 21 years old and are the children of U.S. citizens are eligible to opt out of converting to immediate relatives if they divorce. Obviously, if they have dependent children, they may prefer to move into the first preference category upon turning 21 so that their children can derive status and immigrate with them. D.

Children of LPRs and of Derivative Beneficiaries

Before CSPA, the children of LPRs who turned 21 would convert from the 2A to the 2B preference category. Derivative beneficiaries, such as the children of fourth preference (brother/sister of USC) beneficiaries, would age out and lose their ability to immigrate altogether before CSPA.

83

INA § 201(f)(2). See item 30 of the U.S. Department of State’s revised cable of January 3, 2003, “The Child Status Protection Act: ALDAC 2,” posted on AILA InfoNet at Doc. No. 03020550 (Feb. 3, 2003). 85 INA § 201(f)(3). 84

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The CSPA changes this, but it is much less generous, and much more complicated, for the children of lawful permanent residents and other derivative beneficiaries than it is for the children of U.S. citizens. You have to look at the biological age of the derivative beneficiary at the time the visa becomes available. If the beneficiary is over 21, he or she still might qualify, depending how long the I-130 was pending. 86 Following the formula outlined below, you must deduct the amount of time the petition was pending from the beneficiary’s actual age on the date a visa became available. The number you come up with is the CSPA age, or “calculated age.” 87 The formula is as follows: 1. First, calculate the time the petition was pending: the amount of time that elapsed between the petition’s filing date and the approval date APPROVAL DATE minus FILING DATE = TIME PENDING (go to step 2) Example: Satvir was born on May 23, 1989 in India. He was a derivative beneficiary on his father’s fourth preference visa petition. The visa petition was filed February 11, 2002. It was approved on July 28, 2005. The petition was pending 3 years, 5 months, and 17 days (or, 1263 days). 2. Second, deduct the amount of time the petition was pending (the number you came up with at step 1) from the beneficiary’s actual age on the date the visa becomes available* * The date the visa becomes available is either: (a) the first day of the visa bulletin month on which the priority date becomes current or (b) the petition approval date, whichever occurs later. 88 BENEFICIARY’S ACTUAL AGE minus TIME PETITION PENDING = CSPA AGE Example: Satvir, from the example above, turned 21 on May 23, 2010. The visa petition priority date went current on December 1, 2014. At that time, he was 25 years old. Through CSPA, he can subtract 3 years, 5 months, and 17 days, so that his CSPA age will be 22 years (plus some months and days). Unfortunately, he will not be able to qualify as a “child” because his CSPA age is over 21. The age you get from this formula is the CSPA age; if it is under 21, the beneficiary may continue to qualify as a “child” under the INA. There are online calculators that can help you calculate the number of days elapsed between calendar dates. 86

INA § 203(h)(1)(A)–(B). It is worth noting that some people may benefit from an extra 45 days towards their CSPA age, based on the Patriot Act. If someone is the beneficiary of a petition filed before September 11, 2001, they remain eligible for an extra 45 days after turning 21. An even smaller number of people may be eligible for a 90day extension. For more information, see USA PATRIOT Act, Pub.L. No. 107-56, 115 Stat. 272 (2001). 88 See Neufeld Memorandum mentioned above in Footnote 82 and included here as Appendix 1-B. 87

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1. Caveat: The one-year requirement The CSPA “calculated” age has an expiration date and is not valid indefinitely. In order to be protected by the CSPA age, an individual must “seek to acquire” lawful permanent resident status within one year of the visa availability date (the date when the priority date became current). In other words, if a 2A beneficiary has already turned 21 and his or her priority date becomes current on October 1, 2017, you then calculate his or her CSPA age, and see if it comes out to under 21. However, if for example a beneficiary’s CSPA age is 18, this beneficiary does not have another three years of protection under the CSPA, as his CSPA age would suggest. Instead, he or she must comply with the one-year requirement and must seek to acquire status as a lawful permanent resident before October 1, 2018. In limited situations, USCIS officers may exercise discretion to consider whether someone failed to “seek to acquire” within one year of visa availability if due to extraordinary circumstances. The criteria for “extraordinary circumstances” is based on asylum law in the context of the general requirement that asylum applicants must file within one year of their arrival in the United States. Examples of extraordinary circumstances are serious illness or disability, legal disability, ineffective assistance of counsel if certain requirements are met, or death or serious illness of the immigrant’s attorney or immediate family member during the one-year period. 89 For those who are going to adjust their status, the clearest and safest way to comply with the “sought to acquire” provision is to file the I-485 adjustment application within one year of the date the visa becomes available. For those who are going to immigrate through consular processing, this means that the beneficiary should either submit a completed Form DS-230 or DS260 to the NVC (see Chapter 4), or for derivative beneficiaries of a principal beneficiary who has immigrated, submit a Form I-824 to the Service Center that processed the I-130 within one year of the date the visa becomes available (see Chapter 2). PRACTICE TIP: If a person is a derivative beneficiary, the important date to take action and seek to acquire residency is within one year from when the visa became available. Remember that the date the visa becomes available is defined as either the date the priority date (for the principal beneficiary and original visa category) becomes current or the date the visa petition is approved, whichever is later. The derivative beneficiary should therefore NOT wait to take action to apply to immigrate until after the principal parent beneficiary immigrates, which may occur more than one year after the priority date becomes current. If the beneficiary is then over 21 and has not “sought to acquire” residency within the one year time period, it will likely then be too late to do so. Although the derivative cannot actually precede the principal to the U.S. as an immigrant or adjust status first, the derivative can still take the steps necessary to comply with the “seek to acquire” residency requirement.

89

See USCIS Policy Memorandum, “Guidance on Evaluating Claims of ‘Extraordinary Circumstances’ for Late Filings When the Applicant Must Have Sought to Acquire Lawful Permanent Residence Within 1 Year of Visa Availability Pursuant to the Child Status Protection Act,” PM-602-0097 (Apr. 15, 2015).

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If the beneficiary did not file the I-485 or consular processing documents within one year, it is possible that other actions may be sufficient to meet the “has sought to acquire” residency requirement, such as seeking legal counsel.90 Example: Pedro, who is an LPR, filed an I-130 for his son Samuel on October 8, 2015. It was approved exactly one year later, on October 8, 2016. It is now November 1, 2017, the priority date is now current, and Samuel is now 21. Samuel is in the United States and intends to apply for adjustment of status (see Chapter 3). Since USCIS took one year to approve the petition, you can deduct one year from his current age. For purposes of immigrating, therefore, he is only 20, and he can still immigrate as a 2A beneficiary, even though he is really over 21. However, if he doesn’t file his adjustment application before November 1, 2018, he will lose the right to immigrate in the 2A preference category, and will automatically become a 2B beneficiary. Since the priority date for 2B is not current, he will have to continue to wait to immigrate. The same rule applies to derivative beneficiaries in other preference categories. Example: Jane, a U.S. citizen, filed a third preference petition for her married son Mark on August 1, 2011. It was approved three years later, in August of 2014. Mark’s wife Wanda and minor daughter Diana were derivatives. It is now November 1, 2017, Diana is 22, and the priority date is current. Under the CSPA, if you deduct the 3 years that the petition was pending from Diana’s true age, 22, the number you get is 19. Therefore, Diana can remain included in Mark’s petition as long as she files for adjustment or consular processing before November 1, 2018. If she fails to file before November 1, 2018, Diana will lose her derivative status, and the only way she will be able to immigrate is through a separate petition filed by her father or mother after they have immigrated and obtained status. E.

Recapturing a Priority Date When the CSPA Fails to Protect a Derivative Beneficiary

Section 203(h)(3) of the Immigration and Nationality Act (INA) provides that if a derivative beneficiary is not protected by the CSPA (for example, because they failed to comply with the one-year requirement to “seek to acquire” status), the beneficiary’s I-130 petition shall automatically be converted to the appropriate category and the alien shall retain the original priority date issued upon receipt of the original petition. However, in the case of Matter of Wang, 25 I&N Dec 28 (BIA 2009), the Board of Immigration Appeals (BIA) agreed with the USCIS’ interpretation of the law, stating that the retention of a priority date is limited to when the same petitioner files a new I-130 for the same beneficiary in the same preference category. In other words, the retention of the priority date only applies to F2A derivatives who were first included as derivative beneficiaries in an I-130 petition filed by their lawful permanent resident parent on behalf of their other parent, who was the principal beneficiary. When that derivative beneficiary child ages out, the petitioning LPR parent can file a new I-130 on his or her behalf; and the now adult son or daughter of an LPR may “recapture” or “retain” the priority date of the initial I-130. 90

See unpublished BIA decision In re Kim, A77 828 503 (BIA Dec. 20, 2004).

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The BIA held that this protection does not apply to derivatives in other preference categories, such as children of the sons and daughters of U.S. citizens in the third preference category or children of the siblings of U.S. citizens in the fourth preference category. In late 2014 the U.S. Supreme Court upheld the BIA’s interpretation, in Scialabba v. Cuellar de Osorio. 91 Example: In 1994, Abdoulaye, a U.S. citizen, filed an I-130 for his sister, Fanta, in which she included her child, Bintou, as a derivative beneficiary. However, Bintou aged out and was not otherwise protected by the CSPA. Unfortunately, Bintou will not be able to recapture or “retain” the priority date of the I-130 petition her uncle filed on behalf of her mother in 1994. F.

Opt Out Provisions under CSPA

For complicated reasons, the first preference category is currently more backlogged than the second preference 2B category for beneficiaries from Mexico, although generally one would assume that the wait would get shorter rather than longer when an LPR parent naturalizes and a son or daughter over 21 moves from 2B to first preference, Previously, the first preference backlog was much worse, and primarily affected beneficiaries from the Philippines. Because when their parents naturalized these sons and daughters actually extended the time they needed to wait for their visas to become current, the CSPA allows beneficiaries in this situation to elect whether they want to automatically convert to the first preference or opt out and stay in the 2B category. 92 USCIS advises that persons seeking to opt out file a request in writing with the USCIS office that has jurisdiction over the beneficiary’s residence. This request must be submitted by the beneficiary herself, not the petitioner. The Officer in Charge of the USCIS Office will provide written notification of a decision to both the beneficiary and the Department of State’s visa issuance unit. Once the beneficiary’s request is approved, the beneficiary’s eligibility for familybased immigration will be determined as if the beneficiary’s parent never naturalized. If the beneficiary is filing an adjustment of status application, this request can be submitted with that application. The age of the child on the date of the parent’s naturalization remains his or her age for CSPA purposes. 93 Of course, if the children were under 21 at the time the parent naturalized, then they would become immediate relatives upon their parents’ naturalization and would be able to immigrate immediately. Although this part of the CSPA was originally designed to remedy a dilemma faced by people from the Philippines, who used to be far more backlogged in first preference than 2B category, in reality it is not limited to nationals of the Philippines. G.

Children of Asylees and Refugees

The spouse and unmarried children of refugees and asylees may enter the United States as derivatives. Before, if the child turned 21 before the parent was granted asylum or refugee status, the child could not be a derivative beneficiary of the parent. In certain situations, the CSPA 91

Scialabba v. Cuellar de Osorio, 143 S.Ct. 2191 (2014). CSPA § 6, amending and adding INA § 204(k); see Appendix 1-B. 93 See Memorandum from Joe Cuddihy, Director of International Affairs, USCIS, on Section 6 of the Child Status Protection Act (Mar. 23, 2004), available as a PDF file online. See Appendix 1-C. 92

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allows such children to be derivative beneficiaries. There are several groups of children whose status could be affected by the CSPA. These groups are: 1. Unmarried Child in the United States and under 21 When the Parent’s Asylum Application Is Filed, and Included in That Application: If an unmarried child was included on her parent’s asylum application at time of filing or added later, and that application was filed at any time, but no decision on the application was final until on or after the CSPA effective date of August 6, 2002, if the child is living in the U.S. at the time of adjudication of the parent’s asylum application, the child will be able to derive asylee status and later adjust her status to that of a lawful permanent resident, even if she later turns 21. It doesn’t matter when the child was included or added to her parent’s application, as long as she was added before the application was adjudicated and was living in the U.S. at the time of adjudication. It also does not matter whether she turns 21 before or after the approval of the asylum application, or before or after she applies for adjustment of status. 2. Unmarried Child in the United States and under 21 When the Parent’s Asylum Application Is Filed, but Not Included in That Application: If an unmarried child who is living in the United States was not included on her parents’ asylum application, the principal must file an asylee relative petition (Form I-730) within two years of the date the asylum application is granted in order for the child to derive asylum status from the parent. For those asylum applications filed on or after August 6, 2002, these children will be able to derive asylee status and later adjust status to that of a lawful permanent resident so long as the asylum application was filed before the child turned 21, and the I730 is filed within two years of the asylum grant. 94 3. Unmarried Child Outside the United States: If an unmarried child is not living in the United States, and a parent files an asylum application on or after August 6, 2002, the child will be able to derive asylee status and later adjust her status to that of a lawful permanent resident so long as the asylum application was filed before the child turned 21 and the parent filed or files the I-730 within two years of obtaining asylum status. 4. Asylum Applications Filed before August 6, 2002: Still somewhat unresolved is what happens when the asylum application of the parents of an unmarried child was approved before August 6, 2002. Under these circumstances, we believe the child should still be able qualify for derivative asylee benefits so long as the parent filed the I-730 and it was pending on August 6, 2002. 95 Although under these circumstances it should not matter whether the child turned 21 before or after August 6, 2002, it is unclear whether the I-730 had to have been filed before the child turned 21 for the child to remain eligible for derivative asylee benefits and adjustment of status. For a more detailed discussion of this topic, see the ILRC manual, Essentials of Asylum Law.

94 95

CSPA § 4 and 4; 8 CFR § 208.3(a). 8 CFR § 208.21(c), (d).

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H.

Effective Date of CSPA

The CSPA was signed into law on August 6, 2002. Therefore it applies to ALL petitions filed on or after that date. It also applies to certain petitions that were filed before August 6, 2002 but that were approved on or after that date, including petitions that were denied before August 6, 2002 if an appeal or motion to reopen was granted after that date. In addition, those beneficiaries who had approved visa petitions but no adjustment of status application “pending” on August 6, 2002 who later filed applications for adjustment were initially denied or discouraged from applying. The BIA has clarified that such beneficiaries are actually protected by the CSPA, finding that the CSPA does not require that an adjustment application be pending on the date of enactment if a visa petition was already approved. 96 Those beneficiaries who otherwise qualified for CSPA may now file motions to reopen or reconsider their denied adjustment applications without fee, or make their initial application now, in certain cases. 97 However, current policy is that the CSPA does not apply to petitions approved before August 6, 2002 if there has been a final determination on the immigrant visa application or adjustment of status application before that date. According to the USCIS, a final determination for purposes of an adjustment of status application means approval or denial by the USCIS or EOIR. However, the Ninth Circuit has ruled that there is no final determination if an appeal is pending in federal court. 98 At this time, USCIS is only applying this rule in the Ninth Circuit. If there has been no final determination of the immigrant visa or adjustment of status application as of August 6, 2002, the CSPA will apply to petitions approved before August 6, 2002 if the dependent aged out on or after August 6, 2002 and the visa became available on or after August 7, 2001. 99 For those who aged out before August 6, 2002, the policy is that the CSPA only applies if an application for adjustment of status or for an immigrant visa was submitted before aging out. There is some dispute about whether this USCIS/DOS interpretation is correct, but at this writing this is how the CSPA is being implemented. § 1.11 “V” Visas for the Spouses and Children of Lawful Permanent Residents As part of the LIFE Act, passed in 2000, a new nonimmigrant visa category, the “V” visa, was created for the spouses and minor children of lawful permanent residents in an attempt to ameliorate the family visa backlog. 100 More than fifteen years later, the V visa is now fairly rare, however it is possible you may encounter one of these cases. Spouses and children (unmarried and under 21) of lawful permanent residents whose familybased preference 2A visa petitions were filed on or before December 21, 2000 and who had been waiting in the priority date backlog 101 for three years or more were eligible to apply for a “V” visa. The “V” visa allowed these second preference beneficiaries to reside and work in the United 96

See Matter of Avila-Perez, 24 I&N Dec. 78 (BIA 2007). See Appendix 1-C. 98 Padash v. INS, 358 F.3d 1161 (9th Cir. 2004). 99 See Appendix 1-B and Appendix 1-C. 100 See § 1.3 for information on the “K” visa. 101 See § 1.6, supra, to understand preference categories and “priority dates.” 97

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States until their priority dates became current. 102 Priority dates for all countries of chargeability under family-based category 2A for spouses and minor children of lawful permanent residents have now passed the December 21, 2000 cutoff date. As a result, most “V” visa holders have had immigrant visa availability for some time. If a “V” visa beneficiary has not yet attained permanent residency, it will be important to investigate whether or not the I-130 petition is still viable, or whether it has been “terminated” by the National Visa Center for lack of contact or action by the visa petition beneficiary. See Chapter 4. Example: Carmelo, a lawful permanent resident, petitioned his wife Josefina in November 1999. In November 2002, Josefina was allowed to apply for a “V” visa thereby granting her permission to reside and work in the United States while she waited for her priority date to become current. In order to qualify, the beneficiary has to be eligible for the “V” visa when he or she reaches the three-year mark, not just as of December 21, 2000. Example: Carmelo filed for his daughter in November 2000. Carmelo’s daughter was 20 years old at the time. In November 2003, she will have been waiting for three years for her visa petition to become current, however by that date she will be over 21. Therefore, she will no longer be eligible to receive the “V” visa. IMPORTANT NOTE: Originally, USCIS said that children in “V” visa status would lose eligibility for the “V” visa once they turned 21. The Ninth Circuit held, however, that a child who initially qualified for a “V” visa remains eligible for “V” status once she turns 21. 103 Although USCIS was only legally required to follow this case in the Ninth Circuit, it made the decision to follow it all over the country. 104 Therefore, thanks to this case, people who turn 21 while in “V” visa status are eligible to remain in that status until they are able to immigrate. They still must be under 21 when they apply for the “V” visa the first time. Individuals who are eligible to request a “V” visa can do so either at the consulate in the country where they reside, or if living in the United States (with or without status) from USCIS. If processing at the consulate the applicant should request the V visa at the same consulate that would have jurisdiction over the applicant’s immigrant visa. If living in the United States without status, the applicant should not travel abroad for processing, as that could trigger grounds of inadmissibility which might later affect eligibility to adjust status to permanent residency. See Chapter 5. A.

Inadmissibility and the “V” Visa

By statute, the three- and ten-year unlawful presence bars of inadmissibility do not apply to “V” visa applicants, even though these bars will apply later when the V visa holder applies for adjustment of status or an immigrant visa. All other grounds of inadmissibility, however, still apply. The “V” visa is a nonimmigrant visa. If a nonimmigrant is inadmissible, he or she can 102

INA § 101(a)(15)(V). Akhtar v. Burzynski, 384 F.3d 1193 (9th Cir. 2004). 104 See USCIS Memo “Adjudication of Form I-539 for V-2 and V-3 extension,” dated January 10, 2005 (“USCIS will apply the decision [Akhtar] nation-wide”); USCIS Memo “Clarification of Aging Out Provisions … V Status,” dated June 14, 2006. 103

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request a waiver of inadmissibility under INA § 212(d). The nonimmigrant inadmissibility waiver can waive any ground of inadmissibility in the discretion of USCIS upon recommendation of the State Department. “V” visa applicants, as nonimmigrant applicants, should be able to receive waivers pursuant to § 212(d). Although this issue is not yet settled, we encourage advocates to argue that USCIS should grant a § 212(d) waiver of a ground of inadmissibility for individuals seeking nonimmigrant visas even though a waiver of that same ground of inadmissibility would not be available for individuals seeking immigrant visas. B.

Extending the “V” Status or “V” Visa

Customs and Border Protection (CBP) may grant persons a two-year stay if they are entering the United States with a “V” visa issued by the consulate. 105 The authorized stay is designated on form I-94, the white card that is stapled into a person’s passport upon admission to the United States. However, CBP may authorize less than two years when the person’s passport is valid for a shorter period. If your client was given less than two years for no apparent legitimate reason, he or she may be able to have the local Deferred Inspection office remedy this. Persons who enter the United States with the “V” visa or who are issued the “V” visa status from the USCIS will need to extend their stay before their current stay expires. If they are still in status they can file the Form I-539, up to 120 days before the expiration of their status. 106 They should be able to include derivatives and other co-applicant family members on the Supplement A form thus avoiding additional filing fees. Include an I-765 and filing fee if seeking renewed work authorization. If the client already has let the authorized stay on the I-94 expire, he or she will still be filing the Form I-539, but will not be asking for an extension. Instead, they will be filing for a new application for the “V” status. They will indicate “V status” on the line asking for the new status they are requesting. They will need to submit the medical exam results and fingerprint service fee. “V” visa or “V” status will not be extended if the applicant has applied after the I-94 has expired. If the “V” status is expiring and an immigrant visa number is available, the “V” nonimmigrant is allowed one, six-month extension to file for the adjustment. A “V” nonimmigrant who has filed an application for adjustment of status (Form I-485) is still eligible for an extension of “V” nonimmigrant status as long as the adjustment application remains pending. C.

Age-Outs

In January 2005, USCIS reversed its prior policy of not renewing visas for children who entered with V-2 visas (children of LPRs with separate I-130s filed on their behalf) or V-3 visas (derivatives) once they turned 21. 107 Therefore, all children granted a V-2 or V-3 visa can continue to receive extensions of status as long as their application is not terminated under 8 CFR § 214.15(j) and regardless of their age. Children who had previously had a V-2 or V-3 status and

105

8 CFR § 214.15(g). Go to the USCIS webpage for the I-539 form, at www.uscis.gov/i-539, for instructions on filling out the I-539 and Supplement A and where to send the completed form. 107 USCIS Memo “Adjudication of Form I-539 for V-2 and V-3 extension,” dated January 10, 2005. 106

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whose renewals were denied based on turning 21 can file a new application for an extension and it will be granted starting from the date that the previous status expired. If a child who is a derivative beneficiary of a second preference spouse turns 21, a separate petition is required. In this situation, the aged-out derivative beneficiary can keep the same priority date if the same petitioner files the new petition. For purposes of the 3- and 10-year bars, children do not begin accumulating unlawful presence until they turn 18, nor is unlawful presence relevant for periods prior to April 1, 1997. Children who enter the United States for the first time with the “V” visa, therefore, do not begin to accumulate unlawful presence until their I-94 expires or they turn 18, whichever is later, for purposes of the 3- and 10-year unlawful presence bars. However, they will begin to accrue unlawful presence after their I-94 expires for purposes of the “permanent bar” in INA § 212(a)(9)(C), which does not exempt children (see Chapter 5). V visa holders who file a timely application for an extension do not accrue unlawful presence until a decision is made on the application. If they are approved for another two years, then they never acquire unlawful presence; if they are denied, unlawful presence begins on the date of the denial. Those who file new applications for V visa status after the expiration of their original V visa status accrue unlawful presence until the new application is granted. Spouses and children between the ages of 18 and 21 who were illegally here when they filed for V status in the United States may have already acquired enough unlawful presence to trigger the bars to admission. Unlawful presence accrued either before or after the V status still counts toward the bars. If they have been unlawfully present in the U.S. for a continuous period of more than 180 days, then they trigger the three-year bar when they leave the United States. If they have been in the U.S. continuously for one year or more, then they trigger the 10-year bar when they leave the U.S. Please see Chapter 5 for more information on this topic. One way to avoid accumulating unlawful presence is to ensure that the person does not leave the United States before obtaining permanent residency, including leaving the U.S. to apply for a V visa abroad, which is unnecessary. See Chapter 3 on Adjustment of Status. There is a waiver of the 3- and 10-year bars available to those who have U.S. citizen or lawful permanent resident spouses or parents. D.

Termination of “V” Status

If the petitioner becomes a U.S. citizen while the beneficiary is in V status then the spouse and children, including derivative children, will no longer qualify for a V visa, if they then become immediate relatives. However, if the V-2 or V-3 child turned 21 before the parent petitioner naturalized and does not otherwise qualify as an immediate relative under the CSPA, then the child (now a “son or daughter”) can stay in V status until an immigrant visa becomes available and he or she is then able to apply for adjustment of status. Any V-2 or V-3 son or daughter who was denied an extension solely because of the naturalization of the petitioner may now again request an extension through a request letter or motion to reopen without sending a fee to the

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National Benefits Center. 108 For those spouses and children who do convert to immediate relatives, V status will expire when their authorized period of admission ends. § 1.12 Protection for the Beneficiaries of a Family Petition When a Qualifying Relative Dies As of October 28, 2009 the INA has been amended to add § 204(l) relating to the adjudication of immediate relative or family-based immigrant visa petitions, and all related applications, upon the death of the qualifying relative—that is, upon the death of the petitioner or the principal beneficiary. According to § 204(l), both the principal and the derivative beneficiaries of a pending or approved I-130 visa petition (whether in the immediate relative category or one of the preference categories) are protected should the petitioner or the principal applicant die before the final adjustment of status application is adjudicated under certain conditions. Before § 204(l), if the petitioner or primary beneficiary died then the I-130 petition would be revoked. Now, the death of an I-130 petitioner does not revoke the underlying petition, and neither does the death of the principal applicant revoke the derivative beneficiary’s application, if certain conditions are met. 109 A.

Residence Requirement for Qualifying Beneficiaries 110

In order to qualify for this protection, the beneficiary of a pending or approved I-130 petition must have resided in the United States when the qualifying relative died and must continue to reside in the United States on the date the decision on the pending petition or application is made. This does not mean that the beneficiary must have been physically present in the United States when the qualifying relative died, but simply that the beneficiary’s actual residence was in the United States. Additionally, if any one of the beneficiaries of a petition meets this residence requirement, then all the beneficiaries meet it as well; it is not necessary for each beneficiary to meet the residence requirement on their own. Therefore, if it is the principal beneficiary who has died, the petitioner may continue to seek approval of the petition so long as at least one derivative beneficiary meets the residence requirements. However, note that this does not give derivative beneficiaries any right to the petition. The petitioner continues to retain his or her right to withdraw the petition at any time. If a person has obtained an adjudication of a petition under this new provision of the INA but does not qualify for adjustment of status, he or she may leave the United States to undergo consular processing.

108

See USCIS Policy Memo “Clarification of Aging Out Provisions as They Affect Preference Relatives and Immediate Family Members Under The Child Status Protection Act Section 6 And Form I-539 Adjudications for V Status,” dated June 14, 2006. 109 See INA 204(l); see also, USCIS Policy Memorandum, “Approval of Petitions and Applications after the Death of the Qualifying Relative under New Section 204(l) of the Immigration and Nationality Act.” December 16, 2010 included in this manual as Appendix 1-A. 110 See USCIS Policy Memo in note 108 and included here as Appendix 1-A.

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B.

Waivers of Inadmissibility 111

This protection when a qualifying relative dies extends not only to the underlying I-130 visa petition but also to the adjustment of status and any other related application based on that I-130 petition, such as an application for a waiver of inadmissibility. Therefore, USCIS has the discretion to approve an inadmissibility waiver application, or any other form of relief from inadmissibility, regardless of whether or not the qualifying relationship necessary to qualify for the waiver application no longer exists as a result of the relative’s death. Additionally, it is not required that the waiver application was pending when the qualifying relative died. The waiver application can be filed after the petitioner’s death as long as the surviving beneficiary qualifies under INA § 204(l). The death of the qualifying relative will be deemed to be the equivalent of a finding of extreme hardship. C.

The Affidavit of Support

The death of the qualifying relative does not relieve the beneficiary of the requirement to have a sponsor file the Form I-864 Affidavit of Support. 112 Ordinarily, the petitioner is the person who must file the Affidavit of Support, promising to financially support the beneficiary. If the sponsor on the Affidavit of Support dies, another individual who qualifies as a “substitute sponsor” must submit a Form I-864 under INA § 213A. D.

Motion to Reopen and Humanitarian Reinstatement in Case of a Denial 113

Section 204(l) regarding immigration applications when a qualifying relative dies applies to any petition or application adjudicated on or after October 28, 2009, even if it was filed before that date. For petitions or applications that were denied before that date due to the death of either the petitioner or the principal beneficiary, the surviving beneficiary may file an untimely motion to reopen with the proper filing fee and request that the pending petition or application be adjudicated according to INA § 204(l). 114 Additionally, the USCIS has found that it would be appropriate to reinstate the approval of an immediate-relative or family-based petition that was automatically revoked upon the death of the petitioner or the principal beneficiary before October 28, 2009, if the beneficiary was residing in the U.S. at the time of the relative’s death and continues to do so. 115 Also, if a petition or application that should have been adjudicated in compliance with INA § 204(l) was denied on or after October 28, 2009, USCIS must reopen the case on its own motion for a new decision. If the beneficiary does not meet the residence requirement of INA § 204(l), the USCIS continues to have authority to reinstate the petition. E.

Widows and Widowers

Following from INA § 204(l) described above, as of October 28, 2009 the death of a petitioning spouse is no longer cause for revocation of a family-based immigrant visa petition. Instead, if the 111

Id. Id.; see also Chapter 5, § 5.7 below for detailed information on the Affidavit of Support. 113 See USCIS Policy Memo in supra note 108, included here as Appendix 1-A. 114 See AFM chapters 20.5(c)(8) and 10.21(c)(8) for complete guidance on this issue. 115 See USCIS Policy Memo in supra note 108; 8 CFR § 205.1(a)(3)(iii)(C)(2); and AFM chapter 21.2(h)(1)(C). 112

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U.S. citizen petitioning spouse dies while the visa petition is pending, the Form I-130 is automatically converted to a widow(er)’s Form I-360, and the widow or widower becomes a selfpetitioner. 116 This is so even when the citizen and his or her alien spouse had only been married less than two years when the citizen died. 117 Furthermore, in that case, the alien will be granted lawful permanent residence and not conditional residence. Therefore, he or she will not be required to file an I-751 Petition to Remove the Conditions on Residence. 118 However, if the widow or widower remarries before becoming an LPR, he or she loses eligibility for adjustment based on the pending or approved I-360. NOTE: Regarding Previously Approved I-130’s. Prior to enactment of this new provision in the INA, some courts were allowing widows and widowers of U.S. citizens to immigrate based upon an I-130 petition already filed by the deceased spouse, even though the petitioner died before the couple was married for two years. 119 In light of the new law, USCIS will honor those approvals and the subsequent adjustment applications and will not seek to rescind a grant of adjustment based on the death of the U.S. citizen petitioning spouse. 120 § 1.13 When Is a Visa Petition Terminated or No Longer Valid? A.

Automatic Revocation of a Visa Petition

Approval of a family-based visa petition is automatically revoked, retroactive to the original approval date, in the following scenarios: 121 1. If the beneficiary fails to apply for an immigrant visa within one year after being notified that a visa is available and also fails to prove, within two years of the notice, that the failure to apply was due to circumstances beyond the beneficiary’s control; 2. If the beneficiary or petitioner fails to pay the filing fee and any other charges within 14 days of notification that the original check was returned as not payable; 3. If the petitioner files a formal notice of withdrawal with any Service officer who is authorized to approve such petitions; Approval of the visa petition is also automatically revoked if any of the following events happen in a consular processing case before the beneficiary enters the United States or, in an adjustment of status case, before the final adjudication of the adjustment application: 4. For the beneficiary of a spousal petition, if the underlying marriage terminates by divorce or annulment; 122 116

See USCIS Policy Memo in supra note 108, included here as Appendix 1-A. See § 1.3 above for more information on what happens to widows and widowers with K-1 or K-3 visas, and to their dependents. 118 See Chapter 3 for more on I-751 and conditional permanent residency. 119 See Lockhart v. Napolitano, 561 F.3d 611 (6th Cir. 2009); see also Freeman v. Gonzales, 444 F.3d 1031 (9th Cir. 2006); Neang Chea Taing v. Napolitano, 567 F.3d 19 (1st Cir. 2009) (agreeing with the result reached by the Ninth and Sixth Circuits); Hootkins v. Napolitano (Apr. 20, 2009), summarized in 86 Interpreter Releases 1177, 1184 (Apr. 27, 2009). 120 See USCIS Policy Memorandum, supra note 108. 121 8 CFR § 205.1(a)(1)–(3). 117

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5. For a person granted second preference status as the unmarried son or daughter of a lawful resident alien, if that person marries. 123 Example: Juan, an LPR, petitions his daughter, Patricia (family-based 2B). Patricia gets married. Because LPRs cannot immigrate married sons or daughters, the petition is terminated. 6. If a petitioner legally terminates his status as a lawful permanent resident, except when such termination occurs through the petitioner’s naturalization. Example: Carlos, a lawful permanent resident, petitions his wife, Lorena (family-based 2A preference). Carlos is convicted and deported for an aggravated felony. The petition for Lorena is terminated. Example: Carlos, a lawful permanent resident, petitions his wife, Lorena (family-based 2A preference.) Carlos becomes a U.S. citizen. The petition is not terminated because Lorena becomes an immediate relative. Exception: A self-petitioning abused spouse or child does not lose eligibility if the lawful permanent resident abuser loses permanent resident status due to an incident of domestic violence and the self-petition is filed within two years of the loss of status of the abuser. 124 For adjustment of status, the petition is automatically revoked when the circumstance that triggers revocation occurs before a final decision is made on the application. In consular processing cases, the petition is revoked if the circumstance occurs before the beneficiary or self-petitioner commences his or her journey to the United States.125 Example: Carolina, an LPR, petitioned a number of years ago for her unmarried son, Austin, who lives in Mexico (preference category 2B). Austin goes to his consular appointment and his application is approved. After getting his visa but before going to the United States, he gets married to his girlfriend, Barbara. Austin’s visa application is revoked because he no longer qualifies as a 2B beneficiary now that he is no longer the unmarried son of an LPR. 126

122

Note that if the beneficiary is or was the victim of “battery or extreme cruelty” at the hands of the petitioner, he or she may file a VAWA self-petition on Form I-360 per INA § 204(a)(1)(A)(iii) and recapture the priority date from the I-130 previously filed by the petitioner. 123 See 8 CFR § 205.1(a)(3)(i)(I) and the Adjudicator’s Field Manual (AFM) 20.3(a), available online at www.uscis.gov/ilink/docView/AFM/HTML/AFM/0-0-0-1.html. 124 INA § 204(a)(1)(B)(ii)(II)(aa)(CC)(aaa). 125 8 CFR § 205.1(a)(3). 126 But see Corniel-Rodriguez v. INS, 532 F.2d 301 (2nd Cir. 1976), holding that the visa petition was not revoked where the beneficiary was not given either oral or written notice that marriage would invalidate her second preference petition; see also Effect of an Annulment below. Also, a 212(k) waiver may be effective in a case where the visa beneficiary has already entered the United States with the visa, and did not have knowledge of his own ineligibility at the time he was inspected and admitted.

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Effect of an Annulment: Depending on the reasons for annulment and on the pertinent state law, an annulment may “relate back” to the date of marriage as if the marriage had never happened. 127 The courts apply this principle for immigration purposes where it promotes justice and the intended outcome of the law. 128 For example, in the case of a marriage between a USC or LPR and a noncitizen, a retroactively applied annulment of the marriage forming the basis of the immigrant petition may lead to the revocation of the petition and the denial of any subsequent application for adjustment or for an immigrant visa. 129 The main factor considered by the courts is whether the retroactive application of the annulment would serve the interest of justice. Therefore, where there is no evidence that a marriage was entered into for the purposes of applying for an immigration benefit, an annulment may not be applied retroactively. 130 Similarly, the annulment of a prior marriage may or may not be applied retroactively for purposes of validating the current marriage that is the basis for an immigrant petition, depending on whether or not the courts find that the annulment was sought for the purposes of gaining an immigration benefit. 131 Example: Karthik, a USC, files an I-130 for his wife, Sureikha. After Sureikha enters the United States and becomes an LPR, she and Karthik obtain an annulment. The annulment may or may not be given retroactive effect, causing the revocation of Sureikha’s LPR status, depending on whether or not it is determined that the marriage was entered into for immigration purposes. The case is similar for the beneficiary of a second preference immigrant visa petition. The son or daughter of an LPR must be unmarried at the time the LPR parent files the immigrant petition and until the beneficiary becomes a lawful permanent resident. 132 Such a visa petition may, therefore, be revoked if the beneficiary son or daughter married after the LPR filed the visa petition, even if the marriage was later annulled. Whether or not the annulment is given retroactive effect may depend on whether or not it is found to have been sought in order to grant an immigration benefit to the beneficiary. An annulment will, therefore, not be given retroactive effect in order to cure an otherwise invalid application for LPR status. 133 Example: Aminata, an LPR, files an I-130 petition for her unmarried daughter, Binta. Binta subsequently marries, while she waits for her priority date to become current. When an immigrant visa becomes available for her, she goes to her consular interview and enters the United States. Once in the United States, she obtains an annulment of her marriage. Her visa petition may be revoked and she may be placed in removal proceedings.

127

Sefton v. Sefton, 45 Cal.2d 872 (1955). See West’s Ann.Civ.Code, §§ 84, 85, 86. 129 See Matter of Samedi, 14 I&N Dec. 625 (BIA 1974); Matter of V--, 6 I&N Dec. 153 (BIA 1954); McCreath v. Holder, 573 F.3d 38 (1st Cir. 2009); Nakamato v. Ashcroft, 363 F.3d 874 (9th Cir. 2004). 130 See Matter of T--, 8 I&N Dec. 493 (BIA 1959). 131 See Matter of Magana, 171 I&N Dec. 11 1 (BIA 1979) (court refused to give retroactive effect to a prior marriage, finding that beneficiary misrepresented his marital history for purposes of obtaining an immigrant visa); see also, Matter of Astorga, 17 I&N Dec. 1 (BIA 1979) (BIA upheld retroactive application of annulment of previous marriage, finding that beneficiary did not obtain immigration benefit through fraud or misrepresentation). 132 See AFM 20.3(a). 133 See Matter of Wong, 16 I&N Dec. 87 (BIA 1977); Garcia v. INS, 31 F.3d 441 (7th Cir. 1994). 128

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There is no provision for appeal of an automatic revocation of a visa petition, and no requirement that USCIS give notice of revocation or take any other action to effect the revocation of a petition that is automatically revoked. B.

Revocation upon Notice

In addition to automatic revocation, USCIS may revoke the approval of an immediate relative or family-sponsored visa petition on grounds other than those specified above. 134 In such cases, the USCIS must give notice to the petitioner, and the petitioner must have the opportunity to oppose the proposed revocation. If USCIS decides to revoke the petition approval, the agency must explain the reasons for the revocation. In the consular processing context, the action to revoke the petition may be initiated by the consular office due to information acquired during their review of the petition or during an interview with the beneficiary. In that case, the consular office returns the petition to USCIS with a memo explaining the reasons why they believe the petition should be revoked. 135 The consular officer may suspend action in the immigrant visa case and return the petition, with a report of the facts, for reconsideration by USCIS if the officer knows or has reason to believe that approval of the petition was obtained by fraud, misrepresentation, or other unlawful means, or that the beneficiary is not entitled, for some other reason, to a visa under the category for which they have been approved. 136 After the petition is returned to USCIS, USCIS may find that the petition is not revocable for the reasons stated by the consular office. If that occurs, USCIS returns the petition to the consular office with an explanation of the decision not to revoke the petition, and the consulate resumes processing the case. If USCIS agrees with the consular officer that there is a basis to revoke the petition, the petitioner must be notified of USCIS’ intent to revoke the petition. This letter, called a Notice of Intent to Revoke, or NOIR, should fully explain the reasons for the revocation and give the petitioner a reasonable period of time (usually 30 days) to submit evidence in opposition to the revocation. Additional time may be granted if the petitioner needs it to obtain documentation from abroad or other meritorious reasons. If the petitioner responds with satisfying evidence that the approval should not be revoked and USCIS agrees, the petitioner will receive notification of USCIS’ decision to reaffirm the petition. The petition is then returned to the consular office with copies of the NOIR, the petitioner’s response, and the letter of reaffirmation. If, on the other hand, the petitioner does not overcome the basis for the revocation, or fails to timely respond, USCIS prepares a decision of revocation on Form I-292. A petitioner may appeal the revocation to the USCIS’s Administrative Appeals Unit (AAU), and the authorized period for filing the appeal is only 15 days regardless of the type of petition. 137 Automatic revocation cannot be reviewed by an immigration judge or by the BIA. 138

134

8 CFR § 205.2. See AFM 20.3(b). 136 22 CFR § 42.43. 137 See AFM 20.3. 138 Matter of Zaidan, 19 I&N Dec. 297 (BIA 1985); Matter of Aurelio, 19 I&N Dec. 458 (BIA 1987). 135

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In the adjustment of status context, USCIS can also issue a NOIR for the same reasons: if USCIS has reason to believe that approval of the petition was obtained by fraud, misrepresentation, or other unlawful means, or that the beneficiary is not entitled, for some other reason, to a visa under the category for which they have been approved. C.

Circumstances That Do Not Lead to Revocation

Some changes in circumstances may result in the petition moving to a different category, rather than revocation of the petition. We have touched on some of these already in this chapter, such as when a “child” beneficiary turns 21, or a petitioner becomes a U.S. citizen. 1. If a child beneficiary seeking immediate relative status turns 21, and has opted out of remaining an immediate relative, he or she will become a family-sponsored first preference immigrant (unmarried son or daughter of a U.S. citizen). 2. If a child beneficiary seeking immediate relative status marries, the petition automatically converts to a third preference petition (married son or daughter of a U.S. citizen). Example: Maria, a U.S. citizen, petitions for her son, Jaime, who is 19 and single (thus, an immediate relative). Before he immigrates, Jaime gets married. His petition is not terminated because he can move to third preference status as the married son of a U.S. citizen. 3. If a married son or daughter of a U.S. citizen who is under 21 divorces, the visa petition converts back to that of an immediate relative. 4. If a married son or daughter of a U.S. citizen who is over 21 divorces, the visa petition converts automatically to a first preference petition. 5. If a person granted 2A preference status as the child of a lawful permanent resident turns 21 years old, and is not able to remain in 2A status under the CSPA, the visa petition becomes a 2B preference petition. 139 Example: Juana, an LPR, petitions her daughter Patricia who is 20 and therefore eligible for 2A preference status (child of lawful permanent resident). The petition is only pending one month before it is approved. Patricia is 22 by the time the priority date becomes current. Since she can only deduct one month from her biological age under the CSPA, she is unable to remain a 2A beneficiary, and her petition automatically becomes a 2B preference petition (unmarried daughter of an LPR). D.

Revoked Petitions and Recapturing Priority Dates

If a visa petition is revoked, a new petition filed by the same petitioner for the same beneficiary will NOT acquire the old priority date. However, if the petition is not revoked and the petitioner files a new petition for the same petitioner, the petition can be given the earlier priority date. 140 Example: Santana petitions his wife, Clotilde. When the priority date becomes current, Santana is not able to immigrate his wife because they do not meet the affidavit of support requirements. The consulate denies Clotilde a visa. Santana is promoted the next 139 140

See § 1.10 above. See 8 CFR § 204.2(h).

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month and now makes enough money to meet the affidavit of support requirements. He wants to try to immigrate Clotilde again. Santana can recapture the priority date from the first petition because he is the same petitioner of the same beneficiary under the same category and the original petition was not revoked. However, if Clotilde had waited several years to submit additional evidence and had been told that her application had been terminated, the visa petition would have been revoked. A new petition filed by Santana would be given a new priority date. § 1.14 Diversity Immigrants, Employment Visas, and Children in Juvenile Court Proceedings Under the Immigration Act of 1990, visas were set aside for new categories of immigrants, and the system for immigrating through employment was changed and expanded. This section briefly summarizes these types of visas, but a complete explanation is beyond the scope of this manual. Diversity and Diversity Transition Visas. Congress decided to give extra visas through these programs to people from certain countries that have had low rates of immigration in the recent past. These are called “adversely affected” countries. Countries with high immigration in recent years, for example Mexico and the Philippines, do not qualify for these extra visas. Fifty-five thousand (55,000) “diversity” visas per year are available to people from “adversely affected” countries. 141 A diversity visa applicant must have a high school education or its equivalent, or have two years of work experience in an occupation that requires at least two years of training or experience. Spouses and children may immigrate as derivatives in the diversity program. The application period for these diversity visas occurs once a year, for a one-month period, with only one application per person submitted. Diversity visa winners, however, are subject to the grounds of inadmissibility, including the 3-year and 10-year bars. Special Immigrant Juvenile Status. Minors who are under the jurisdiction of a juvenile court and cannot be reunified with one or both parents due to abuse, abandonment, neglect, or similar basis under state law may apply for adjustment of status as “special immigrants.” This means that these children can become permanent residents without having a U.S. citizen or permanent resident parent who can petition for them. Visas for special immigrant juveniles fall under the employment-based fourth preference category, also listed monthly in the Department of State Visa Bulletin. Although up until recently there has never been a wait for special immigrant juvenile visas, there is now a slight backlog for children from El Salvador, Guatemala, Honduras, and Mexico. Consult the employment-based charts in the Visa Bulletin to determine when a visa is available for these children and when they can apply for permanent residency. A court must also rule that returning the child to his or her country of origin would not be in the child’s best interest. 142 Employment. Some people can immigrate through their employers. The Immigration Act of 1990 expanded this system. 143 Currently 140,000 employment visas are available each year, 141

INA §§ 201(e), 203(c). INA §§ 101(a)(27)(J), 203(b)(4); see also the ILRC manual Special Immigrant Juvenile Status and Other Immigration Options for Children and Youth. 143 See INA § 203(b). 142

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across five preference categories, with the vast majority going to professionals or college graduates. 144 Some visas are available for “skilled” workers, as well as “unskilled” workers; however, visas for unskilled workers are currently unavailable.

144

See the U.S. Department of State Visa Bulletin at http://travel.state.gov/visabulletin.

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CHAPTER 1 QUALIFYING FAMILY RELATIONSHIPS AND ELIGIBILITY FOR VISAS INDEX OF APPENDICES Appendix 1-A

USCIS Policy Memorandum, “Approval of Petitions and Applications after the Death of the Qualifying Relative under New Section 204(l) of the Immigration and Nationality Act.” December 16, 2010

Appendix 1-B

“Revised Guidance for the Child Status Protection Act (CSPA)” by Donald Neufeld, Acting Associate Director, Domestic Operations, April 30, 2008

Appendix 1-C

USCIS Interoffice Memorandum on “Section 6 of the Child Status Protection Act” by Joe Cuddihy, Director of International Affairs. March 23, 2004

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CHAPTER 2 SUBMITTING THE PETITION

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This chapter includes:

§ 2.4 § 2.5 § 2.6 § 2.7 § 2.8 § 2.9 § 2.10 § 2.11 § 2.12 § 2.13 § 2.14 § 2.15 § 2.16 § 2.17 § 2.18

Completing Government Forms ......................................................................... 2-1 Completing the Visa Petition, Form I-130 ......................................................... 2-3 The I-130A and Photograph: Required in a Petition for a Husband or Wife.............................................................................................................. 2-10 Documenting the Visa Petition......................................................................... 2-10 What Documents Are Needed to Prove Family Relationship? ........................ 2-11 Obtaining Documents in the United States to Show Family Relationship ......................................................................................... 2-12 Obtaining Documents from Other Countries ................................................... 2-13 Making Proper Copies of Documents .............................................................. 2-14 Making Certified Translations of Documents .................................................. 2-15 Documenting the Immigration Status of the Petitioner .................................... 2-15 Filing the I-130 Packet ..................................................................................... 2-16 USCIS Challenges to a Marriage ..................................................................... 2-18 The Legal Standard for a Marriage .................................................................. 2-18 Documentation to Show that a Marriage Is Bona Fide .................................... 2-20 What Will Happen at the Marriage Fraud Interview? ...................................... 2-21 Preparing Your Client: Self-Defense Techniques for USCIS Interviews ............................................................................................. 2-22 Special Rules That Affect Spousal Visa Petitions ............................................ 2-23 Appealing a Denial by USCIS of an I-130 Petition ......................................... 2-26

PART ONE: THE VISA PETITION, FORM I-130 § 2.1 • • • • • • •

Completing Government Forms

Never complete an immigration form unless you have done a complete interview of the client. Never complete an immigration form unless you know who is eligible under the law and who is not for that immigration benefit. If you have a question about the person’s case, don’t file the application first and find out later. Immigration applications that are filed thoughtlessly can result in the person being removed. Never file an application that has any information that you know to be false. Always check every detail of the form with your client before filing the application. Always give a copy of the application to the client.

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The first step in the visa process is to complete the visa petition, Form I-130. Completing government forms is something that immigration practitioners spend a lot of time doing. This section will discuss general rules about how to complete forms. Your clients should be active and informed participants in completing these forms. There are several reasons for this. If your clients understand the form they will provide more complete and accurate answers to the questions. It may reduce the chance that you will be surprised later by new or different information. Also, if your clients understand what is on the form they will be able to answer questions about it with confidence at an interview or hearing, even if you are not there to help. Finally, your clients must complete forms as part of many things that they do: at a doctor’s office, for employment applications, for their children’s school, for unemployment insurance benefits. Many people do not know how to cross this “paper barrier.” If they learn how to complete forms correctly by working with you on the case, this skill will help them in other areas of their life. There are many ways to involve your clients in completing forms. You may ask the client to fill out a copy of the form in her language before your appointment. Some agencies help people fill out forms in groups. Example: When Perry Legal takes on a new visa case, he gives the family a copy of the Form I-130 written in their own language and asks them to complete several questions while they are waiting to see him. This saves him time and gives the family a chance to become familiar with the form. Lately Perry’s agency has been getting two or three new I-130 cases a week. This is taking too much of his time to do individually. Now he tells families that every other Thursday from 5:00 to 7:00pm he will help people with I-130s. At the session, for which he charges a small fee, he gives each family a Form I-130 in their own language. In less than an hour, he can give a small group a talk about the visa petition and documentation, and help people to complete their I-130’s as a group. Afterwards he meets with them individually to finish the real Form I-130 form and collect documents. Working in groups is extremely efficient for the agency. The method works well even if some clients cannot read or write; they can be paired in a “buddy system” with literate clients. However, if you are going to employ a group format, make sure each of your clients consent to this arrangement, since you need to protect their confidentiality unless it is waived. Here are a few basic rules to follow when filling out government forms. 1. Don’t leave any space blank, with few exceptions. Usually, you should write “N/A” or “not applicable” if the question doesn’t apply. Write “none” if that is the answer. 2. Make sure that you provide the same information about the client on all forms you submit. Often you will complete more than one type of form for an application. Before you hand in an application, go through each form one last time to make sure addresses, dates, number of trips out of the country, and all other information is consistent on all forms.

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3. Read each question carefully, especially if it involves a legal issue (for example, questions about criminal convictions, welfare, length of time in the United States). If you don’t understand a question, get help. A wrong answer could cause USCIS to reject the application and result in months of delay, or even a denial. Also even the right answer may have seriously negative legal repercussions, so it is important to understand the law with respect to your particular client’s situation before you both make the decision to actually file the form with the government.

NOTE: Changes in the Law and Regulations. Immigration law and the rules for submitting applications are constantly changing. From one year to the next, the fee and the documents that are required, the procedure for filing applications and even the legal issues in an application may change. Any book written about immigration law may quickly become out of date. This book will describe the basic rules as they exist as of August, 2017. Just as important, it will tell you how to look up the rules yourself in the regulations and other sources, so that you can keep up with changes in the law. § 2.2

Completing the Visa Petition, Form I-130

The visa petition is Form I-130. A copy of a sample of a completed form is at Appendix 2-A. (Note: The USCIS may change the I-130 form after this book is printed, as they do with many forms. Always check before you prepare a form to be sure it is currently being accepted. You can get information about updates to forms and downloadable versions of current forms from the USCIS website at www.uscis.gov.) USCIS also provides a multi-page instruction sheet for filing the I-130, which you should look at, in addition to this chapter. The I-130 form has become much more detailed in recent years, and though it is somewhat straightforward, it is not simple. On the form, “you” refers to the petitioner (the U.S. citizen or lawful resident) and “your relative” refers to the beneficiary (the person who wants to immigrate). Every question is important, and is asked for a reason. In the next few pages we will discuss several of the questions on the form. Even if you have completed I-130s before, you should review this section. WARNING: Special Rules Apply to People Who Immigrate through Marriage. Additional rules apply if either person has ever been married before. See § 2.17. Before you complete an I130 visa petition for a married couple, be sure to analyze the case to see if any special rules might apply. GUIDELINES ON SOME QUESTIONS FROM THE I-130 FORM As you read this section you may want to look at the copy of the I-130 that was correctly filled out at Appendix 2-A.

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4. If your client will go to an interview, make sure that he or she practices answering all the questions on the form with you or a friend or family member beforehand. If a question on the form involves a legal issue, tell the client why the government is asking the question and talk about how the client’s answer relates to the issue.

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A.

At the Beginning of the I-130 Is a Section to be Completed by the Attorney or Accredited Representative Who Is Preparing the Form

This section asks whether a G-28 Entry of Notice of Appearance Form is attached, and also asks for the Volag number (if any), the State Bar Number for Attorneys, and the USCIS Online Account Number for Accredited Representatives. If you are representing someone, you must file a G-28 with the petition.

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B.

Part 1 Asks about the Relationship between the Petitioner and the Beneficiary

This section is designed to determine if there is a bona fide familial relationship between the petitioner and beneficiary. For example, Question 2, about petitions for parents or children, asks whether or not the parents were married at the time of the child’s birth, whether there is a stepchild/stepparent relationship, and whether the child was adopted. C

Part 2 Asks for Detailed Information about the Petitioner

Included in this section are questions about the Petitioner’s A-number, USCIS Online Account number and Social Security Number, current and previous names used, place and date of birth, current and former addresses, current and former marriages, information about the Petitioner’s parents, employment history for the past 5 years, as well as whether the Petitioner is a U.S. citizen or a Lawful Permanent Resident. 1. In the case of individuals with dual last names (common in Latin America), it’s a good idea to capitalize the main name. (Question 4.a.) Example: Ana’s father’s last name is Gomez, and her mother’s name is Romero. Ana calls herself Ana Gomez-Romero. It’s best to capitalize GOMEZ, because that is her main last name, even though Romero is listed last. See Appendix 2-A. 2. When reporting other names used, make sure to include all other names used, including maiden name, previous name, false names, or complete formal name. (Question 5). 3. Make sure the prior marriage(s) legally ended before the date of the current marriage. If it did not, the couple is not legally married and must therefore legally terminate the prior marriage and then re-marry before proceeding with the petition. See § 2.13. WARNING: It is crucial to answer all questions on the I-130 accurately. Mistakes can lead to delays and suspicion. If a client has ever used a false name, before considering filing the I-130 you should you should ask your client when and how that name was used, as it may mean the client is inadmissible for visa fraud, has been convicted of crimes that make him or her inadmissible, has been previously deported under a different name, or has made a false claim of U.S. citizenship. See Chapter 5, Grounds of Inadmissibility. Questions 36 to 41 ask whether the Petitioner is a U.S. citizen or Lawful Permanent Resident, and, if a citizen, how the Petitioner obtained citizenship. A naturalized U.S. citizen who has a naturalization certificate must provide the certificate number and the date and place he certificate was issued (Questions 37-39.c). The number from the naturalization certificate is the 7-digit number at the top right hand side. The date and place of naturalization are listed on the certificate.

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A Lawful Permanent Resident must provide the Alien Registration Number (A-Number) and the date, class, and place of admission (Questions 40.a-40.c). The alien registration number is the long number beginning with “A” on the green card. The date of admission or adjustment is on older cards on the back, and on newer cards on the front. For “class of admission,” write how the person immigrated: cancellation of removal, amnesty (“Section 245A”), farmworker amnesty (“Section 210”), 2nd preference visa, etc. The “class of admission” is on the front of the card as a code under “category.” If you want to look up the code category, you can find current classification codes as well as references to older versions in the Code of Federal Regulations at 22 CFR § 42.11.

Note: If a Permanent Resident who obtained status through a U.S. citizen spouse files a petition for a subsequent spouse within 5 years, it will not be approved unless the Petitioner proves by clear and convincing evidence that the prior marriage was not entered into for immigration purposes. See 8 CFR § 204.2(a)(1)(i)(A). D.

Part 3 Asks for Biographic Information about the Petitioner, Including Ethnicity, Height, Weight, Etc.

E.

Part 4 Asks for Detailed Information about the Beneficiary

This section asks for much of the same information that was asked of the Petitioner in Part 2, such as the Beneficiary’s A-number, USCIS Online Account number, and Social Security number, date and place of birth, names used, current and former addresses, marriages, employment, etc. In addition to those questions, however, it also asks about the Beneficiary’s spouse and children, entry information, Passport Number, and whether the beneficiary has ever been in immigration proceedings. (Questions 45-50 and 53-56; see below). WARNING: It is critical to provide the correct information about the Beneficiary’s family relationships, since that information will be looked at if the Beneficiary ever files a subsequent petition for a family member. If there’s a discrepancy between the information on the Beneficiary’s I-130 and a subsequent petition for a family member, that could cause questions and delays. 1. Entry into U.S. Question 46.a. asks for the beneficiary’s class of admission. If the person entered without being inspected by an immigration official, write “entered without inspection” or “EWI.” If the person entered legally, he or she probably entered with a border crossing card, an I-94 card, or has an admission stamp in his or her passport. Note that after April 30, 2013, CBP stopped issuing paper I-94 cards at airports or sea ports of entry. In those locations, the I-94 is

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Question 41 asks whether the Petitioner obtained his or her permanent residence through marriage to a U.S. citizen.

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entered into an electronic record which can be accessed on line, and the person will also receive an admission stamp in his or her passport. 1 Reading an I-94 Card. The paper I-94 card is a white cardboard card marked I-94. It may be loose or stapled to the passport. You must read the paper or the electronic I-94 to answer question 46.a. Look at the sample I-94 card in Appendix 2-B.

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The person’s class of admission should be written by hand on the I-94, unless you are viewing the electronic version. This will often be a tourist (noted as “B-1” or “B-2”) or student (noted as “F1”) visa. You can also find the visa stamp in the person’s passport. Questions 46.b. asks for the identification number from the I-94 card. This is the printed number with 11 digits on the top left-hand corner of the paper version, or the “record number” at the top of the electronic print-out. Question 46.c. asks for the arrival date, which can also be found on the I-94. Question 46.d. asks for the date that the person’s permission to stay in the United States ended or will end. This handwritten date appears on the I-94 card (printed in the electronic version) or possibly in the passport, unless the person was given “duration of status” indicated by “D/S” which is often the case for F-1 and sometimes J-1 visa holders. In that case, you can indicate D/S or “duration of status” on the petition. Also, it is possible that your client extended her stay, in which case there may be a notation on the I-94, or there may be an additional I-94 card or I-797 notice, which indicates an approval of an extension of stay. If you are not certain when status actually expired, it is better to leave this blank as a wrong answer could lead USCIS to believe the person has accrued more or less unlawful presence than is actually the case. If the I-94 Card Is Lost. If your client will immigrate through consular processing, it is not that important to have the I-94 card. Just mark “I-94 card lost” unless your client should have an electronic I-94. If your client will immigrate through adjustment of status in the United States, you must have either the I-94 card, the electronic print-out, the admission stamp in the passport, or some other official proof of your client’s legal entry, unless the client can adjust status under INA § 245(i),or she or he was “waived-in” at the port of entry and no I-94 was provided, 2 or some other special provision that doesn’t require proof of lawful entry. See Chapter 3. An admission stamp in his or her passport would serve as sufficient proof. If you have no admission stamp, you may be able to obtain a replacement I-94, particularly for entries in the last twenty years or so, by filing a Form I-102 with a USCIS. If the I-94 Contains Erroneous Information. If your client’s I-94 has information on it that is incorrect (i.e., misspelled name, incorrect date of birth, visa classification, or date of admission) and the error was made by the client, he or she must file an Application for Replacement of Initial Nonimmigrant Arrival-Departure Document on USCIS Form I-102, explaining the reason for the error and documenting the correct information. However, if the error was made by the government and the CBP issued your client an I-94 with incorrect information, he or she should 1

The electronic I-94 should be accessible at www.cbp.gov/I94. See Matter of Areguillen, 17 I&N Dec. 308 (BIA 1980); Matter of Quinlantan, 25 I&N Dec. 285 (BIA 2010)[person who has no entry documents but is waived in by CBP at Mexican border was “inspected and admitted”].

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not file an Application for Replacement of Initial Nonimmigrant Arrival-Departure Document on Form I-102. Instead your client will need to go to the nearest port of entry (POE) or the nearest Customs and Border Patrol (CBP) deferred inspection office (DIO), in person, to have the information corrected. For locations and hours of operation, visit the CBP’s Web site at www.cbp.gov. There should be no fee for obtaining a corrected I-94 if the error(s) on the document were made by the CBP and through no fault of your client.

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If your client entered with a border-crossing card, write “Border crossing card” and the date and place of last entry. Questions 51.a.–52 ask about the Beneficiary’s current employment. 3. Prior Immigration Proceedings Question 53 asks if the Beneficiary has ever been in immigration proceedings. Question 54-56 ask for the type of immigration proceedings, and the place and date of those proceedings. Mark “yes” to Question 53 if the person has ever appeared before an immigration judge. If the person is not sure of this or other information, do not complete the form! Make sure you know what happened to your client before filing. You can often find out by having their fingerprints checked by the FBI. The FBI printout may reveal any arrests and deportations by the Border Patrol, CBP, INS or ICE. See instructions on the FBI check in Chapter 5 and Appendix 5-E. If you are certain that the person was arrested by DHS, CBP, Border Patrol, INS or ICE but just “signed for the bus” to Mexico without being fingerprinted, appearing before an immigration judge or being subjected to an “expedited removal” from the border, write “no.” If the person has an A number, or is unsure as to whether he or she has appeared before an immigration judge or had an “expedited removal,” file a Freedom of Information Act (FOIA) request—or more than one FOIA request—one with each agency that might have information about the person [Appendix 2-C for detailed information about filing FOIA requests]. WARNING: Individuals Previously Removed or Deported Are Subject to Reinstatement of Removal under INA § 241(a)(5). This means a person who has been removed in the past generally cannot adjust in the United States based on a family visa. If the person attends a visa petition or an adjustment interview ICE may simply arrest and remove (deport) the person. See Chapter 5. Clients Whose Native Language Is Written in a Different Script from English: Questions 57.a through 58.f are for beneficiaries whose native languages are written in a different script, such as Arabic, Chinese, or Cyrillic, and ask for the beneficiary’s name and foreign address in his or her native script. Marriage Petitions: Questions 59.a.–60.b. pertain to spousal petitions, and asks for the last address where the couple lived together and the dates when they lived there. If a married couple does not live together, USCIS will suspect that the marriage is a fraud. Review the materials on marriage fraud in Part Three.

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2. Employment Information

Adjustment of Status: Questions 61.a and 61.b. ask if the Beneficiary is in the U.S. and will apply for adjustment of status, and if so where the application will be made. See Chapter 3, Adjustment of Status and Conditional Residence.

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Consular Processing: Questions 62.a.–62.c. ask for the location of the consulate that will process the visa. The visa will be processed by the U.S. consulate with jurisdiction (legal control) over the area where the beneficiary resides or last resided before entering the United States. This is true even if the person was born in or is a citizen of another country. Small countries often have only one U.S. consulate office (the U.S. Embassy), located in the capital. If your client resided in a large country with more than one U.S. consulate, it is likely that only one consulate or the embassy actually handles immigration visa application. If you are not sure which one should handle it, consult the Foreign Affairs Manual (FAM) or the “Locate a Consulate” link at the U.S. State Department website to determine which consulate has been designated to process immigrant visas for that country. 3 See Chapter 4, Applying for Permanent Residence through Consular Processing. * PRACTICE TIP: Choosing the Consulate. The USCIS no longer sends the approved petition directly to the consulate, but rather to the State Department’s National Visa Center (NVC). The NVC normally directs which consulates have jurisdiction over individual cases. “Orphan cases” (where there is no U.S. consulate serving the foreign country, such as in Iran, Libya, Afghanistan, Lebanon, etc.) are usually directed to designated consulates in other countries. Contact the NVC or an experienced practitioner/agency for guidance about current State Department policy on discretionary acceptance of out-of-district visa cases. Sometimes there are problems returning to the home country. If your client is afraid to return to his or her home country, it is possible that another consulate might accept the case on a humanitarian basis. Usually it takes a great deal of effort to convince a consulate to do this. If there is no U.S. consulate in your client’s country of last residence (for example, as in Iran), another consulate may have been designated by the State Department to handle the country’s cases. In either situation, contact an experienced visa practitioner or resource center for guidance. F.

Part 5: Other Information

Questions 1-5 ask the Petitioner if he or she has ever previously filed an I-130 for another person, and if so, it asks for specific information about that person, including whether the petition was approved, denied, or withdrawn. If the petitioner has filed more than one I-130 before, you will have to provide information for each previous petition filed, in the space provided in Part 9 of the petition. Questions 6.a.–9 ask the petitioner if he or she is filing other I-130 petitions with the current one, and asks for the name and relationship of the beneficiaries. Part 5 only has room for information on two other petitions, so if the Petitioner is filing more than two other I-130’s, you’ll have to supply the information for each other beneficiary in the space provided in Part 9 of the petition. 3

You can find the FAM online at https://fam.state.gov/ and the State Department’s website is at www.travel.state.gov.

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G.

Part 6: Petitioner’s Statement, Contact Information, Declaration, and Signature 1. Petitioner’s Statement

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Question 1.a. asks if the Petitioner can read and understand English and has read and understood every question, instruction and answer on the form. Question 1.b. asks if an interpreter (named in Part 7) translated the form into a language in which the Petitioner is fluent and Question 2, asks if someone else (named in Part 8 prepared the form for the Petitioner Questions 3-5 ask for Petitioner’s daytime and mobile phone numbers and email address. 3. Petitioner’s Declaration, Certification and Signature The Petitioner must sign and date the form and in so doing must certify that all the accompanying documents are exact, unaltered copies of originals, must authorize the release of information to other entities, and must certify that she or he understands the requirement to appear for a biometrics appointment where she or he will be required to sign an oath reaffirming that the information provided in the petition was supplied by the Petitioner, that Petitioner reviewed and understood all the information in and submitted with the petition, and that the information was complete, true and correct at the time of filing. Because the Petitioner must certify that she or he has understood all the questions in the petition and that all the answers are accurate, it is extremely important to make sure all questions are answered completely and correctly. H.

Part 7: Interpreter’s Contact Information, Certification, and Signature

If an interpreter translated the form for Petitioner, then the interpreter’s name, business name, address and contact information must be provided in this section, and the interpreter must certify that she or he is fluent in both English and the Petitioner’s language, and that she or he has read the entire form to the Petitioner in Petitioner’s language, and that Petitioner has indicated to the interpreter that she or he understood every instruction, question and answer on the petition. I.

Part 8: Preparer’s Information

If you prepared the I-130 for the Petitioner, you must complete this section of the petition by providing your name, address, business name, phone numbers, and email address, and you must certify whether you are an attorney, an accredited representative, or whether you are neither, but you prepared the form with the Petitioner’s consent. You must then sign the Preparer’s Certification, under penalty of perjury, that you prepared the petition at the request of the Petitioner, and that the Petitioner understands all the information contained in, and submitted with, the petition. J.

Part 9: Additional Information

Part 9 provides extra space for adding information about other petitions filed, either before this petition or concurrently with it.

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2. Petitioner’s Contact Information

NOTE: An extra form is required for visa petitions for a husband or wife. See § 2.3 below. § 2.3

The I-130A and Photograph: Required in a Petition for a Husband or Wife

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If the visa petition is for a husband or wife you must submit a Form I-130A, Supplemental Information for Spouse Beneficiary, and a photograph. USCIS will use these to run a background check on the beneficiary, as a guard against marriage fraud. The I-130A Form. The USCIS uses the I-130A form to obtain background checks on the spouse beneficiary here and in other countries. On this form, “you” refers to the Spouse Beneficiary, not the Petitioner. The form asks for much of the same information that appears on the I-130. Be sure to check the I130A and the I-130 to make sure that you give the exact same information for the beneficiary on both forms. A sample completed I-130A is at Appendix 2-D. The locations where the Spouse Beneficiary actually lived and worked during the last five years may raise additional questions and problems, such as abandonment of residency for the LPR petitioner, marriage fraud issues for spouses living separately, public charge, work without authorization, etc., so it is important to not only record the information correctly, but to analyze it completely for additional legal issues. If the Spouse Beneficiary is in the United States, she or he must sign the form and certify that all the information is complete and correct. If the Spouse Beneficiary is not in the U.S., then she or he is not required to sign the form. Photographs. In addition to the I-130A, when a visa petition is being filed for a spouse, the husband and wife each must submit a color, full-frontal facial image, passport-style photograph with the I-130 and I-130A. Clients who are adjusting status will need two or three identical passport-style photos—and two more if work authorization is desired. The next step is to obtain documents that will prove the clients’ family relationship and immigration status of the petitioner. PART TWO: THE VISA PETITION -- DOCUMENTATION AND PROCEDURE § 2.4

Documenting the Visa Petition

USCIS will rarely “take someone’s word” for a fact. In every immigration case, it is better to present documents in addition to the person’s testimony to prove a point. In visa petitions, it is absolutely required that you present documentary proof of the facts. Two facts must be proved in a visa petition: the family relationship between the petitioner and the beneficiary, and the immigration status of the petitioner. This section will discuss how to obtain and prepare documents that prove these facts.

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Many of the rules about documentation are found in the regulations. Other rules are found in the instructions attached to each government application form; these instructions are supposed to have the same effect as a regulation. 4

If you do not follow these rules in preparing documents, USCIS may refuse to accept your petition or application. On the other hand, USCIS also is required to follow its own regulations. If you have to fight USCIS to make them accept your documentation, the fact that you have followed the regulations will be your main weapon. USCIS has backed off from its former policy of denying an application, including an I-130, where it lacks “initial evidence.” However, it may be “rejected” and returned without assigning a priority (filing) date, if it is unsigned or lacks the correct filing fee. Initial evidence for a relative visa petition is a signed and completed I-130, the correct fee, proof of the petitioner’s status and proof of the relationship between petitioner and beneficiary. Now the USCIS will generally not deny a case for lack of initial evidence, but rather will give the individual additional time to submit the missing evidence. If the evidence is not received in the time period set by USCIS, the USCIS will deny the application. The normal processing time for an application will also be extended to reflect any delay caused in submitting required evidence. 5 § 2.5

What Documents Are Needed to Prove Family Relationship?

Family relationship must be proved through official birth, death, marriage and divorce certificates. Different documents are required depending on the relationship. Make sure to carefully review 8 CFR § 204.2. We will not discuss all the requirements for documentation here, so you will need to locate each section in your regulations to ensure you are meeting all the requirements. 1. To file a visa petition for a spouse, the petitioner must show two things: (a) that the petitioner is legally married to the beneficiary and (b) that the marriage is “bona fide,” in other words at the time of the marriage, the spouses intended to live in a marital relationship, not just to marry for the sole purpose of immigration benefits. To prove that the marriage is legal, the couple must provide a marriage certificate issued by civil authorities and proof of the termination of all previous marriages by both the beneficiary and petitioner. 8 CFR § 204.2(a)(2). To prove that the marriage is “bona fide” a variety of documents are acceptable. If the couple has a child together, the child’s birth certificate 4 5

8 CFR § 103.2. 8 CFR § 103.2 (b)(1), (b)(8) and (b)(10).

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WARNING: Forms sometimes contain incomplete or out of date information, especially about application fees and filing addresses. To check what the correct fee is for any application, the way to get the most current information on forms is from the government website for the USCIS, which is found at www.uscis.gov. If you do not have access to the web, you can look up the name of the form (for example, “I-130”) in the latest version of the regulations, 8 CFR § 103.7. (Note, however, that fees may have changed since your regulation was published.) You can also call USCIS at their new national customer service number for current fee information at 1 (800) 3755283.

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listing both parents is usually the best proof needed for “bona fides,” though USCIS also likes to have documentation of comingling of some financial assets. If there are no children together, photos of the couple together, tax returns, joint bank accounts, deed to home, rental/lease agreements, insurance, cards and letters to both, etc. are all potentially good documentation of the bona fides of a relationship. It is usually a good idea to submit several such documents.

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2. To prove a parent-child relationship, submit the child’s birth certificate showing the parent’s name. 6 If the parent is a father, submit the marriage certificate to show that the child was born in wedlock, along with proof of termination of any prior marriages of the father and mother. Stepchildren, adopted children, and children born out of wedlock all require additional documents. 7 For example, for stepchildren you must submit a document proving the biological parent-child relationship, plus documents proving both the legal validity and the bona-fides of the marriage between the biological parent and the step-parent. 3. To prove a sibling (brother/sister) relationship, submit both siblings’ birth certificates showing that they have at least one parent in common. 8 Example: Jack and Jill both have the same mother, but different fathers. Their mother’s name appears on each of their birth certificates. This is sufficient proof. If instead they both have the same father but different mothers, more documentation is required. 9 4. To prove a marriage relationship, submit the marriage certificate plus proof that all previous marriages of both husband and wife have been lawfully terminated. 10 Example: Zsa Zsa has been married eight times before this one. One of her husbands died and the other marriages ended in divorce. She now wants to file a spouse petition for Donald, whom she has just married. What documentation must she submit to prove family relationship? Zsa Zsa needs her marriage certificate with Donald, seven divorce certificates and one death certificate. Ask Donald if this is his first marriage. If not, you also need proof of termination of all of his previous marriages. § 2.6

Obtaining Documents in the United States to Show Family Relationship

Your clients can give you valuable help in obtaining documents. They may already have certified copies of important documents, or they may be able to obtain them themselves or through relatives.

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8 CFR § 204.2(d)(2)(i). 8 CFR § 204.2 (d)(2)(ii)–(vii). 8 8 CFR § 204.2(g)(2)(i)–(iv). 9 See 8 CFR § 204.2(g)(2)(iv). 10 8 CFR § 204.2(a)(2). 7

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To obtain a certified copy of a U.S. birth, death, marriage or divorce certificate, contact the appropriate state or county agency where the event took place. Find out the correct fee, if any; whether the fee must be paid by money order instead of personal check; and whether the person needs to sign a release form. You may also want to find out how long it will take to get the document; and, if necessary, if there is a way to obtain the document more quickly.

NOTE: You must get a certified copy of a document from a government agency. Hospital birth certificates, church marriage certificates, and funeral home death certificates generally will not be accepted, unless you show that the government certificate is not available and other conditions are met. 12 § 2.7

Obtaining Documents from Other Countries

Obtaining documents from other countries can be difficult. Again, your client is probably the best source of information and help in getting the documents. Often the client can contact friends or family members who will obtain the papers and send them. If not, you must phone or write the government agency that keeps documents in the country. It may take several weeks to receive the document. Consulting the State Department Website: You can get ideas for how to locate the document by consulting the State Department website at https://travel.state.gov and then typing “Collect Supporting Documents” in the search box. This will take you to a page that says “Step 5.” Scroll down the page until you see a section called “Document Finder,” with a search box where you can enter the beneficiary’s country. If you enter the country name, you will be taken to a page that lists different types of documents on the left side of the page. Click on the one you need, for example, a birth certificate, and you will receive information on that document’s availability. If your client will eventually immigrate through a U.S. consulate abroad, you will have to produce documents according to the State Department’s requirements and in 22 CFR § 42.65 at that time. It may be more efficient to get these documents according to those requirements now. Some countries may provide “short form” birth certificates that do not list both parents. USCIS will not accept these birth certificates. Sometimes documents simply are not available, because the government does not keep them or because the place where they were stored has been destroyed. If the Document Finder tells you that a particular document is not available, you are not required to provide it. However, if you cannot obtain a required document that the Document Finder says is available, you must submit a detailed written explanation to the National Visa Center (NVC) explaining 11 12

The CIDC website is located at www.cdc.gov/nchs/w2w.htm. See generally 8 CFR § 204.1(g) and 8 CFR § 103.2(b)(1).

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An excellent resource guide is Where to Write for Vital Records. It provides information on how to get records from all 50 states, and the information is updated each year. It is available from any federal government bookstore or may be viewed on the Centers for Disease Control and Prevention (CDC) website. 11

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why it’s unavailable when you submit your other documents. For example, you can submit an original statement on official government letterhead that states the reason it is unavailable.

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The consular officer will determine at the time of the visa interview whether you must obtain the missing document before a visa can be issued. As a general rule, any document that is listed as “available” on the Document Finder must be reviewed by a consular officer. However, once you have shown that the document is not available, you can present secondary evidence such as medical records, school records, and religious documents prepared around the same time as the missing primary document, or even affidavits. There are rules about what 13 documents can be submitted. 14 Remember, the USCIS and State Departments will not accept this secondary evidence unless you have shown that the preferred document is not available. § 2.8

Making Proper Copies of Documents

The paper that you will finally receive, whether it is from the United States or another country, will probably be a photocopy of the document you requested, with an original certification stamp or signature from the government office. This is your “original” document. There are two things to remember about original documents: A.

Do Not Submit Original Documents to USCIS Unless You Are Told to Do So

USCIS now generally permits the filing of photocopies instead of original documents with applications and petitions, and the applicant does not need to individually certify the copies. 15 USCIS views the signing of the form or application a certification under penalty of perjury that all evidence submitted with a form or petition is true and correct. It is important to make sure that legible photocopies are submitted with the application. Where USCIS determines it needs to review the original of a document, the applicant has twelve weeks in which to submit the original. 16 NOTE: Although submitting originals is not recommended, if originals are submitted instead of copies, it is possible that you may be able to have the originals returned to you. To request the return of original documents, use the Return of Original Documents Form G-884. B.

Keep the Original Document in a Safe Place and Be Prepared to Show It to USCIS upon Request; in Addition, You or the Client Must Bring the Original Document to Any Interview That Has to Do with the Case

Keeping a client’s original document in the office is a major responsibility, and losing it can be a nightmare. If at all possible return all original documents to the client and ask them to keep it safe. If you must keep original documents, it is important to set up a procedure to protect the documents. Many offices, for example, prefer to keep original documents in an envelope that is securely fastened to the client’s office file.

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Consult 8 CFR § 204.1(f) for the regulation on the subject. See, for example, 8 CFR § 204.1(g)(2) for the rules about substitute documents for a birth certificate. 15 8 CFR § 204.1(f)(2). 16 8 CFR § 103.2 (b)(5). 14

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§ 2.9

Making Certified Translations of Documents

All documents, which are not in English, must be submitted to USCIS with English translations made by a person who is competent to translate. Summary translations are officially no longer accepted, but in practice if a birth or marriage certificate summary contains all pertinent information desired by USCIS, it often will be considered sufficient. All foreign language documents must be accompanied with a full English translation. 17

The translator must certify the translation. To do that, the translator should write at the bottom of the last page of the English translation, “I certify that I am competent to translate from [the original language] to English and that the above is a correct and true translation to the best of my knowledge and belief.” The translator should sign and date this statement. PRACTICE POINTER: Reviewing the Documents. After receiving the documents from your client, review them carefully for any inconsistencies or unusual facts. For example, is the date of the current marriage of the petitioner to the beneficiary after the final judgment date of the petitioner’s divorce to her first husband? If not, the present marriage may be invalid and the couple may need to remarry before submitting the petition. For children, it is extremely important to note whether the birth certificate was issued immediately following the birth of the child. “Delayed” birth certificates not only may not be considered reliable, but they also can indicate fraud. Sometimes people are mistaken regarding the facts they tell you, and you must be certain the information on the form is consistent with the documents and that the documents to be submitted don’t raise additional legal issues or concerns. You can also help your clients not to submit well-meaning but fraudulent petitions for relatives or friends. § 2.10 Documenting the Immigration Status of the Petitioner There are several ways to prove the petitioner’s status as a U.S. citizen or lawful permanent resident. However, you should never submit an original naturalization certificate or lawful permanent resident card to USCIS, because of the risk that it might get lost. A.

Proof of U.S. Citizenship

The regulations are very specific about what documents prove U.S. citizenship. 18 A person born in the United States must submit either a copy of his birth certificate, or a valid U.S. passport issued for ten years after the petitioner was eighteen; or a valid U.S. passport issued for five years before the petitioner turned eighteen; or a statement by a U.S. consular officer certifying that the petitioner is a U.S. citizen and has a valid U.S. passport. If the petitioner does not have any of these documents, he can show school records, baptismal certificates or other documents, if available. The regulation lists other documents that may be submitted to prove U.S. citizenship. 17 18

8 CFR § 103.2 (b)(3). Look at 8 CFR § 204.1(g)(1).

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Anyone (other than the petitioner or beneficiary) who is competent to translate may prepare the translation; it does not have to be an attorney, certified representative or notary public. In practice, USCIS has long accepted translations done by the representing attorney.

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A U.S. citizen born outside the United States should submit a copy of his naturalization certificate, certificate of citizenship, or U.S. passport issued for a ten-year period. 19

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B.

Proof of Lawful Permanent Residency

You may submit a photocopy of the person’s permanent resident card (“Alien Registration Card”). Or you may submit other documentary proof of lawful permanent residency if you have it, such as copy of a passport with a stamp indicating permanent resident status, a judge’s order, or a Form I-797 showing that the person has been granted adjustment of status. If the petitioner has lost his or her green card, you may have to submit some document showing the green card was granted, plus a copy of an Application to Replace Permanent Resident Card on Form I-90, as evidence that a card replacement is in process. § 2.11 Filing the I-130 Packet Once you have the I-130 completed and have the supporting documentation, you are ready to send the whole I-130 packet to USCIS. The I-130 instructions contain a list of what items must be submitted for each type of family relationship. Local USCIS offices or immigration attorneys also may have a list. Many district offices and service centers also have websites linked through the USCIS website at www.uscis.gov. This website also contains some general information on filing applications and, most importantly, the correct filing address for the I-130. At the present time, the requirements for an I-130 packet are: 1. E-Notification of Application/Petition Acceptance, Form G-1145, to receive notification by email or text message that the petition has been accepted; 20 2. Notice of Entry of Appearance as Attorney or Accredited Representative on Form G-28, if filed by attorney or certified representative; 3. Petition for Alien Relative on Form I-130; 4. Proof of petitioner’s immigration status; 5. Proof of family relationship; 6. If the petition is for a married couple, one passport-style photo of each and an I-130A for both husband and wife; 7. Check made out to “U.S. Department of Homeland Security” 21 for the correct fee; 22 and 8. If the petition is for a spouse, it is essential to include substantial evidence that the marriage is bona fide.

19

Other documents may also be used, please see 8 CFR § 204.1(g)(1). This service is currently only available for forms filed at three USCIS Lockbox facilities located in Lewisville, Texas; Chicago, Illinois; and Phoenix, Arizona. 21 Do not use abbreviations, such as DHS. 22 If the petitioner lives in Guam, the U.S. Virgin Islands, or outside the United States, Guam or the U.S. Virgin Islands, there are different instructions for paying with a check or money order. Consult the USCIS website at www.uscis.gov. 20

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Where you send this packet depends on where the petitioner lives and whether or not the person is eligible to apply for adjustment of status at the same time. Any Form I-130 filed at an incorrect location will be rejected.

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If you are filing a stand-alone Form I-130 and the petitioner lives in the United States or Canada, then the location for filing as of this writing will be either at the Chicago or the Phoenix USCIS Lockbox, depending on the state of residence of the petitioner. 23 Check the USCIS website to ensure you have the correct filing location.

1. Petitioners residing in countries without USCIS offices should look at the I-130 instructions or the USCIS website to find the right address where to file their petitions; 2. Petitioners residing in a country with a USCIS office have the option of filing the I-130 petition at the Chicago Lockbox, or they may file it at the international USCIS office having jurisdiction over the area where they live. To find out if the country where the petitioner resides has a USCIS office, you can visit the “International Immigration Office” page at the USCIS website, which includes information on each international office and instructions for how to file an I-130 petition at that office. 24 The USCIS Chicago Lockbox will forward the petition to a USCIS Service Center, which will process and adjudicate the petition. After the petition is approved, the Service Center will forward the application to the National Visa Center, which will forward it to the U.S. Consulate when the visa becomes available. If you are filing a Form I-130 with a Form I-485, Application to Register Permanent Residence or Adjust Status, and the petitioner lives in the United States, the entire package as of this writing is filed at the USCIS Chicago Lockbox. Visit the USCIS website for the current filing address. 25 Make sure to always check the USCIS website to find out the current correct filing address under “Forms.” Keep a Copy! USCIS or the U.S. Postal Services could lose your package. Never submit any documents to USCIS without making a copy for your files. If you are helping someone that you will not represent, make sure that the person keeps a copy. Keep your receipt from the certified mail/return receipt requested mailing or express or courier mailing with the copy of everything that was filed. If there is ever a problem, this will be your proof of filing and priority date.

23

The locations for filing by state of standalone I-130 petitions may be presently found at: www.uscis.gov/i-130. 24 In order to access the “International Immigration Office” page at the USCIS website, go to the “About Us” link at the top right-hand corner of the “Home” page; and then click on the link to “Find a USCIS Office” at the left-hand column of the page. 25 A person immigrating is eligible for adjustment of status to lawful permanent residence if he or she is an immediate relative or has a current priority date. Chapter 3 will discuss who is eligible to adjust status.

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If you are filing a stand-alone Form I-130 and the petitioner lives in a country outside of the United States or Canada:

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In 2011, USCIS implemented a Secure Mail Initiative (SMI), which uses U.S. Postal Service (USPS) Priority Mail with Delivery Confirmation to deliver certain immigration documents in a safe, secure and timely manner. Through this program, you can track the status of your documents with USPS tracking information. If you’ve received an approval notice but haven’t received the related permanent resident card or document pertaining to travel and employment authorization, you can contact USCIS’s Customer Service Center at (800) 375-5283 to request tracking information for the documents. USCIS customer service representatives can provide USPS tracking number and current USPS delivery status. PART THREE: THE MARRIAGE FRAUD INTERVIEW AND OTHER REQUIREMENTS FOR MARRIED COUPLES § 2.12 USCIS Challenges to a Marriage The USCIS is very suspicious of people who try to immigrate through a spouse. USCIS has stated that in its opinion over one-third of the spousal visa petitions it receives are based on fraudulent marriages. When USCIS receives a visa petition based on a marriage relationship, it will review the petition for signs of marriage fraud. Before it approves a spousal visa petition, USCIS requires that the couple show that their marriage is bona fide (real). USCIS may require these couples to come to a marriage fraud interview prior to approving the I-130 petition, but generally will conduct such an interview at the time of adjustment. At the adjustment interview, the USCIS officer will ask the couple questions about their marriage and review documents that they bring to show that their marriage is sincere. If the examiner determines that the marriage is suspect based on the application or at the preliminary interview, he or she may refer the couple to a marriage fraud interview. At the marriage fraud interview, the spouses are interviewed separately and the answers are compared. The interview is generally videotaped. Discrepancies can lead to a finding of fraud and the immigrant spouse can then be placed in removal proceedings. What kind of fact situations in a marriage does USCIS find suspicious? While there is no set rule, in the past USCIS has been especially suspicious of marriages if the spouses: • • • •

State that they are not or will not be living together; Are of very different ages, and especially if the woman is older than the man; Are of different races; Are of certain targeted nationalities.

Any couple may be called to a marriage fraud interview. The best policy is to encourage all couples to collect documentation that shows that they have a real marriage. This should start at your first or second meeting. Most of the rest of this section is a discussion of how you can help prepare your clients for a marriage fraud interview. Also, there are several important rules that apply to married couples at all stages in the process. § 2.13 The Legal Standard for a Marriage Married couples must show two things: that the marriage is valid (legal); and that the marriage is bona fide (not a fraud) at its “inception” (at the time the couple got married).

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A.

The Marriage Must Be Valid

A couple is legally married if the marriage is recognized as valid in the place where the couple was wed.

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Example: Your clients were married only in a church ceremony in Mexico. Because this is not a “legal” marriage under Mexican law, it will not be accepted by USCIS.

Some divorces may be suspect. USCIS almost never accepts divorces where neither person was present in the place where the divorce was obtained. Divorces where one person was not present may or may not be accepted. Example: Luis and his first wife obtained a divorce in the Dominican Republic. Luis was not physically in that country to get the divorce. The divorce may or may not be legally recognized, depending on several factors. Luis needs to get expert legal help to evaluate the Dominican divorce. Example: Suzy went to Las Vegas to obtain a divorce from her first husband. However, because Nevada has residency requirements related to divorce, and Suzy has always really lived in Colorado, Suzy may not in fact be legally divorced. In 2013, the U.S. Supreme Court overturned the Defense of Marriage Act (DOMA), a federal law which defined marriage as only between a man and a woman. USCIS has now begun to approve visa petitions for same sex marriage couples, as long as the couple married in a state which recognized the validity of same sex marriages at the time of the marriage. Example: Theresa is a U.S. citizen and her wife Jenny is from Trinidad and Tobago. They were married in Amherst, Massachusetts. Michael is a U.S. citizen and his husband Fernando is from Spain. They were married in Madrid, Spain. Sung Bae is a U.S. citizen and his husband Takeshi is from Canada. They were married in Vancouver, British Columbia, Canada. All three of these couples were married in places and times that made their marriages legal. As of now, these couples will finally be able to petition their spouses for immigration benefits. B.

The Marriage Must Be Bona Fide

The couple must meet a specific test to show that their marriage is bona fide. They must show that at the time that they got married their goal was to create a real marital relationship and not to commit immigration fraud. 26 This is the only test that the couple must meet. For example, a USCIS officer cannot deny a visa petition because he does not believe the marriage is “good” or will be a lasting one, or because he disagrees with how the two people lead their lives.

26

See Matter of McKee, 17 I&N 332 (BIA 1980).

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For a marriage to be legal, the couple must have been free to marry each other. If either the petitioner or beneficiary was married before, you must present proof that: a) the prior marriage(s) has or have been legally terminated by a valid divorce or annulment, or by the death of the spouse; and b) prior marriage(s) were terminated before the person married again.

The more “conventional” a marriage situation, the easier it will be to get USCIS to approve the visa petition. A couple who lives together, who has a common social life with family and friends, who owns property together and who has been together for some time looks like a “regular” marriage. But other marriages, which do not look like this, also qualify under the rule. Example: •

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• • • • •

Couple A must live apart six months of the year so that the wife can travel to work. Couple B is living separately at the time of their interview because of problems in the relationship. They hope to get back together. The wife in Couple C kept her house in her own name because she wants to leave it to her children from a previous marriage. Couple D has not yet informed the husband’s family of their marriage, because they know the family will disapprove. There is a thirty-year age difference between husband and wife in Couple E. The husband and wife in Couple F are of different races and neither is fluent in the other’s language.

As long as none of the couples intended to commit marriage fraud, and they all married in order to create a real marital relationship, all of their marriages must be found to be bona fide. This is true even if the couple separated for a time. 27 NOTE: Advising the Couple to Delay the Application. If the couple does not live together now but will in the near future, you might advise them to not file the visa petition until they do live together. But if the couple will live apart for months or years, they may want to file the application now, especially if they want to establish a priority date now. Handling this kind of case may take a great deal of time, and this may determine whether you decide to keep the case. As long as the case is well prepared, however, it should win eventually. § 2.14 Documentation to Show that a Marriage Is Bona Fide At the marriage fraud interview, you must submit documentary evidence showing that the couple is living together (if they are) and that their financial and personal lives are intertwined. For example, evidence could show that: • • • • • •

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The couple has or is expecting a child; One spouse has been added to the other’s health or life insurance policy; Each spouse’s work records have been updated to reflect the marriage; Rental agreement and utilities accounts are in both names; The couple has joint bank accounts showing normal levels of activity; or The families (especially the petitioner’s family) approve of the marriage.

See Matter of Adalatkah, 17 I&N 404 (BIA 1980).

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Many people are careless about changing the paperwork in their lives to reflect that they are married. You can help them build a record by suggesting that they make these changes. Some advocates advise a couple to build up a “history of togetherness” on paper before submitting a visa petition/adjustment application, just to avoid USCIS suspicion.

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§ 2.15 What Will Happen at the Marriage Fraud Interview? The marriage fraud interview is a stressful and scary experience for many clients. You can help them learn the skills to pass the interview with confidence.

At the interview the USCIS officer wants to see for herself whether the client’s marriage appears to be bona fide. The officer may do three things. 1. The officer may ask the couple all of the questions on the I-130. The couple should have practiced answering all the questions. 2. The officer may look at the documentation about the marriage that the couple submits. The couple must be able to describe the documentation and discuss it. 3. The officer may ask the couple questions about their marriage. The couple must prepare for these questions, and know how to deal with questions to which they do not know the answer. They must be prepared for the possibility that the officer will act suspicious, hostile or threatening. The questions concern intimate details that only persons who live together would know. The questions asked vary from examiner to examiner; some typical questions are: “What side of the bed do you sleep on?” “Who gets up first in the morning?” “What do you do together to have fun?” “When was the last time you spoke with one of his relatives?” “What did you have for dinner last night?” “What kind of food does she like?” “What did you give him for his last birthday?” “What does his father do for a living?” The officer may separate the couples and ask each the same question to see if they give the same answer. If the couples answer the question differently, they should be given a chance to explain the difference in their answers when they are brought back together. The interview may be videotaped or recorded. WARNING: Don’t represent clients who want to commit marriage fraud. If you believe that your clients are going to commit marriage fraud, do not handle the case. Besides the fact that it is unethical, your clients are risking severe penalties—inability to immigrate through any kind of visa petition in the future, up to 5 years in prison, and $250,000 in fines. INA § 275(c). You also

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After you submit the visa petition, you may receive a notice by mail asking the couple to come to USCIS for an interview to discuss the petition. This is the marriage fraud interview. If either or both spouses cannot attend the interview date for a bona fide reason, you may try to reschedule the interview by calling the number listed on the form. However, it is best to send a certified, return receipt letter in order to notify the USCIS that you are unable to attend the interview. It is important to have this record of your notification to them in case USCIS later denies the case because of the failure to attend the interview.

face severe penalties. USCIS marriage fraud interviewers are skilled at detecting fraud and it is very difficult to pass the interview unless the couple actually has a personal relationship. § 2.16 Preparing Your Client: Self-Defense Techniques for USCIS Interviews

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How can you help your client gain the skills to deal with an interviewer who may act hostile? First, get the basic facts straight. You and your clients should prepare a short history of the relationship. Mark important dates (when did you first meet, when did you decide to get married, when did you move in together) and make sure the clients agree on what they were. If necessary, write down important dates and events for them to study. However, if one or both spouses are not good with dates, it is better to keep those general and not overly specific, in case they forget, except for the most important dates, such as birthdays and the date of their marriage. Example: Mark and Mindy are preparing for their marriage fraud interview. With their legal worker they have written a short history of their relationship: • • • •

Met in the summer of 2003 at party at her cousin’s house Started going out about a month later Moved in together in June, 2004 (or “in the summer of 2004”) Got married on November 14, 2005

Prepare the couple to answer the question: “Why did you decide to get married?” If people do not rehearse this question they may be caught off guard at a USCIS interview. Romantic reasons like “I love her” are perfectly good. So is any other honest answer. The couple should practice saying what their relationship is like and how married life is good for them. If the couple is separated because of marital problems they should be prepared to say why they got married, what problems they have had, and why they still hope to get back together someday. The fact that a couple argues about personal issues can actually help the case by showing that they have a personal relationship. Take your clients through a practice interview, with yourself as the USCIS interviewer. The couple must prepare in case they have an interviewer who seems hostile. This is especially important for people who do not speak English well or who are shy. Before you give them the interview, talk with them about interviewing “self-defense” skills. They have the right to: • • • • •

Ask for clarification if they don’t understand a question; Correct the officer if he or she misstates what they said; Fully explain what they want to say, and not let the officer cut them off; and Say, “I don’t know” instead of taking a wild guess (important!) Tell the truth even if they find it embarrassing (e.g., my husband didn’t give me a present for my birthday or I have never met my spouse’s parents)

The USCIS officers have access to not only DHS records, but also to other records, such as DMV records. The officers “Google” people to see what they can find and they look at Facebook pages.

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So, talk to your clients about what might be in these records and social media sites, and look at them yourself if possible. For instance, have they have cars registered at addresses other than where they live or have they have used different addresses in obtaining drivers’ licenses or I.D. cards? Does the husband have photos of himself with other women on Facebook, but not with his wife?

In some cases, USCIS officers have threatened the U.S. citizen or resident spouse with jail unless they “confess” that the marriage is fraudulent. The officer may even tell one spouse that the other already has confessed. Hopefully this will not happen to your clients, but you should warn them ahead of time. Unless a spouse “confesses,” the USCIS will not be able to prove fraud. Tell your clients: • • •

Do not sign any form withdrawing the visa petition without consulting a lawyer. Do not sign any form stating that the marriage is a fraud. You may ask to stop the interview or speak with your attorney/representative at any point.

Your role in the interview is to observe. You cannot help the client with answers to questions. You can ask that questions be repeated or rephrased. Also, you can witness what goes on, make good notes, and object if you think that the interviewer is being abusive. You, or your clients if alone, can ask to see a supervisor if the interviewer becomes abusive or unreasonable. The fact that you are there may give your clients more confidence. Will the USCIS Knock at My Client’s Door? USCIS has the authority to do home visits to verify that a couple is indeed living in marital union. How often USCIS exercises this right is hard to say, but USCIS agents have been known to go to a couple’s home and interview not only the couple but also neighbors to verify that the marriage is indeed valid. They have also asked to look in bedrooms, in closets, nightstands, and have gone through mail. They are not supposed to do this without your client’s permission, but if your client allows them in the door, this could occur. § 2.17 Special Rules That Affect Spousal Visa Petitions There are five important restrictions placed on persons who immigrate through marriage. You must understand all of these rules. Use the following five questions to analyze spousal petition cases. A.

Has an Order to Show Cause or Notice to Appear Been Issued against the Beneficiary? In Other Words, Is or Was He or She in Deportation or Removal Proceedings?

People who marry while they are under deportation or removal proceedings face special restrictions if they want to immigrate through their spouse. If a person marries after the issuance

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In some instances, the USCIS Officer has called relatives—parents and/or children—during the interview. You should prepare your clients for this possibility so that if their parents, for instance, are called, they are aware of the marriage and will not contradict the couple on when they have gotten together, what they do for holidays, etc.

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of an Order to Show Cause (OSC) or Notice to Appear (NTA) and before deportation or removal proceedings terminate, the person cannot automatically immigrate through his or her new spouse. The person must prove to USCIS by “clear and convincing evidence” that the marriage is bona fide. This means that the couple will certainly face a marriage fraud interview. If the person cannot do this, he or she must live outside the United States for two years before immigrating. 28 Example: On April 7, 2008, ICE issued a Notice to Appear against Roberto. He married a U.S. citizen on May 1, 2009, while waiting for his first immigration court hearing. Roberto’s wife has the burden of proving by clear and convincing evidence that the marriage is bona fide. If she cannot, Roberto will not be able to immigrate through his wife until he has left the United States and lived in another country for two years. How is this different from any marriage petition? USCIS can challenge any couple to prove that their marriage is bona fide. One difference is the legal standard of proof. Here the couple must offer very strong proof to show by “clear and convincing evidence” that the marriage is bona fide. Usually, the couple must only show this by a “preponderance of the evidence,” which is a lower standard of proof. 29 In addition, if the beneficiary spouse was previously ordered deported or removed, the filing of the petition makes it more likely that ICE will be notified and that the person could be called in for an interview and arrested and removed from the United States. B.

Did the Petitioner Immigrate through a Marriage within the Last Five Years?

A person who immigrated through a marriage may not file a visa petition to immigrate a new spouse for five years, unless the person can prove by “clear and convincing evidence” that the first marriage was bona fide. 30 This restriction does not apply if the first marriage ended because of the death of the spouse. Example: Wai-Lan immigrated in 2012 as the wife of a U.S. citizen. She and her husband divorced in April of 2014. She has remarried and wants to petition her new husband. It is now February of 2017. Because five years have not passed since she immigrated in 2012, Wai-Lan must prove that her previous marriage was not a sham in order to submit a visa petition on behalf of her new husband. If she waits until the five years have passed, she will not need to prove that unless the USCIS obtains evidence against her and makes a special challenge. C.

Has the Beneficiary Ever Tried to Commit Marriage Fraud?

Under INA § 204(c), a person cannot immigrate through any kind of visa petition (including employment-based visas) if USCIS finds that he has previously tried to immigrate by marriage fraud, or even tried to marry in order to commit immigration fraud.

28

INA § 204(g) and INA § 245(e)(3). A preponderance of evidence is often described as just enough evidence to make it more likely than not that the fact the person seeks to prove is true. 30 INA § 204(a)(2)(A). 29

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Example: In 2000, Ng admitted to INS that he had tried to commit marriage fraud. Now Ng’s U.S. citizen mother wants to petition for him. Ng cannot immigrate through any visa petition. D.

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Did (or Will) the Person Become a Permanent Resident within Two Years of the Date That He or She Married the Petitioner?

Many people who immigrate through a marriage will only be granted “conditional permanent residency.” This applies to persons who actually immigrate (not just file a visa petition) through a marriage within two years of the date of the marriage.

E.

Did the Person Immigrate through the Spouse within Two Years of Getting Married and Then Did the Marriage End within Two Years of the Date That the Person Was Lawfully Admitted for Permanent Residence to the United States?

If so, INA § 237(a)(1)(G)(i) creates a presumption of removability. To avoid being removed, the person must prove that his or her marriage was not a fraud. Example 1: Rhonda married her U.S. citizen husband Sam in England on March 1, 2010. Sam immediately filed a visa petition for Rhonda, the petition was approved, and Rhonda obtained an immediate relative spouse immigrant visa at the U.S. embassy in London. Rhonda then was admitted to the U.S. and entered the country on September 1, 2010, and was admitted as a conditional lawful permanent resident. On January 1, 2012, Rhonda and Sam filed for divorce and the divorce was final on July 15, 2012. Is Rhonda deportable for marriage fraud? Possibly. ICE may issue an NTA alleging marriage fraud and Rhonda will have the burden of proving that she did not marry “for the purpose of avoiding any provisions of the immigration laws.” Also note that her CLPR status will be terminated by USCIS upon knowledge of the divorce, but reinstated if Rhonda applies for a waiver. If the waiver is denied, ICE could allege that Rhonda is deportable both because her conditional residence has terminated, and [“and” also in italics or underlined] because ICE believes Rhonda committed marriage fraud. Example 2: Rhonda and Sam married on March 1, 2010 in England, Rhonda obtained the same immediate relative spouse visa, was admitted and entered the U.S. on September 1, 2010 as a CLPR, but she and Sam divorced on October 1, 2012. Is Rhonda deportable for marriage fraud? Not on the basis of 237(a)(1)(G)(i), since the divorce occurred more than two years subsequent to Rhonda’s admission to the U.S. A person will also be found deportable under § 237(a)(1)(G)(ii) if he or she fails to “fulfill the alien’s marital agreement” and the marriage was made for immigration purposes. Here ICE will

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In order to keep their permanent resident status, conditional residents and their spouses must file an application to remove the conditional status of their residence within the ninety-day period before their status expires. USCIS will then determine whether they wish to interview the couple or waive the interview. There are some exceptions to this rule that allow conditional residents to apply for a waiver to remove the conditional status on their own where the marriage has ended or the conditional spouse has been abused or the conditional resident would suffer extreme hardship if he or she had to leave the United States. Conditional residency is discussed in Chapter 3.

be trying to deport an immigrant who has fooled a lawful permanent resident or U.S. citizen spouse into thinking the marriage is real and then deserts them or in other ways does not have a marital relationship. Remember, marriage fraud is considered a serious crime. Both spouses face a possible prison sentence of up to 5 years and fines of up to $250,000. 31

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§ 2.18 Appealing a Denial by USCIS of an I-130 Petition If USCIS denies an I-130 petition, the petitioner may appeal to the BIA. In cases where the BIA upholds the USCIS determination and dismisses the appeal, the next appeal should be filed in federal district court, not federal appeals court. The Second Circuit, for example, transferred a petition to review a denial by USCIS to the district court, holding that while it did not have jurisdiction to consider the case, the district court did have jurisdiction. 32

31

INA § 275(c). See Ruiz v. Mukasey, 552 F. 3d 269 (2nd Cir. 2009); see also Ayanbadejo v. Chertoff, 517 F. 3d 273 (5th Cir. 2008). 32

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CHAPTER 2 SUBMITTING THE PETITION

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INDEX OF APPENDICES Sample Completed I-130

Appendix 2-B

Form I-94

Appendix 2-C

Filing Freedom of Information (FOIA) Requests

Appendix 2-D

Sample Completed I-130A

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APPENDIX 2-C FILING FREEDOM OF INFORMATION ACT (FOIA) REQUESTS

U.S. Citizenship and Immigration Services (USCIS) USCIS is the most common place to submit an immigration-related FOIA request because it keeps records of applications and decisions and often has the individual’s A-file. Do not submit a FOIA request to your local USCIS office, Service Center, or Lockbox. USCIS processes all FOIA requests at the National Records Center. The request can be submitted by letter request; Form G639 by email, mail, or fax; or by using the electronic DHS submission form. Mail: U.S. Citizenship and Immigration Services National Records Center, FOIA/PA Office PO Box 648010 Lee’s Summit, MO 64064-8010 Electronically: www.dhs.gov/dhs-foia-request-submission-form Email: [email protected]. Fax: (816) 350-5785 or (802) 288-1793. Immigration and Customs Enforcement (ICE) To request ICE records, which include immigration arrests, detention, and bond information, submit Form G-639 by mail, fax, or email; or electronically through the ICE online form or through the DHS Online Request Form. Mail: USICE Freedom of Information Act Office 500 12th Street, SW, Stop 5009 Washington, DC 20536-5009 Note: if the request is submitted other than through the online form, ICE requires that an “Affirmation/Declaration” form be included, which is available at http://www.ice.gov/doclib/about/pdf/affirmation-declaration.pdf. Electronically: www.ice.gov/webform/foia-request-form or www.dhs.gov/freedom-information-act-foia Email: [email protected] Fax: (202) 732-4265. Please note, all requests to ICE must include a daytime phone number.

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The Freedom of Information Act (“FOIA”) entitles every person access to certain information from the federal government. A person can file a request under this act, called “a FOIA request,” to any federal agency to request documents about herself or others. See below for details about how to submit a request to each of the key immigration-related agencies. For a more thorough explanation of the FOIA process and other mechanisms to conduct background checks, see ILRC’s manual FOIA Requests and Other Background Checks.

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Customs and Border Protection (CBP) To obtain records about entries and border incidents from CBP, submit an online request by going to https://foiaonline.regulations.gov/foia/action/public/request/publicPreCreate.

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CBP currently processes FOIA requests differently than other DHS agencies. CBP only accepts requests through the online link above. Form G-639 is not required and in fact may not be accepted except as a supporting document to the online submission. If you are looking for records of border entries and exits, it is prudent to file a FOIA request with OBIM (formerly US-VISIT) as well, because they two may have different information on file. Office of Biometrics Identity Management (OBIM) In cases where information is needed about entries and exists, you may also want to submit a FOIA request to OBIM (formerly US-VISIT). You can submit a FOIA request to OBIM by letter request; Form G-639 by email, mail, or fax; or by using the electronic DHS submission form. OBIM indexes its records by fingerprint, so to maximize the records you receive, include an FBI fingerprint card (FD-258). Mail: U.S. Department of Homeland Security 245 Murray Lane SW STOP-0628 Washington, DC 20528-0628 Electronically: www.dhs.gov/dhs-foia-request-submission-form Email: [email protected] Fax: (202) 298-5201

Appendix 2-C-2

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Chapter 2

Appendix 2-D-1

Chapter 2

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Appendix 2-D-2

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Chapter 2

Appendix 2-D-3

Chapter 2

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Appendix 2-D-4

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Chapter 2

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Appendix 2-D-6

CHAPTER 3 ADJUSTMENT OF STATUS AND CONDITIONAL RESIDENCE

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This chapter includes: § 3.1 § 3.2 § 3.3 § 3.4 § 3.5

§ 3.15 § 3.16 § 3.17 § 3.18 § 3.19 § 3.20 § 3.21 § 3.22 § 3.23 § 3.24 § 3.25 § 3.26 § 3.27 § 3.28 § 3.29 § 3.30

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§ 3.6 § 3.7 § 3.8 § 3.9 § 3.10 § 3.11 § 3.12 § 3.13 § 3.14

What Is Adjustment of Status? ........................................................................... 3-2 Who Is Eligible for Adjustment of Status Based on a Family Petition? ................................................................................................. 3-2 Red Flags: Identifying Potential Risks to Adjustment ....................................... 3-3 245(a): Adjustment for Those Who Were Inspected & Admitted or Paroled and Meet Other Requirements............................................................... 3-4 Section 245(i): Adjustment for Those Who Entered without Inspection or Do Not Qualify for § 245(a) Adjustment ..................................... 3-8 The Three- and Ten-Year Bars and Adjustment of Status ............................... 3-15 Preparing and Submitting the Adjustment Packet ............................................ 3-16 The Effect of Leaving the Country................................................................... 3-21 What Will Happen at the Adjustment Interview? ............................................ 3-21 The Decision: Approvals and Denials .............................................................. 3-24 Marriage-Based Cases and Conditional Residence .......................................... 3-26 What Is Conditional Permanent Residency? .................................................... 3-26 Who Is a Conditional Permanent Resident? ..................................................... 3-27 Removal of Conditional Residency if the Marriage Still Exists after Two Years: The I-751 “Joint Petition”............................................................. 3-28 When to File the I-751 Joint Petition ............................................................... 3-29 Completing the I-751 Joint Petition ................................................................. 3-31 Application Procedure: Filing, Extension of Status, and Interview ................. 3-33 Denials and Appeals ......................................................................................... 3-34 Termination of Conditional Residency by USCIS during the “Testing Period”.............................................................................................................. 3-35 Introduction to Waivers of the I-751 Joint Filing Requirement ....................... 3-37 When to File ..................................................................................................... 3-37 How to File a Waiver ....................................................................................... 3-38 The “Good Faith” Waiver ................................................................................ 3-39 How to Show Extreme Hardship ...................................................................... 3-39 The Battery or Extreme Cruelty Waiver .......................................................... 3-41 Proof of Battery or Extreme Cruelty ................................................................ 3-41 Additional Help for Battered Spouses and Children ........................................ 3-42 Filing a Waiver if the U.S. Citizen or Permanent Resident Spouse Has Died ........................................................................................................... 3-42 Dependent Sons and Daughters ........................................................................ 3-43 Failing Marriages and Waivers ........................................................................ 3-44

PART ONE: ADJUSTMENT OF STATUS TO LAWFUL PERMANENT RESIDENT There are two ways to become a permanent resident based on a family visa petition: through consular processing at a U.S. consulate abroad (usually in the person’s home country), or through adjustment of status at a USCIS office in the United States. In Chapter 4 we will look at the rules and procedures for consular processing. In this chapter we will examine how a person can immigrate through adjustment of status in the United States. First, we will discuss who is eligible to apply for adjustment of status. Next, we will look at the adjustment process, how to prepare an application, and what will happen at the adjustment interview. § 3.1

What Is Adjustment of Status?

Any time a person becomes a permanent resident without leaving the United States, she goes through an “adjustment” of immigration status. This is true for people who immigrate through almost any means, including family visa petitions, asylum, cancellation of removal and U visas. In contrast, when one changes from one non-immigrant status to another in the United States, that change is made through a “change of status.” Becoming a permanent resident in the United States, regardless of the person’s prior immigration status, is adjustment of status.

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Example: Li entered the Unites States on a tourist visa and married a U.S. citizen who has filed a visa petition for him. Li may apply for adjustment of status to permanent residence. 1 Kwame was granted political asylum. After one year with asylum status, he may submit an application to adjust status to permanent residence. 2 Each kind of adjustment application has its own eligibility rules, procedures, and forms. Also, different kinds of adjustment applications permit waivers for different grounds of inadmissibility. This section will focus only on adjustment of status to permanent resident based on a family visa petition under INA § 245. 3 All of the rules discussed here apply to this common form of adjustment application. 4 Consult other ILRC manuals for more information about the adjustment process for those with a U visa, VAWA, asylum, etc. at www.ilrc.org/publications. § 3.2

Who Is Eligible for Adjustment of Status Based on a Family Petition?

There are two kinds of adjustment of status for family-based immigrants: 1. INA § 245(a): Under INA § 245(a) people who entered the U.S. after being inspected and admitted (or who were paroled into the U.S.) and who meet other requirements may process their permanent resident adjustment in the United States. In addition to persons 1

See 8 CFR § 245. See 8 CFR § 209.2. 3 See INA § 245, 8 CFR § 245. 4 Note that these same rules apply to employment-based adjustment, diversity visa adjustment and some other less common means of immigrating to the U.S., which are not discussed in this manual. 2

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who were not admitted after being inspected by immigration officials, others may be ineligible for adjustment pursuant to INA § 245(a) due to the bars listed under INA § 245(c).

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2. INA § 245(i): Under INA § 245(i) people who entered without inspection or who are otherwise ineligible for adjustment through INA § 245(a), may adjust their status if any qualifying family member or employer filed an approvable petition or labor certification on their behalf on or before April 30, 2001. With some exceptions, people who adjust status under § 245(i) must pay a penalty fee of $1,000 in addition to the regular application fees. Note the Following General Rule: INA § 245(c) contains certain bars to adjustment for people who have failed to maintain lawful status, worked without authorization, or fall in to certain other categories. However, these bars do not apply to an immediate relative who entered with inspection and who is otherwise eligible for adjustment of status. Such an immediate relative can adjust under § 245(a) even if she is out of status or has worked without authorization. But someone in a preference category, even if she entered with inspection and is otherwise eligible for adjustment, cannot adjust under § 245(a) if she has fallen out of status or has worked without authorization. See below for a more detailed explanation.

Adjustment of status is granted in the “discretion” of the USCIS. When a benefit is “discretionary,” the adjudicator may deny the application even though the person meets the basic eligibility requirements. Although USCIS has at times denied adjustment of status based on a discretionary assessment of factors it considers adverse, it generally grants adjustment to those who meet the eligibility requirements. Should Your Client Adjust? Several factors should be taken into consideration when deciding whether to adjust status or go through consular processing. Generally, it is better to adjust status because: (1) it allows the applicant to stay in the United States; (2) avoids triggering the 3- and 10-year bars (which are triggered by departure from the United States); and (3) provides an appeals or review process (there is no appeals process for consular processing). § 3.3

Red Flags: Identifying Potential Risks to Adjustment

Prior Deportation or Removal. Individuals who reentered the U.S. illegally after a removal or deportation might be barred from adjusting status because INA 212(a)(9)(C), an inadmissibility ground for those that have illegal re-entered after a removal order or unlawful presence. See Chapter 5 for more information. Filing such an application will put such an applicant at risk because they are likely also subject to “reinstatement of removal,” which makes them subject to immediate removal pursuant to the prior order.5

5

See INA § 241(a)(5).

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Section 245(a) adjustment has two major advantages over § 245(i) adjustment. People who are able to qualify for § 245(a) adjustment do not have to pay the $1,000 penalty fee. Also, § 245(a) adjustment does not require that the applicant be the beneficiary of an immigrant visa petition or labor certification filed on or before April 30, 2001.

Reinstatement of removal applies to persons who reenter the United States illegally after having been removed. It also applies to persons who left with voluntary departure following a hearing before an immigration judge. 6 It also applies to those who have been removed through expedited removal, which occurs when ICE or CBP administratively removes a person at the border or an airport. Unfortunately, reinstatement of removal applies no matter how long ago the prior removal or deportation occurred. There is a narrow exception for those who had taken steps to apply for status before April 1, 1997. PRACTICE TIP: If the applicant has any history of contact with the INS, USCIS, ICE, or CBP, do an FBI fingerprint check and a Freedom of Information Act (FOIA) request. If you have any doubt about your ability to assess the record and its effects, refer the applicant to a practitioner with greater expertise. There may be some options available, even for clients with prior removal orders, such as motions to reopen due to ineffective assistance of prior counsel. Those with very old orders might still be adjustment eligible. It is important to check with an expert. Do not put your client at risk of arrest and removal.

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Criminal Record. If the applicant has any criminal history, be sure you have reviewed it carefully and, if necessary, refer the applicant to a practitioner with sufficient expertise to give advice on its effect. Intent at Entry and Visa Fraud. If the applicant entered with a non-immigrant visa, carefully review her intent at the time of entry and what she said at the consulate when applying for the visa and/or at the border at the time of entry to see if there is any indication of a material misrepresentation which might constitute visa fraud. Starting a job or getting married to a U.S. citizen right after entry with a non-immigrant visa is a red flag to officers that the person might not have intended to be a visitor at the time he or she entered, and could have made a misrepresentation; advocates should explore this issue. Unlawful Presence Bars. A history of entries and exits, especially after periods of time without status, may have triggered unlawful presence bars. In particular, persons should not apply for adjustment if they are subject to the permanent bar of § 212(a)(9)(C). See a detailed overview in Chapter 5. Alien Smuggling. Assisting anyone to enter the United States unlawfully, including a relative, can make an applicant ineligible for permanent residence even if the person was not stopped by immigration authorities or arrested for doing so. Other. See a full discussion of other grounds of inadmissibility in Chapter 5. § 3.4

245(a): Adjustment for Those Who Were Inspected & Admitted or Paroled and Meet Other Requirements

Section 245(a) of the INA sets out the basic requirements to adjust status in the U.S. through family-based immigration. After meeting those basic requirements, the person must not be barred from adjusting under INA 245(c), the grounds of inadmissibility or any other provision. 6

Gallo-Alvarez v. Ashcroft, 266 F.3d 1123, 1128-29 (9th Cir. 2001).

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INA § 245(a) requires that a person must have been inspected and admitted or paroled into the U.S. in order to benefit from adjusting status while in the United States. 245(c) requires that a person have maintained lawful status and never worked without authorization. Luckily, immediate relatives are exempt from the 245(c) requirements.

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Looking at the requirements of INA § 245(a) in conjunction with § 245(c) bars, people may adjust status in the United States so long as they: 1. Can prove that they were admitted and inspected to the U.S. (did not enter illegally) or were paroled into the U.S.; 2. File an immediate relative visa petition with an adjustment application, or already have an approved visa petition; 3. Are immediately eligible to immigrate. This means that the applicant is an immediate relative of a U.S. citizen, or, if in the preference system, has a current priority date (see Chapter 1); 4. Either: a. Are the beneficiary of an immediate relative petition (as the spouse, parent or minor child of a U.S. citizen) OR

These provisions are found at INA § 245(a) and (c). Immigration practitioners refer to this kind of adjustment as “§ 245(a) adjustment,” to distinguish it from adjustment under § 245(i) as well as other forms of adjustment. Below are some of the most common scenarios by which people are eligible to adjust status under § 245(a) through an immediate relative. But remember, there are numerous factors to determine whether a person is admissible and eligible to become a permanent resident (see Chapter 5 for an overview of inadmissibility), but the manner of entry is key. A.

Inspected and Admitted or Paroled 1. Admitted to United States with a visa

Those adjusting through an immediate relative who were admitted to the U.S. on a visa are generally eligible to adjust status under 245(a). Example: Juana entered the United States five years ago with a tourist visa and had permission to stay for 6 months. She has not left since that date. She has worked without a work permit. She just married Rodrigo, who is a U.S. citizen, so she is eligible to immigrate as an immediate relative. Under the rules given above, can Juana adjust status under INA § 245(a)?

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Even if the person worked without authorization on a previous trip to the U.S., they are barred from adjusting pursuant to 245(c).

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b. Have never worked without employment authorization, been out of lawful immigration status or fall within the other, less common, § 245(c) bars to adjustment. 7

Yes, under the rules as stated above, Juana can adjust under § 245(a). She entered the United States legally, and she is eligible to immigrate right away as an immediate relative. She lost her lawful immigration status after her stay expired and she worked without authorization. That does not matter, however; these requirements do not apply to Juana since she is immigrating as an immediate relative of a U.S. citizen. 8 In some cases, even when a person enters the United States on someone else’s visa or on a false visa, they still may be able to adjust under 245(a) and apply for a waiver for visa fraud. See Chapters 5 and 6 for a discussion. 2. “Wave through” by immigration agents at the border

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There are cases where a person does not have a valid visa but presented herself at a land border crossing and was allowed to enter by immigration authorities without being questioned. Practitioners often refer to this as a “wave through” because the person went to a point of entry and was permitted to enter without being asked for documents. The BIA case Matter of Quilantan found that such an entry constitutes a valid entry for purposes of adjustment under 245(a). 25 I&N Dec. 285 (BIA 2010). The standard for a ‘lawful entry’ for purposes of adjustment is that the person made a procedurally regular entry, even if not legally valid. Non-citizens who present themselves for inspection at a port of entry and are allowed to enter, even if they were not questioned by immigration agents or in possession of valid entry documents, are considered lawfully admitted so long as they did not claim to be a U.S. citizen. Applicants applying for 245(a) adjustment based on a ‘wave through’ entry bear a heavy burden of proof that they were admitted in the form they describe. This should include a detailed declaration by the applicant describing the exact process of the ‘wave through’, declarations from others who were witnesses or had contemporaneous knowledge of the entry, any travel documents from that time, evidence of physical presence in the United States on and around the date of entry, and other primary or corroborating evidence. 9 Remember, an applicant cannot claim a lawful entry in this way if they made a false claim to U.S. citizenship at the time of entry. See Chapter 5 for more details. 3. Parole pursuant to advance parole Some people who have some form of protection from deportation, such as Deferred Action for Childhood Arrivals (DACA) or Temporary Protected Status (TPS) are eligible to apply for advance parole by filing a Form I-131. Once the person travels abroad with a valid grant of advance parole and is paroled back in to the United States, the parole entry is recognized as a valid entry for purposes of adjustment under 245(a). This means that someone who originally entered the United States without inspection (EWI) and later travels on advance parole can become eligible to adjust under 245(a). This is based on the BIA decision in Matter of Arrabally and Yerrabelly. 10 These applicants must of course also have an approved visa petition and a current priority date and must not be barred from adjustment for other reasons found in INA 8

INA § 245(c)(2). See USCIS Policy Manual Volume 7 Part B, Chapter 2, A7. Available at: www.uscis.gov/policymanual/HTML/PolicyManual-Volume7-PartB-Chapter2.html. 10 Matter of Arrabally and Yerrabelly, 25 I&N Dec. 771 (BIA 2012). 9

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§ 245(c), such as having worked without authorization or overstaying a visa, unless they are immediate relatives. Example: Clifton entered the United States without inspection in 2001 at the age of eight. In 2013 he was granted DACA, which he has renewed ever since. In 2016 he traveled on advance parole to visit his sick grandfather in Jamaica. He recently married his boyfriend Tomas, a U.S. citizen.

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Under the rules given above, can Clifton adjust status under INA § 245(a)? Yes, under the rules as stated above, Clifton can adjust under § 245(a). While he initially entered the United States without inspection, his subsequent parole entry pursuant to advance parole makes him eligible to adjust under 245(a). As an immediate relative, he is not subject to the bars at 245(c). 4. Admitted pursuant to TPS

5. Parole in place for military families A type of parole recognized for people who have not left the United States is called “parole in place.” Parole in Place is only available to the undocumented spouses, children, and parents of people currently serving or who have served in the U.S. armed forces or reserves. 11 Parole in place grants those relatives deferred action status and makes them eligible for employment authorization. For those relatives who are beneficiaries of an immediate relative visa petition, it also allows them to apply for adjustment of status in the United States without triggering a ground of inadmissibility. Parole in place ‘cures’ an unlawful entry making the relative eligible to adjust under INA 245(a) if otherwise eligible. 12 Parole in place can be requested by filing an I-131 application for a travel document with the requisite documentation. Parole in place is discretionary and the presence of adverse factors, such as a criminal record, can result in a

11

DHS, Families of U.S. Armed Forces Members and Enlistees (Nov. 20, 2014), available at www.dhs.gov/sites/default/files/publications/14_1120_memo_parole_in_place.pdf. 12 USCIS Policy Memorandum, Parole of Spouses, Children and Parents of Active Duty Members of the U.S. Armed Forces, the Selected Reserve of the Ready Reserve, and Former Members of the U.S. Armed Forces or Selected Reserve of the Ready Reserve and the Effect of Parole on Inadmissibility under Immigration and Nationality Act § 212(a)(6)(A)(i) (Nov. 15, 2013), available at www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/2013/2013-1115_Parole_in_Place_Memo_pdf.

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As outlined above, a TPS recipient can apply for and travel on advance parole, and thus secure a valid entry for a § 245(a). However, in two federal circuits TPS in itself constitutes a lawful admission for purposes of 245(a) adjustment. The Sixth and Ninth circuit courts of appeal have ruled that someone with TPS status who initially entered without inspection may then apply for adjustment of status as an immediate relative by virtue of being in TPS status. In Ramirez v. Brown, 852 F.3d 954 (9th Cir. 2017) and Flores v. USCIS, 718 F.3d 548 (6th Cir. 2013), a grant of TPS was found to constitute an “admission” for purposes of adjustment of status under section 245(a). As a result, those with TPS who initially entered without inspection (EWI) satisfy the “inspected and admitted or paroled” statutory requirement. For TPS recipients residing outside of these two circuits, advance parole, as outlined above, remains available.

denial. 13 Parole in place is granted for one year but the applicant can apply for parole again at the end of that period. NOTE: People with an approved VAWA self-petition are allowed to adjust status in the United States under INA § 245(a) without showing they were inspected and admitted. 14 VAWA also exempts them from the bars at INA § 245(c). Therefore, approved VAWA self-petitioners should be allowed to adjust status in the United States, even if they originally entered without inspection. 15 For more information on VAWA, see Chapter 7. B.

Bars to Adjustment at § 245(c) for Applicants in a Preference Category

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While INA § 245(a) sets out the basic requirements to adjust status, INA § 245(c) contains a list of bars to adjustment. Importantly, these bars to do not apply to immediate relatives. However, applicants in one of the preference categories are subject to these bars. That means anyone other than the spouse, child, or parent of a U.S. citizen has to overcome these bars in order to adjust status in the United States, even if they entered with a visa. The most common bars included at § 245(c) include failing to maintain lawful status, violating the terms of a nonimmigrant visa, and working without authorization. As a result, if one of these bars applies to a beneficiary in one of the preference categories, even if she entered with inspection and the priority date of her petition is current, she is not eligible to adjust status in the United States. There are other, less common grounds in this provision, see INA § 245(c) for a complete list. In sum, a regular family adjustment process is only possible if someone does not come within the § 245(c) bars. Because immediate relatives are exempt from the 245(c) bars, immediate relative are more likely to adjust under § 245(a). Practically speaking, those in the preference categories usually will need to qualify for § 245(i) or to consular process. See below and Chapter 4 for more information about those options. § 3.5

Section 245(i): Adjustment for Those Who Entered without Inspection or Do Not Qualify for § 245(a) Adjustment

Section 245(i) is a special provision that allows those that entered without inspection and/or fall within the bars of § 245(c) to adjust, provided they meet the requirements and pay a $1000 fee. Congress chose to not to continue this practice of allowing individuals to pay a penalty when they cannot meet these requirements. Thus, this special option is only available to those that can show they could be considered a beneficiary of a petition or labor certification filed on or before April 30, 2001. Determining who is eligible to benefit from this provision now can be complicated. Nonetheless, it is important to screen our clients thoroughly because this provision might result in 13

See USCIS Adjudicator’s Field Manual Chapter 21.1(c). Other types of adjustment, such as for those with Special Immigrant Juvenile Status, are also subject to special carve outs of the general rules regarding inspected and admitted that govern family-based cases. Be sure to consult the requirements for adjustment specific to your client’s basis for eligibility. 15 See Aytes memo, April 11, 2008, “Adjustment of Status for VAWA self-petitioner who is present without inspection: Revision of Adjudicator’s Field Manual (AFM) Chapter 23.5,” which can be found in 85 No. 17 Interpreter Releases 1272 (April 21, 2008) attached as Appendix 7-A. 14

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permanent status for someone who appears to have no options. This section discusses the basic requirements for § 245(i) adjustment, including the April 30, 2001 and January 14, 1988 filing deadlines;(2) who can adjust now pursuant to a different petition than the original, a process known as “grandfathering;” (3) derivative beneficiaries and § 245(i), and (4) the additional fee requirement for § 245(i). A.

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Who May Apply for Adjustment under § 245(i)?

Who Can Benefit? Under § 245(i), the following noncitizens can apply to adjust status to permanent residency (if they meet the other § 245(i) requirements): • • • •

People who entered without inspection; People who are not immediate relatives of a U.S. citizen and who overstayed a nonimmigrant visa or worked illegally; People who entered in transit without a visa; People who are “alien crewmen.”

To adjust under § 245(i) the applicant must be immediately eligible to immigrate, i.e., must be the beneficiary of an immediate relative visa petition or a preference petition with a current priority date. The person must not be inadmissible, or if inadmissible must be eligible for and granted a waiver of inadmissibility.

B.

Key Dates: By What Date Must the Petition or Labor Certification Application Have Been Filed?

The initial 245(i) provision ended in 1998. Subsequently 245(i) was extended, with certain additional requirements. Congress ended the extensions of § 245(i) adjustment in 2001. Therefore, § 245(i) adjustment is only available to beneficiaries of an immigrant visa petition (Form I-130 or I-140) or labor certification application that was filed on or before April 30, 2001. Under the initial 245(i) provision, adjustment is available to beneficiaries of petitions or labor certifications filed on or before January 15, 1998. This was later extended), with additional requirements, to beneficiaries of petitions filed between January 15, 1998 and April 30, 2001. To be eligible for § 245(i) adjustment, these persons must also demonstrate that they were physically present in the U.S. on December 21, 2000. This additional physical presence requirement does not apply where the petition was filed before January 15, 1998.

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See 8 CFR § 245.1(c)(5).

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PRACTICE TIP: Who is not eligible for § 245(i)? A noncitizen who was admitted as a K-1 fiancé but did not marry the U.S. citizen petitioner is not eligible to adjust, even under § 245(i). See Appendix 3-A, which is a chart comparing the adjustment provisions of § 245(a) and § 245(i). A K-3 spouse cannot use § 245(i) to adjust through someone other than the U.S. citizen petitioner through whom he or she obtained K-3 status. Other individuals are also prohibited from § 245(i) adjustment, such as those in conditional permanent resident status. 16

Mailed petitions are considered to be timely filed if postmarked on or before April 30, 2001.17 The Ninth Circuit held that you cannot make the claim that your client did not file timely under § 245(i) due to ineffective assistance of counsel. 18 Example: Juan is an LPR who submitted an I-130 for his wife Aria in 1997. Aria entered the U.S. without inspection in 1995. Since the I-130 was submitted before May 1, 2001, Aria is eligible for adjustment under § 245(i). She is not eligible for 245(a) because she entered without inspection. Aria does not need to establish physical presence in the U.S. on December 21, 2000 because Juan filed the I-130 before January 15, 1998. Example: Charlie is a U.S. citizen who married Louisa in 1997, but he did not submit an I-130 petition for her until May 23, 2012. Louisa entered the United States without inspection in 1996. Louisa is not eligible for § 245(i) adjustment because her I-130 was filed after April 30, 2001. Nor is she eligible for § 245(a) adjustment of status since she did not enter with inspection. Therefore, Louisa must do consular processing in order to immigrate. (Note that she will need to file for a waiver of the ten-year bar for “unlawful presence” if she leaves the country to do consular processing. For more information on this waiver, see Chapters 5 and 6.)

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Despite efforts to persuade Congress to permanently reinstate § 245(i) adjustment of status for those with immigration violations, it does not appear that this will happen in the near future. People who adjust under § 245(i) must file Supplement A to Form I-485 along with the regular Form 1-485. Additional regulations on § 245(i) adjustment are found at 8 CFR § 245.10. C.

Special Cases: Adjusting Pursuant to a Different Visa Petition; the “Approvable at Filing” Rule

The government stated in memoranda 19 that a beneficiary of any immigrant visa petition or labor certification filed by the 245(i) deadline may adjust under § 245(i), even if the adjustment is pursuant to a different I-130 petition. USCIS refers to this interpretation as the “alien-based” reading of the statute because eligibility for § 245(i) grandfathering attaches to the person rather than to a particular petition. To take advantage of this, the original petition must have been approved (or was approvable when it was filed). If the person can show they were a proper beneficiary of such a petition filed on or before April 30, 2001, then they can adjust through a new petition. In order to adjust now, the new visa petition must be current or filed by an immediate relative. For an overview of at 8 CFR § 245.10. Example: Lamar, a USC, petitioned for his brother Teo in 1997. Teo, who entered the U.S. without inspection, married Lana, who is also a USC, in May 2013. Lana then submitted an immediate relative petition for Teo. Although the second I-130 (the one Lana submitted for Teo) was submitted after April 30, 2001, USCIS will allow Teo to adjust in the United States under 245(i) because the petition Lamar filed for Teo was pending prior to the April 30, 2001 deadline. 17

See 8 CFR § 245.10(a)(2)(i). See Balam-Chuc v. Mukasey, 547 F.3d 1044 (9th Cir. 2008). 19 See then-INS memoranda dated January 26, 2001, June 10, 1999; and April 14, 1999, currently posted at www.uscis.gov/files/pressrelease/245i.pdf, or in issues of Interpreter Releases published during that period. 18

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This “alien-based” approach is helpful in situations like that of Teo, above, where his original petition had a long backlog but his later petition would make a visa immediately available. It allows him to take advantage of the petition filed on or before April 30, 2001 to adjust status in the United States under § 245(i), but it also gives him the advantage of the shorter wait to immigrate under the new visa petition.

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It also helps those that can no longer use the original petition due to a change in circumstances. A petition filed by April 30, 2001 only had to be “approvable when filed” and not at the time of the current adjustment. Thus, if the beneficiary was eligible at the time of the original filing and later became ineligible for that petition, they are still “grandfathered” under § 245(i), even if there is no longer a basis to immigrate under the old I-130 petition. In these cases, the person would show the old petition for proof they are protected under § 245i, then file an adjustment in conjunction with a new, valid petition. 8 CFR § 245.10(a)(1) provides the definition of a “grandfathered alien.” Example: Tran, an LPR, petitions for his unmarried daughter Nicole in 1995. Nicole, who entered with a visitor’s visa that has now expired, marries an LPR in June 2010. As a result of her marriage, the petition filed by her LPR father is void. Her LPR husband files an I-130 for her in the month they marry. Can she adjust status?

The memorandum and the regulations recognize that even if a petition is denied, it may have been approvable when filed. Thus, the beneficiary of an I-130 filed by April 30, 2001 that USCIS later denied due to insufficient documentation may submit the missing documentation later to prove the petition was approvable when filed and that she is eligible to adjust under § 245(i), but those documents must pertain to the circumstances or documents that existed at the time of filing, such as a valid parent-child relationship or a missing birth certificate. 20 However, if the original I-130 had been denied either because it was submitted without the proper fee or for a non-qualifying individual (for example, a citizen trying to petition a cousin) or because it was fraudulent, the person will not qualify to adjust under § 245(i) because the application was not “approvable when filed.” Example: Jana (a USC) filed a family visa petition on October 12, 1996 for her brother Larry who had entered the U.S. without inspection. She forgot to include a copy of her brother’s birth certificate to establish that she and Larry were siblings. She moved and did not receive the notice from USCIS for additional evidence. When USCIS did not get a response from her regarding the additional information, they denied the petition. Larry married a United States citizen in June 2015 who just filed a petition for him. Is there anything that can be done so that Larry can adjust under § 245(i)?

20

See Ogundipe v. Mukasey, 541 F.3d 257 (4th Cir. 2008); see also Linares Huarcaya v. Mukasey, 550 F.3d 224 (2nd Cir. 2008).

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Yes. Nicole was an eligible beneficiary of an I-130 petition filed by her father at the time he petitioned for her. Because her father’s petition was “approvable when filed,” Nicole is “grandfathered” or protected under § 245(i). By being “grandfathered” by the original petition, Nicole is able to take advantage of 245(i) adjustment based on a new petition filed after the § 245(i) deadline of April 30, 2001.

Yes, according to the memo and regulations, Larry can submit the receipt from the original I-130, and the needed information to demonstrate that it was approvable as a sibling petition. This would result in him being protected or ‘grandfathered’ by his sister’s petition and permit him to submit his application for adjustment of status based on the second petition his USC wife filed on his behalf. PRACTICE TIP: It is the applicant’s burden to prove that he or she qualifies for § 245(i) adjustment as a person for whom a petition was filed on or before April 30, 2001. Therefore, it is up to the applicant to produce the prior petition receipt or approval notice that establishes his or her eligibility for § 245(i) adjustment. If your client has lost his or her copy of an I-130 receipt or approval notice (Form I-797) you can obtain a duplicate replacement by filing an I-824 or Freedom of Information Act Request with the Service Center where the original I-130 petition was filed. However, the petitioner must sign these requests, since the petition was filed by and “belongs” to the “petitioner” not the “beneficiary.” If the petitioner is deceased, a spouse, child, or perhaps another relative can make the request together with a copy of the death certificate of the petitioner. Also ask your client if she has kept the post office receipts for certified mail in order to verify that the petition was postmarked by April 30, 2001. If an original I-130 was not approved, it is the applicant’s burden to prove that it was “approvable” when filed.

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D.

Derivative Beneficiaries Qualify under INA § 245(i)

On March 9, 2005, USCIS issued another memorandum, reproduced in Appendix 3-B, clarifying the eligibility requirements for “derivatives” of those who are “grandfathered” under 245(i). Depending on the circumstances, a spouse or child of someone who is grandfathered under 245(i) may also be able to adjust status under 245(i). It discusses the following situations. 1. Spouse or child relationship that existed at time of filing If the principal beneficiary of an I-130 can demonstrate that a spouse or child relationship existed on or before April 30, 2001, then that spouse or child is grandfathered regardless of any subsequent changes in the relationship with the principal beneficiary. This means a spouse can remain grandfathered even after losing that marital status due to divorce or a child can remain grandfathered even after becoming 21 years of age. In such cases, the spouse or child who is grandfathered can still seek to adjust status under 245(i) in conjunction with a new petition. A person who could have been a proper derivative under the original petition is thus “grandfathered” and has their own 245(i) eligibility. This is true even if they weren’t listed on the petition, so long as the person can show they would have properly been considered a derivative at the time. For instance, a child can show a birth certificate, indicating age and parent relationship, even if they were not listed as a derivative on the original I-130. The relationship could have come into being after the initial filing of the petition, but before April 30, 2001, so long as that person could still have been added as a derivative at that time. See Matter of Estrada, 26 I&N Dec. 180 (BIA 2013). 2. Spouse or child relationship established after April 30, 2001, and in existence on the date that the principal beneficiary adjusts status In this situation, the spouse or child is not grandfathered and may not independently benefit from 245(i). Instead, the spouse or child may only benefit as the dependent of the principal beneficiary. 3-12

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Therefore, the qualifying relationship must continue to exist at the time the principal beneficiary adjusts status in order for the spouse or child to obtain the derivative benefit of 245(i). Additionally, the principal beneficiary must adjust status in a category that allows for derivatives.

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3. Spouse or child relationship established after the principal beneficiary adjusts status If the relationship comes into existence after the principal beneficiary with 245i has already completed an adjustment, the dependents cannot obtain any benefit from the principal’s 245i eligibility. In this situation, the spouse or child cannot adjust status under 245(i) unless they have some independent basis for grandfathering. 4. Effect of naturalization of the petitioner on derivative applicants The 2005 USCIS memorandum, reproduced in Appendix 3-B, clarifies that individuals who were “derivatives” of an I-130 petition when it was filed are still eligible for INA § 245(i) adjustment even if their relationship to the petitioner no longer exists, for example by divorce. When a petitioner naturalizes, the former derivative is still grandfathered under INA § 245(i), as long as the person was a valid derivative beneficiary of the principal beneficiary on the original I-130, and the petition was approvable when it was filed. In this situation the person is still grandfathered under INA § 245(i) even if they lose their derivative status. 21

YES, she can because her earlier derivative status was valid and the petition was approvable when it was originally filed and she would have a current visa as an immediate relative of her father. Note, however, that if Marta and Janira last entered the U.S. with inspection, they probably qualify for “regular” adjustment under INA § 245(a) and then would not need INA § 245(i) once they both became immediate relatives after Candido became a U.S. citizen. E.

Documenting Physical Presence for Beneficiaries of Petitions Filed between January 15, 1998 and April 30, 2001

Persons for whom visa petitions were submitted between January 15, 1998 and April 30, 2001 must also demonstrate that the principal beneficiary was physically present in the U.S. on December 21, 2000. The rule for satisfying this physical presence requirement is found at 8 CFR § 245.10(n).

21

See also 8 CFR § 245.10(a)(1)(i).

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Example: Candido, a lawful permanent resident at the time, petitioned his wife Marta in 2000. He didn’t petition for his daughter Janira because she was only one year old and he had been told that she could immigrate as a derivative of Marta’s application. In 2007, Candido became a U.S. citizen. Marta therefore became an immediate relative and as such, her children could not immigrate with her as derivatives. Candido has to submit a new I-130 petition for Janira since there are no derivatives for immediate relative petitions. Can Janira adjust under 245(i) even if her new I-130 petition will have a postApril 30, 2001 priority date?

Persons submit this documentation of physical presence as part of the adjustment application process. We recommend that practitioners urge their clients to obtain and keep this documentation in a safe place, so that it will be accessible when they are ready to adjust status. Example: Ramon, a U.S. citizen, filed an I-130 petition for his married daughter, Berta, in January 2001. Berta entered the United States without inspection from Mexico in March 1998, and has not left since then. Berta will need to submit evidence that she was physically present in the United States on December 21, 2000 in conjunction with her adjustment of status application. You advise Berta to find and keep evidence of her physical presence on December 21, 2000 now so that it will be available later when her priority date becomes current and she is therefore able to submit her adjustment application.

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The physical presence requirement does not apply to those that were derivative beneficiaries on the original I-130 petition, only the principal. This is also captured in the regulations at 8 CFR § 245.10(n). In practice, adjudicators ask someone who was a derivative to bring evidence of the principal beneficiary’s presence on December 21, 2000. Arguably, the regulation does not require a derivative to make this showing. Example: Akriti was the principal beneficiary of a petition filed by her USC brother in 1999. Akriti’s son Mahesh entered the United States in 2002. Mahesh can still qualify for 245i adjustment if he can prove that his mother, the principal beneficiary, was present in the United States on December 21, 2000. He is not required to provide his own physical presence on that date. The regulations provide a list of documents that can satisfy the physical presence requirement. The strongest type of evidence is documentation produced by the government or public agency, such as immigration documents, drivers’ license or state identification, public hospital records, public college or school transcripts, tax returns, etc. However, other non-government issued documents are also acceptable. These may include rent receipts, utility bills, pay stubs, credit card statements, among others. For a complete list of documents, see 8 CFR § 245.10(n) F.

Additional Fee Required for INA § 245(i) Adjustment Applications

There is a penalty for filing an adjustment under the § 245(i) law. With certain exceptions, people who adjust under this law must pay an extra $1,000 penalty fee, along with the regular application fee. The only exceptions to this are: 1. Children who are under 17 years old at the time of filing the adjustment application; and 2. Spouses and children (currently unmarried and under 21 years of age) of the petitioner who qualify for Family Unity and have submitted a Family Unity application. 22 The beneficiaries remain eligible for the waiver of the penalty fee when the petitioner, who is also the “legalized alien” on the Family Unity application, becomes a U.S. citizen. 23

22 23

See 8 CFR § 245.10(b). See 8 CFR § 236.11(3) and 8 CFR § 245.10(c)(2) and (c)(3).

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§ 3.6

The Three- and Ten-Year Bars and Adjustment of Status

In order to adjust status, a person must be admissible or, if the person is inadmissible, she must obtain a waiver of the ground of inadmissibility.

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In Chapter 5 we discuss the grounds of inadmissibility based on unlawful presence in the United States. There are several such grounds. Two of the most common are called the “three and tenyear bars.” People who have been unlawfully present in the United States for between 180 days and one year are inadmissible for three years if they depart the United States. People who have unlawful presence of one year or more are inadmissible for ten years if they depart the United States. These grounds were created by IIRIRA and went into effect on April 1, 1997. Unlawful presence in the United States before that date does not count toward these bars. And the bars are only triggered by a departure from the United States. There is a discretionary family waiver for spouses, and sons and daughters of U.S. citizens and permanent residents who would suffer extreme hardship if the waiver were not granted. Also, certain people considered “out of status” for some other purposes do not accrue “unlawful presence” for purposes of determining whether a departure triggers the three or ten year bar. These people include bona fide asylum applicants who have never worked without authorization, people with family unity protection, minors, approved VAWA self-petitioners and others. 24 This ground is discussed in more detail in Chapter 5 of this manual.

Example: Patrick is an American citizen. He met Mary in 2009 and they got married in June 2013. Mary entered the United States unlawfully in 1999 and has been here ever since. Patrick wants to help Mary gain permanent residence. She is not eligible for § 245(a) because she entered unlawfully and she is not eligible for § 245(i) because her family petition was not filed on or before April 30, 2001. Therefore, Mary will have to do consular processing. However, when she leaves the United States for her interview, she will become inadmissible under the ten-year bar because she resided unlawfully in the United States for over a year and has departed the United States. She will have to present an application for a provisional waiver in advance of her consular interview in order to overcome the ten-year bar. See Chapter 6 for a detailed discussion of the provisional waiver. Example: Claudette is a Brazilian citizen. She came to the United States in 2003 and overstayed her visa, which expired in 2003. While in the United States she met Peter, a U.S. citizen. In 2005, she left the United States and returned to Brazil. Peter missed her so much he asked her to come back and marry him. She came back to the United States with a visitor’s visa and they got married. Peter filed a petition for Claudette and she is eligible for adjustment under § 245(a). However, because she lived in the United States without permission for over a year, left and now wants to seek admission, she will have to request a waiver of the ten-year bar. (Note: Claudette may also need a waiver for visa 24

INA § 212(a)(9)(B).

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These particular unlawful presence bars apply only to people who leave the United States and then apply for admission. One way to avoid coming within this ground is to not leave the United States, and instead stay in the United States to adjust status if eligible under § 245(a) or § 245(i).

fraud if she entered on a visitor’s visa with the intent to marry Peter and adjust status, and she lied about her intent to a consular or DHS officer. See Chapters 5 and 6.) PRACTICE TIP: Advance Parole Does Not Trigger the Three- and Ten-Year Bars. A person who has a pending adjustment application can receive advance parole to travel outside the United States while her adjustment application is pending. In the BIA case Matter of Arrabally and Yerrabelly, 25 I&N Dec. 771 (2012), the Board held that a person who departs the U.S. with advance parole while the application for adjustment is pending has not made a “departure” and therefore does not trigger the three and ten-year unlawful presence bars. 25 Example: Swati, a U.S. citizen, marries Yadira in 2015. Yadira entered the United States on a tourist visa in 2005. In December 2016, Swati and Yadira file a petition and adjustment packet for Yadira. Yadira wants to go visit her very sick mother in Ecuador. Can she? Answer: Yes, USCIS may grant her advance parole. In fact, she can include it in her adjustment packet at no additional charge. And as long as Yadira waits for her advance parole and travels with it, the three and ten-year bars will not attach, and she can return to resume her adjustment application in the United States.

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§ 3.7

Preparing and Submitting the Adjustment Packet

Every applicant for adjustment of status—including derivative beneficiaries, young children, and the elderly—must submit a complete packet of application materials. A.

Completing Form I-485

The application for adjustment of status is made on Form I-485. A visa petition (Form I-130) may be filed at the same time as the I-485, if the person will be eligible to adjust as soon as the visa petition is approved. This is the case with immediate relatives. CAUTION: If your client is not immediately eligible to adjust, either as a previously inspected and admitted immediate relative, an immediate relative eligible for 245(i), or a preference beneficiary whose preference category is “current,” do NOT submit the adjustment application together with the visa petition—your client will be denied because of ineligibility and will possibly be referred to ICE for removal proceedings. On the other hand, a failure to submit the adjustment application with the visa petition for a clearly adjustment eligible applicant, will result in months to a year or more of unnecessary delays and no work authorization for the applicant. It is critical to carefully ascertain whether or not your client is presently eligible to adjust before deciding to file the I-485 application. See Chapters 1 and 2 for more guidance. Form I-485 was updated in 2017 and is now much longer and more thorough than previous versions. The form asks detailed questions aimed at identifying possible grounds of inadmissibility. It requires careful thought and analysis to ensure that the client is eligible and whether any grounds of inadmissibility are implicated by the information to be submitted. While potential inadmissibility issues should be identified and analyzed prior to the point of filling out 25

Matter of Arrabally and Yerrabelly, 25 I&N Dec. 771(BIA 2012).

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the adjustment form, completing the form provides another opportunity to assess your client’s eligibility and identify any red flags in the case. If the form asks a question that does not apply to the person, she should usually write “not applicable” or N/A. Usually it is best not to leave any part of the form blank.

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Some guidelines that may be helpful: 1. Part 1 asks about the person’s recent immigration history and for information from the I94. If the person entered with a visa and was issued an I-94, this information was included on the visa petition. This is discussed in Chapter 2. Your client may have obtained a visa from a U.S. consulate abroad in order to enter the United States. The visa is the large, multicolored stamp or sticker in the person’s passport. The visa number is the long number that appears at the top of the visa stamp or sticker and is often in red. The control number is in black. The name of the location of the U.S. consulate (e.g., Guatemala City) or issuing post is included on the stamp or sticker. 2. Part 2 of the form asks the applicant to state why he or she qualifies for adjustment of status. Persons who immigrate through a relative’s visa petition will mark one of the boxes under section 1a. This first box is for immediate relatives and the second for those in a preference category. The remaining boxes in that section are for persons who immigrate through a fiancé(e) petition, as a widow/er, or through a VAWA self-petition.

One-Step Adjustment: If the person is an immediate relative and qualifies for adjustment, the adjustment application packet may be filed simultaneously with the I-130 petition. This ‘onestep’ process can be very useful since I-130 processing takes several months. By being able to submit both the I-130 and the adjustment packet at the same time, they will complete the process more quickly, and can obtain work authorization while the applications are pending, a benefit to filing adjustment that does not pertain to filing an I-130 on its own.

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3. Part 8 of the form is aimed at verifying eligibility and identifying people who are inadmissible. The grounds of inadmissibility are discussed in more detail in Chapter 5. If the client might answer yes to any of those questions, be sure that you understand whether the person is really inadmissible and if a waiver is necessary and possible. Do NOT check “yes” unless you are certain. On the other hand, do not check “no” if inadmissibility is absolutely certain. Sometimes, even if a client appears inadmissible, advocates will answer “not certain” and leave it up to the examiner at the interview. It is critically important to obtain expert advice in this situation. If you are certain that a waiver is necessary, file a Form I-601 with the adjustment packet. See Chapter 6 on filing waivers. If he or she is not eligible for a waiver, or if it’s likely that the waiver application will be denied, you and your client must decide whether or not to apply, due to the risk that adjustment may be denied and that your client may be placed in removal proceedings.

B.

Contents of the Adjustment Packet

The adjustment of status application packet must contain the following forms and documents: 1. Form I-485: the adjustment of status application form and all supporting documentation. 2. Copy of applicant’s birth certificate or record, with a full English translation. 3. Two (2) passport style photographs. However, applicants also submitting an I-765 employment authorization application will need to include an additional two photos as well as two more for an I-131 advance parole application. 4. An I-130 Visa Petition (and I-130A if a spousal case) with all supporting documentation or, if a visa petition has previously been filed, an approval or receipt notice. 5. Filing fees: At this writing, the filing fee is $1225 for an adjustment application—this includes the biometrics fee as well as the cost of the employment authorization application (I-765) and advance parole application (I-131). Fees for applicants under the age of 14 are $750 if the applicant is filing with the I-485 application of at least one parent and $1140 if they are NOT filing with at least one parent. The fees for applicants over the age of 79 is $1140, since biometrics are not required.

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Note: These are the filing fees for family-based adjustment, different types of adjustment have different fee and fee waiver options. Always check the USCIS website (www.uscis.gov) for the latest filing fee information before you file, as fees often change. 6. Form I-693, with the results of a medical examination. The results of the medical exam will be given to the applicant in a sealed envelope, which must be submitted to USCIS without being opened. The medical exam must be conducted by a civil surgeon who has been designated by USCIS. 26 This is required of all applicants, regardless of age. Included in the medical exam is proof of vaccinations or proof of exemption for this requirement. The list of required vaccinations is updated frequently so practitioners should periodically check the website at www.uscis.gov. 27 The medical exam and health grounds of inadmissibility are discussed in Chapter 5. PRACTICE TIP: While the completed I-693 form will be given to the applicant in a sealed envelope, your client should be given a copy of the results by the doctor. Before submitting the adjustment application, you should review this copy to make sure there are no grounds of medical inadmissibility noted, and also that the form currently required by USCIS was used and that the examination and vaccination form are correctly filled out and signed by the civil surgeon. Doctors may forget to check all the appropriate boxes or even forget to sign the form. The medical exam may be submitted at time of filing the adjustment packet, or the client can wait to do the medical exam closer to the interview. Some prefer to the wait because a medical exam is

26

For the most current list of civil surgeons in your client’s area, you can check the USCIS Civil Surgeons Locator at https://egov.uscis.gov/crisgwi/go?action=offices.type&OfficeLocator.office_type=CIV or by telephone from the USCIS National Customer Service Center at 1 (800) 375-5283. 27 Go to www.uscis.gov/i-693 for more information.

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only valid for a period of one year. 28 Since current processing times are around 10-12 months, some applicants wait to ensure the exam will still be valid at time of interview. If the applicant does not file the I-693 with the adjustment packet, USCIS will issue a RFE to send the document by mail or to bring it to the adjustment interview. 29

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7. The applicant’s I-94 and (if available) copy of passport with nonimmigrant visa used to enter the U.S. (if the person needed a visa to enter), to prove entry with inspection if filing pursuant to § 245(a). If the I-94 is lost, the entry stamp in the passport will suffice as proof of legal entry. If neither the I-94 nor the passport stamp is available, go to www.cbp/gov/I94 and obtain a printout from CBP’s electronic system. Note that USCIS wants a copy of every page of the passport with a mark or stamp on it—which will be reviewed in the determination of potential grounds of inadmissibility, such as unlawful presence, material support to terrorists (past travel to certain countries will likely raise questions), visa fraud, etc. 8. Form I-864 Affidavit of Support with supporting evidence of financial support according to requirements of INA § 213A signed by the petitioner (see Chapter 5 for a detailed discussion of this requirement), or an I-864W if the beneficiary is exempt from the requirement. 9. Form I-765 application for employment authorization, if the applicant wants work authorization, along with two additional passport style photos. 10. Form Supplement A to the I-485 Form, for adjustments under INA § 245(i); and $1000 penalty fee, if required, plus supporting documents such as proof of physical presence on December 21, 2000, if required. 11. Evidence of bona fide marriage in spousal cases: The couple should have already submitted copies of documents demonstrating that the marriage is bona fide, in support of the visa petition, including: joint bank accounts, joint credit card accounts, insurance forms naming each other as beneficiaries, rental agreements with both parties’ names, birth certificates of any children the couple may have, wedding pictures, and any cards from friends or relatives that the couple may have received, etc. (See Chapter 2). 12. Form I-131 -- Application for Advance Parole with separate supporting documents if the applicant plans to travel while the adjustment application is pending. 13. If the person must apply for a waiver of a ground of inadmissibility , Form I-601 with the filing fee and supporting documentation. See Chapter 6 for detailed guidance on waivers. PRACTICE TIP: The applicant should never submit originals of official documents, such as birth certificates, marriage certificates, divorce decrees, I-94s, etc. with the adjustment packet unless

28

Available at www.uscis.gov/policymanual/HTML/PolicyManual-Volume8-PartB-Chapter4.html#S-C-4. See the most current guidance from the USCIS Policy Manual regarding the validity of the I-693 at www.uscis.gov/policymanual/HTML/PolicyManual-Volume8-PartB-Chapter4.html. 29

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If applicable:

they are specifically requested. The originals of these documents must be brought to the adjustment interview, but should not be mailed in with the adjustment packet. And even though there is a prohibition on the face of most naturalization certificates regarding making copies, copying a naturalization certificate is acceptable for submission to USCIS. The petitioner and the beneficiary must each bring valid personal identification documents, such as driver’s licenses, social security cards, passports and all other immigration documentation, including the work permit and any advance parole document, with them to the adjustment interview. C.

Submitting the Adjustment Application

All family-based applications for adjustment of status should be mailed directly to one of the addresses below: Filings mailed through the U.S. Postal Service should be mailed to: U.S. Citizenship and Immigration Services PO Box 805887 Chicago, IL 60680-4120

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Filings mailed through private couriers should be addressed to: U.S. Citizenship and Immigration Services Attn: FBAS 131 South Dearborn, 3rd Floor Chicago, IL 60603-5517 The adjustment application packet must be filed with the Chicago lock box regardless of which USCIS office has jurisdiction over the applicant’s residence. Filings received at locations other than those above will be returned to the sender. Within a short time after mailing, the applicant and his or her representative should receive a receipt notice acknowledging that the application has been filed. After initial processing, the application will be forwarded to the appropriate USCIS District’s Adjustment of Status Unit in the Examinations Branch. Later, the applicant will receive a fingerprint appointment notice. Biometrics. Each applicant who is between 14 and 79 years of age must undergo the biometrics process in order for a background check to be conducted and their application processed. After receiving the adjustment application, USCIS will send a notice to the applicant for a biometrics appointment where her fingerprints and photograph will be taken at the USCIS Application Support Center nearest the applicant’s residence. It is scheduled a few weeks following submission of the adjustment application. It is important to inform the client about this step in the process when preparing the adjustment application. If the client cannot attend the scheduled appointment, they should follow the instructions on the notice to request that the appointment be rescheduled. The applicant’s case cannot be processed until the biometrics are completed. Interview notices will be sent to both the applicant and her representative Some USCIS districts may still retain additional or unique mechanisms for handling parts of the adjustment of status process. Contact the USCIS or a local immigration attorney or agency if you need information about local procedure. Many USCIS districts have their own websites linked to the USCIS general web site. Local USCIS web sites may post information detailing how to proceed with

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applications in that particular district. However, since procedures change more often than web site updates, it may still be a good idea to consult with an agency or private practitioner. If a beneficiary will turn 21 before the adjustment interview takes place and is not protected from aging out by the Child Status Protection Act (see Chapter 1), it is critically important that you alert USCIS and ask that the person be interviewed at an earlier date. Follow up and be persistent, and your client should be interviewed and approved prior to aging out. In some USCIS offices, if the applicant does age-out while the adjustment application is pending, USCIS may hold the adjustment application in abeyance, and the applicant can continue to extend her work authorization. Once the priority date becomes current, USCIS will review and finally adjudicate the case, also making a determination whether the beneficiary still qualifies under the same visa category. This practice, however, is discretionary and subject to change. Check with attorneys and accredited representatives in your area for information on the current local practice. § 3.8

The Effect of Leaving the Country

What Will Happen at the Adjustment Interview?

Each applicant for adjustment must attend an interview if one is scheduled, though children under 14 may ask to have the interview waived. 32 A spouse petitioner must attend the interview with the applicant, except in extraordinary circumstances, such as the petitioner’s incarceration. The petitioner parent of a minor child should also attend the interview. In other instances, the best practice is for the petitioner to attend the interview. However, where the petitioner is not physically able to attend the interview or lives far away, the petitioner, at a minimum, should be available to speak to the Officer by phone. If the applicant submitted a one-step adjustment application, USCIS will decide both the family visa petition and the adjustment application based on what happens at the interview and on the documents submitted. In rare instances, the adjustment interview is waived, and USCIS simply decides the application based upon the documentation submitted. This typically occurs when a parent is petitioning a child, or vice versa, an adult son or daughter is petitioning for a parent. At the interview, the officer will go over the information contained in the I-485 form to confirm that it is accurate. Applicants should practice answering the questions with a friend or legal worker before the interview. Applicants immigrating through a marriage should be prepared to 30

8 CFR § 245.2(a)(4)(ii). Matter of Arrabally and Yerrabelly, 25 I&N Dec. 771 (BIA 2012). 32 8 CFR § 245.9. 31

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Once the applicant has filed the adjustment application, she must stay in the United States until the application is finally decided. If she leaves the United States without advance parole, the application will be considered withdrawn. 30 On the other hand, if the person has been granted advance parole, which USCIS will generally grant to adjustment applicants, she can travel abroad and return to the United States without any impact on their adjustment application. In most cases, an applicant’s departure under advance parole will not trigger the three and ten-year bars, even if the person had been living in the United States without authorization. 31 See full discussion in Chapter 5. § 3.9

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answer numerous questions about their marriage that ensure the examiner that the marriage is valid and bona-fide. They should bring additional documents to the interview, especially more recent evidence, that they are in a true marriage. New photos, new tax returns, cards and letters from third parties, and any other documents that a couple typically would acquire since submission of the application. Copies should be made to submit to USCIS at the interview. See Chapter 2 for further guidance. If the family relationship is clear and no grounds of inadmissibility apply, the interview should be quite simple. Problems will arise only if there are questions about marriage fraud, grounds of inadmissibility, or other reasons for discretionary denial. If the person must submit a waiver of inadmissibility application (I-601 Waiver), she may do so at the adjustment interview or during the 90-day period following the interview pursuant to a written notice USCIS gives at the interview. When filing the I-601, the applicant will have to pay the filing fee, unless the beneficiary has active tuberculosis, a history of mental illness, or is mentally disabled.

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Prepare the Applicant for the Interview. After USCIS sends the notice of interview, meet with the applicant to prepare for the interview. The petitioner should also be present at the meeting, especially if it is a case based on marriage. To prepare you should: •

Review the notice of interview and the documents the notice requests the applicant bring (Note however, the notice is a template sent to every applicant, not all the documents listed must be brought to the interview by every applicant);

•

Review with the applicant any other documents needed, e.g., new photos and other new proof of bona fides if a marriage, any new criminal records or records concerning prior receipt of public benefits (Note: all criminal and public benefit records should be obtained and reviewed prior to the submission of the application to ensure that the application will not result in a referral to removal proceedings);

•

Review again the applicant’s entries. If he or she entered without inspection, he or she will probably simply need to answer a question concerning entry by saying, e.g., “I entered through the hills at night near Nogales.” If he or she entered with a visa, review for possible fraud what the applicant said when applying for a visa and at the border. Again, this should have been done prior to the submission of the application, but needs to be revisited in preparation for the interview. You should also review any facts that might lead to a finding of “preconceived intent” to remain in the U.S. (although this is of less concern as it is not by itself actually “visa fraud”). If your client has multiple entries, make sure you have all necessary information to rule out the permanent bar.

•

Review receipt of public benefits by the applicant or any family member. If the applicant or someone in the family received public benefits that do not create a public charge problem, explain that the applicant can answer simply and directly a question concerning public benefits—e.g., “I received Medi-Cal for my child for pre-natal care.” Hopefully this has already been addressed on the application. Many practitioners check “no” in this type of circumstance, and write in “Emergency Medi-Cal only during pregnancy” for example, or “my U.S. citizen children received food stamps for 3 months when I was unemployed.”

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Review any arrests or convictions. Encourage the applicant to give a simple, direct answer to any question concerning arrests and convictions—e.g., “I was arrested in 2002 for disorderly conduct. I did not have to go to court.” If there is a document from the court or probation that is not damaging to the client, he can take that and present it as well. Or: “I was convicted in 2008 of driving under the influence. I paid a fine and went to DUI school. Here are the court records.” Be sure to review the record the client will be submitting—don’t submit police reports unless there is a really good reason to do so, i.e., they are helpful to your client. Police reports are not credible “evidence” regarding what happened, and sometimes make unfounded allegations that can be detrimental to your client’s case. Just submit an official record that contains the final disposition for the case, such as the court abstract or summary—but review it first, prior to filing the adjustment case. For example, a simple DUI involving alcohol will not presently make your client inadmissible, but a simple DUI involving controlled substances could make your client inadmissible, and needs to be dealt with first, before submitting the application for adjustment. These are complicated cases, with potentially devastating consequences and it makes sense to consult with an attorney who is an expert in these matters first, or refer your client to an expert, before submitting any documents relating to criminal offenses to USCIS. See Chapter 5 for a discussion of the criminal grounds of inadmissibility.

•

You may also want to tell applicants (especially younger applicants) that the examiner might ask them whether they have ever used any drug, including marijuana and including as a one-time experiment. If they say “yes,” such an answer might lead to a finding of inadmissibility. If the drug involved was anything other than marijuana, such a finding of inadmissibility cannot be waived. The same is true for their conversation with the civil surgeon and the adjustment medical exam, as the civil surgeon may make a finding of a “Class A” health issue re drug abuse, which will lead to a finding of inadmissibility for one year since last use/abuse. See Chapter 5 for further information. Note: If you have teenage clients who see you with their parents, ask the parents for permission to meet with the teen alone at some point. The parents may not even be aware of the teen’s past actions and the teen might not feel comfortable talking about certain issues in front of her parents. Advise the teen again about the potential questions and issues, particularly drug use and other criminal issues, and review the process and potential consequences.

•

Tell the applicant that the examiner will probably ask whether he or she has ever lied to USCIS or any other agency to receive an immigration benefit. If there is a question concerning possible fraud, review the facts carefully to distinguish fraud from events that were in fact not fraud. The examiner may also ask whether the applicant has ever made a false claim to U.S. citizenship.

•

Inform your client that USCIS may review their social media presence. The USCIS officer might ask questions about any personal information found online, especially if it contradicts information in the application or, in spousal cases, undermines claims of a bona fide marriage.

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Advise the applicant generally on how to answer the examiner’s questions. Tell her to listen carefully to the questions, to answer directly, briefly and honestly the question asked and not to volunteer information not specifically requested. Also tell your client not to answer a question he or she does not understand, but instead ask to have it explained. Tell your clients never to “guess” which is often a particular problem in marriage cases— saying, “I don’t know” is a much better solution. For example, if an examiner asks a client “what did your wife give you for your last birthday” and the client doesn’t remember, it is best to say something along these lines: “I don’t remember what she gave me for my birthday, but I do remember she gave me tools that I wanted for Christmas.”

•

If the applicant’s case presents significant issues or complications, she should be accompanied at the interview by an accredited representative or an attorney.

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PRACTICE TIP: In addition to telling the applicant about all the above-mentioned issues in preparation for the adjustment interview, it is very helpful to do a mock interview with the petitioner and beneficiary so they can experience exactly what might happen during the interview. Some practitioners do this for every adjustment case with great success, as the clients know what to expect, are less nervous and able to better understand the questions and why the questions are being asked, and better focus and articulate their answers. § 3.10 The Decision: Approvals and Denials If additional evidence is needed, USCIS may issue a “request for evidence” or RFE form at the interview, telling the applicant what evidence might be needed, or USCIS may send a request later. Approvals. If the application is approved the applicant will subsequently receive a notice of approval in the mail. The “date of issuance” of the notice is usually the date of adjustment. Once USCIS approves the adjustment application the person will receive a “welcome notice” and subsequently lawful permanent resident card in the mail. It usually takes only a couple weeks after approval to receive the card, though you may want to advise the applicant that it sometimes takes longer. If no card has been received a month after the approval, an inquiry with USCIS should be made as to the status of the card production. Denials. If the application is denied, USCIS may indicate in the denial letter that the applicant should depart the country, but there is a risk that the applicant could be placed in removal proceedings. In removal proceedings, the applicant can renew the adjustment application before the immigration judge. The judge can grant permanent resident status based on adjustment along with applicable waivers of inadmissibility, as long as USCIS approves the underlying visa petition relating to the relationship between petitioner and beneficiary. 33 The immigration judge has no jurisdiction to decide a visa petition, only the adjustment application, but you can request continuances of the removal case to allow additional time for the I-130 to be adjudicated.

33

8 CFR §§ 245.2(a)(l), 1245.2(a)(1), 242.8 and 1242.8.

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If an immigration judge denies an application for adjustment of status, the person may appeal that decision to the BIA. The person can maintain work authorization while the appeals are pending. 34 If USCIS does not refer the person to ICE for removal proceedings, the applicant cannot appeal the denial to an immigration judge or the Administrative Appeals Unit.35 The applicant can, however, file a motion to reopen pursuant to 8 CFR § 103.5. The motion to reopen must be filed within 30 days of the denial, except when the failure to file before this period expired may be excused in the discretion of USCIS by demonstrating that the delay was reasonable and beyond the control of the applicant or petitioner. There is a fee for filing the motion to reopen. If a waiver application is denied, however, the applicant can appeal that denial to the Administrative Appeals Unit.

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In some cases, the applicant may decide to accept the USCIS decision and go through consular processing instead of taking the adjustment case to immigration court. For example, if USCIS agrees that the person should be able to immigrate, but has a strong argument that the person is not eligible for adjustment, it may be easier for some people simply to go through consular processing.

Aging-Out. USCIS policy is to expedite cases where a beneficiary (due to reaching 21 years of age) will no longer have a current priority date. USCIS does not routinely check its records to see if applicants are approaching their 21st birthday. However, it is up to the applicant, and his or her representative, to bring the issue to the attention of USCIS. Also, advocates should not wait until the person is a few months from his or her birthday to approach USCIS. It is best to inform USCIS of the approaching change of category 18 months prior. Under the Child Status Protection Act (CSPA), if a U.S. citizen files an I-130 on behalf of a child before the child turns 21, the child’s “immigration age” is “frozen” and she will continue to be considered a child for immigration purposes even if USCIS does not act on the petition before the child turns 21. However, if a permanent resident parent files an I-130 on behalf of a child before the child turns 21, the child’s age will be determined using the date that the priority date of the I130 becomes current, minus the number of days that the I-130 is pending. This could result in the child waiting several additional years. In addition, the child must seek to acquire the status of a lawful permanent resident within one year of visa availability. This provision also applies to derivative beneficiaries on family-based petitions. See Chapter 2 for detailed overview of the CSPA.

34 35

8 CFR § 274a.12(c)(9). 8 CFR § 245.2(a)(5)(ii).

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Delays. USCIS processing times for adjustment applications has been fairly efficient in recent years, with most field offices adjudicating cases in approximately ten to twelve months. However, processing times are expected to become longer as interviews will now be required in some employment-based cases. For the most part, intending immigrants who are facing delays in their case have no choice but to wait their turn, unless they wish to file a lawsuit in federal court for “mandamus” to force USCIS to adjudicate their application. Some cases however require prompt attention:

Petitioner in Poor Health and Dies. If a petitioner dies before the adjustment is granted, principal and derivative beneficiaries of a pending or approved I-130 visa petition (whether in the immediate relative category or one of the preference categories) are protected under certain conditions. These conditions are described in greater detail in Chapter 1, § 1.12. Naturalized Petitioners. Due to the backlog of I-130 processing at USCIS Service Centers, some LPR petitioners may have only received receipt notices and are awaiting approval notices. However, since submitting the petitions, some of these petitioners have become U.S. citizens and their spouses and/or children would now like to file for adjustment of status as immediate relatives. These families should proceed with submitting the adjustment of status packet and include a copy of the I-130 receipt notice as well as a copy of the petitioner’s certificate of naturalization. PART TWO: CONDITIONAL RESIDENCE

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§ 3.11 Marriage-Based Cases and Conditional Residence In 1986, Congress passed the Immigration Marriage Fraud Amendment Act (IMFA) in response to claims that large numbers of people were becoming permanent residents by committing marriage fraud. The IMFA contained many rules that were designed to stop marriage fraud. Most importantly, it created a status called conditional permanent residency often referred to in shorthand as “conditional residence,” which applies to some people who immigrate based on their marriage to a U.S. citizen or lawful permanent resident. While you read this section, remember Congress was convinced that many people who marry citizens or residents do so only to get immigration status. Congress thought that the IMFA would guarantee that only people who entered “real” marriages would obtain immigration benefits. This is the purpose of conditional permanent residency. § 3.12 What Is Conditional Permanent Residency? Conditional permanent residency is a two-year “testing period” before a person who immigrates through a spouse becomes a full-fledged lawful permanent resident. 36 The marriage that is the basis for the I-130 is called the qualifying marriage. The spouse who is immigrating through the marriage is referred to as the “alien spouse.” 37 During the two-year period, conditional residents receive most of the benefits that lawful permanent residents do. They can work, travel in and out of the United States, and count the time they spend as conditional residents toward the residence requirements for U.S. citizenship. 38 They also receive a “Resident Alien” card, like a full permanent resident, except that it has an expiration date of two years from the date of issuance. Their residency itself actually expires at that time if they take no further action, unlike full permanent residents whose cards may expire, but their residency is indefinite unless and until terminated. They have all the other rights of lawful permanent residents, such as being able to petition for other relatives (e.g., children or unmarried sons and daughters of any age).

36

INA § 216(a)(l). INA § 216(h). 38 8 CFR § 216.1. 37

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However, conditional permanent resident status is only valid for a two-year period as reflected on the green card. A conditional resident must, therefore, apply to have this conditional status lifted in one of two ways:

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Joint Petition. Generally, conditional residents who are still married to their petitioning spouse must submit a joint petition on Form I-751 (signed by both spouses) within the 90-day window prior to the end of the two-year period, to have USCIS remove the conditional basis of their residence. If they don’t submit this petition or USCIS doesn’t receive it before the card expires, their residence status will be automatically terminated and they risk being deported. Filing the joint petition results in an extension of permanent residency, evidenced on the receipt notice, which the conditional resident may use to work and travel.

Both scenarios will be discussed in further detail below as well as when USCIS can terminate conditional resident status prior to the two-year conditional period. § 3.13 Who Is a Conditional Permanent Resident? People who immigrate through their spouse within two years of the date of marriage are conditional residents. Therefore, people are conditional residents if within two years of marrying the person who filed the I-130 for them, they either (1) enter the United States with an immigrant visa after consular processing or (2) have an adjustment of status application approved within the United States. 39 In addition, noncitizen children of the conditional resident spouse who immigrate within two years of the spouse’s marriage to a U.S. citizen are also conditional residents. INA § 216(a)(1). This applies only to stepchildren of the petitioning spouse. As you know, there are two ways to immigrate through a family visa petition: visa processing at a U.S. consulate abroad and adjustment of status in the United States. In visa processing cases, the person does not become a resident until the moment she first enters the U.S. using her immigrant visa. In adjustment, the person does not become a resident until he receives final approval from USCIS. Example: In November 2015, Shao Non, a Chinese citizen, married Beth, a U.S. citizen. Beth petitioned for Shao Non, and in November 2016, he has his visa appointment in

39

INA § 216(g)(1), 8 CFR § 216.1.

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Waiver of Joint Filing Requirement. Alternatively, there is a waiver of the joint filing requirements for conditional residents who are unable to file a joint petition due to divorce, annulment, battery or extreme cruelty at the hands of the spouse, or for those who otherwise cannot file jointly but who would suffer extreme hardship if their petition to lift the conditions on their status were denied. Such persons may file a waiver application (also using the I-751 form) at any time, including prior to the 90-day window to file the joint petition, or after their residency ends. However, if they do not file the waiver before the expiration of their conditional residence, their residence status will be automatically terminated and they risk being placed in removal proceedings. Once the waiver is filed, residency is reinstated during the adjudication period for the I-751 waiver.

Beijing, China. He immigrates on December 15, 2016 when he returns from China and enters the U.S. using his immigrant visa. Is Shao Non a conditional resident? Yes. Because Shao Non immigrated within two years of marrying Beth, he will be a conditional resident for the next two years—until December 14, 2018. Example: Damian, a citizen of Canada, marries Fred, a U.S. citizen, in January 2017. Damian applies for adjustment of status based on his marriage. His application for adjustment is approved on June 2, 2017. Is Damian a conditional resident? Yes. Because Damian completed adjustment of status within two years of marrying Fred, he will be a conditional resident for the next two years—until June 1, 2019.

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As the F2A preference category wait has become shorter, it is possible that at some point, people who immigrate under the second preference category will need to go through conditional residency. In the past, however, the waiting period for second preference visa petition for a spouse was over two years, and therefore, most spouses and stepchildren of LPRs ended up immigrating more than two years after the date of their marriage. Example: In January 2015 Amir, a citizen of Tunisia, marries Anna, a lawful permanent resident. Anna files a second preference petition for Amir. In September 2017, Amir completes consular processing and enters the United States using his immigrant visa. Amir is not a conditional resident. This is because he immigrated more than two years after his marriage to Anna. Example: Marta and Oscar have been together for several years. They finally marry on February 14, 2015. Marta is a U.S. citizen and Oscar is a citizen of Mexico. After they marry, they are not sure if they want to spend most of the year in Mexico or in the United States. They wait more than a year before filing Oscar’s adjustment of status. Oscar and Marta are scheduled for their interview on January 30, 2017. What should they do? In this situation, they might want to re-schedule their interview, or ask the officer to not adjudicate the case for two weeks. If they wait just two weeks longer, Oscar and Marta will not have to go through the I-751 conditional residence process, and Oscar will be a full-fledged lawful permanent resident. Given the choices, they would probably prefer to wait two weeks and avoid the further legal hurdles of the conditional residence process. § 3.14 Removal of Conditional Residency if the Marriage Still Exists after Two Years: The I-751 “Joint Petition” As stated earlier, conditional residents must submit an application (Form I-751) to USCIS in order to remove conditional status and become “full-fledged” lawful permanent residents. They must follow strict deadlines for when to submit the application. If the couple is still married and cooperative at the end of the two-year period, they will file a joint petition to remove the conditional basis of the immigrant spouse’s status. They must file a Form I-751 during the ninety-day period before the second anniversary of the immigrant spouse’s

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conditional residency grant. If the couple is divorced, legally separated, one spouse refuses to cooperate, or the petitioner has died, the immigrant spouse must file a petition by himself or herself to remove the conditional status and must request a waiver. We shall discuss this waiver in more detail below.

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The same requirements that apply to the conditional resident spouse also apply to any conditional resident children who immigrate within two years of the noncitizen parent’s marriage. § 3.15 When to File the I-751 Joint Petition If the couple is still legally married after two years and cooperative, they file a joint petition with USCIS to remove the condition on the immigrant’s resident status. The petition must be filed in the 90-day period before the two-year anniversary of the date that the new immigrant spouse received conditional residency. 40 “Filed” means the petition was actually received by USCIS by the deadline date, not simply postmarked by the deadline. To determine when to file the joint petition, count two years from the date that the conditional resident spouse received conditional residency. This date is listed as the expiration date of the Conditional Resident Card, I-551. Then count backwards 90 days. The petition must be filed within this 90-day “window” before conditional residency expires.

It is critical to keep track of these deadlines. USCIS will attempt to notify the person at the start of the 90-day “window.” However, the fact that USCIS does not do this or the notice does not reach the person is not a defense against losing lawful status if the person doesn’t file. Also, USCIS is not required to send the person notice prior to terminating conditional residence if the basis for the termination is a failure to file a timely petition (I-751). 41 If the joint petition is filed too soon, it will be rejected, and the applicant will lose the filing fee and possibly learn of the rejection too late to file a timely petition. NOTE: A conditional resident does not need to be physically present in the United States to file an I-751 petition or waiver. If a conditional resident must travel outside of the United States and will not be present within the 90-day filing period, she can submit a petition or file for a waiver from abroad. However, the conditional resident (and her spouse if filing a joint petition) may still be required to attend an interview at a local USCIS office. See 8 CFR § 216.4(a)(4).

40 41

INA § 216(d)(2)(A), 8 CFR § 216.4. See INA §§ 216(a)(2)(C), 216(c)(2)(A), and 8 CFR § 216.4(a)(6).

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Example: Diego married Frida, a U.S. citizen, on July 10, 2015. He entered the United States with his immigrant visa on August 1, 2016. The two-year anniversary of Diego’s receiving conditional residency is August 1, 2018. Diego and Frida must file (USCIS must receive) the joint petition between May 3, 2018 and July 31, 2018.

If the client received proper notice and fails to appear with her spouse at a required interview without good cause, her status will be terminated at the second anniversary of the client’s lawful admission for permanent residence. 42 Because of this harsh rule, it is imperative to keep track of the deadline. If your office does not have a tickler or tracking system in place which creates an alert about important dates, set one up. If you miss the filing deadline you could be liable for malpractice and your client could face serious repercussions.

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You should make sure your client understands that he or she is responsible for filing within the deadline. Give something to the client in writing which explains what conditional residency is and how and when to remove it. Sample letters in English and Spanish to conditional resident clients are included at Appendix 3-F. Even though advocates must track these dates, it is important that clients are informed about the requirements and duties, as they may move, change their phone number or otherwise not be reachable. Make sure both spouses understand when the filing deadline is. It is not sufficient to tell the U.S. citizen or lawful permanent resident. The conditional resident spouse needs to understand the situation. Some people allow their spouse to control all matters that seem technical or legal, especially if they are unfamiliar with the U.S. legal system or speak limited English. These people later find themselves at the mercy of their spouses who may no longer want to help them or the couple may have separated in the interim. Make sure that your clients understand that they must contact you or another legal worker before their conditional residency expires whether or not they are still married. NOTE: Special Options for Military Families. When a spouse is on active duty in the armed forces, under certain circumstances related to their service, it is possible to secure expedited processing of the I-751, waiver of the signature requirement, or exceptions to filing deadlines, fingerprint appointments, or interviews. Petitioners should indicate on the top of Form I-751, “Active Military” or “Government Orders” and submit a copy of their current military or government orders along with the petition. Contact the Military Help Line at 1 (877) CIS-4MIL (1 (877) 247-4645) for more information and guidance. A.

Filing Late

A late joint petition will not be accepted by USCIS unless you show that there was “good cause” for the late filing and that the length of the delay was reasonable. 43 Applicants filing untimely petitions are required to submit a separate statement explaining the reason for the late filing and they may want to submit any available additional supporting evidence. See Appendix 3-E. 44 USCIS will evaluate the applicant’s explanation and supporting documentation according to the length of time the application was untimely filed. The regulations do not define “good cause,” but 42 See INA § 216(c)(2)(A). Note, however, that many conditional residents filing joint petitions with their spouses are not required to attend an interview. USCIS reserves the right to require an interview, but does not always do so. 43 8 CFR § 216.4(a)(6). 44 USCIS Interim Policy Memorandum, “Revised Guidance Concerning Adjudication of Certain I-751 Petitions,” December 23, 2012.

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USCIS has been relatively reasonable in accepting late filed I-751 applications if a reasonable explanation is provided. According to USCIS guidance on this matter, some examples of what constitutes good cause may include: a. b. c. d. e.

Hospitalization Long term illness Death of a family member Legal or financial problem Caring for someone

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Bereavement Serious family emergency Work commitment Family member on active duty with the U.S. military 45

If USCIS is unable to make a determination on whether the failure to timely file was due to good cause, it may request further evidence (issue an RFE). Furthermore, if the issue is still inconclusive after the applicant responds to the RFE, the USCIS service center where the petition was filed may forward the file to the local USCIS office for an interview. It is important to provide a strong explanation for untimely filing of a joint petition, because USCIS will deny the petition for failure to comply with the filing requirements if it determines that the explanation and corroborating evidence do not establish good cause. § 3.16 Completing the I-751 Joint Petition While Form I-751 is fairly straightforward, it does bring up important legal issues.

2. Does the marriage still exist? See Parts 1 and 3. The conditional resident must still be legally married to the spouse who filed the visa petition for her. If the marriage has been terminated, the applicant must file a waiver application by himself or herself (discussed below). However, if the immigrant spouse is still legally married to their U.S. citizen or Lawful Permanent Resident spouse but the marriage is no longer viable, she will not qualify for a waiver based on termination of the marriage. Therefore, she must either file the I-751 jointly with his or her legal spouse, and may still be required to file a waiver

45 USCIS has a Military Help Line to answer questions for members of the armed forces and their families: 1 (877) CIS-4MIL (1 (877) 247-4645). 46 USCIS Memorandum, Acting Associate Director, Donald Neufeld, “I-751 Filed Prior to Termination of Marriage,” April 3, 2009. 47 INA § 216(d)(1)(A).

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1. Does the couple live together? In Parts 1 and 4, the couple must provide their home address. If the couple does not live together, USCIS may suspect fraud and require an interview (see below). If the couple lives apart but the marriage is still viable, they should attach an explanation of the reason they live apart with other documentation of their legitimate relationship. If the marriage is no longer viable but the couple is still legally married, a separate statement explaining this should be included with the petition. A joint petition cannot be denied solely because the spouses are separated or have initiated the legal termination of their marriage. 46 The legal requirement is still whether the marriage was both valid legally and “bona fide at its inception,” i.e., not entered into for immigration purposes only. 47

application after the legal termination of the marriage, or just wait until the divorce is final and then submit the waiver. According to the regulations, USCIS must approve a jointly filed petition if it determines that all of the following conditions are met: 48 • • • •

The qualifying marriage was legal in the place where it took place; The qualifying marriage has not been legally annulled or terminated; The qualifying marriage was not entered into for the purpose of procuring permanent residence status for the immigrant spouse; or No fee was paid in connection with the filing of the petition (other than legal fees paid to a lawyer).

See Appendix 3-D.

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Therefore, in cases where the couple is still married but legally separated or in divorce or annulment proceedings, USCIS may issue a RFE with an 87-day response period asking the conditional resident to provide a copy of the final divorce decree or annulment. The applicant should also request that USCIS treat the jointly filed I-751 petition as a waiver petition. This is important because it will help the applicant avoid having to file an entirely new I-751 waiver with new fees. In the case where the applicant does not have the final divorce decree or annulment by the deadline, it is important to respond to the RFE nevertheless, and provide an explanation with evidence, such as documentation showing where the couple is in the process of divorce proceedings. For example, in California, there is a 6-month waiting period in order for a court to finalize a divorce. If the conditional resident applicant fails to respond to the RFE or to provide the requested information to the satisfaction of the adjudicating officer, the examiner will determine whether there is sufficient evidence of a good-faith marriage to adjudicate the petition as is. If so, USCIS will then either approve or deny the petition based on that evidence. If the petition is being adjudicated at a USCIS Service Center, it is likely that the Service Center will forward the file to the local USCIS office for an interview (see below). The local office will then conduct an interview to determine whether or not the four facts listed above have been established, and if so, the petition should be approved. 3. Did the couple pay to arrange a sham marriage? Part 1 asks if anyone was paid, except an attorney, in connection to this petition. USCIS is trying to discover those people who paid to have sham marriages arranged. If the client paid your agency money to help fill out the forms, you may want to cross out the word “attorney” and write “community agency” or “paralegal” so that the client may still mark the question “no.” 4. Did children immigrate based on the marriage? Part 5 refers to children who immigrated based on the marriage. These children are conditional residents and must file to remove conditional status. This is discussed in more detail in § 3.29.

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USCIS Memorandum, Acting Associate Director, Donald Neufeld, “I-751 Filed Prior to Termination of Marriage,” April 3, 2009; INA § 216(d)(1)(A).

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§ 3.17 Application Procedure: Filing, Extension of Status, and Interview A.

Filing the Petition

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Some rules for filing the joint petition are found at 8 CFR § 216.4. To file the joint petition, the couple submits three things: 1. The Form I-751; 2. The supporting documentation to show that the marriage is bona fide (was entered into in good faith and not just for immigration purposes) and the couple is still married; and 3. Filing fee plus biometrics fee. Currently, the fee is $595 plus an $85 biometric fingerprint fee, a total of $680.00. 49 Be sure to include evidence that the marriage is legitimate. This is the same kind of evidence as you would bring to a marriage interview. Enough evidence in the application may help the client avoid having to go to a USCIS interview. File the joint petition by mail with the USCIS Service Center that has jurisdiction over the area where the conditional resident lives. This address is listed on the Form I-751 instructions and on the USCIS website always check to ensure you are using the correct filing address. 50 B.

Extension of Status While Petition Is Pending

If the conditional resident has held this status for at least three years, during which he or she has been married to a U.S. citizen spouse, the conditional resident is eligible to apply for naturalization even if the I-751 joint petition is still pending. Sometimes the joint petition is approved at the same time as the naturalization application. 51 PRACTICE TIP: A person who is married to and living with a USC can apply for naturalization after three years as an LPR. As a result, some conditional residents will become eligible to naturalize while their I-751 is pending. Such persons can apply to naturalize and if the I-751 is still pending at the time of the naturalization interview, the interviewing officer may remove the condition on the residence and approve the naturalization application at the same time.

49

Always check the USCIS website at www.uscis.gov to confirm what the current filing fee is. Because mailing addresses sometimes change, you should also check the USCIS website at www.uscis.gov to confirm that you’re using the correct address. 51 INA § 216(e). 50

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Filing of the joint petition or waiver automatically extends conditional residence status for one year. Thus, any conditional resident who has filed a Form I-751 remains a conditional resident until a decision is made on his or her Form I-751. The receipt notice issued upon submission of the I-751 will include language extending the conditional residence of the applicant. Currently, USCIS takes well over a year to adjudicate the petitions and, therefore, USCIS will extend conditional residence beyond the one-year period. USCIS will provide documentation of this extended status for travel or employment purposes in the form of the receipt notice for the I-751.

C.

Interviews

When a couple files a joint petition with plenty of evidence of a bona fide marriage, USCIS usually waives the interview. However, USCIS can interview the couple if it chooses. An interview will most likely take place if USCIS suspects fraud or if it finds insufficient documentation to adjudicate the petition. If USCIS chooses to interview the couple, the couple must attend the interview. If the couple is outside of the United States at that time, they must return to attend the interview. WARNING: Whenever possible, the couple should not go to the interview without a legal representative! If you are not an attorney or accredited representative (and therefore will not be allowed in the interview), you should try to help the couple find an experienced lawyer or accredited representative to go with them. According to the INA, if USCIS chooses to interview the couple, it must schedule the interview within 90 days of the filing of the petition. 52 Furthermore, it is mandated that USCIS has 90 days after the interview to issue a decision. 53 Despite the mandatory language of the statute, USCIS has stated that it feels it can interview a couple more than 90 days after the application is submitted and deny the joint petition. 54

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§ 3.18 Denials and Appeals If USCIS denies the joint petition, it will initiate removal proceedings against the conditional resident. USCIS may only deny the joint petition on one of three substantive grounds (otherwise, USCIS can also deny for failure to attend the interview): 1. the marriage was fraudulent at its inception; 2. the marriage has been terminated; or 3. the petitioner was paid a fee to enter into the marriage. The conditional resident can ask for review of a substantive denial by: • •

renewing the joint petition in removal proceedings before an immigration judge; filing a motion to reopen by showing new facts; or filing a motion to reconsider.

If USCIS denies the joint petition because the couple failed to show up for the interview or failed to submit additional evidence in response to a Request for Evidence, and the spouses are still married, the couple should file a new joint petition. If the marriage has terminated or the petitioner refuses to cooperate in filing a new petition, the conditional resident should file an I751 waiver. However, should such a turn of events occur after the initial filing of the joint petition, the applicant may be able to avoid having to file a new I-751 as a waiver and pay the fees anew, simply by notifying USCIS that she has legally separated from her spouse or that divorce or 52

INA § 216(d)(3). INA § 216(c)(3)(A). 54 See Legal Opinion of James A. Puleo, Acting Associate Comm’r dated June 21, 1990, reproduced in Interpreter Releases, August 31, 1990 at pg. 991. 53

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annulment proceedings are pending. In that case, USCIS should issue an RFE and give the applicant 87 days to submit a written request that the previously filed I-751 be treated as a waiver along with a copy of a final divorce decree or annulment (see § 3.16 above for more details). USCIS will then amend the I-751 and treat it as a waiver request in lieu of a joint petition.

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CAUTION: Annulments should be carefully reviewed, hopefully before the annulment is agreed to by the immigrant and is final, since many annulments include an allegation of fraud. If the fraud was allegedly undertaken by the immigrant, USCIS could have a basis for alleging the immigrant committed marriage fraud. In removal proceedings, the government has the burden to prove that a joint petition substantive denial was proper. If a second or late filed joint petition (or waiver) is pending during removal proceedings, generally, judges will continue the proceedings until the petition or waiver is adjudicated. Immigration judges do NOT have jurisdiction to rule on an I-751 application in the first instance, USCIS must first issue a decision. A waiver application may also be renewed before the immigration judge, but in the instance of a waiver, the applicant has the burden to show that the waiver should be granted. If the immigration judge rules against the petitioner in removal proceedings, the applicant can appeal to the BIA. If the BIA denies the petition, the applicant can appeal to the circuit court of appeals with jurisdiction in their area.

Under INA § 216(b)(1), USCIS can revoke conditional residence and begin deportation proceedings in three situations before the two-year testing period ends: 1. The marriage has been judicially annulled or terminated, except through the death of the citizen or permanent resident spouse; 2. USCIS decides that the marriage is a “sham,” that is, that the couple married only for immigration reasons; OR 3. USCIS learns that someone was paid to file the original I-130, other than a legal worker who prepared the document. USCIS must send the conditional resident written notice that it intends to terminate conditional residence. The conditional resident must have a chance to answer the charges of USCIS. 55 Note that this is different than when a conditional resident simply fails to file a joint application or a waiver before the end of the waiting period. When nothing is filed, conditional residency terminates automatically and USCIS is not required to give any notice to the conditional resident.

55

8 CFR § 216.3(a).

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§ 3.19 Termination of Conditional Residency by USCIS during the “Testing Period”

PRACTICE TIP: Four Things to Do When Clients First Immigrate as Conditional Residents 1. Make sure that the clients understand what their filing deadline is and what is required. Explain that this is their responsibility and if they fail to fulfill this requirement, their permanent residence could be in jeopardy. Give them something in writing that explains the process and indicates the dates of their 90-day period for filing. Tell them to contact you right away if their address changes. Put the deadline in your own calendar or tickler system. 2. Ask the clients to begin collecting documents now that they can use in two years to show that they have a bona fide marriage. This includes the usual documents: joint income taxes, joint bank accounts, utility bills, lease, joint purchases, photographs, etc. Because some married couples put the name of only one of the spouses on the bills, make sure your clients have most of the bills in both their names. This way it will be easier to prove that the marriage is a bona fide marriage.

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3. Tell couples that, although it will be difficult for the conditional resident to immigrate if the marriage ends before two years, a waiver is possible. Make sure the conditional resident understands that she is not required to remain married to her spouse in order to retain her permanent resident status. 4. Inform your client about the ability of spouses of U.S. citizens to naturalize after three years of lawful permanent residence instead of the traditional five. The two years of conditional residence count toward the three years needed. In addition, the naturalization application can be submitted 90 days prior to reaching the three-year period of permanent residence, but not before the parties have been married to each other and living with each other for at least three years and the U.S. citizen spouse has been a U.S. citizen for at least three years. See the ILRC manuals A Guide for Immigration Advocates and Naturalization and U.S. Citizenship: The Essential Legal Guide. PART THREE: ADVANCED ISSUES IN CONDITIONAL RESIDENCY WAIVERS Lupe is married to Ron, a U.S. citizen. Lupe is a conditional permanent resident, based on her marriage to Ron. Ron and Lupe have one U.S. citizen child, Billy. Billy has very bad asthma and requires medical care. A year after Lupe becomes a conditional resident, Ron leaves her for another woman. He does not send any money to support Lupe and Billy. Ron told Lupe that if she tries to get any child support from him, he will have the immigration authorities remove her. Lupe is afraid that Ron can have her removed. She is sure that he will not file a joint petition with her to remove conditional residency when she needs to do so in nine months. Lupe is eligible for a waiver of the requirement that she file a joint petition. Her waiver might be based on extreme hardship to herself or Billy, if Lupe were to be deported. If the marriage ends, Lupe can also base her waiver on the fact that she married Ron in good faith and that it was not

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her fault that Ron refused to file a joint petition with her. In addition, if Ron ever battered or abused Lupe or Billy, Lupe can seek a waiver based on that ground.

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§ 3.20 Introduction to Waivers of the I-751 Joint Filing Requirement As discussed in Part Two, couples who are still married and want to have a relationship together turn conditional residency into permanent status by filing a joint petition. However, sometimes the joint petition cannot be filed. The marriage may have ended in death, divorce, or annulment. Even if the marriage has not legally ended, the U.S. citizen or permanent resident spouse may refuse to help the conditional resident spouse or there may have been abuse in the marriage. A conditional resident spouse in this position may be eligible for a waiver of the requirement that a joint petition be filed. She must still file form I-751, but can do so alone, without the other spouse’s participation. Under INA § 216(c)(4), there are three grounds on which USCIS will grant a waiver. The conditional resident must show that: 1. the marriage began in good faith and has ended (other than through death); 2. extreme hardship (that arose after the grant of conditional residence) will result if the conditional resident is deported; OR

If the U.S. citizen or LPR spouse has died during the period of conditional residence, it is also possible to be granted a waiver by filing the I-751 along with evidence of a bona fide marriage and a copy of the death certificate. If the conditional resident does not file the I-751, either jointly with the spouse or individually based on one of the above grounds, her conditional status may be revoked and she may be subject to removal. For clients who cannot file a joint petition, the legal worker must investigate the possibility of filing the I-751 individually and requesting a waiver of the joint filing requirement. NOTE: Getting Help. USCIS will scrutinize closely any case for a waiver of the joint filing requirement. If at all possible, the person should have a legal representative at the USCIS interview. If you are not an attorney or accredited representative, and cannot accompany the person to the interview, refer the person to an experienced attorney or accredited representative who can represent the person at the interview. § 3.21 When to File Neither the INA nor the regulations state when a waiver must be filed. Generally, the waiver is filed as a substitute for the joint petition. It can be filed at any time, before, during or after the 90day period before the second anniversary of receipt of conditional residency. It should definitely be filed prior to the 90-day period if the marriage has ended in divorce or annulment, though it is still acceptable to file at a later time. If the marriage has not yet ended, the waiver should be filed during the 90-day window, because if it is not filed before the expiration of conditional residence,

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3. the conditional resident got married in good faith and during the marriage she or her child was battered or subjected to extreme cruelty by the lawful permanent resident or U.S. citizen, and she was not at fault in failing to meet conditional residency requirements.

an immigrant’s residence will be automatically terminated at that point. However, the conditional residency will be reinstated once the waiver is finally on file with USCIS. Example: Geraldo is a conditional resident whose U.S. citizen wife divorces him after one year of marriage. Geraldo’s sister-in-law, who never liked him, informs USCIS about the divorce. USCIS issues an intent to terminate conditional permanent resident status. If he qualifies for a waiver, Geraldo may file before the 90-day period in order to avoid being placed in removal proceedings. PRACTICE TIP: If it becomes apparent before the 90-day period that the conditional resident will need a waiver, it may be best to file once the grounds for the waiver arise, rather than wait for the 90-day period.

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* PRACTICE TIP: Where the Divorce Will Not Be Final before the Expiration of Conditional Residence. A common situation is one where divorce proceedings have been or will be initiated but the divorce will not be final before the expiration of conditional residence. In that instance, the best practice is to file a waiver on one of the other two grounds, when available—extreme hardship or battered spouse—or to file the I-751 jointly if the spouse is amenable. This prevents the conditional residence from terminating and allows your client to continue as a conditional resident. If a joint petition was initially filed, once the divorce is final USCIS should be notified as explained above. If a waiver on a different ground was filed, a pending I-751 waiver can be amended to add new grounds, such as a good faith that was terminated. In a bona fide marriage, this is the strongest waiver petition, which is why most petitioners file it as soon as they are eligible to do so, i.e., when the divorce is final. § 3.22 How to File a Waiver In order to obtain a waiver, the conditional resident must file: Form I-751 (“Petition to Remove Conditions on Residence”); the $595 filing fee plus $85 biometrics fee ($680 total) and supporting documentation. Always check the USCIS website for updated filing fee and other instructions. Form I-751 requires that a conditional resident choose the basis for the waiver from one of the categories listed: • • • •

Marriage was entered into in good faith but was terminated; Extreme hardship; Battery/extreme cruelty by U.S. citizen or LPR; Death of petitioning spouse

However, a conditional resident may choose more than one basis and argue them in the alternative. 56 Regardless of the basis of the waiver, you must submit a statement by the applicant explaining the basis of the waiver and include supporting evidence. The statement should be a detailed affidavit 56

See Gordon & Mailman § 42.05[3][a].

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in the client’s words. Explain this to the client and, if appropriate, ask her to draft a statement that you and your client can eventually finalize together. The person should always explain that the marriage was bona fide and give details and documents that support this. However, if the marriage was not bona fide, an extreme hardship waiver may still be available. Matter of Basille, 20 I&N Dec. 486 (BIA 1992)

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§ 3.23 The “Good Faith” Waiver This is the broadest waiver. Every applicant whose marriage has ended should cite “good faith” as a reason the waiver should be granted. This waiver requires the immigrant spouse to show three things: 1. That she intended to have a bona fide marriage when she got married. To prove this, you and your client should gather all of the same kind of evidence that is submitted with an I130 or at a marriage fraud interview or with an I-751 joint petition. USCIS suggests showing evidence that the couple had joint finances, the length of time they lived together, birth certificates of any children born to the couple, and the reason the marriage ended. 57

3. That it was not her fault that she could not file a joint petition. Under the regulations, it is not clear what “fault” means. 58 Certainly the person should emphasize that she was committed to the marriage and describe the things she did to try to make the marriage work. If the applicant’s spouse “caused” the demise of the marriage, through an affair, or abuse, or abandonment, or some other similar action, and there is documentation of this, including statements of third parties, the applicant should submit these documents as well. § 3.24 How to Show Extreme Hardship Another basis for a waiver is to show that extreme hardship will result if the conditional resident is deported. 59 USCIS will consider only hardship that arose after the conditional resident acquired conditional resident status. 60 Who must suffer the hardship? Neither the statute nor the regulations answer this question. USCIS officials have stated that the hardship must be to the conditional resident spouse, to a dependent child, or to a new spouse. 61 If you have a case where removal would cause extreme 57

8 CFR § 216.5(a)(ii). 8 CFR § 216.5(a)(l). 59 INA § 216(c)(4)(A). 60 INA § 216(c)(4). 61 See 67 Interpreter Releases 341 (March 19, 1990). 58

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2. That the marriage has ended other than through the death of the spouse. The conditional resident should submit the decree of divorce, annulment, or other termination proceedings. (Under the old law, the conditional resident had to be the person who filed to end the marriage. This requirement has been eliminated, and now it does not matter who filed for divorce.)

hardship to another close relative or to the community, you should discuss the case with an attorney. Extreme hardship is a standard that is used in other areas of immigration law, especially in the former suspension of deportation and some waivers of inadmissibility. Extreme hardship means hardship above and beyond that which a person who was forced to leave the United States normally suffers. 62 To determine extreme hardship, consider what aspects of a client’s life would change if he had to go back to his country. Consider especially factors such as: age, family ties in the U.S. and the home country, how long they have lived in the United States, health and medical needs, economic and political situation in the home country, their position in and involvement with their community, keeping in mind that such factors must have arisen after the person became a conditional resident in order to be considered. The Board of Immigration Appeals has identified the following as factors to consider in evaluating extreme hardship in the context of suspension of deportation:

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• • • • • • • • • • • • •

The age of the applicant, both at entry and at the time of application for relief; The age of the qualifying relatives; The applicant’s length of residence in the United States over the statutory minimum; The applicant’s family ties, both in the United States and abroad; The health of the applicant and qualifying relatives; The applicant’s financial status and occupation; The applicant’s ties to the community; The economic and political conditions in the home country; Any disruption of educational opportunities; Any adverse psychological impact of deportation; Linguistic or cultural factors that make securing employment in the home country difficult; Additional factors relevant to conditions in the home country; The applicant’s involvement and position in the local community; and the applicant’s immigration history.

Additionally, USCIS has issued policy guidance regarding the extreme hardship standard.63 Advocates should not feel limited to the above list of factors, but should include all factors that are relevant to the particular case. See the ILRC publication, Hardship in Immigration Law for more information on extreme hardship. The burden on the conditional resident to prove extreme hardship is heavy. The requirements for a waiver based on good faith are less strenuous. 64 Because the extreme hardship waiver is difficult to prove, you and your client should consider whether she may qualify for the other two types of waivers, good faith, or battery/extreme cruelty. However, there are two situations where the extreme hardship waiver is the only option: 1) where the marriage was not bona fide; or 2) the

62

8 CFR § 216.5(e)(1). USCIS Policy Manual Volume 9 Part B. Available at: www.uscis.gov/policymanual/HTML/PolicyManu al-Volume9-PartB.html. 64 See Gordon Mailman § 42.O5[3][c]. 63

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parties cannot or will not terminate the marriage, and there is no basis for a battered spouse waiver.

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§ 3.25 The Battery or Extreme Cruelty Waiver Conditional residents who have suffered from physical abuse or extreme cruelty at the hand of their spouses or parents also can file a waiver to the joint petition requirement. 65 The purpose of this waiver is to allow conditional residents the opportunity to leave the abusive relationship without worrying about the fear of losing their lawful permanent resident status. The applicant must prove the following: 1. That she was married in good faith. 66 Proof of this requirement is discussed above under the “good faith” waiver. 2. That her USC/LPR spouse battered her or her child or treated her or her child with extreme cruelty during the marriage. Note that a conditional resident spouse can also file this waiver if her children were the victims of the physical or mental abuse, and it is not required that the children have US citizenship or permanent resident status. 67 3. Extreme cruelty includes, but is not limited to, any act of violence or threatened act of violence resulting in physical or mental injury. USCIS defines violence as psychological abuse, sexual abuse, or exploitation. 68

§ 3.26 Proof of Battery or Extreme Cruelty In order to prove battery or extreme cruelty, the conditional resident should submit any evidence possible to document the abuse. If possible, documents such as police reports, court transcripts and court orders, doctor’s reports, medical records, affidavits from school officials and social service agencies reports and affidavits from police, judges, medical personnel, school officials, and social service agencies should be submitted. That type of official third-party documentation is not always available, and any credible evidence will be accepted. The conditional resident should also submit affidavits or declarations of people aware of the abuse. It is also highly recommended that the conditional resident include a psychological evaluation. USCIS initially required that a psychiatrist, clinical psychologist, or licensed clinical social worker complete the evaluation. 65

INA § 216(c)(4)(C). 8 CFR § 216.5(e)(3). 67 8 CFR § 216.5(e)(3). 68 8 CFR § 216.5(e)(3)(i). 69 8 CFR § 216.5(e)(3). 66

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The law does not require that the marriage have ended for the conditional resident to file for a waiver based on battery or extreme cruelty. It also does not require that the applicant prove hardship. The regulations state that the battered spouse waiver is available to conditional residents, regardless of their current marital status. 69 Many people have been trapped in abusive situations because their lawful permanent resident or U.S. citizen spouse threatened or refused to file a joint petition if the abused spouse left the marriage. This waiver is designed to allow those people to secure their lawful permanent resident status without the cooperation of the abusive spouse or parent.

However, Congress recognized that not all immigrants have access to mental health professionals and lessened this requirement to include any credible evidence that is relevant to the petition. 70 § 3.27 Additional Help for Battered Spouses and Children As part of the 1994 Crime Bill, immigrants who suffered abuse at the hands of U.S. citizen or permanent resident relatives began to have new opportunities to obtain lawful status. They may be eligible to self-petition under the Violence Against Women Act (VAWA) for an immigrant visa petition or to apply for a special three-year cancellation of removal. USCIS must consider any credible evidence relevant to the application in acting on these applications, as well as acting on the battered spouse conditional residency waiver. A discussion of the VAWA self-petition provision is included in Chapter 7. For more information on immigration relief for battered spouses and children, see the ILRC’s publication, The VAWA Manual: Immigration Relief for Abused Immigrants.

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§ 3.28 Filing a Waiver if the U.S. Citizen or Permanent Resident Spouse Has Died USCIS can also grant a waiver to a conditional resident whose spouse has died since the adjustment was approved. 71 The conditional resident must submit a copy of the death certificate. The person does need to submit evidence that the marriage was bona fide. If there is no indication of marriage fraud, the person does not need to prove extreme hardship. 72 When filing the I-751, check Box 1c in Part 1 stating that spouse is deceased. The BIA held “that a conditional permanent resident under INA § 216(a) who is seeking to remove the conditional basis of that status and who has timely filed the petition and appeared for the interview required under INA § 216(c)(1) does not need a separate § 216(c)(4) hardship waiver if the petitioning spouse died during the two-year conditional period.” The I-751 petition, in this instance, will be treated as a joint petition and may only be denied for the reasons a joint petition could be denied (e.g., fraudulent marriage, payment to petitioning spouse or termination other than death). Matter of Rose, 25 I&N Dec. 181 (BIA 2010). Note that this scenario is distinct from those cases where the petitioning spouse dies before the adjustment is approved. If the USC or permanent resident spouse dies after the I-30 petition is submitted but before the adjustment is adjudicated and the adjustment is granted under § 204(l) then the conditional resident does not need to file an I-751. In that case, the conditions for the waiver already considered to have been met and the applicant will be granted permanent, not conditional, residence at the time of adjustment. 73

70

See Violent Crime Control and Law Enforcement Act of 1994, Pub. L. NO.103-322, § 40,702 Stat. 1796, 1955 amending INA § 216(c)(4). 71 8 CFR § 205.1(a)(3). 72 See Letter from R. Michael Miller, Dep. Ass’t Comm. Adj. to Gerald Linkon, reproduced at 66 Interpreter Releases 982 (August 28, 1989). 73 See INA § 204(l); see also USCIS Policy Memorandum, Approval of Petitions and Applications after the Death of the Qualifying Relative under New Section 204(l) of the Immigration and Nationality Act, (Dec.

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§ 3.29 Dependent Sons and Daughters Dependent sons and daughters of conditional residents also immigrate as conditional residents. This may include children who immigrate as derivative beneficiaries, as well as children who immigrate directly as stepchildren.74 (To review who is a derivative beneficiary or stepchild, review Chapter 1.) The INA calls these children alien sons and daughters. Like a conditional resident spouse, a conditional resident son or daughter must apply to remove conditional status.

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Example: Marianne received conditional residency via adjustment of status through her marriage to Steve, who is a U.S. citizen. Steve also petitioned for Marianne’s unmarried 17-year-old son Jacques as his stepson. Jacques is also a conditional permanent resident because his mother’s marriage to Steve, which created the stepchild/stepparent relationship, took place less than two years ago. Thus, he is granted the same conditional status as his mother. Two years later, Jacques can petition to remove his conditional residence status. Depending on their situation, the son or daughter may be included on the parent’s I-751 joint petition or waiver. The rules about when and what children file are somewhat complex. You do not need to memorize them—just know that the issue exists and where to look for the law. Here are examples of the most common situations: A.

Parents Are Submitting an I-751

2. The son or daughter received conditional residency more than 90 days before or after the parent did. The son or daughter must submit a separate I-751 application. 8 CFR § 216.4(a)(2). This waiver should be submitted at the same time that the parent applies to remove conditional residency—even if the son or daughter hasn’t reached the two-year anniversary. Example: Roberto became a conditional resident. His son immigrates as a conditional resident as Roberto’s dependent child one year later. His son should file an I-751 at the same time Roberto files an I-751. The child’s waiver can be submitted at the same time as the parent’s joint petition, as long as the parent’s conditional residency expires before the child’s does. B.

Parents Are Requesting a Waiver 1. The conditional resident parent must file an I-751 waiver. The child should be included in the parent’s waiver application. The decision for the child’s case will be the same as the parent’s. The child does not have to establish additional hardship.

16, 2010) available at: www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/2011/January/Death-ofQualifying-Relative.pdf. 74 INA § 216(g)(2).

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1. The son or daughter became a conditional resident within 90 days of the date the parent did. In that case, the son or daughter can be included in the parent’s I-751 and does not need to file a separate petition.

C.

Parents Fail to File a Waiver on Time or Appropriately 1. The conditional parent never files an I-751 waiver. This could happen if the conditional resident parent dies or decides not to pursue a waiver. In this case, the son or daughter must file a waiver of his or her own to have conditional residency removed. § 3.30 Failing Marriages and Waivers 75

Even if a marriage is failing and no longer viable, USCIS may approve a jointly filed I-751 petition if it believes that the marriage was entered into in good faith, as long as the petitioner appears at any interview that might be scheduled. 76 In other words, if the marriage is failing at the end of the two-year period—even if the parties have separated—USCIS can still accept and approve a joint petition. The parties’ conduct after they enter the marriage should affect USCIS’s decision only if it bears on the parties’ state of mind at the time they were married.77 1. Separated, but attempting to reconcile: Should one file a joint petition? Yes, so long as the couple can demonstrate good faith in trying to continue the relationship, the joint petition should be granted. Affidavits should include an explanation of the circumstances of the separation and their attempts to reconcile. The immigrant always files a waiver if reconciliation fails and the joint petition is withdrawn.

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2. Separated, but reconciliation unclear or failed: If the U.S. citizen spouse is willing, he or she can still file a joint petition because what matters was whether the marriage was viable when it was entered into. If the U.S. citizen spouse refuses to file the joint petition (I-751) then a waiver must be filed. It is more advantageous to file the joint petition because there are strict rules about when a joint petition can be denied; waiver decisions are discretionary. In addition, interviews are more common for waiver applicants than for joint petitioners. 3. No possibility for reconciliation and no possibility for joint petition: The only option is to apply for waiver of the termination of conditional residency (waiver of joint filing requirement). A waiver application should be filed, if possible, before the expiration of the conditional residence EVEN IF the marriage has not yet been terminated. The waiver can be filed on the basis of extreme hardship or battered spouse, depending on the facts. A second waiver application can be filed once the marriage has been terminated. 4. Marriage terminated and conditional resident not at fault: The conditional resident can file for a waiver (I-751) whether or not he or she initiated the divorce. 5. Marriage entered into in bad faith or can’t be terminated: The applicant may file for an extreme hardship waiver, since only factors that have arisen since entry into the marriage will be considered. However, all factors need substantial documentation. Furthermore, this may be a risky option because the courts are conflicted as to whether an

75

See 8 CFR §§ 216.4, 216.5. “INS Answers Marriage Fraud Questions,” Questions 38-40, reprinted in 67 Interpreter Releases 334, 339 (March 19, 1990). 77 Matter of McKee, 17 I&N Dec. 332 (BIA 1980). 76

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extreme hardship waiver may be granted if there is evidence that the marriage was not entered into in good faith. 78

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78 See Waggoner v. Gonzales, 488 F.3d 632 (5th Cir. 2007)[may seek an extreme hardship waiver even if marriage was not in good faith—language of extreme hardship statute is clear and does not require a good faith marriage to qualify]; Singh v. Holder, 591 F.3d 1190 (9th Cir. 2010)[Ninth impliedly agrees with Fifth Circuit but still denies extreme hardship claim where wife withdrew joint petition and stated marriage was solely to obtain immigration benefit]; Velazquez v. INS, 876 F.Supp. 1071 (D. Minn. 1995)[cannot use extreme hardship provision if sham marriage].

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CHAPTER 3 ADJUSTMENT OF STATUS AND CONDITIONAL RESIDENCE INDEX OF APPENDICES Comparison of 245(a) and 245(i) Adjustment Provisions Section 245(i) Memoranda

Appendix 3-B

Section 245(i) Memorandum dated March 9, 2005

Appendix 3-C

Section 245(i) Memorandum dated April 14, 1999

Appendix 3-D

Memorandum dated April 3, 2009, “I-751 Filed Prior to Termination of Marriage”

Appendix 3-E

Memorandum dated December 23, 2012, “Revised Guidance Concerning Adjudication of Certain I-751 Petitions”

Appendix 3-F

Sample Letters to Clients Regarding Conditional Residence

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Appendix 3-A

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Appendix 3-A-1

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Appendix 3-B-1

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Appendix 3-B-2

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Appendix 3-B-3

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Appendix 3-B-5

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Appendix 3-B-6

APPENDIX 3-C SECTION 245(I) MEMORANDUM DATED APRIL 14, 1999 April 14, 1999 Memorandum For: All Regional Directors All District Directors All Officers in Charge All Service Center Directors Asylum Directors District Counsels Training Facilities: Glynco, GA and Artesia, NM From: Robert L. Bach Executive Associate Commissioner Office of Policy and Programs Subject: Accepting Applications for Adjustment of Status Under Section 245(i) of the Immigration and Nationality Act

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Purpose The purpose of this memorandum is to provide additional guidance concerning the acceptance of applications for adjustment of status under section 245(i) of the Immigration and Nationality Act (Act). This memorandum clarifies the Service's January 9, 1998 memorandum with respect to the final paragraph, “The effect of the January 14, 1998 sunset date on eligibility to apply for adjustment of status under section 245(i) of the Act.” This memorandum officially, adopts the “alien-based” reading of section 245(i), provides the standard for review of pre-January 15, 1998 filings, and discusses the evidence required for family-based petitions filed before the sunset date. Future guidance will discuss the processing of employment-based petitions and labor certifications filed before January 15, 1998. The Office of Field Operations concurs with this memorandum, Background Section 245 of the Act allows an alien to adjust his or her status to that of a lawful permanent resident (LPR) while in the United States if certain conditions are met. Among these are that the alien have been inspected and admitted or paroled and not engaged in unauthorized employment, Section 245(i) of the Act allows certain aliens to adjust status under section 245 notwithstanding the fact that some of these conditions are not met. From October 1, 1994 to January 14, 1998, any alien willing to pay the additional fee specified in section 245(i) who met the other requirements of section 245 could adjust status under that section. Changes made to section 245(i) in the Departments of Commerce, State and Justice Appropriations Act for 1998, Pub. L. No 105-119, 111 Stat. 2440 (1997) limit the class of aliens who may avail themselves of the exception under section 245(i) to the general section 245 requirements. This memorandum provides instruction regarding the acceptance of applications for adjustment of status under section 245(i).

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Who May Use Section 245(i) In order to take advantage of section 245(i) after January 14, 1998, an alien must be the beneficiary of an immigrant visa petition filed with the Attorney General on or before January 14, 1998 or application for a labor certification filed with the Secretary of Labor on or before that date. Section 245(i) now reads as follows:

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(i)(1) Notwithstanding the provisions of subsections (a) and (c) of this section, an alien physically present in the United States-(A) who -(i) entered the United States without inspection; or (ii) is within one of the classes enumerated in subsection (c) of this section; and (B) who is the beneficiary (including a spouse or child of the principal alien, if eligible to receive a visa under section 203(d)) of-(i) a petition for classification under section 204 that was filed with the Attorney General on or before January 14, 1998; or

may apply to the Attorney General for the adjustment of his or her status to that of an alien lawfully admitted for permanent residence. The Attorney General may accept such application only if the alien remits with such application a sum equaling $1,000 as of the date of receipt of the application The “Alien-Based” Reading The Service has adopted what has come to be known as the “alien-based” reading of section 245(i). Under this reading, it is the alien beneficiary of a visa petition or labor certification filed on or before January 14 who is “grandfathered” and thus able to adjust status under 245(i). In other words, the pre-January 15th filing allows the alien to use 245(i) as the vehicle for adjustment, but the basis for the adjustment may be obtained through a different filing, including a petition submitted and approved after January 14, 1998, or a diversity visa application. Adjustment of status under section 245(i) of the Act was not available until October 1, 1994. Thus, in order to be grandfathered, the pre-January 15 petition or application for labor certification must have been pending on or filed after that date. “Approvable When Filed” Not all pre-January 15, 1998 immigrant visa petitions or labor certification applications will result in grandfathering. In order for a pre-January 15, 1998 filing to grandfather the alien, the filing must have been approvable at the time of filing, In order to be approvable at the time of filing for the purposes of grandfathering, a pre-January 15 filing must meet all applicable substantive

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(ii) an application for a labor certification under section 212(a)(5)(A) that was filed pursuant to the regulations of the Secretary of Labor on or before such date;

requirements for that filing. Pre-January 15 filings that are deficient because they were submitted without fee, or because they were fraudulent or without any basis in law or fact, should not be considered to have grandfathered the alien. Effects of Grandfathering

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Section 245(i) requires that the alien be the beneficiary of a timely filed immigrant visa petition or application for labor certification. Various factors in the adjudication process will determine whether an alien continues to be such a beneficiary. Some aliens who are the beneficiaries of immigrant visa petitions or applications for labor certifications filed on or before January 14, 1998, will obtain a visa number through the Department of State's diversity visa lottery program before their timely-filed immigrant visa or labor certification becomes current. Such aliens may adjust on the basis of their current diversity immigrant eligibility while using their other preJanuary 15th visa petition or labor certification to establish eligibility for the benefits of section 245(i). It is important to remember that while a grandfathered visa petition or labor certification can support a diversity immigrant's adjustment under section 245(i), a previously filed diversity immigrant application cannot grandfather an alien for benefits under section 245(i). Since diversity immigrant applications are filed with the Department of State, they do not meet the section 245(i) definition of a petition “filed with the Attorney General” or a labor certification application “filed pursuant to the regulations of the Secretary of Labor.” There are many similar situations involving a variety of petitions. Applicants may change employers or petitioners, may remarry, or may become the beneficiaries of new petitions for any number of reasons. As long as the alien seeking to adjust status based on section 245(i) is recognized as the “beneficiary” of a qualifying pre-January 15th petition or labor certification application, the alien may adjust status under that section using a visa number obtained through a post-January 14 filing. Filing Issues Regarding Unadjudicated Cases Section 245(1) requires the grandfathering application to have been filed on or before January 14, 1998. Adjudicators may encounter cases in which the original visa petition or labor certification application that is claimed as the basis for grandfathering under section 245(i) has not yet been acted on by the Service or the Department of Labor, while the applicant seeks to adjust status on the basis of a later and different visa category (e.g., a diversity visa number). For family-based petitions, officers should proceed to review the pre-January 15, 1998 Form 1130 to determine whether it provides a basis for grandfathering, in accordance with the instructions in this memorandum. For unadjudicated employment-based petitions and labor certification applications, detailed field instructions regarding their evaluation will be issued separately in an upcoming memorandum. Denials, Revocations and Withdrawals of Visa Petitions In cases where petitions have been denied, revoked or withdrawn, adjudicators attempting to determine whether the beneficiary of the pre-January 15 filing is grandfathered must took to that filing and determine whether it was “approvable when filed,” If it meets this standard, then the beneficiary is grandfathered even if the filing was later denied, revoked or withdrawn.

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Adjudicators thus must be careful to look at the reasons for the denial, withdrawal or revocation, In situations in which the adverse action takes place because of a change in circumstances (e.g., petitioner goes out of business, petitioning spouse dies, derivative child ages out), the filing is likely to have been approvable when filed. However, in cases where there is no change in circumstances, then the reasons for denial are likely to relate to eligibility at the time of filing and will likely preclude a finding that the petition was approvable when filed, Petitions that are denied or revoked due to fraud are not approvable when filed and therefore do not serve as a basis for grandfathering.

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Family-based Immigrant Visa Petitions -Filed with the Attorney General In order to be approvable at the time of filing for the purposes of grandfathering, a family-based visa petition must meet all applicable substantive requirements for obtaining immigrant classification in the category for which the petition was filed. This includes, for example, the existence of the qualifying relationship at the time the petition was filed. Cases that are deficient because they were submitted without fee, or because they were fraudulent or without any basis in law or fact, should be denied and should not be considered to have grandfathered the alien. This includes cases in which the claimed relationship does not exist or cannot serve as the basis for immigration a relative petition for a cousin).

When the pre-January 15, 1998 petition has already been approved, it meets the “approvable when filed” standard and thus provides a basis for grandfathering unless the approval was later revoked. It is important to note, however, that denied, revoked, and pending cases may also meet the “approvable when filed” standard, as discussed above. When the I-130 that supports the grandfathering claim is unadjudicated, officers should review the petition to determine whether it was “approvable when filed.” Cases that are deficient because the Service requires additional information, such as a birth or marriage certificate, and in which. the petitioner would ordinarily be allowed to provide the additional information pursuant to 8 C.F.R. 103.2(b)(8) are sufficient for grandfathering purposes once the additional information is submitted and the Service concludes that the petition was “approvable when filed.” In some cases, it may be difficult for the alien to present or for the Service to secure relevant records to determine whether an alien is grandfathered or to reconstruct whether a petition would have been “approvable when filed,” In these cases, officers should contact the Headquarters Office of Adjudications, as described at the end of this memorandum, for farther guidance. Employment-Based Immigrant Visa Petitions Filed with the Attorney General An alien who claims to be grandfathered based on an employment-based pre-January 15, 1998 filing with the Service must show evidence of that filing when submitting the subsequent application for adjustment of status - for example, the INS-issued receipt dated before January 15,

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It is the applicant's burden to establish that he or she is eligible for the grandfathering benefit sought. While adjudicators should make reasonable efforts to verify an alien's claim that he or she is eligible to adjust status under section 245(i), the alien must ultimately provide proof that he or she is grandfathered. If a check of Service records and available files does not substantiate an alien's claim to be grandfathered and the alien cannot establish this fact to the adjudicator's satisfaction, then the applicant cannot be treated as a grandfathered alien.

1998. Again, it is the applicant's burden to establish that he or she is eligible for the grandfathering benefit sought, but adjudicators should make reasonable efforts to verify an alien's claim that he or she is eligible to adjust status under section 245(1). When the pre-January 15, 1998 petition has already been approved, it meets the “approvable when filed” standard and thus provides a basis for grandfathering unless the approval was later revoked. It is important to note, however, that denied, revoked, and pending cases may also meet the “approvable when filed” standard, as discussed above. Internal discussions are continuing about the appropriate handling of employment-based petitions filed directly with the Service when they provide the claimed basis for grandfathering. Special consideration is required since the pre-January 15 petition could be pending for adjudication at a Service Center while a subsequent petition for the grandfathered alien is pending at a district office. In addition, the question of whether a denied, revoked, or withdrawn petition may have been “approvable when filed” but was affected by changed circumstances is more complex. Further guidance will be provided in a future memorandum.

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Applications for Labor Certification Filed with the Secretary of Labor When the claimed basis for grandfathering is an application for labor certification filed with the Secretary of Labor, the beneficiary of that application must demonstrate that the application meets all relevant regulatory requirements established by the Secretary of Labor for filing the application. Until further notice, the Service will accept and hold applications for adjustment of status for consideration as grandfathered under section 245(i) based on the alien's representation that the employer filed an Application for Alien Employment Certification, ETA 750, Parts A & B, on his or her behalf before January 15, 1998. Discussions are ongoing with the Department of Labor concerning the appropriate proof of pre-January 15 filing and satisfaction of the “approvable when filed” standard with respect to these cases. Further guidance will follow based on those discussions. Used Petitions Once a visa petition or labor certification has been used as the basis for admission as an immigrant or for adjustment of status, the underlying visa petition Or labor certification cannot be used again. Thus, even though such a petition or labor certification application was filed on or before the January 14 cut-off date, it cannot be used as the basis for section 245(i) grandfathering. Adjudicators should be careful to distinguish between used and unused visa petitions and labor certifications. Correct Allocation of Visa Numbers In cases in which a grandfathered alien is adjusting status on the basis of a visa petition or application for labor certification other than the one serving as the basis for grandfathering, the adjudicator should take care to request a visa number from the Department of State in the category under which the alien is actually adjusting his or her status and not in the original grandfathered visa category. This is especially important when the visa providing the basis for adjustment was obtained through the Diversity Lottery program.

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Amenability to Removal Proceedings The Service has determined as a matter of policy that aliens with pending affirmative applications for adjustment of status before the Service under both sections 245(a) and 245(i) of the Act are in a period of stay authorized by the Attorney General for the sole purpose of calculating periods of unlawful presence as defined in section 212(a)(9)(B) of the Act. This period of authorized stay shall include the period during which a denied application is renewed during the course of a removal proceeding.

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The mere filing of a grandfathering petition or application for a labor certification does not place the alien in a period of stay authorized by the Attorney General. Absent some other factor placing the alien in such a period of authorized stay, the alien continues to accrue periods of unlawful presence. Once the Service encounters an alien who is the beneficiary of a grandfathering immigrant visa petition or application for labor certification, the fact that the alien is such a beneficiary is not a bar to the commencement of removal proceedings. The fact that the alien is the beneficiary of a grandfathering petition which may ultimately allow him or her to seek adjustment of status is, however, an important factor to be considered in determining whether Service resources are best utilized by commencing removal proceedings against that particular alien. Acceptance of Applications

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Because the Service has adopted the alien-based reading, Service offices should accept applications for adjustment of status under section 245(i) of the Act if the alien can show that he or she is the beneficiary of a pre-January 15, 1998 filing as described above. The Service is in the process of developing more detailed instructions for the adjudication of these applications and will issue this guidance in the near future.

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Appendix 3-D-1

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Appendix 3-D-2

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Appendix 3-D-3

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Appendix 3-E-1

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Appendix 3-E-2

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Appendix 3-E-3

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Appendix 3-E-4

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Appendix 3-E-5

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Appendix 3-F-1

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Appendix 3-F-2

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Appendix 3-F-3

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CHAPTER 4 APPLYING FOR PERMANENT RESIDENCE THROUGH CONSULAR PROCESSING

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This chapter includes: § 4.1 § 4.2 § 4.3 § 4.4 § 4.5 § 4.6 § 4.7 § 4.8 § 4.9 § 4.10 § 4.11

Introduction to Consular Processing .................................................................. 4-1 How Consular Processing Responsibilities Are Divided among Agencies ................................................................................................. 4-2 Finding the Rules: The Statute, Regulations, Foreign Affairs .......................... 4-4 Overview of Consular Processing Steps and Utilizing the Visa Bulletin ....................................................................................................... 4-6 Step I: Establishing Email Correspondence and a Point of Contact................. 4-10 Step II: Paying the Fees .................................................................................... 4-11 Step III: Submitting the Online Application for an Immigrant Visa ................ 4-12 Step IV: Submitting the Affidavit of Support with Financial Documentation and the Supporting Civil Documents ...................................... 4-14 Step V: Preparing for the Consular Interview .................................................. 4-21 Step VI: The Consular Interview...................................................................... 4-25 The Alien Registration Card or Permanent Resident Card (“Green Card”) ................................................................................................. 4-31

§ 4.1

Introduction to Consular Processing

As explained in Chapter 1, immigrating through a visa petition is a two-step process. In Chapter 2 we discussed step one, which is the visa petition. Now we will continue our discussion with step two: applying for the immigrant visa and lawful permanent resident status.

However, some applicants may need or prefer to obtain permanent residency through consular processing abroad. For example, the applicant may be residing outside the United States or need to return to their home abroad for personal or business reasons. Or the applicant may have entered the U.S. without inspection, or is a preference beneficiary and worked in the U.S. without authorization in the past or fell out of status in the past. These latter applicants are not eligible for adjustment of status, unless they qualify for relief pursuant to INA § 245(i) and must therefore

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There are two ways to apply for permanent resident status. Many apply for an immigrant visa at a U.S. consulate abroad, usually in their home country. This is called consular processing and is covered in this chapter. Adjustment of status is when a person applies for permanent residency in the United States. Adjustment of status is covered in Chapter 3. For persons physically present in the United States, adjustment of status is generally preferred over consular processing and should be recommended to clients because of the lower cost and comparative convenience of adjustment, and even more importantly, because of the greater opportunities for administrative and judicial review. In addition, departing the United States may trigger inadmissibility pursuant to INA § 212(a)(9)(B), the three-year and ten-year unlawful presence bars.

apply for an immigrant visa through consular processing. See Chapter 3 for further discussion of adjustment eligibility issues. Consular processing is controlled to a large extent by the State Department (DOS) and is performed by the National Visa Center (NVC) and immigrant visa sections of U.S. consulates. 1 The process consists of the exchange of a series of instructions, notices, and forms between the NVC or the consulate and the applicant and concludes with a visa interview at the consulate and ultimately, the inspection and admission of the new immigrant to the United States as a lawful permanent resident by Customs and Border Protection (CBP) at the border or airport. § 4.2

How Consular Processing Responsibilities Are Divided among Agencies

As you can see, there are several government actors involved with consular processing: the USCIS and CBP, which are agencies within the Department of Homeland Security (DHS), and the National Visa Center (NVC) and U.S. consulates, which are outposts of the Department of State (DOS). The Department of Homeland Security and the U.S. State Department each have different responsibilities in visa processing. It is important to know this so that you can identify which agency is in charge of your consular processing case at each step.

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1. Only USCIS can approve a visa petition, unless extraordinary circumstances exist, such as where the petitioner lives abroad and there is no USCIS office or more specifically, a USCIS “public counter” presence in the country where the consulate is located. In such cases, the consulate may be able to approve a petition. The State Department’s Foreign Affairs Manual (FAM) outlines the specific circumstances and requirements where this is possible. 2 How to find the FAM is discussed below in § 4.3. 2. Once USCIS approves a visa petition, in a consular processing case the petition is transferred to the NVC for initial processing of the immigrant visa. The NVC notifies the petitioner and beneficiary when it is time for final visa processing, and will complete the following preliminary processing steps: 1) establish a point of contact; 2) collect the required fees; 3) collect and review for completeness the electronic visa application form, the affidavit of support, and in most cases all the required supporting documentation; and 4) will forward all documents collected to the appropriate U.S. consulate for the final interview with the visa applicant. 3 PRACTICE TIP: Most family visa petitions are now sent directly after approval from USCIS to the NVC in all cases, where previously if the petition indicated on the I-130 form that the beneficiary would apply for adjustment of status in the U.S., the USCIS Service Center would hold on to the petition. Occasionally, it is still the case that USCIS will keep the petition if a plan to apply for adjustment was indicated. If an I-130 is still at the Service Center and not housed at 1

INA §§ 221, 222. See 9 FAM 504.2-4, 504.2-4(A) and 504.204(B). 3 The URL for the Immigrant Visa Process homepage on the DOS website is http://travel.state.gov/visa/im migrants/nvc/nvc_1335.html. See Appendix 4-A. 2

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the NVC, and the beneficiary needs to consular process rather than adjust as was indicated on the visa petition, then another step may be needed to redirect the I-130 to the NVC. To move the petition from the USCIS Service Center to the NVC, you may need to file Form I-824, “Application for Action on an Approved Application or Petition,” with USCIS. Filing the I-824 requires an additional filing fee and can delay the process considerably. If switching from consular processing to adjustment of status, usually simply notifying the NVC and filing the adjustment of status application package together with the approval notice for the I-130 petition will be sufficient.

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3. Once DHS/USCIS approves the visa petition, neither the NVC nor the consular officer has the right to revoke the USCIS approval of the petition. A consular officer can, however, send the petition back to USCIS for more investigation, and refuse to give the person an immigrant visa in the meantime. See Chapter 1, § 1.13 for more on this process. Example: Juan is applying for an immigrant visa based on his marriage to Gina. At the consular interview, the officer becomes convinced the marriage is a fraud. The officer can send the visa petition back to USCIS in the United States with a request for further investigation of the marriage. She cannot cancel or revoke the visa petition, however. But the consular official does have the authority to deny Juan’s application for an immigrant visa.

5. Only the consular officer can issue the visa, but DHS personnel review the visa applications to screen for terrorists and other inadmissible aliens. Both consular officers and DHS officials have the power to determine that an applicant is inadmissible. However, only the USCIS can grant a waiver of the ground of inadmissibility. For most grounds of inadmissibility, this means that the person cannot submit an application for a waiver until after he has traveled to the U.S. consulate and has been found inadmissible. Then the person is provided with instructions to file the waiver 4

8 CFR § 204.2(h), 9 FAM 503.3-3(B)(3).

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4. While the consular officer may not revoke USCIS approval of the visa petition, the NVC or the consular officer has the authority to “terminate” consular processing and terminate (sometimes referred to as “revoke”) the visa petition itself due to a failure to apply for an immigrant visa within one year after the NVC notifies the petitioner that a visa will soon be available. Both the NVC and the Consulate may terminate the petition pursuant to INA § 203(g) and the priority date will then be lost, and cannot be “recaptured” later through a new petition. 4 Presently both the NVC and the Consulates appear to allow many types of “responses” to the NVC and the Consulate to extend the initial one-year period, such as submitting the agent of choice form, the immigrant visa application, or notifying the NVC the beneficiary will be applying for a provisional unlawful presence waiver to USCIS, for example. Other “contacts” such as submitting changes of address or sending an email to [email protected] or [email protected] (if you are the attorney of record), stating that the beneficiary/visa applicant is still interested in pursuing her case, might be sufficient, but should not be relied upon.

application with the appropriate USCIS lockbox in the U.S. for centralized processing of waivers. The person may have to wait outside the U.S. for months for USCIS to approve the waiver and send it back to the consulate. There are two situations, however, where applicants can and should apply for waivers in advance—if the only ground of inadmissibility is a prior removal or deportation OR if the only ground of inadmissibility is unlawful presence which has or will trigger the “three” or “ten” year bars pursuant to INA § 212(a)(9)(B). See § 4.9 below. 6. Although the consular officer may issue an immigrant visa, it is CBP that grants permanent resident status. Once the consular officer approves the application for the visa, the consular officer will issue an immigrant visa to the applicant. The applicant will present the immigrant visa to CBP at the border. The CBP has independent authority to review grounds of inadmissibility. The person will become a permanent resident at the time that CBP admits her at the border and places a stamp in her passport. 7. And finally, USCIS produces and issues the actual “green card” (I-551) or “permanent resident” card. The card comes in the mail after the individual is admitted to the United States with her immigrant visa, and has paid the USCIS Immigrant Fee (also referred to as the “green card production fee”). The card is produced by the USCIS Office of Intake and Document Production, which may be contacted at [email protected]. Having more than one governmental entity involved makes the procedure more complicated. The State Department (DOS) writes its own regulations and publishes a manual with guidelines for consular officials and other employees, called the Foreign Affairs Manual, or FAM. The FAM provides interpretations of DOS regulations and the Immigration and Nationality Act with detailed instructions to consular officers. 5 Consular officers follow the FAM in deciding visa cases, even where the FAM contradicts DHS regulations, which it sometimes does. You should be familiar with the FAM as well as DOS and DHS regulations.

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§ 4.3

Finding the Rules: The Statute, Regulations, Foreign Affairs Manual, and NVC Instructions

The State Department and National Visa Center’s “Immigrant Visa Process” webpage (referred to as the “NVC homepage” in this chapter) provides instructions to take you through a consular processing case from start to finish. It can be accessed at http://travel.state.gov/content/visas/engli sh/immigrate/immigrant-process/approved/contact.html. These online instructions are very important, since most forms and documents must now be submitted electronically to many consulates. In addition, the consulates have different requirements for the collection and submission of documents, so it is important to also check for this through the NVC homepage.

5

You may access the FAM at https://fam.state.gov/. The applicable FAM section for immigration is Section 9. The FAM is also included in the large, multi-volume text on immigration law called Immigration Law and Procedure. Volumes 17–19 contain the FAM. Some law libraries and many private immigration law offices may have this text. The applicable regulations are in 22 CFR §§ 40 and 42, available online and also obtainable at any government bookstore.

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Otherwise, the legal requirements for consular processing are found in three places. First, there are the statutes: Title 8 of the Immigration and Nationality Act (INA) and Title 22 (foreign affairs) of the United States Code. Second, there are State Department regulations, found at Title 22 of the Code of Federal Regulations (CFR).

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Third, the Foreign Affairs Manual (FAM) expands upon the information contained in the regulations. 9 FAM-e covers visas and is the recently revised, reorganized, and renumbered replacement of the prior “legacy” Volume 9 of the FAM. Legacy Volume 9 was keyed to the State Department regulations found at 22 CFR, but that is no longer the case. 9 FAM-e was inaugurated on November 18, 2015 and is now the “authoritative source for visa guidance” according to the State Department. DOS states that only the language and organization of 9 FAM was altered, not substance or guidance, by the 2015 reorganization. DOS merged the former interpretive and procedural notes, along with appendices, and a new citation system was initiated, similar to the citation system used in other volumes of the Foreign Affairs Manual and Foreign Affairs Handbook. Finally, DOS also has provided “crosswalk” excel tables correlating old citations with new, so that users can match new sections with former locations in the legacy FAM and vice versa. 6 The crosswalk tables are provided as excel documents and are found at the FAM website as well. 7 Consular officers heavily rely upon the FAM in making their decisions, so if there is an important legal or factual issue in your case, be sure to cite to the FAM, as well as to the statute and regulations. PRACTICE TIP: The rules for obtaining acceptable civil documents from foreign countries (such as birth, marriage, and police certificates) used to be housed in the FAM, but are presently found on the State Department’s website in the Visa Section on the “Reciprocity and Civil Documents by Country” page. Scroll down to the “Civil Documents and How to Use Them” section. 8 A link to these pages is located on the NVC website under the “Collecting Supporting Documents” via the “Document Finder.” 9 The regulations relating to documents, however, often still refer to the FAM.

6

See Section F, “NEW 9 FAM-e” in the December 2015 Visa Bulletin, available at https://travel.state.gov/content/visas/en/law-and-policy/bulletin/2016/visa-bulletin-for-december2015.html. Archived “legacy” 9 FAM provisions may also often be located via internet search engines, but should be checked against the current 9 FAM-e provisions. 7 Available at https://fam.state.gov/Fam/FAM.aspx?ID=09FAM. 8 Available at https://travel.state.gov/content/visas/en/fees/reciprocity-by-country.html. 9 Available at https://travel.state.gov/content/visas/en/immigrate/immigrant-process/approved/contact.html. 10 Available at www.uscis.gov. 11 Available at www.law.cornell.edu/uscode/text/22. Title 22 of the Code of Federal Regulations (CFR) may also be found at the Government Publishing Office: www.gpo.gov/fdsys/browse/collectionCfr.action? collectionCode=CFR. 12 Available at https://fam.state.gov/.

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The statutes and rules governing USCIS, ICE, and CBP within the United States may be found on the USCIS website. 10 In addition, Title 22 of the U.S. Code may be found at various locations online, including university and government websites. 11 The Foreign Affairs Manual (FAM) has its own website. 12 Note that sometimes the regulations and the FAM may be slightly out of date,

with respect to fee amounts or statutory or judicial changes, so it is important to crosscheck with the government websites and other legal sources. § 4.4

Overview of Consular Processing Steps and Utilizing the Visa Bulletin

Clients who plan to go through consular processing will first need an approved visa petition. As described in Chapter 2, the sponsoring relative, or “petitioner,” must submit a Petition for Alien Relative on Form I-130 by mail to either the USCIS Chicago or Phoenix Lockbox, depending on the petitioner’s state of residence. 13 The Lockbox will forward the petition to the USCIS Service Center (not the District Office) with jurisdiction over the petitioner’s residence. Petitioners residing in a country with a USCIS office have the option of sending their I-130 petitions either to the Chicago Lockbox or they may file their Forms I-130 at the international USCIS office having jurisdiction over the area where they live. 14 Those overseas petitioners in countries without a USCIS office must send their I-130 petitions to the Chicago Lockbox, unless the U.S. Consulate in that country is willing to accept and adjudicate the petition. 15 Once USCIS has approved the petition, it is sent to the National Visa Center (NVC), which is part of the U.S. Department of State. The USCIS Service Center also sends an approval notice (Form I-797) to inform the petitioner that the file has been sent to the NVC and that all future inquiries should be directed to the NVC. After this, the USCIS Service Center will not have any record of the case. The NVC will begin immigrant visa processing right away for immediate relative beneficiaries. For preference beneficiaries, the NVC will begin immigrant visa processing when it appears that the priority date of the Petition for Alien Relative is likely to become current within the next year, according to the State Department Visa Bulletin. For an explanation of priority dates and how to use the Visa Bulletin generally, see Chapter 1. If the priority date becomes current and no notice has been received from the NVC, the beneficiary must take the initiative to contact the NVC and request immigrant visa processing to begin.

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A.

Utilizing the Department of State Visa Bulletin Charts

Beginning with the October, 2015 State Department Visa Bulletin, there is a two-tiered chart system, with one chart indicating “Dates for Filing” (Chart B) and the second chart “Final Action Dates” (Chart A). Chart A, “Final Action Dates,” reflects actual current priority dates. Chart B, “Dates for Filing,” indicates the priority dates when the National Visa Center will begin accepting fees and applications for particular preference categories. Example: Cristina, a native of Guatemala and the spouse of an LPR, is presently living abroad. Her spouse filed an I-130 petition which was received by USCIS on November 15, 2015 (her priority date). This month, the visa bulletin indicates in Chart B that for the 2A preference category, which includes spouses of LPRs, “Dates for Filing” is currently 13

Filing addresses and procedures frequently change, so it is important to always double-check the current filing procedure on the USCIS website, www.uscis.gov/I-130. 14 9 FAM 504.2-3(B). 15 9 FAM 504.2-4.

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at November 22, 2015. This date is past Cristina’s “priority date” of November 15, 2015. That means that Cristina may pay the fees for her immigrant visa application and submit the electronic form as well as her required documents to the NVC. However, Chart A, “Final Action Dates” indicates that 2A priority dates are “current” only for those whose actual priority date is June 8, 2015 or earlier. This means that although Cristina can and should file everything in advance, she will not be able to have an interview scheduled with the U.S. Consulate in Guatemala until her November 15, 2015 priority date is “current” which means a visa then will be “immediately available” to her. B.

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Selecting Which Consulate

Generally, an immigrant visa applicant is required to consular process in the country of last foreign residence, which is usually also the country of birth or nationality, but not always. 16 The visa applicant may elect to consular process at either the consulate in the country where he or she resides or last resided 17 or the consulate in the country where he or she is physically present and will be able to remain for the duration of the consular processing case.18 In addition, the Department of State may direct the consulate having jurisdiction over the country of the applicant’s citizenship or nationality to accept the applicant’s case for visa processing. 19 Finally, any other consulate may accept jurisdiction of the case if the applicant is currently residing in the United States and establishes that hardship would occur if he or she were forced to return to the country of last residence for consular processing. 20 Some cases are referred to as “homeless” cases, that is, ones in which the beneficiary’s country of nationality or last foreign residence is not within the consular jurisdiction of any U.S. immigrant visa issuing post.21 At this writing, examples of “homeless” countries are Eritrea, Iran, Libya, Somalia, Syria, South Sudan, and Yemen. 22 For homeless cases, the State Department will designate alternate consulates for immigrant visa processing, depending upon the visa applicant’s physical location at the time that he or she begins consular processing. 23 The posts that presently process these homeless cases are also listed in the FAM. 24 C.

Avoiding Termination Proceedings

16

9 FAM 504.4-8(A) & (B). 22 CFR § 42.61(a), 9 FAM 504.4-8. 18 22 CFR § 42.61(a), 9 FAM 504.4-8(C). 19 9 FAM 504.4-8 (B). 20 22 CFR § 42.61(a), 9 FAM 504.4-8(D). 21 The list of countries whose nationals are considered “homeless” is available at 9 FAM 504.4-8(E)(1)(b). 22 9 FAM 504.4-8(E)(1)(b). 23 9 FAM 504.4-8(E)(3); 504.4-8(E)(1)(b). 24 9 FAM 504.4-8(E)(1)(b). 17

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Termination proceedings under INA § 203(g) can be initiated by the NVC or the consulate if the visa petition beneficiary does not apply for an immigrant visa within one year of notification of the initiation of consular processing by the NVC. Termination can have serious consequences. If the visa petition is terminated, the consequences could be devastating, especially for preference beneficiaries, as the priority date is lost and it cannot be recaptured. As a result, the preference immigrant loses his or her place in line to immigrate—which may mean that many years are lost.

In addition, the fees paid for the visa petition and any fees paid for consular processing will also be lost. Be very cautious! PRACTICE TIP: To avoid termination proceedings, you should not only check the visa bulletin to determine if the priority date is current or nearly current, in case an NVC notice went astray; you should also make regular contact with the NVC throughout the process. After the NVC forwards the immigrant visa package to the consulate and for some reason the applicant cannot attend her appointment, you should make regular contact subsequently with the consulate, as the case may also be terminated if the applicant does not apply or take further action within the year with the consulate. Each email contact made to the NVC within a year may serve to help avoid termination, but it is best to submit something more substantial. For example, an agent can be chosen, and several months later, a fee can be paid. Subsequently, the immigration visa application can be filed months later. Eventually documents can be filed. This is not an “ideal” method for consular processing, but if there is a reason necessitating delay, such as a delay in obtaining the necessary documents for a successful provisional waiver application (see Chapter 6), then this strategy has worked in the past, but is not guaranteed. The FAM itself appears to provide for stricter interpretations of when termination will occur. 25 Make sure to save copies of all your communications with the NVC and consulate in a given case, to make sure that you are able to prove that you have maintained contact. Presently, the NVC or the Consulate is sending and/or emailing a warning notice when visa registration is in danger of termination due to “abandonment” under INA 203(g). 26 The notice contains a form “check-off” letter for the visa applicant to sign and return, indicating whether or not she intends to continue with consular processing. 27 In addition, the NVC or consulate may require that the Immigrant Visa fee and Affidavit of Support fee be paid again. See Appendix 4B. If termination does occur, it may be possible for the petition to be reinstated if the applicant requests reinstatement within a year of termination, and if the applicant can show his or her failure to apply was due to circumstances beyond his or her control. 28 D.

Contacting the National Visa Center

For information on the status of an approved relative petition that is pending at the NVC for consular processing, one may contact the NVC in the following ways:

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By email at [email protected]; By calling the NVC automated voice center at (603) 334-0700. There is an option to speak with a live person when calling this system. By faxing a letter to the NVC at (603) 334-0791.

25

9 FAM 504.1-4(B); 9 FAM 504.13-2. See INA § 203(g). 27 9 FAM 504.13-2(E)(1). 28 Previously, consulates rarely terminated petitions pursuant to 203(g), or if they did, they allowed reinstatement many years later in certain some circumstances—such as war in the home country precluding the ability to obtain birth certificates, or family illness. 26

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By mailing a written question to the National Visa Center: Attn: WC 32 Rochester Avenue, Suite 200 Portsmouth, New Hampshire 03801-2915

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Legal representatives with G-28s on file, or who scan and submit a new G-28, can also inquire about clients’ cases via email, at [email protected]. Inquiries should be limited to one case per email and should contain the case or receipt number as the subject heading of the email.

All inquiries need to include the name of the representative of record, names and dates of birth of the petitioner and the principal applicant, and the NVC Case Number. The NVC Case Number is a reference number NVC assigns to all cases. It begins with three letters corresponding to the consulate where the applicant will be interviewed. For example, the letters “ISL” correspond to cases going to the U.S. consulate in Islamabad, Pakistan, and “JAK” corresponds to cases going to Jakarta, Indonesia. Thus, looking at the NVC Case Number is usually an easy way to verify that NVC has the correct consulate early on, though occasionally consulates may have more than one three-letter designation—for example, CDJ and MEP both refer to Ciudad Juarez, Mexico. E.

Overview of Consular Processing

As previously noted, once immigrant visa processing begins, the NVC will establish email correspondence and a point of contact, accept the required processing fees, collect the immigrant visa and affidavit of support application forms, and collect all the required financial and civil supporting documentation from the principal applicant and any derivative applicants. Finally, the NVC will forward all the collected forms and documents to the appropriate U.S. consulate for the final interview with the visa applicant.29 In the case of VAWA self-petitioners who are consular processing, the affidavit of support is not required All initial communication from the NVC is by letter or email with attachments, with the initial instruction letter providing the relevant URLs (internet addresses) for the forms and further instructions found online. The applicant should receive the following from the NVC: A cover letter with the NVC case number and communications instructions. The letter provides additional general visa processing information and a warning about the termination process. The cover letter will also direct the visa applicant to choose an “agent” on form DS-261 if a representative did not submit a G-28 with the visa petition. If a G-28 is already on file, the representative will be contacted directly as the “agent” unless a DS-261 is subsequently filed designating a different person.

•

Immigrant Visa Fee Invoices for the visa applicant and each derivative beneficiary with the Case Number and Invoice Number needed for paying the fee invoices online and submitting the immigrant visa applications.

•

Affidavit of Support Fee Invoice for the principal applicant.

9 FAM 504.4-2(B), 9 FAM 504.4-3, FAM 504.4-5(B).

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•

•

A URL or internet address to the NVC Immigrant Visa Process homepage, which sets out all the instructions for the immigrant visa applicant, including a list of documents that must be gathered.

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A URL or internet address to pay fees and submit the immigrant visa (IV) electronic application online.

•

A Document Cover Sheet with the list of documents to be submitted. The Document Cover Sheet is necessary to include later with all documents submitted. After the fees are paid, Receipt and a Document Cover Sheet buttons are available which allows for the printing/reprinting and or emailing of these items.

See examples in Appendices 4-B, 4-C, and 4-D.

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PRACTICE TIP: The petitioner and/or beneficiary should be proactive in following up with the NVC when the priority date becomes current if no notice or fee invoice has been received from the NVC prior to this point. Sometimes, particularly in older visa petition cases, the NVC fails to notify the petitioner or beneficiary when the priority date is current. It is therefore very important that the beneficiary or representative check the State Department’s visa bulletin 30 regularly to determine whether the priority date is in fact current, and if it is, to notify the NVC and request that immigrant visa processing begin. 31 After the NVC processing is complete and all forms and documents are forwarded to the U.S. Consulate abroad, either the NVC or the U.S. Consulate will schedule an interview at the Consulate and notify the applicant of next steps, including scheduling a biometrics appointment, medical exam, and designating an in-country courier service location where the applicant would like to receive her approved immigrant visa package. At the interview, eligibility and admissibility are reviewed, and the immigrant visa is ultimately approved or denied. If denied, the applicant is provided with a notice indicating on which eligibility or inadmissibility grounds the visa was denied and any applicable waivers of inadmissibility which may be available. If approved, the applicant is directed to pick up her passport and immigrant visa package at the designated courier, and is required to travel to the U.S. within six months from date of the visa issuance, 32 and present herself to CBP at the border or port of entry for admission as a lawful permanent resident. § 4.5

Step I: Establishing Email Correspondence and a Point of Contact

As noted previously, when an applicant’s priority date is within a year of becoming current, the NVC should send out a cover letter with instructions for establishing email correspondence if not

30

The Visa Bulletin is available online at https://travel.state.gov/visabulletin. Go to www.travel.state.gov and click on “visas,” then “visa bulletin” for both current and archived visa bulletins and priority dates. 32 9 FAM 504.10-2(A). If the immigrant issued a visa is unable to use it to enter the U.S. during its validity period, “because of reasons beyond the applicant’s control and for which the applicant is not responsible” a replacement visa may be issued with new fees usually required. 9 FAM 504.10-5(A) 31

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already established, and choice of agent, along with consular fee invoices. See Appendices 4-C and 4-D. At this stage, the applicant will be asked to do the following two things: 33 1. Designate an email address through which to communicate with the NVC, if this has not yet been done. This can be done either by the applicant or by the legal representative, by sending an initial email to the NVC at [email protected]. Make sure to include the following information in the email: all email addresses to which the NVC should send the correspondence; the petitioner’s full name, email address, and date of birth; and the name, email address, and postal address of the representative or attorney of record, if applicable. The NVC will proceed to correspond with the applicant and/or her representative by sending emails to the email address from which the message came and every other email address included in the message.

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2. Designate a point of contact for all correspondence from the NVC by going on to the NVC homepage and submitting the online DS-261, Choice of Address and Agent form. 34 The applicant can choose to be this person, however she can also designate whomever else she chooses. The designated point of contact may be an attorney or other legal representative, a family member or a friend. Whoever is designated, however, should be able to correspond timely with the NVC via email, because email is the NVC’s preferred method of communication. Therefore, if an email address is provided to the NVC to communicate with the agent of choice, the NVC will send all correspondence by email and not regular mail. If the beneficiary wants to be represented by an attorney or accredited representative, the legal representative must sign and submit Form G-28, Notice of Entry of Appearance as Attorney or Accredited Representative. The G-28 may be scanned and submitted by email to the NVC. Note that if G-28s were submitted with the I-130, the representative may receive correspondence from the NVC without submitting another Form G-28. § 4.6

Step II: Paying the Fees

33

The webpage with these instructions can be accessed by going to the Immigrant Visa Process homepage and clicking on the “Begin National Visa Center (NVC) Processing” link under the section titled “After Your Petition is Approved.” See Appendix A. 34 This form can be found at https://ceac.state.gov/ceac/. 35 9 FAM 504.4-2(B). 36 See https://travel.state.gov/content/visas/en/fees/fees-visa-services.html.

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There are two consular processing fees associated with the Immigrant Visa Application process: the Immigrant Visa Application fee and the Affidavit of Support (Form I-864) fee. The NVC’s Instruction Packet will include invoices for both fees. 35 See Appendix 4-D. As of the time of this writing, the Immigrant Visa Processing fee is $325 and the Affidavit of Support fee is $120. 36 Each person immigrating, the principal, and each derivative, must pay an Immigrant Visa Processing fee. However, only the principal must pay the Affidavit of Support fee. The fee invoices contain a unique Invoice Number for each case (same number for principal and

derivatives) and instruct the visa applicant to pay the fees online through a U.S. bank checking or savings account. Credit cards are not accepted for payment at this time. 37 The fees are paid online through the Consular Electronic Application Center (CEAC) website. 38 Choose “Fee Payment” under “Immigrant.” The consular processing case number and immigrant visa fee invoice number must then be entered, along with an indication that the person entering the information is the attorney, petitioner, applicant or a third-party agent. Click on the “pay now” buttons under “IV Fee” and “Affidavit of Support” fees and follow the instructions. You will need a check to refer to for account and bank routing numbers. After payment is made, fee receipts will be available to print or email, and may be emailed to multiple recipients. Note that the fee processing is not instant, it will ordinarily take several days to one week for the fee to be processed. Once the IV fee is processed, the Immigrant Visa application will be accessible to the applicant or representative to complete. As of this writing prior instructions for alternative methods of payment have been removed, so if an applicant or her agent cannot pay online, she must contact the NVC directly to make alternative arrangements. 39 Note on Proof of Payment of the Provisional Unlawful Presence Waiver: If the visa applicant will be submitting a “Provisional Waiver” or “Provisional Unlawful Presence Waiver,” (Form I601A), the applicant must submit proof of payment of the Immigrant Visa application fee at the time of filing the provisional waiver with USCIS. A printout of the payment confirmation from the Consular Electronic Application Center (CEAC) may be utilized for this purpose. If the Immigrant Visa fee is paid through alternate arrangements, a copy of the receipt must be requested from the NVC. To do so, email the NVC at [email protected] with “Fee Payment Receipt Request” and the NVC case number in the subject line.

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Once the visa fees have been paid, the applicant or representative should download and print or email herself the Document Cover Sheet, which will need to be returned to the NVC along with the affidavit of support and civil documents. The instructions from the NVC will include the URL address (internet address) to the NVC homepage, where all the specific instructions are outlined. The applicant must follow those instructions carefully. After the Immigrant Visa fee is paid, the Immigrant Visa application should be completed and submitted as the next step. § 4.7

Step III: Submitting the Online Application for an Immigrant Visa

The next step after paying the Immigrant Visa fee invoice is to submit the Immigrant Visa and Alien Registration Application, Form DS-260, for each visa applicant, both for the principal applicant, and any derivatives. The form requests standard biographical data on the visa applicant, and like the questions on the Form I-485 adjustment of status application, the questions on the Form DS-260 address questions of inadmissibility and must be answered carefully. The form also requests information on present address, previous addresses, current and past employment and 37

To pay online, access the “Immigrant Visa Invoice Payment Center” link on the “Pay Fees” tab on the NVC Immigrant Visa Process homepage listed above. 38 Available at https://ceac.state.gov/ceac/. 39 Id. The FAM appears to acknowledge fees may be paid by mail. See 9 FAM 504.4-3(A)(1).

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education, address where the applicant will reside in the United States, intended port of entry, and whether the applicant has ever lived in the United states or been refused a visa or admission to the United States.

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The DS-260 is not accessible in print form until the electronic application has been completed or partially completed. After completion, but prior to signature, the form may be printed, scanned and emailed for review, or the applicant can review it online. To complete the form online, the applicant or his or her representative must visit the Consular Electronic Application Center (CEAC) website and follow the directions on the website. 40 An “exemplar” form is available online in PDF format from the State Department but it is out of date.41 A sample DS-260 form is found at Appendix 4-F. Additionally a list of questions in Spanish and English to utilize in obtaining information from the applicant before filling out the form is found at Appendices 4-G and 4-H. The DS-260 may be partially completed, saved online, and accessed and finished at a later date. The DS-260 requires careful thought, similar to completion of the I-485 adjustment of status application, particularly regarding implications for grounds of inadmissibility. Some important questions to be aware of: Where the form refers to “Country of origin (nationality),” it is asking for the country of citizenship.

•

Where the form asks “Do you have documentation to establish that you have received vaccinations in accordance with U.S. law” in the section on grounds of inadmissibility, that question should be answered “yes” even if all vaccinations have not yet been completed, but will be completed at the medical exam required as part of the consular interview.

•

Where the form asks about present and previous addresses and information about visits/stays in the U.S., it is important to answer these questions as accurately and with as much specificity as possible. Note that answers to these particular questions may help to determine inadmissibility under the unlawful presence grounds. It is therefore critical that advocates review these questions and answers very carefully with clients for accuracy, and to determine whether the client is actually inadmissible and ineligible or only eligible if a waiver is approved.

•

The DS-260 asks questions referring to the grounds of inadmissibility. Chapter 5 of this manual discusses the grounds of inadmissibility.

PRACTICE TIP: The online DS-260 does not allow you to leave any question unanswered, though sometimes boxes may be provided to check if the question is inapplicable or the answer unknown, such as a parent’s date of birth or current address. The DS-260 asks for extensive biographical information, for example in regards to the applicant’s history of residential addresses, employment, education, and information pertaining to current and prior spouses. 40

Available at https://ceac.state.gov/ceac/. You can access that file by going directly to this URL: http://travel.state.gov/content/dam/visas/DS260%20Exemplar.pdf. 41

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Addresses and some other information can be abbreviated, if necessary. Be sure that your answers on the form are consistent and match the information provided on the I-130. Once the DS-260 is submitted, it cannot be revised until the date of the consular interview upon request of the applicant, so it is important that it is reviewed and re-reviewed before signature and submission online. Note that while the applicant will need to electronically “sign” the DS-260 by clicking a signature box and must submit the application online, he or she may receive help from someone else. The applicant will have a chance at the interview to review and confirm all information entered. After the DS-260 Immigrant Visa application is electronically signed and submitted, a Confirmation Notice button will appear for printing and/or emailing an official confirmation notice, which is necessary to take to the consular visa interview and it will also be required at the time of fingerprinting abroad, if the consulate requires fingerprinting in advance of the interview. A copy of the completed DS-260 form which was submitted should also be printed for the applicant’s and representative’s records, and a copy should be taken to the visa interview abroad as well. § 4.8

Step IV: Submitting the Affidavit of Support with Financial Documentation and the Supporting Civil Documents

After submitting the Immigrant Visa Application, the next step is involves completing the Affidavit of Support form and gathering the necessary supporting financial and civil documentation. The supporting documents include both financial documents related to the Affidavit of Support, and civil documents, which refer to the identity, family relationship, military and police records required to establish the applicant’s eligibility and “admissibility” to immigrate.

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A.

Preparing the Affidavit of Support and Gathering Financial Documents

The I-864 Affidavit of Support form is a complex document, and your clients will need your help in completing it. 42 The I-864 is required to show that the person immigrating will not become a public charge. The petitioner must act as the “sponsor” and complete the I-864. Sponsors must demonstrate that they can maintain their family, any other dependents, and the immigrant at a level that is 125% of the federal Poverty Income Guidelines (or 100% for persons in active duty in the U.S. Armed Forces). 43 The petitioner must always file an Affidavit of Support regardless of whether she has income sufficient to meet the poverty guidelines requirement, but if her income is insufficient she may also ask a willing joint sponsor to submit a second I-864, 44 and/or utilize income from a household member willing to submit Form I-864A, “Contract Between Sponsor and Household Member.” 45 The NVC reviews the I-864 for completeness, to see if signatures and required supporting financial, domicile, and petitioner status documents are included. However, only the consulate can make a decision as to whether the affidavit is legally sufficient to meet the public charge 42

See “Affidavit of Support Processing” links found at https://travel.state.gov/content/visas/en/immigrate/i mmigrant-process/documents/Step_4_Collect_Financial_Documents.html; see also Chapter 5. 43 For the latest Poverty Income Guidelines for the Affidavit of Support, go to www.uscis.gov/i-864p. 44 9 FAM 302.8-2(B)(7); see Chapter 5. 45 9 FAM 302.8-2(B)(6).

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requirements. This means that even though the NVC may complete its review of the I-864 and other documents and forward the case on to the consulate, the consulate may find the documents insufficient or in need of updating.

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The Affidavit of Support form required is usually Form I-864, but note that the I-864 is not required of K-1 fiancée or K-3 spouse of U.S. citizen visa applicants, nor VAWA self-petitioners and their derivatives. VAWA self-petitioners and derivatives should substitute Form I-864W, Intending Immigrant’s Affidavit of Support Exemption, in lieu of Form I-864, and it is advisable to reference in the email or regular mail cover letter that the applicant is a VAWA selfpetitioner or derivative and thus not required to submit Form I-864 nor pay the Affidavit of Support fee. Fiance(é)s or spouses of U.S. citizens applying for K visas cannot be required to submit an I-864, but a letter from the petitioner’s employer, evidence that the applicant will be self-supporting, or Form I-134 (the non-contractual affidavit of support form) may be requested. 46 An I-864 form will also suffice, if preferred. The NVC instructions for financial documents include a requirement of submission of IRS tax transcripts from the petitioner and any joint sponsor as well as any household members whose income will be relied upon for the affidavit of support requirements. 47 If an extension was filed with the IRS for the most recent tax year, submit a copy of the extension form, IRS Form 4868, or a signed statement that a request for an extension was filed. If no taxes were filed, a statement explaining why no taxes were filed is required. If for some reason the IRS tax transcript is not obtainable, a copy of the most recent year’s federal income tax return and W-2 or schedules may be submitted in lieu of the tax transcript. The NVC financial documents tab has a direct link to the IRS tax transcript request pages, for both online and mail requests. 48 Requesting an online tax transcript will result in immediate access to download the person’s tax transcript, but to do so, an account number from a credit card, mortgage, home equity line of credit or car loan is required, as well as a cell phone number with the person’s name on the account and an email account. In addition, personal information including filing status and the mailing address from the latest tax return filed is required. If the tax transcript requestor does not have any of these accounts, a transcript may be requested by mail and should be received within 5-10 calendar days. 49

Other documents required in support of the Affidavit of Support include proof of the U.S. domicile of the petitioner and any joint sponsor, as well as proof of the sponsor(s)’ U.S. citizenship or lawful permanent residence status. See Chapter 5 for a thorough discussion of the Affidavit of Support requirements and required corroborating documentation. The affidavit of

46

9 FAM 502.7-5(C)(3). See https://travel.state.gov/content/visas/en/immigrate/immigrant-process/documents/Step_4_Collect_Fi nancial_Documents.html. 48 Id. 49 Available at www.irs.gov/individuals/get-transcript. 47

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PRACTICE TIP: Since the financial documentation submitted to the NVC may be outdated at the time of the immigrant visa interview at the consulate, beneficiaries should bring updated information (most current tax returns, W-2s, recent sponsor paystubs and other relevant documents related to income) to the interview.

support and financial documents should be submitted together with the civil documents, as described below, all in one package. B.

Submitting Supporting Civil Documents

More and more consulates are requiring the electronic filing of documents with the NVC. This means that in addition to submitting forms DS-261 and DS-260 online, required by all consulates at this writing, an increasing number of consulates also require that the financial and civil documents be scanned and uploaded or submitted via email to [email protected]. Whether or not electronic processing is required in a particular case depends on the consulate that will receive the application and sometimes the visa category involved. It is very important, therefore, to follow the instructions online at the “Submit Documents to NVC” tab of the NVC homepage, and check to see what the relevant consulate’s current requirements may be, as they are continuously evolving and changing. As a result, how, when and which civil documents are required to be submitted varies slightly by consular post. Currently, there are four different methods for submitting documents to the NVC for pre-screening, depending on the particular consulate involved. 50 The first method, required by several consular posts, is to allow all documents to be scanned and uploaded online at the CEAC website. The second method requires that the documents be scanned and emailed to the NVC. The third method favored by some consulates is “choice”—the applicant may decide whether to scan and email or mail the documents to the NVC. The fourth method required by the rest of the consulates is mailing of all financial and civil documents to the NVC at the address provided on the NVC website.

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Generally, the required civil documents include a copy of a valid, unexpired passport biographic page (valid for at least six months past the anticipated immigrant visa interview date); a certified copy of the applicant’s birth certificate or adoption documentation; a certified copy of the applicant’s marriage certificate; a certified copy of any divorce decrees or other proof of termination of past marriages (annulment or spouse’s death certificate); certified copies of military records; certified copies of conviction records; and police clearance certificates. If the application is based on a petition for a parent or sibling, a copy of the petitioner’s birth certificate is also required. All official government documents must be certified by the issuing authority. 51 Primary documentation, for example of birth or marriage, would be a certificate from a government agency that maintains official records. All required documents must conform to the DOS regulations and to the FAM. 52 The FAM should be consulted with regard to whether a particular document from a certain source is deemed acceptable. 53 The applicant needs to obtain his or her “civil documents” according to the guidelines outlined in the FAM. If such a document is 50

Available at https://travel.state.gov/content/visas/en/immigrate/immigrant-process/documents/Submit_do cuments.html. 51 22 CFR § 42.65(b). 52 See § 4.5 below. 53 Enter country and click on search under “Document Finder” section in “Collect Supporting Documents” page on NVC Immigrant Visa Process homepage or go to State Department “Reciprocity and Civil Documents by Country” page at https://travel.state.gov/content/visas/en/fees/reciprocity-by-country.

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unobtainable in the issuing country, the applicant may be allowed to submit other satisfactory evidence in its place. 54 Furthermore, in addition to the documents listed on NVC’s instructions, many consulates have location-specific instructions regarding the required civil documents. Therefore, in order to assist your client in obtaining the required civil documents, you will need to familiarize yourself with different sets of instructions.

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PRACTICE TIP: It is a good idea to go online and review document requirements far in advance of the client’s timeline to start consular processing so that your client can start gathering documents early. Immigrant visa applicants abroad, especially if they are children, may have difficulty obtaining the required civil documents and may need help from someone in their home country. They may also need to request and pay for documents that may take many weeks or months to obtain. Police certificates can take a particularly long time to obtain from certain countries and may need to be requested far in advance, or closer to the date of the interview, if the certificate will expire. It is critical to check the FAM as well as any additional consular instructions linked to the NVC website to determine whether a police certificate is available from a particular country, and if so, where and how exactly to obtain an acceptable police certificate, as well as the length of time the document is considered valid. C.

NVC Document Finder: DOS Reciprocity Schedule

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22 CFR § 42.65(d). The “Document Finder” is found at https://travel.state.gov/content/visas/en/immigrate/immigrantprocess/documents/Supporting_documents.html and the same information may be accessed on the “Reciprocity and Civil Documents by Country” page, located at https://travel.state.gov/content/visas/en/fee s/reciprocity-by-country.html. This country-by-country guide can also be found in Volume 19 of Immigration Law and Procedure. 55

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The State Department’s Visa Reciprocity by Country Schedule, accessed by the “Document Finder” link through the NVC homepage under the “Collect Supporting Documents” tab, will provide you with instructions on how to obtain the required civil documents from a particular country. It will also indicate which documents the DOS has determined are or are not reliably available from a particular country. For example, the Reciprocity Schedule for Afghanistan states that birth certificates may not be available in that country, and states that the “national identity card” should be accepted in lieu of a birth certificate. On the other hand, if your client tells you that a particular document is not available, but the Reciprocity Schedule says that it is available, you will be expected to provide the document as requested, or an acceptable alternative. The Reciprocity Schedule was formerly an appendix of the Foreign Affairs Manual, and so the regulations still refer to the FAM in this regard. The NVC homepage “Document Finder” provides country-by-country links to all the reciprocity schedules listed in the State Department’s website. 55 Once there, you simply need to type in the name of the country where the event happened that you must document (i.e., the birth, death, marriage, adoption, etc.) from the dropdown menu, click on “search” and you will be transferred to that country’s “reciprocity schedule” on the DOS website. Scroll down on the left and click on the group of documents you need, which is where you will find instructions on how to obtain that particular required civil document. Follow the requirements exactly. Do the same to determine whether a police certificate is

available from the client’s home country, as well as each country where your client lived for 12 months or more. WARNING: Pay attention to detail! Get help if you are not sure about documents. If you do not prepare or obtain the documents exactly according to the instructions, which often change and evolve, your client may be turned down at the interview and forced to wait outside the country for weeks or months until you get the right documents and a second interview can be scheduled. Examples: Enter the name of the appropriate country in the “Document Finder” on the “Collecting Supporting Documents” tab to follow along with these examples: 1. Yun was born in Taiwan. He wants to immigrate through his mother and needs to provide a birth record. However, individual birth certificates are not always available in Taiwan. Per the instructions listed on the Taiwan Reciprocity Schedule under “birth, death and burial certificates,” Yun must provide a certified copy of an extract from his “household registration.” Note that the Reciprocity Schedule states that a “household roster” is a different document, though similar (it is a simplified version of the “household registration”), and is not acceptable as it is missing certain key information. 2. Alicia was born in Mexico. She already has her birth certificate from her local municipal civil registry. The “Reciprocity by Country” page of NVC’s website indicates that birth certificates issued by the “appropriate official civil registry” are acceptable.

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3. Jules was born in Ghana. He has a birth certificate, on light gray paper, issued two years after his birth. Although this is a document issued by Ghanaian authorities, the DOS authorities believe there has been much fraud and they will not accept it unless the birth was registered within the first year AND the document is an original of the computer-generated, certified copy. Otherwise, Jules will need to submit secondary evidence as proof of his birth, such as a midwife’s certificate of birth, a weight card, or welfare center card, or baptismal certificate. In certain cases, some consulates are also requiring DNA tests as proof of the relationship. 4. Anna was born in New Zealand and lived there most of her life. She also worked in Australia as a nanny for 13 months and in Brunei as a nurse for 18 months while in her twenties. Anna will need to get police clearances from New Zealand, Australia, and Brunei. For New Zealand, Anna needs to download, fill out, and sign a form available on the New Zealand Police Vetting Service, providing the U.S. Consulate address listed on the Reciprocity Schedule page under “Police Records.” The form is then scanned and emailed to the Police Vetting Service website, where the form will be completed and forwarded to the U.S. Consulate, not sent back to Anna. Anna must also obtain a police certificate from Brunei, since she lived there at least 12 months (unless the U.S. Consulate allows other “satisfactory evidence of good conduct” in that country). 56 To obtain a Brunei 56

9 FAM 504.4-4(B)(b); 22 CFR 42.65(c).

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police certificate, she must submit a copy of her own passport; a copy of the Brunei identity card she used while in that country, if available; provide evidence regarding how long she resided in Brunei; pay $50 and send everything to the Commissioner of the Royal Brunei Police Force, who will then send the certificate to Anna, in approximately two weeks, if she is lucky. As she no longer lives in Australia, in order to obtain a police certificate from that country she will need to go to the Australian Federal Police website and follow the instructions to apply online or print out and send in an application. All this is likely to take at least a month or two to accomplish, so Anna should probably start this process before she pays the Immigrant Visa fees and submits her affidavit of support form to the NVC. She will also need to be vigilant that she does not let more than one year pass without contacting the NVC with a sufficient response to avoid termination while she is working on her application. D.

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Document Cover Sheet

All documents must be submitted in one package with the Document Cover Sheet which has a barcode, and was either mailed or emailed to the applicant or representative and is also available online to download and print from the CEAC website at the end of the “Fee Payment” section. Note the Document Cover Sheet is different from the DS-260 Confirmation, even though both have barcodes. If mailing documents, the appropriate NVC address is: 57 National Visa Center Attn: DR 31 Rochester Avenue, Suite 100 Portsmouth, NH 03801-2914

* PRACTICE TIP: All documents listed in either the Reciprocity Schedules or in the instructions from individual consular offices serve as “primary evidence” for purposes of the immigrant visa application. However, when such primary evidence is unavailable and “secondary evidence” is

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Since government addresses frequently change, be sure to double-check the correct address with the NVC website under the “submitting documents” tab.

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IMPORTANT: Certain individual consulates have their own specific requirements for obtaining documents, which if in conflict with the NVC instructions, override the NVC and DOS Document Finder/Reciprocity Schedule instructions. A particular consulate may also require additional documents. It is therefore extremely important to always check the country-specific requirements for each consulate, every time a new consular processing case is undertaken, as the requirements are subject to change, sometimes frequently. These requirements can be found through the links provided on the NVC homepage “Collect Supporting Documents” tab under “Review Embassy/Consulate Instructions.” These documents must be submitted to the NVC at the same time as the other general civil and financial documents listed as required in every case, unless otherwise specified by the consulate.

necessary, the applicant will usually need to obtain a letter from the appropriate authorities stating that the requested primary document is not available. 58 E.

Translating Documents

All documents not written in English must be completely translated, word-by-word, into English, unless the documents are in the official language of the country where the applicant will be applying for an immigrant visa. 59 However, in practice most consulates will accept summary translations of birth, marriage, divorce, and death certificates. The translations should be accompanied by a certificate of accuracy, in which the translator certifies that he or she reads and writes both languages fluently, that he or she has translated the document into English, and that the translation is true and complete, to the best of the translator’s ability. The translator should sign and date the certificate. PRACTICE TIP: Police Clearance Documents. Not all consulates require police clearances, but for those that do, such clearances can take substantial time to obtain, but also can “expire” in a matter of months, so timing the request for the certificate with the likely date of the consular interview will be important for some applicants. Police certificates are required of applicants who are 16 years of age or older, from the country of current residence and the country of nationality, if the applicant resided there for at least six months; and from countries where the applicant resided abroad for twelve months or more since attaining the age of 16.60 If the NVC determines that a document is missing or inadequate, the applicant or agent, or both, will be notified by email, or by mail if no email has been designated, and will be requested to submit the document requested. See Appendix 4-I. F.

Original Documents vs. Copies

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The NVC will sometimes ask that the original, or certified copies, of some or all of the civil documents be sent directly to NVC. In such a case, your client should maintain at least two duplicate original or certified copies, one to keep for her own records and one to bring with her to the interview at the consulate. Ordinarily, the NVC only requires copies and the applicant takes the originals or certified copies with her to the consular interview. The consulate will require the applicant to bring the original documents for all copies submitted, which in practice are usually then returned to the applicant at the conclusion of the consular interview or subsequently through the courier designated for pick-up of the immigrant visa package, if a copy was also provided by the applicant to the consulate.61 Immigrant visa applicants should be informed and reminded that they may ask that their originals be returned at the end of the consular interview. 58

See 22 CFR 42.65(d), 9 FAM 504.4-4(F) (But note the “any credible evidence” standard regarding secondary evidence for self-petitioners under the Violence Against Women Act, INA 204(a)(1)(H)). 59 Available at http://travel.state.gov/visa/immigrants/info/info_3195.html. There are a few exceptions where certain consulates require all documents to be translated into English. This requirement should be set out in the consulate-specific information links—Baghdad, Iraq is one such consulate at this writing. 60 9 FAM 504.4-4(B). 61 See 9 FAM 504.5-4.

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If the documents are not submitted electronically, we highly recommend sending only copies of documents to the NVC by certified mail, return receipt requested or by courier, and keeping a copy of each document sent with proof of delivery.

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After all forms and documents are submitted and the case is deemed “documentarily complete,” the NVC will forward the immigrant visa file to the consulate. PRACTICE TIP: After the applicant has a DOS Case Number, at any stage in the process, the status of the immigrant visa application may be checked online at the CEAC website Visa Status Check page, which can be accessed at https://ceac.state.gov/CEACStatTracker/Status.aspx. § 4.9

Step V: Preparing for the Consular Interview

Once the applicant submits everything required online or by mail to the NVC, the NVC will schedule an appointment for the applicant with a consular officer and will send an appointment letter to everyone involved (applicant and agent/attorney of record and usually the petitioner) approximately one month before the interview date. See Appendix 4-J. At that time, the NVC will also forward the I-130 petition and complete immigrant visa application file to the designated consular post, along with electronic data that is entered into the consular office’s computer filing system. 62 If all was filed electronically, the NVC will send electronic copies to the consulate and archive the physical file at the National Records Center (NRC). In either case, the NVC will no longer be in charge of the case. All subsequent inquiries must be directed to the consulate. The consulate will request background reports from other government agencies and request an immigrant visa number from the State Department. The NVC will email or send a set of documents called the Appointment Package for Immigrant Visa Applicants to the intending immigrant or his or her representative. Although there will be some variance among consulates, this packet usually consists of the following: Immigrant Visa Appointment Letter, indicating the visa interview appointment date and time, and a containing the URL for the NVC homepage’s “Prepare for the Interview” instructions. 63

•

A list of steps to take to prepare for the interview, including scheduling a medical examination, scheduling a biometrics appointment if required by the consulate, registering with a courier service or designating a courier service location, gathering original documents and copies including updated financial documents and updated police certificates if necessary, and visiting the particular embassy or consulate’s website for consulate-specific instructions. To accomplish all these steps the applicant is referred to the tab at the NVC website to the “Prepare for the Interview” link under the “Interview” section at the NVC homepage. 64

62 Department of State cable, No. 00-State-238959, entitled “IV Reform: First Steps on January One,” (Dec. 19, 2000), reprinted in 89 Interpreter Releases 13 (Jan. 3, 2001). 63 You can access the “Prepare for the Interview” instructions through the link for the NVC homepage or directly at https://travel.state.gov/content/visas/en/immigrate/immigrant-process/interview/prepare.html. 64 See https://travel.state.gov/content/visas/en/immigrate/immigrant-process/interview/prepare.html.

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•

A final list of documents and additional information the applicant must bring to the interview, such as passport photograph requirements. Again, there may be additional, consulate-specific instructions that apply at the consular post where the applicant will be interviewed. You and your client can download those instructions from the “Prepare for the Interview” tab. See examples at Appendices 4-H & 4-I. PRACTICE TIP: It is a good idea for the applicant to also take a complete copy of the underlying visa petition and any original documents that were part of that petition, in the event that the consular officer has questions about the visa petition. A number of consulates direct immigrant visa applicants to contact the U.S. Visa Information and Appointment services through the consulate’s website, selecting the appropriate country and creating an account. 65 This account will be used to schedule fingerprint appointments, pay related fees, and to select a courier location and track courier deliveries of documents. If a follow-up interview is needed at the consulate, this is also often where that interview is scheduled. A.

Submitting Fingerprints at Application Support Centers (ASCs)

Some U.S. consulates (including Ciudad Juarez as of this writing) require a fingerprinting (biometrics) appointment to be scheduled at an Application Support Center (ASC) in the country immediately prior to the visa interview.

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NOTE: Although routine advance fingerprinting of visa applicants is not the current norm, except for certain consulates such as Ciudad Juarez, the NVC conducts a “name check” with the FBI prior to transferring the file to the consulate. If your client’s name comes up in the FBI computer, he or she will be required to be fingerprinted. Only the consulate can take the fingerprints, which can take anywhere from a few days to about six weeks to process. If biometrics are required and take significant time to process, the applicant must either make two trips to the consulate (if he or she has a legal means to return to the United States) or wait outside the United States while the fingerprints are processed. Otherwise, digital fingerprint scans will be done at the consulate during the interview process. If the consulate requires a biometrics appointment, once the applicant is ready to schedule an immigrant visa interview, the applicant or her representative will be instructed to go online to schedule an appointment at an Application Support Center (ASC) and register the interview appointment. They may be notified by mail or e-mail from the NVC or by mail directly from the consulate. See Appendices 4-H & 4-I. They will need to make an appointment by going to the U.S. Visa Service Website and logging-in using the applicant’s passport number, date of birth, and nationality. 66 Once the necessary appointments have been made and a courier location has been selected for visa pick-up, the applicant should receive an email from the U.S. Visa Service. B.

Registering with a Courier Service

Some consulates also require that an immigrant visa applicant register in advance at a courier service designated by the consulate (DHL in Ciudad Juarez) prior to attending the visa interview, 65 66

Available at www.usvisa-info.com. This is the current practice at Ciudad Juarez, as of this writing. Go to www.usvisa-info.com.

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in order to receive delivery of the applicant’s passport and approved immigrant visa after the visa is approved. The applicant will not return to the consulate, but rather pick up these documents at the designated courier office. The courier location may be anywhere inside the country and does not have to be in the same city as the U.S. consulate. This allows the applicant to travel back to their home if living abroad, or visit relatives elsewhere in the country, while awaiting delivery of the passport and immigrant visa package. C.

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Completing the Medical Examination

The applicant will have to schedule a medical examination with an authorized physician, called a “panel physician.” 67 Currently, visa applicants are required to bring the following to their medical appointments (but you should always check the NVC website for updated information): • • •

Copies of prior medical records, 68 immunization records, and prior chest x-rays The applicant’s passport, identity card, laissez-passer, or travel document Consular visa interview appointment letter and/or Immigrant Visa and Alien Registration Application confirmation page.

The applicant will receive the results of the medical examination in a sealed envelope take to the consular interview, or the physician will submit the results directly to the consulate. Consulates have different procedures and requirements for satisfying the medical examination. In all cases, however, each applicant for an immigrant visa must have the examination conducted by a panel physician, located in the country where the interview takes place.69 The applicant must complete the medical examination, along with any required vaccinations and lab tests, before the interview with the consulate. This examination is sometimes scheduled online and sometimes by telephone, prior to the consular interview. In some countries the exam needs to be scheduled 14 days or more prior to the interview in order that the physician can complete all required lab tests. In countries where the exam is normally completed only 2-3 days prior to the consular interview, young children ages 2– 13 should plan to schedule the medical exam at least four days prior to the interview, as a TB skin test will be required in lieu of a chest x-ray for children under age 14, and results could take 72 hours to obtain.

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For a list of panel physicians and other instructions regarding the medical examination, you can click on the “Medical Examination” link at the “Prepare for the Interview” tab on the NVC homepage. 68 Note that while the NVC homepage specifies medical history documents, as a practical matter, unless the applicant has a significant medical problem that could be an issue related to the health related or public charge inadmissibility grounds, few if any medical history documents are generally required by the panel physicians. A notable exception would likely be, for example, if the applicant was exposed to TB and had prior chest x-rays done as part of a diagnosis. 69 22 CFR § 40.11; 9 FAM 504.4-7; 9 FAM 302.2-3(F).

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Once the visa interview appointment date has been received, the applicant should immediately schedule the medical examination, following the instructions and timeline provided for the particular consulate. These instructions and a list of panel physicians or clinics are found on the “Medical Examination” page link in the “Preparing for the Interview” section under “Schedule and Complete a Medical Examination.”

Vaccination requirements are an important part of the examination. A visa applicant who has had some or all of the required vaccinations should bring a copy of her vaccination records to the medical examination. The vaccinations currently required, based on age of the applicant, can be located on the Centers for Disease Control webpage. 70 The panel physician, if satisfied with the record, may note the vaccination history in the medical examination report and not require additional vaccinations. For more information on the health grounds of inadmissibility, please see Chapter 5 on the inadmissibility grounds and Chapter 6 on waivers of the grounds of inadmissibility. Medical examinations for consular processing are conducted by the panel physicians pursuant to Public Health Service regulations and the Technical Instructions for Medical Examination of Aliens, issued by the Centers for Disease Control and Prevention (CDC), a part of the United States Department of Health and Human Services (HHS). 71 If a panel physician finds that a prospective immigrant falls under an inadmissibility ground related to communicable diseases, physical or mental disorder, or drug abuse or addiction, he or she will issue a “Class A” medical certificate, noting the condition. 72 The applicant may appeal this finding to USCIS. If an appeal is filed, a medical review board is convened, and the applicant may bring his or her own medical experts to testify. 73

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Medical examiners will issue “Class B” notifications when the applicant is found to have other permanent physical or mental abnormalities, disease, or disabilities. The aim of Class B notifications is to assist the USCIS or the U.S. consulate in determining whether the immigrant is likely to become a public charge as a result of these health issues. The Class B notification details the degree to which the immigrant is “incapable of normal physical activities” and “the likelihood that, because of the condition, the applicant will require extensive medical care or institutionalization.” 74 WARNING: Preparing for the Medical Exam—Questions about Drug Use, Gang Membership, and Other Issues. At the medical exam, the physician may ask your client about past drug use, DUI arrests and convictions, acts of domestic violence, and gang involvement. The physician may, in his or her discretion, order testing for drugs. Admission of drug use, including marijuana even if legal in the jurisdiction where used, and even one time for experimental reasons, or testing positive for a drug at the time of the exam, may lead to a finding of inadmissibility as a drug abuser. A finding of drug abuse presently results in inadmissibility for one year since last use, and often a requirement to submit to random testing and take drug classes prior to reapplying for the immigrant visa. It is critical to explain this privately one-on-one to your clients at initial intake and again before they go to their medical exam appointment— especially teenagers and young adults.

70

The current CDC vaccinations chart for panel physicians is located at www.cdc.gov/immigrantrefugeehe alth/exams/ti/panel/vaccination-panel-technical-instructions.html#tbl1. 71 22 CFR § 42.66(b). The Center for Disease Control and Prevention’s Technical Instructions for Medical Examination of Aliens [“CDC Technical Instructions”] may be found at www.cdc.gov. 72 42 CFR § 34.2(d). 73 42 CFR § 34.8(a), (c). 74 42 CFR § 34.4(c).

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To obtain “evidence” of gang involvement, in addition to questions, applicants are often requested to undress and any and all tattoos are noted and compared to photos of likely “gang tattoos.” A DUI conviction, and possibly even an arrest not resulting in a DUI conviction, may result in a finding of inadmissibility pursuant to the health-related grounds of inadmissibility for “danger to self or others.” 75 Similarly, an arrest for domestic violence may have the same result, even if there is no conviction. These latter two issues are waivable through the USCIS, with review by the U.S. Public Health Service, but the process is complicated. Again, it is important to discuss these issues in detail with your clients at initial intake and once again before they go to see the panel physician. In some cases it may be best to defer consular processing for some applicants if a denial on any of these bases is likely, until rehabilitation can be accomplished. Sending such a client to an alcohol abuse or domestic violence mental health specialist for an evaluation and/or treatment, or for removal of tattoos, prior to any trip abroad for a consular interview may also be a wise idea.

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§ 4.10 Step VI: The Consular Interview At the consular appointment, the client will go through one of the most important interviews of his or her life—alone. Therefore, it is critical that the client understands what the procedure will be and what to expect. She also must understand all the issues that might come up in the case. If the client can read and write, she should be familiar with all of the documents that have been submitted. The visa applicant must appear personally for the consular interview. 76 At the interview, the client will present any documents that were not already submitted to the NVC, as indicated in the appointment letter. It is always a wise plan to carry additional copies of all documents to the interview as well as the originals that were not already submitted, in case anything was lost in transit. The consular officer will go over all the questions in the DS-260 to confirm that the answers are correct. The client should practice answering all of these questions with an advocate, friend, or relative before the interview. The applicant should be prepared to bring all of the following documents to the interview: 1. The original interview appointment letter from the NVC; 3. A sealed medical examination performed by an authorized “panel physician,” unless the physician will be sending it directly to the consulate; 4. Two color, passport-style photos of the applicant; 5. All the required originals of the civil documents previously provided to the NVC, such as records of birth, marriage, divorce, military service and police certificate(s), plus all original documents establishing the relationship between the petitioner and the applicant;

75 76

9 FAM 302.2-7(B)(2) & (B)(3). 22 CFR § 42.62(a).

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2. An original passport valid for six months after the intended date of arrival in the U.S.;

6. Supporting documentation for the petitioner’s Affidavit of Support, including evidence of the petitioner’s financial situation and her continuing ability to support the applicant/intending immigrant; 77 7. Any additional location-specific documents required by the consulate.

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Pay Particular Attention to the Following Issues:

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Public Charge: Consular officers pay close attention to the public charge issue. Your client should be prepared to explain her sponsor’s sources of income and to explain how she will be able to provide for herself in the United States. See Chapter 5 of this manual.

•

Unlawful Presence: The Consular officer will want to make certain that the applicant has not unlawfully resided in the United States for a significant period of time, does not need a waiver of the 3/10 bars nor is subject to the “permanent” bar. Applicants who have visited the U.S. in the past may be required to submit documents to show they are not subject to the unlawful presence bars. Thus, an applicant who has been in the U.S. should be prepared to present documentation of foreign residence, such as employment records, rent receipts, leases or mortgage statements, bank records, etc. In addition, the consulate may require the applicant to document her lawful presence in the U.S. with such documents as passport pages, copies of I-94 cards reflecting the duration of previous periods of authorized stay, I-797 notices approving an extension of nonimmigrant stay, etc. Note that presently a Provisional Waiver can be applied for and approved in advance of departure for the consular interview, for some immediate relative and preference beneficiaries subject to the “three” or “ten” year bars for unlawful presence. See Chapter 5 for an explanation of the unlawful presence inadmissibility grounds and Chapter 6 for what waivers may be available.

•

Proof of Valid and Bona Fide Marriage: If the person is immigrating through a spouse, the Consular officer will ask to see evidence of both a valid and bona fide marriage, even though a spousal I-130 was already approved by USCIS. Immigrant spouses should bring to the interview marriage certificates and divorce judgments, as well as evidence of joint accounts, photographs, affidavits, and any other documentation relating to the bona fides of their marriage.

•

DUI Convictions and Domestic Violence Charges: Some consulates and their affiliated doctors who do the immigrant medical examinations may decide that past DUI convictions or charges of domestic violence, even without a conviction, are evidence of a physical or mental disorder, such as alcoholism, posing a threat to others. If this is a possibility, you and your client need to decide whether it is best to delay the consular interview until more time has passed since the incident(s) in question, or whether to obtain documents which are evidence that no disorder or threat exists, such

See § 4.8 above.

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as obtaining a similar examination in advance by a physician expert in the field, and submitting additional corroborating documents. 78 •

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Gang Allegations: A growing number of visa applicants are being denied on “national security” inadmissibility grounds due to allegations that they are, or have been, members of gangs. Arrests and charges with gang allegations is one source of information that may be utilized, and tattoos have also caused considerable problems as panel physicians have made determinations or recommendations to the consulate of an applicant’s likely gang involvement, based solely or primarily on tattoos. Removal of any and all “questionable” tattoos is highly recommended prior to the consular interview. For those living in the U.S., an evaluation by a gang expert and/or psychologist or psychiatrist expert in gang membership may also be merited. And the client should be well prepared to explain why she is not in a gang and is not a security risk.

If the consular officer grants the visa, she will stamp the applicant’s passport with an immigrant visa and return the passport and immigrant visa package to the applicant via the registered courier service. The immigrant visa documents will be in a sealed envelope to present at the U.S. border, and should not be opened by the applicant. The applicant must then pay one last fee as part of this process, called the USCIS “Immigrant Fee” or “green card production fee.” While the consular officials, the USCIS website, and even the paperwork provided to the immigrant visa applicant will state that the Immigrant Fee must be paid before traveling to the United States, as a practical matter, it may be paid after entry. This fee must simply be paid in order to receive the actual green card. When the applicant comes to the United States, she will apply to Customs and Border Patrol (CBP) for admission at the border by presenting her passport and the sealed envelope from the consulate to CBP. If everything is in order, CBP will stamp her passport, and she will be a permanent resident as of the date she enters the United States, as reflected on the passport stamp. This passport stamp authorizes the immigrant to work in the United States and is proof of lawful permanent residence in the United States, until the green card arrives. USCIS sends the permanent resident card (“green card”) by mail, usually within a few weeks after the Immigrant Fee is paid.

* PRACTICE TIP: If an applicant immigrating through marriage is within a few months of the second anniversary of the marriage at the time of the consular visa interview, she can wait to enter the U.S. until after the second year anniversary has passed, and should then be admitted by 78

See additional discussion in Chapter 5 on the grounds of inadmissibility.

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NOTE: Conditional Permanent Resident Status. People who immigrate through a petition filed by a U.S. citizen or lawful permanent resident spouse to whom they have been married for less than two years at the time they enter the U.S. and are admitted by CBP, obtain “conditional permanent resident status” when they first immigrate. Conditional residents must file another application with the USCIS within two years after immigrating, called a “Petition to Remove the Conditions on Residence” (Form I-751). If they fail to file this application, their conditional permanent residence will expire after two years. See Chapter 3.

CBP as a permanent resident without conditions. CBP should be notified and the applicant should present proof of when the marriage occurred. However, be aware that the immigrant visa is only valid for entry for six months from date of issuance. A.

Inadmissibility & Waivers

Every prospective immigrant must be admissible. This means she must not be found inadmissible under INA § 212(a), or, if she is, she must apply for and be granted a waiver (if available) of the ground of inadmissibility. If the consular officer makes a finding of inadmissibility and that the applicant must apply for a waiver, the applicant may need to wait outside the United States for many months to more than a year, awaiting adjudication of the waiver request. The Form I-601 Waiver of Inadmissibility is submitted by mail to a USCIS domestic lockbox facility. 79 Different waivable grounds of inadmissibility can and should all be included together on the same I-601 form, although some different supporting documents may be appropriate. If an I-212 Consent to Reapply After Deportation (a different type of waiver) is also required, it is filed together with the I-601. 80 If no I-601 is required, the I-212 waiving a prior deportation or removal order is filed directly with the local USCIS Field Office Director with jurisdiction over the area where the deportation or removal proceedings were held. 81 The I-212 in this latter situation may be filed and adjudicated in advance of the consular interview, although some jurisdictions will not approve the application if the applicant is unlawfully present in the United States. Make sure to consult the instructions on the current version of the Form I-212.

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Adjudication of the waiver is a separate process from the immigrant visa application process. Waiver procedures evolve, so it will be important to determine the current waiver procedure ahead of time and to prepare the waiver package in advance, if you know a waiver will be required. Chapter 6 of this manual covers waivers of inadmissibility and the procedures for obtaining them. Provisional Unlawful Presence Waiver. Immigrant visa applicants who are presently residing inside the U.S. and whose sole ground of inadmissibility is the unlawful presence “three and/or ten year bar(s)” of INA § 212(a)(9)(B), may also choose to apply for a waiver in advance, before they attend their consular interview. This waiver, called the “Provisional Unlawful Presence Waiver,” is filed on Form I-601A with USCIS while the applicant is still in the United States, prior to the consular interview. The applicant must first pay her Immigrant Visa fee to the National Visa Center, prior to filing the I-601A with USCIS. The applicant then waits inside the U.S. for a decision on the provisional waiver and only departs the United States to attend the consular interview if and when the provisional waiver is approved. This process minimizes the time that families must be separated, and gives clients some assurance that they will be able to come back to the United States after they leave for their consular interview. However, if the consular officer subsequently determines at the interview that an additional ground of inadmissibility applies, the provisional waiver will be invalid, and the applicant will have to renew his or her request for a waiver of the unlawful presence grounds, in addition to requesting a

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Go to the USCIS website for filing instructions for I-601 waivers at www.uscis.gov/i-601. Available at www.uscis.gov/files/form/i-212instr.pdf. 81 Id. 80

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waiver for the grounds newly identified by the consular officer, by filing an I-601 and/or an I-212 with the centralized processing procedure and waiting outside the United States. See Chapter 6.

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WARNING: The Permanent Bar. Clients who have lived in the United States without lawful immigration status for an aggregate total of one year or more, then leave the United States and reenter or try to re-enter without inspection, will be barred from immigrating for a minimum of 10 years under INA § 212(a)(9)(C). This bar also applies to clients who re-enter or attempt to reenter without inspection after they have been removed, deported, or excluded. Clients must be screened thoroughly and not sent for consular processing if either of these permanent bars might apply. You must also warn your clients not to try to come back to the United States while awaiting the outcome of their consular processing case, including fingerprint processing, and that they should not return until they have been granted their immigrant visas. B.

If There Is a Problem at the Interview: Additional Documents Requested, Waiver Required or Denial Issued

Tell the client that if something goes wrong, he or she should ask the consular official for something in writing stating what the problem is. The client should call you immediately. You may be able to provide the missing document, or negotiate with the consular officer over the phone or by email to get the immigrant visa issued. If the problem is not resolved before the first day of the following month, the applicant’s immigrant visa number may be reclaimed and the applicant may be forced to wait another 60 days until another visa number is available, before being able to immigrate to the United States, even if the visa is finally approvable by the consular officer. If the problem is resolved within the month, the person may retain her visa number. If the visa is denied, but a waiver is possible, the waiver should be filed (See Chapter 6) and if approved, the applicant or representative must initiate rescheduling of a visa interview with the Consulate. New fees likely will need to be paid. The same is true if the applicant must simply wait for time to pass, and/or take additional action abroad to overcome a ground of inadmissibility.

If the denial appears to be in error legally, after requesting reconsideration and then supervisory review by the consulate, a LegalNet opinion from the DOS Visa Office should be requested.

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Example: Xochitl admitted to the panel physician she smoked marijuana “once or twice” with the last time nine months ago. Xochitl was denied an immigrant visa as a “drug abuser” and was directed by the Consulate at CDJ to undertake random drug testing and attend drug abuse classes. Xochitl lived with relatives in Guadalajara, and completed classes and testing. At the end of 3 months (one year from last drug use), she qualified to reapply for an immigrant visa. Her representative contacted CDJ and scheduled a new consular interview, as well as scheduled another medical exam. Xochitl took proof of the classes completed and testing to her new medical exam and consular interview and was granted an immigrant visa.

Consular decisions are not generally reviewable by U.S. courts on appeal, due to the doctrine of “consular nonreviewability,” 82 with only very limited exceptions. C.

Visa Office Legal Opinions

Although consular officers make factual decisions on particular cases, the ultimate decision as to whether the person is legally admissible rests with the State Department’s Visa Office located in Washington, DC. However, when the case involves factual interpretations as well as legal matters, the consular officers have great discretion. Nevertheless, most consular officers will agree to follow the Visa Office’s recommendation to grant a visa. Consular officers are legally required to follow the legal conclusions made by the Visa Office. Visa office legal opinions can correct misapplications of regulations and consular abuses. To request a legal opinion, a lawyer or accredited representative should email the Visa Office at [email protected]. The FAM contains specific guidelines as to what types of LegalNet inquiries are acceptable and the process. 83 Generally, LegalNet at the Visa Office will respond to the following classes of inquiries: where the “post” (consulate) has made a final decision which is believed to be legally wrong; inquiries where the post has not responded after at least two attempts and an additional 30 days has past, questions about cases involving T’s, U’s, VAWA, CSPA, diversity visas or adoption visas. 84 For LegalNet email inquiries, instructions are as follows: •

The subject line of the email must include: o o o o o

The applicant’s full name; The post (consulate) processing the case; The NVC case number; The applicant’s passport number; and The citation to the relevant statute or regulation at issue. Example: The subject line should read as follows: LAST NAME, FIRST NAME; NAME OF CONSULATE; CDJ2015000000; INA 212(a)(6)(C)(i).

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•

The body of the email must include: o o o

The principal applicant’s full name as it appears in the applicant’s passport, the applicants date of birth, and the applicants place of birth; The location of the pending or denied visa application, the applicant’s visa classification, and any refusal code; and A brief summary of the situation and legal contention.

82

Kerry v. Din, 576 U.S. __ , 135 S. Ct. 2128 (2015), citing Fiallo v. Bell, 430 U.S. 787 1977 (but see dissent, Breyer, J); see Kleindienst v. Mandel, 408 U.S. 753, 762, 92 S.Ct. 2576, 33 L.Ed.2d 683 (1972). 83 9 FAM 103.4-1–4.4. 84 9 FAM 103.4-2.

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•

The email attachments must include: o o o

Copies of all previous correspondence with post; and If the request is sent by the applicants representative, a signed G-28 form and the requesting attorney or representative’s contact information. Note: Legalnet will not accept any emails with attachments over 1 megabyte (MB) in size 85

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The State Department prefers that requests for legal advisory opinions be sent via email to: [email protected]. However, if necessary, a request for an advisory opinion can also be mailed to: Legal Advisory Opinions Division: Visa Office Department of State 600 19th St., NW Floor 11 Washington, DC 20431 (202) 663-1187 Writing a letter to the Visa Office Advisory Opinions Division is sometimes also possible for hypothetical situations if the resulting opinion will serve to clarify a very specific issue, though the FAM states it is not an appropriate use of LegalNet email. Such written requests to the Visa Office often lead to corrections to the FAM. However, the Advisory Opinions Division has discretion whether or not to respond to requests for opinion in hypothetical cases. Interpreter Releases publishes some advisory opinions and advocates can use them to better prepare applicants with similar admissibility problems. § 4.11 The Alien Registration Card or Permanent Resident Card (“Green Card”) A.

USCIS Immigrant Fee

If the client fails to pay the fee prior to entering the U.S., she or he will receive an RFE if not paid within 45 days, and a second RFE if not paid within 90 days. The fee may be paid after entry, and CBP will still admit the person as an LPR even if they have not yet paid the fee. Failure to pay the

85

9 FAM 103.4-3.

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Beginning in early 2013, all persons issued immigrant visas outside the United States must pay a USCIS Immigrant Fee after receiving the immigrant visa, in order to be issued the alien registration card, also known as the permanent resident card or “green card.” To pay this fee, which at this writing is $220, the applicant must go online to the USCIS ELIS (Electronic Immigration System). USCIS instructions state that only the visa applicant may go online, register, and pay the fee for each member of the family who is immigrating together. The applicant needs the “A” number assigned, the DOS case number which has been used throughout the process, biographic information on each family member who is immigrating, and a valid credit card or U.S. bank account number and routing number. The applicant then goes online at www.uscis.gov/uscis-elis, chooses “USCIS Immigrant Fee,” and pays the fee. All family members may be included in a single transaction.

fee prior to entry will not impact the person’s status as a permanent resident, but the new immigrant will not receive her “green card” until the fee is paid. B.

If the Alien Registration Card Fails to Arrive

A person who does not receive his or her alien registration card (green card) in the mail within five months of immigrating needs to file USCIS Form I-90, Application to Replace Permanent Resident Card. There may have been a problem, such as inadequate photos or unreadable documents, that resulted in a card not being issued. In addition, because the United States Postal Service will not deliver green cards addressed to someone who is not a listed resident of a particular address, immigrants should make sure to provide USCIS and the consulate with a secure address, in care of someone who is a listed resident of the given address. Unfortunately, USCIS does not notify a person if there is a problem with the pictures or the mailing address. Therefore, a new immigrant who has not received the initial card needs to take action to remedy the situation.

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Form I-90 is one form that some, but not all, applicants have the option of filing electronically. To find out how to file electronically, or where to file by mail, go to www.uscis.gov/i-90. Note that if the immigrant has not received a card that was issued, there is no filing fee for Form I-90.

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CHAPTER 4 APPLYING FOR PERMANENT RESIDENCE THROUGH CONSULAR PROCESSING

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INDEX OF APPENDICES Appendix 4-A

Screenshot of the DOS NVC Homepage

Appendix 4-B

Sample NVC Notification Letter Warning of Impending Termination Proceedings with Instructions

Appendix 4-C

Sample NVC Cover Letter and Instructions Initiating Consular and Establishing Communication

Appendix 4-D

Sample NVC Fee Invoices for Immigrant Visa Application and Affidavit of Support

Appendix 4-E

Two Different NVC Sample Document Cover Sheets

Appendix 4-F

Sample Electronic Form DS-260 Immigration Visa Application

Appendix 4-G

Immigration Visa Application (DS-260) Prep Questions for the Client in English and Spanish

Appendix 4-H

Immigration Visa Application (DS-260) Prep Questions for the Client in Spanish

Appendix 4-I

Sample NVC Notice of Missing Item Letter

Appendix 4-J

Two Sample NVC Letters Scheduling Immigrant Visa Interview at Different US Consulates with Instructions Regarding Interview and Documents

Appendix 4-K

U.S. Consulate, Ciudad Juarez Visa Registration, ASC Appointment and Courier Selection Site with Medical Examination and Interview Guidelines in English and Spanish

Appendix 4-L

Sample Immigrant Visa Stamped in Passport

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Appendix 4-A-1

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Appendix 4-B-1

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Appendix 4-B-2

Chapter 4

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Appendix 4-C-1

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Appendix 4-C-2

Chapter 4

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Appendix 4-C-3

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Appendix 4-D-1

Chapter 4

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Appendix 4-D-2

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Appendix 4-E-1

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Appendix 4-E-2

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Appendix 4-F-1

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Appendix 4-F-2

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Appendix 4-F-3

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Appendix 4-F-4

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Appendix 4-F-5

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Appendix 4-F-6

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Appendix 4-F-7

Chapter 4

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Appendix 4-F-8

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Appendix 4-F-9

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Appendix 4-F-10

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Appendix 4-F-11

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Appendix 4-F-12

APPENDIX 4-G WORKSHEET: INFORMATION FOR YOUR IMMIGRANT VISA APPLICATION FORM (DS-260)

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PERSONAL AND BIOGRAPHIC INFORMATION Complete name: (First, middle, last): Other names that you have used: Gender: Current telephone number: Work telephone number (if have) Cell number (if have) Email (if have) Civil status (married, divorced, single): Date of birth: City of birth: State of birth Country of birth: Nationality: Identification -- passport: Passport number: Country that issued passport: Date issued: Date expires:

ADDRESSES Current address: City: State: Zip code/postal code: _ Country: Date began living at this address:

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Do you have any other nationality: Yes No Your other country of nationality: Do you have a passport from another country: Yes No Passport number: Country that issued Passport:

Have you lived at any other address since you were 16 years old? Yes No Previous address (1): City: State: Zip code/postal code: Country: Date began living at this address: Date stopped living at this address: Previous address (2): City: State: Zip code/postal code: Country: Date began living at this address: Date stopped living at this address:

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Previous address (3): City: State: Zip code/postal code: Country: Date began living at this address: Date stopped living at this address: Previous address (4): City: State: Zip code/postal code: Country: Date began living at this address: Date stopped living at this address: Is your current address the same as your mailing address: Yes No If you use another address for mailing, provide it below: Mailing address: City: State: Zip code/postal code: Country:

Appendix 4-G-2

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At what address in the U.S. do you plan to live? Name of the person living at this address presently (best if relative or friend): Address: City: State: Zip code/postal code: Telephone number: Do you want your permanent resident card sent to this address? Yes No

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Name of contact person in the U.S. for you: Address of this person in the U.S.: City: State: Zip code/postal code: Telephone number: FAMILY INFORMATION Father: Last names of father: First and middle names of father: Birthdate: City of birth: State of birth: Country of birth: Father living or deceased? If deceased, year of death:

Your marriages: Date of marriage: Place of marriage – city, state, country: Last names of your spouse: First and middle names of spouse: Birthdate:

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Mother: Last names of mother when born (single/”maiden” names): First and middle names of mother: Birthdate: City of birth: State of birth: Country of birth: Mother living or deceased? If deceased, year of death:

City of birth: State of birth: Country of birth: Will your spouse immigrate with you? Yes No If no, will your spouse immigrate later? Yes No Do you have a former spouse? Yes No If you have a former spouse, provide the following information: Complete name of ex-spouse (1): Birthdate: Marriage date: How marriage was terminated (divorce or death of spouse) Country where marriage was terminated: Date marriage was terminated: Complete name of ex-spouse (2): Birthdate: Marriage date: How marriage was terminated (divorce or death of spouse) Country where marriage was terminated: Date marriage was terminated:

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Your children: Do you have children? Yes No How many do you have? Complete name of child (1): Date of birth: City of birth: State of birth: Country of birth: Does the child live with you: Yes No If no, what is the child’s address? City: State: Zip code/postal code: Country: Is this child immigrating to the U.S. with you? If not, is the child immigrating later to join you? Complete name of child (2): Date of birth: City of birth: State of birth: Country of birth:

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Does the child live with you: Yes No If no, what is the child’s address? City: State: Zip code/postal code: Country: Is this child immigrating to the U.S. with you? If not, is the child immigrating later to join you?

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Complete name of child (3): Date of birth: City of birth: State of birth: Country of birth: Does the child live with you: Yes No If no, what is the child’s address? City: State: Zip code/postal code: Country: Is this child immigrating to the U.S. with you? If not, is the child immigrating later to join you?

VISITS TO THE U.S. Information about your prior visits to the U.S. Have you visited the U.S. before: Yes No If you have been in the U.S., were you provided an immigration registration number? Did the Dept. of Homeland Security issue you a number? Yes No If you have such a number, please provide it (begins with “A”):

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Complete name of child (4): Date of birth: City of birth: State of birth: Country of birth: Does the child live with you: Yes No If no, what is the child’s address? City: State: Zip code/postal code: Country: Is this child immigrating to the U.S. with you? If not, is the child immigrating later to join you?

Provide information about all your visits to the U.S.: Date arrived (1): How many days/months/years did you remain in the U.S.? Date arrived (2): How many days/months/years did you remain in the U.S.? Date arrived (3): How many days/months/years did you remain in the U.S.? Other visits? Have you received a visa from the U.S. previously? Yes No Date when you were issued the visa: Type of visa (student/tourist/work, etc. – F-1, B-2, H-1B, H-2A etc.) Visa number (provide a copy of your visa) If your answer is yes to the following questions, please explain below: Has your U.S. visa ever been lost or stolen Yes No Has your U.S. visa ever been cancelled or revoked: Yes No Have you ever been denied a visa to the U.S. or ever been denied entry to the U.S. or had to withdraw your application to enter the U.S. at an airport or other land or sea port of entry/inspection point in the U.S.? Yes no Have you ever decided to withdraw your application to enter the U.S. after arriving at the border or a U.S. airport? Yes No

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If you said “yes” to any of these questions, please explain below with as much detail as possible: ______________________________________________________________________________ ______________________________________________________________________________ ______________________________________________________________________________ WORK, EDUCATION AND TRAINING INFORMATION Current job (position or title you hold): Do you have other jobs? If so, list all: What work do you plan on doing in the U.S.? Before your present job, did you have a previous job?: Name of the company or office or business where you work now, or your last employment if you are presently unemployed: (Job 1): ________________________________________________________________

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Address of your employment: City: State: Zip code/postal code: Country Telephone: Your title or position: Last name of your supervisor: First name of your supervisor: Date you started working at this job: Date you left this job:

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Name of the company or office or business where you work now, or your last employment if you are presently unemployed: (Job 2): ________________________________________________________________ Address of your employment: City: State: Zip code/postal code: Country Telephone: Your title or position: Last name of your supervisor: First name of your supervisor: Date you started working at this job: Date you left this job:

Name of the company or office or business where you work now, or your last employment if you are presently unemployed: (Job 4): ________________________________________________________________

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Name of the company or office or business where you work now, or your last employment if you are presently unemployed: (Job 3): ________________________________________________________________ Address of your employment: City: State: Zip code/postal code: Country: Telephone: Your title or position: Last name of your supervisor: First name of your supervisor: Date you started working at this job: Date you left this job:

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Address of your employment: City: State: Zip code/postal code: Country Telephone: Your title or position: Last name of your supervisor: First name of your supervisor: Date you started working at this job: Date you left this job: EDUCATION Have you attended secondary school or higher? Yes No Number of secondary or higher schools you have attended:

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Name of school (1): Address of School: City: State: Zip code/Postal code: Country: Course of study: Degree or diploma: Date began studies at this school: Date ended studies at this school: Name of school (2): Address of School: City: State: Zip code/Postal code: Country: Course of study: Degree or diploma: Date began studies at this school: Date ended studies at this school: Name of school (3): Address of School: City: State: Zip code/Postal code: Country:

Appendix 4-G-8

Course of study: Degree or diploma: Date began studies at this school: Date ended studies at this school:

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MILITARY SERVICE Have you served in the military: yes no For what country: Division/department of military: Your position or military rank: Your military specialization: Date your service began: Date your service ended: INFORMATION REGARDING PETITIONER Your relationship with the person who filed this visa petition for you (my father, mother, spouse, adult son/daughter, sibling): Complete name of this person: Where does this person live presently? Address: City: State: Country: Telephone: Cell phone: Email: IMPORTANT QUESTIONS REGARDING NATIONAL SECURITY AND DISQUALIFICATIONS (GROUNDS OF “INADMISSIBLITY” TO IMMIGRATE TO THE UNITED STATES

•

Do you have a communicable disease of public health significance such as tuberculosis (TB) or any other disease?

•

Have you received the required vaccinations in your country? Yes No Which ones? __________________________________________________________________

•

Do you have documentation of your vaccinations?

•

Do you have a mental or physical disorder that poses or is likely to pose a threat to the safety or welfare of yourself or others?

Appendix 4-G-9

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Information related to security and other information about you – respond “yes” or “no” and if the response is “yes” please explain below:

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•

Have you ever been arrested for DUI or domestic violence or being involved with a gang?

•

Have you ever been a drug abuser or drug addict?

•

Have you ever been arrested or convicted for any offense or crime, even though subject of a pardon, amnesty or other similar action?

•

•Have you ever violated, or conspired to violate, any law related to drugs or controlled substances?

•

Are you the spouse, son or daughter of an individual who has violated any controlled substance trafficking law, and have knowingly benefitted from the trafficking activities in the past 5 years?

•

Are you coming to the United States to engage in prostitution or unlawful commercialized vice or have you been engaged in prostitution or procuring prostitutes within the past 10 years?

•

Have you ever been involved in or plan to be involved in, money laundering?

•

Have you ever committed or conspired to commit, a human trafficking offense inside or outside the U.S.?

•

Have you ever knowingly aided, abetted, assisted or colluded with someone who has been identified by the President of the United States as a person who plays a significant role in the severe form of trafficking in persons?

•

Are you the spouse, son or daughter of an individual who has committed or conspired to commit, a human trafficking offense inside or outside the U.S., and have you knowingly benefitted from the trafficking activities in the past 5 years?

•

Do you seek to engage in espionage, sabotage, export control violations or any other illegal activity while in the U.S.?

•

Do you seek to engage in terrorist activities while in the U.S. or have you ever engaged in terrorist activities?

•

Have you ever or do you intend to provide financial assistance or other support to terrorists or terrorist organizations?

•

Are you a member or representative of a terrorist organization?

•

Have you ever ordered, incited, committed, assisted or otherwise participated in genocide?

•

Have you ever ordered, incited, committed, assisted or otherwise participated in torture?

•

Have you committed, ordered, incited, assisted or otherwise participated in extrajudicial killings, political killings, or other acts of violence?

•

Have you ever engaged in the recruitment or use of child soldiers?

Appendix 4-G-10

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Have you, while serving as a government official, been responsible for or directly carried out at any time, particularly severe violations of religious freedom?

•

Are you a member of or affiliated with the Communist or other totalitarian party?

•

Have you ever directly or indirectly assisted or supported any of the groups in Columbia known as the Revolutionary Armed Forces of Columbia (FARC), National Liberation Army (ELN), or United Self-defense Forces of Columbia (AUC)?

•

Have you ever, through abuse of governmental or Political position converted for personal gain, confiscated or expropriated property in a foreign nation to which a United States National had claim of ownership?

•

Are you the spouse, minor child, or agent of an individual who has through abuse of governmental or Political position converted for personal gain, confiscated or expropriated property in a foreign nation to which a United States National had claim of ownership?

•

Have you ever been directly involved in the establishment or enforcement of population controls forcing a woman to undergo an abortion against her free choice or a man or a woman to undergo sterilization against his or her free choice?

•

Have you ever disclosed or trafficked in confidential U.S. business information obtained in connection with U.S. participation in the Chemical Weapons Convention?

•

Are you the spouse, minor child, or agent of an individual who has disclosed or trafficked in confidential U.S. business information obtained in connection with U.S. participation in the Chemical Weapons Convention?

•

Have you ever sought to obtain yourself, or to assist others to obtain a visa, entry into the U.S., or any other U.S. benefit by fraud, or willful misrepresentation or other unlawful means? (Did you lie to obtain a visa or entry into the U.S. or lie to obtain any other Immigration benefit or status or help someone else to do so?)

•

Have you ever been subject to removal or exclusion or deportation proceedings in the U.S.?

•

Have you failed to appear at a removal or deportation hearing in the last 5 years?

•

Have you ever overstayed the time allocated to you by an Immigration officer or violated the terms of your visa in any other manner?

•

Are you subject to a civil penalty pursuant to INA 274C?

•

Have you been ordered deported from the U.S. in the last 5 years?

•

Have you been ordered deported from the U.S. in the last 10 years?

•

Have you been ordered deported from the U.S. a second time in the last 20 years?

•

Have you ever been convicted of an aggravated felony and ordered deported from the U.S.?

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Have you ever been unlawfully present in the U.S. for more than 180 days (but less than one Year) and have you voluntarily left the U.S. in the last 3 years?

•

Have you been unlawfully present in the U.S. for more than one year, or more than one year in the aggregate at any time during the last ten years?

•

Have you ever withheld custody of a U.S. Citizen child outside the U.S. from a person granted legal custody by a U.S. Court?

•

Have you every intentionally assisted another person in withholding custody of a U.S. Citizen child outside the U.S. from a person granted legal custody by a U.S. Court?

•

Have you voted in the U.S. in violation of any law or regulation?

•

Have you ever renounced U.S. citizenship for the purpose of avoiding taxation?

•

Have you attended a public elementary School or a public secondary School on student (F) status after November 20, 1996 without reimbursing the school?

•

Do you seek to enter the U.S. for the purpose of performing skilled or unskilled labor but have not yet received a labor certificate from the Dept. of Labor?

•

Are you a graduate of a foreign medical School seeking to perform medical services in the U.S. but have not yet passed the National Board of Medical Examiners examination or its equivalent?

•

Are you a health care worker seeking to perform such work in the U.S. but have not yet received certification from the Commission on Graduates of Foreign Nursing Schools or from an equivalent approved independent credentialing organization?

•

Are you permanently ineligible for U.S. citizenship?

•

Have you ever departed the U.S. in order to evade military service during a time of war?

•

Are you coming to the U.S. to practice polygamy?

•

Are you a former Exchange visitor (J) who has not yet fulfilled the two0-year foreign residence requirement?

•

Has the Secretary of Homeland Security of the United States ever determined that you knowingly made a frivolous application for Asylum?

•

Are you likely to become a public charge after you are admitted to the United States?

If your answer is yes to one of the previous questions, explain below: ____________________________________________________________________ ______________________________________________________________________________ ______________________________________________________________________________ ______________________________________________________________________________

Appendix 4-G-12

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SOCIAL SECURITY NUMBER INFORMATION Have you applied for a social security number from the U.S. in the past?

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Do you want the Social Security Administration to issue you a Social Security number and a card? Do you authorize disclosure of information from this form to the Department of Homeland Security, the Social Security Administration, and such other U.S. Government agencies as may be required for the purposes of assigning you a social security number (SSN) and issuing you a Social Security card and do you authorize the Social Security Administration to share your SSN with the Department of Homeland Security?

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Appendix 4-G-13

APPENDIX 4-H DOCUMENTO DE TRABAJO: INFORMACIÓN PARA SU APLICACIÓN DE VISA DE INMIGRANTE (DS-260) DOS Documento de trabajo: Información para su aplicación de visa de inmigrante (DS-260) DOS Información Personal y Biográfica: Nombres y apellidos completos: Otros nombres y/o apellidos usados; Sexo: Teléfono corriente: Teléfono de su trabajo: (si lo tiene) Celular: (si lo tiene) Correo electrónico (si lo tiene): Estado civil (casada, divorciada, soltera): Fecha de nacimiento: Ciudad de nacimiento: Estado de nacimiento: País de nacimiento: Nacionalidad:

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Identificación como pasaporte: Numero de pasaporte: País del pasaporte: Fecha cuando le dio el pasaporte Fecha cuando se vence el pasaporte Tiene otra nacionalidad aparte de: Si o No Su otro país de nacionalidad: ¿Tiene pasaporte de su otro país? Si o No Numero de pasaporte: Direcciones: Su dirección corriente: Ciudad: Estado: Código postal: _ País: ¿Empezando en esta dirección en qué fecha?

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¿Ha vivido en cualquier otra dirección desde que cumple 16 años? Si o No Dirección anterior (1): Ciudad: Estado: Código Postal: _ País: Empezando viviendo allí en cual fecha: Vivía allí hasta cual fecha:

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Dirección anterior (2): Ciudad: Estado: Código Postal: _ País: Empezando viviendo allí en cual fecha: Vivía allí hasta cual fecha: Dirección anterior (3): Ciudad: Estado: Código Postal: _ País: Empezando viviendo allí en cual fecha: Vivía allí hasta cual fecha:

¿Es su dirección para correos lo mismo de su dirección actual? Si o no Si tiene otra dirección para correo, delo abajo: Dirección por correos: Ciudad: Estado: Código Postal: _ País:

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Chapter 4

Dirección anterior (4): Ciudad: Estado: Código Postal: _ País: Empezando viviendo allí en cual fecha: Vivía allí hasta cual fecha:

¿En que dirección en los EEUU donde tiene planes vivir? Nombre de la persona viviendo ahorita en esta dirección (debe ser su pariente o amigo): Dirección: Ciudad: Estado: Código Postal: Teléfono: ¿Quiere que le enviaran su tarjeta de Residencia Permanente a esta dirección? Nombre de persona en los EEUU como contacto personal: Dirección de este persona en los EEUU: Ciudad: Estado: Código Postal: _ Teléfono:

Chapter 4

Información de su familia: De su papa: Apellidos de su papa: Nombres de su papa: Fecha de nacimiento: Ciudad de nacimiento: Estado de nacimiento: País de nacimiento: ¿Ya vive su papa? Si no, año en que falleció: De su mama: Apellidos de mama cuando nació (de soltera): Nombres de su mama: Fecha de nacimiento: Ciudad de nacimiento: Estado de nacimiento: País de nacimiento: ¿Ya vive su mama? Si no, año en que falleció: Sus matrimonios: Fecha de matrimonio de Ud.: Lugar de matrimonio de Ud. – Ciudad, estado, país: Apellidos de su esposo/a: Nombres de su esposo/a: Fecha de nacimiento: Ciudad de nacimiento:

Appendix 4-H-3

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Estado de nacimiento: País de nacimiento: ¿Su esposo/a va a inmigrar con Ud.? Si o No ¿Si no, va a inmigrar más luego? Si o No

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¿Tiene esposo/a anterior? Si o no Si lo tuvo, de la información siguiente: Nombre de esposo/a anterior (1): Fecha de nacimiento: Fecha de matrimonio: Como termino el matrimonio (divorcio o se murió esposo/a) País donde se terminó el matrimonio Fecha cuando termino el matrimonio Esposo/a anterior (2): Fecha de nacimiento: Fecha de matrimonio: Como termino el matrimonio (divorcio o se murió esposo/a) País donde se terminó el matrimonio Fecha cuando termino el matrimonio Sus niños: ¿Tiene Ud. Niños? ¿Cuantos niños tiene?:

Nombre de niño/a (2): Fecha de nacimiento: Ciudad de nacimiento: Estado de nacimiento: País de nacimiento: ¿Vive el niño/la niña con Ud.?

Appendix 4-H-4

Chapter 4

Nombre de niño (1): Fecha de nacimiento: Ciudad de nacimiento: Estado de nacimiento: País de nacimiento: ¿Vive el niño/la niña con Ud.? Si no, ¿dirección del niño/niña? Ciudad: Estado: Código postal: País: ¿Está inmigrando a los EEUU este niño con Ud.? ¿Está inmigrando a los EEUU este niño más luego para juntarse con Ud.?

¿Si no, dirección del niño/niña? Ciudad: Estado: Código postal: País: ¿Está inmigrando a los EEUU este niño con Ud.? ¿Está inmigrando a los EEUU este niño más luego para juntarse con Ud.?

Chapter 4

Nombre de niño/a (3): Fecha de nacimiento: Ciudad de nacimiento: Estado de nacimiento: País de nacimiento: ¿Vive el niño/la niña con Ud.? ¿Si no, dirección del niño/niña? Ciudad: Estado: Código postal: País: ¿Está inmigrando a los EEUU este niño con Ud.? ¿Está inmigrando a los EEUU este niño más luego para juntarse con Ud.? Nombre de niño/a (4): Fecha de nacimiento: Ciudad de nacimiento: Estado de nacimiento: País de nacimiento: ¿Vive el niño/la niña con Ud.? ¿Si no, dirección del niño/niña? Ciudad: Estado: Código postal: País: ¿Está inmigrando a los EEUU este niño con Ud.? Si no ¿Está inmigrando a los EEUU este niño más luego para juntarse con Ud.? si no VIAJES A LOS EEUU: Información de sus visitas anteriores a los EEUU: ¿Ha estado Ud. en los EEUU anteriormente? si no ¿Si ha estado en los EEUU, le dio un numero de registración la migra? ¿O sea el Departamento de Seguridad del País le dio número? si no Si le dio número, dílo: (empieza con “A”):

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Provee información de todas sus visitas a los EEUU: Fecha llego (1): Cuantos años/meses/días se quedó en los EEUU? Fecha llego (2): Cuantos años/meses/días se quedó en los EEUU? Fecha llego (3): Cuantos años/meses/días se quedó en los EEUU? ¿Otras visitas?

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¿Ha recibido una visa a los EEUU anteriormente? Fecha cuando le dio la visa: _ Clase de Visa: Numero de visa: (deme una copia) Si la respuesta es sí al siguiente, favor de explicar abajo: ¿Ha estado robada o perdida cualquier visa a los EEUU? si no ¿Ha estado cancelada o revocada cualquier visa a los EEUU? si no ¿Le negaron a Ud. una visa a los EEUU o una entrada o tuvo que retirar su aplicación de entrada a los EEUU en el aeropuerto u otro punto de inspección? si no ¿Alguna vez le negaron entrar a los EEUU cuando llego Ud. en la frontera o aeropuerto? si no ¿Alguna vez decidió Ud. quitar su aplicación entrar a los EEUU después de llegar en la frontera o aeropuerto? si no Si dijo si a cualquier se estas preguntas, favor de explicar que paso con detalles: ______________________________________________________________________________ ______________________________________________________________________________ Información de trabajo, educación y entrenamiento:

Nombre de patrón/compañía donde trabaja ahora, o su último empleo si está desempleado ahora (Empleo) (1): ________________________________________________________________ Dirección de su trabajo: Ciudad: Estado: Código postal: País: Teléfono: Titulo o posición de Ud.: Apellidos de su Supervisor/a:

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Chapter 4

Trabajo corriente (posición o titilo de Ud.): ¿Tiene otros trabajos?: (Lista todos) ¿Trabajo tiene planes hacer en los EEUU?: ¿Antes de su trabajo corriente, tuvo otro trabajo?

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Nombres de su Supervisor/a: Trabajo allí empezando en qué fecha: Trabajo allí hasta que fecha: Nombre de patrón/compañía donde trabajo anteriormente (empleo (2)): _______________________ Dirección de su trabajo: Ciudad: Estado: Código postal: País: Teléfono: Titulo o posición de Ud.: Apellidos de su Supervisor/a: Nombres de su Supervisor/a: Trabajo allí empezando en qué fecha: Trabajo allí hasta que fecha:

Chapter 4

Nombre de patrón/compañía donde trabajo anteriormente (empleo (3)): _______________________ Dirección de su trabajo: Ciudad: Estado: Código postal: País: Teléfono: Titulo o posición de Ud.: Apellidos de su Supervisor/a: Nombres de su Supervisor/a: Trabajo allí empezando en qué fecha: Trabajo allí hasta que fecha: Nombre de patrón/compañía donde trabajo anteriormente (empleo (4)): _______________________ Dirección de su trabajo: Ciudad: Estado: Código postal: País: Teléfono: Titulo o posición de Ud.: Apellidos de su Supervisor/a: Nombres de su Supervisor/a: Trabajo allí empezando en qué fecha: Trabajo allí hasta que fecha:

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ESTUDIOS: ¿Ha asistido a cualquier escuela al nivel secundaria o más arriba? Número de escuelas secundaria o más arriba asistió Ud.:

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Nombre de la escuela (1): Dirección de la escuela: Ciudad: Estado: Código Postal: País: Curso de estudio: Degrado o Diploma: Asistió empezando en la fecha: Hasta tal fecha: Nombre de la escuela segunda (2): Dirección de la escuela: Ciudad: Estado: Código Postal: País: Curso de estudio: Degrado o Diploma: Asistió empezando en la fecha: Hasta tal fecha:

Chapter 4

Nombre de la escuela (3): Dirección de la escuela: Ciudad: Estado: Código Postal: País: Curso de estudio: Degrado o Diploma: Asistió empezando en la fecha: Hasta tal fecha: SERVICIO MILITAR: ¿Hizo servicio en el militar? ¿Para qué país? División/departamento del militar: Su position o rango militar: Especialidad militar: Su servicio empezó en cual fecha: Hasta la fecha que termino:

Appendix 4-H-8

La Persona que Entrego su Petición: Mi relación a la persona que me hizo esta petición de visa: (es mi papa, mama, esposo/a, niño adulto, hermano/a): Apellidos y nombres completos de este persona: Donde viva esta persona ahora: Dirección: Ciudad: Estado: País: Teléfono: Celular: Correo electrónico: PREGUNTAS IMPORTANTES DE SEGURIDAD Y DISCALIFICACIONES DE INMIGRAR: Información de seguridad y otra información de Ud. – responde “si” o “no” – si la respuesta es “si” favor de explicar su respuesta abajo: • ¿Tiene enfermedad contagiosa como TB u otra enfermedad? si no • ¿Recibió vacunas ya en su país? si no ¿cuales?_____________________________________ • ¿Tiene documento comprobando sus vacunas? si no • ¿Tiene un trastorno mental o físico que puede ser una amenaza a la seguridad de Ud. sí mismo o a otros? si no • ¿Ha estado detenido por la policia por DUI o violencia domestica o por un asunto relacionado a pandillas? si no

Chapter 4

• ¿Esta Ud. ahora abusando drogas o tiene adicción a drogas o ha abusado drogas en el pasado? si no • ¿Ha estado Ud. arrestado o convicto de cualquier delito o felonía u ofensa en el pasado, incluyendo si después recibió perdón, amnistía u otra acción similar? si no • ¿Alguna vez ha violado, o participando en una conspiración para violar, cualquier ley relacionada con sustancias controladas (drogas)? si no • ¿Está Ud. el cónyuge, hijo o hija de un individuo que ha violado las leyes del tráfico de sustancias controladas (drogas), y han beneficiado a sabiendas de las actividades de tráfico en los últimos cinco años? si no • ¿Va a venir Ud. a los Estados Unidos a participar en la prostitución o ilegal comercializado vicio o ha estado involucrado en la prostitución o prostitutas contratante dentro de los últimos 10 años? si no Appendix 4-H-9

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• ¿Alguna vez ha estado Ud. involucrado en, o qué buscan participar en, el lavado de dinero? si no

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• ¿Alguna vez ha cometido Ud. o conspirado cometer un delito de trata de personas en los Estados Unidos o fuera de los Estados Unidos? si no • ¿Alguna vez ha ayudado, asistido o conspirado con un individuo que ha sido identificado por el Presidente de los Estados Unidos como una persona que desempeña un papel importante en una forma grave de trata de personas? si no •¿Eres el cónyuge, hijo o hija de un individuo que ha cometido o conspirado para cometer un delito de trata de personas en los Estados Unidos o fuera de los Estados Unidos y que tiene dentro de los últimos cinco años, se benefició con conocimiento de las actividades de tráfico? si no • ¿Se busca realizar espionaje, sabotaje, violaciones de control de exportación, o cualquier otra actividad ilegal, mientras que en los Estados Unidos? si no • ¿Busca usted a participar en actividades terroristas, mientras estará en los Estados Unidos o ha participado en actividades terroristas? si no • ¿Tiene la intención de proporcionar asistencia financiera o de otro tipo de apoyo a terroristas u organizaciones terroristas, o ya ha hecho asunto así? si no • ¿Es usted un miembro o representante de una organización terrorista? si no • ¿Alguna vez ordenado, incitado, cometido, ayudado o participado Ud. de otro modo en el genocidio? si no • ¿Alguna vez ha cometido, ordenado, incitado, ayudado o participado Ud. de otro modo en la tortura? si no

• ¿Alguna vez ha participado Ud. en el reclutamiento de o el uso de niños soldados? si no • ¿Mientras que actúa Ud. como un funcionario del gobierno, ha estado responsable Ud. o directamente llevado a cabo, en cualquier momento, violaciones graves de la libertad religiosa? si no • ¿Es usted miembro o afiliado a la partida comunista u otro partido totalitario? si no • ¿Alguna vez ha ayudado o apoyado cualquiera de los grupos en Columbia conocidos como las Fuerzas Armadas Revolucionarias de Colombia (FARC), Ejército de Liberación Nacional (ELN), o Fuerzas de Autodefensas Unidas de Colombia (AUC), directa o indirectamente? si no

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Chapter 4

• ¿Ha cometido, ordenado, incitado, ayudado o participado Ud. de otro modo en las ejecuciones extrajudiciales, homicidios políticos, u otros actos de violencia? si no

• ¿Alguna vez, a través de abuso de posición gubernamental o política convertida, para obtener beneficios personales, confiscados o bienes expropiados propiedad en un país extranjero al que un ciudadano estadounidense tenía reclamo de propiedad? si no • ¿Está Ud. el cónyuge, hijo menor de edad, o agente de un individuo quien por abuso de posición gubernamental o política convertida para obtener beneficios personales, confiscados o bienes expropiados en un país extranjero, al que un ciudadano estadounidense tenía una reclamación de propiedad? si no • ¿Alguna vez ha estado Ud. involucrado directamente en el establecimiento o la ejecución de los controles de población obligar a una mujer a someterse a un aborto en contra de su libre elección o un hombre o una mujer a someterse a la esterilización en contra de su libre elección? si no • ¿Alguna vez ha revelado Ud. o traficado con la información comercial confidencial EE.UU. obtenido en relación con la participación EE.UU. en la Convención sobre las armas químicas? si no • ¿Está Ud. el cónyuge, hijo menor de edad, o agente de un individuo que ha revelado o traficado con la información comercial confidencial EE.UU. obtenido en relación con la participación EE.UU. en la Convención sobre las armas químicas? si no • ¿Alguna vez ha tratado Ud. de obtener o ha ayudado a otros a obtener una visa, la entrada en los Estados Unidos, o cualquier otro beneficio de inmigración de Estados Unidos por fraude o falsificación intencional u otros medios ilegales? si no •¿Alguna vez ha sido objeto de una audiencia de expulsión o deportación? si no • ¿Faltό una audiencia sobre si Ud. era deportable o inadmisible en los ultimos cinco años? si no

Chapter 4

• ¿Alguna vez ha estado Ud. ilegalmente, sobrepasado la cantidad de tiempo otorgado por un funcionario de inmigración o de otra manera violado los términos de una visa de EE.UU.? si no • ¿Está sujeto a una pena civil bajo INA 274C? si no • ¿Se le ha ordenado deportado de los EE.UU. durante los últimos cinco años? si no • ¿Se le ha ordenado deportado de los EE.UU. durante los últimos diez años? si no • ¿Se le ha ordenado deportado los EE.UU. por segunda vez en los últimos 20 años? si no • ¿Alguna vez ha sido condenado por un delito grave y se ha ordenado deportado de los EE.UU.? si no • ¿Alguna vez ha estado ilegalmente en los EE.UU. por más de 180 días (pero no más de un año) y se han salido voluntariamente los EE.UU. en los últimos tres años? si no

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• ¿Alguna vez ha estado ilegalmente en los EE.UU. durante más de un año o más de un año en el agregado en cualquier momento durante los últimos 10 años? si no

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• ¿Alguna vez ha quitado la custodia de un niño ciudadano de EE.UU. fuera de los Estados Unidos de una persona que haya obtenido la custodia legal de un tribunal de EE.UU.? si no • ¿Alguna vez ha ayudado de forma intencionada a otra persona en la retención de custodia de un niño ciudadano de EE.UU. fuera de los Estados Unidos de una persona que haya obtenido la custodia legal de un tribunal de EE.UU.? si no • ¿Ha votado en los Estados Unidos en violación de cualquier ley o regulación? si no • ¿Alguna vez ha renunciado a la ciudadanía estadounidense para el fin de eludir impuestos? si no • ¿Ha asistido a una escuela primaria pública o una escuela secundaria pública en el estado de estudiante (F) después del 30 de noviembre de 1996 sin reembolsar a la escuela? si no • ¿Qué buscan entrar a los Estados Unidos con el propósito de llevar a cabo la mano de obra calificada o no, pero aún no han sido certificados por el Secretario del Trabajo? si no • ¿Es usted un graduado de una escuela de medicina extranjeros que buscan llevar a cabo los servicios médicos en los Estados Unidos, pero aún no han pasado el examen de la Junta Nacional de Examinadores Médicos o su equivalente? si no • ¿Es usted un trabajador de la salud que buscan para efectuar dicho trabajo en los Estados Unidos, pero todavía no ha recibido la certificación de la Comisión de Graduados de Escuelas Extranjeras de Enfermería o de un equivalente aprobado organización de acreditación independiente? si no • ¿Está permanentemente inelegible para la ciudadanía EE.UU.? si no

• ¿Viene a los EE.UU. para practicar la poligamia? si no • ¿Es usted un antiguo visitante de intercambio (J) que todavía no ha cumplido el requisito de residencia en el extranjero de dos años? si no • ¿Ha determinado el Secretario de Seguridad Nacional de los Estados Unidos que a sabiendas presentó Ud. una solicitud de asilo frívola? si no

Appendix 4-H-12

Chapter 4

• ¿Alguna vez salir de Estados Unidos con el fin de evadir el servicio militar durante un tiempo de guerra? si no

• ¿Es probable que convertirse en una carga pública después de ser admitido en los Estados Unidos? si no Si su respuesta es sí a cualquiera de las preguntas anteriores, explique a continuación: ___________________________________________________________________________ ___________________________________________________________________________ ___________________________________________________________________________ ___________________________________________________________________________

Chapter 4

Información Número de Seguro Social ¿Ha solicitado Ud. un número de Seguridad Social de los EEUU en el pasado? Si No ¿Quieres que la Administración de la Seguridad Social para emitir un número de Seguro Social y una tarjeta? Si No ¿Autoriza a la divulgación de información de este formulario al Departamento de Seguridad Nacional, la Administración de Seguridad Social, y los demás organismos del gobierno de Estados Unidos que puedan ser necesarios para los fines de que la asignación de un número de Seguro Social (SSN) y la emisión de su Seguridad Social tarjeta y es lo que autoriza a la Administración de Seguridad Social para compartir su SSN con el Departamento de Seguridad Nacional? Si No

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CHAPTER 5 GROUNDS OF INADMISSIBILITY

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This chapter includes: § 5.1 § 5.2 § 5.3 § 5.4 § 5.5 § 5.6 § 5.7 § 5.8 § 5.9 § 5.10 § 5.11 § 5.12 § 5.13

§ 5.14 § 5.15 § 5.16 § 5.17 § 5.18 § 5.19 § 5.20 § 5.21 § 5.22 § 5.23 § 5.24 § 5.25 § 5.26

§ 5.27 § 5.28

Overview of Admissibility, Deportability, Admission, and Removal ............... 5-2 Health-Related Grounds: Communicable Diseases, Required Vaccinations, Dangerous Disorders, and Addiction and Abuse......................... 5-8 Alien Smuggling: Grounds of Inadmissibility and Deportability .................... 5-13 Fraud and Misrepresentation ............................................................................ 5-17 Document Fraud: Ground of Inadmissibility and Deportability ...................... 5-20 Insufficient Documentation .............................................................................. 5-21 False Claim to U.S. Citizenship ....................................................................... 5-22 Likely to Become a Public Charge ................................................................... 5-27 Terrorists, Draft Dodgers, Unlawful Voters, Stowaways, Polygamists ........... 5-45 Entry, Admission, and Effective Dates ............................................................ 5-50 Unlawfully Present in the United States without Being Admitted or Paroled ......................................................................................................... 5-51 Three- and Ten-Year Bars for Those Unlawfully Present Who Depart and Then Apply for Admission and the Family Hardship Waiver ................... 5-53 “Permanent Bar” to Persons Who Were Unlawfully Present for More than One Year or Were Ordered Removed and Who Enter or Attempt to Enter without Being Admitted ....................................................... 5-60 Failure to Attend Removal Proceedings ........................................................... 5-65 Past Removal or Deportation/Exclusion .......................................................... 5-67 Reinstatement ................................................................................................... 5-68 Clients with Criminal Records ......................................................................... 5-70 What Is a Criminal Conviction? ....................................................................... 5-71 What Evidence Can the DHS Submit to Show a Conviction? ......................... 5-72 What Is a Sentence for Immigration Purposes? ............................................... 5-73 How to Analyze a Past Conviction: The Categorical Approach ...................... 5-73 Overview of Immigration Consequences of Crimes ........................................ 5-76 Inadmissibility Based on Drug Offenses .......................................................... 5-77 Crimes Involving Moral Turpitude .................................................................. 5-80 The Crime Involving Moral Turpitude Petty Offense and Youth Exceptions ............................................................................................. 5-83 Other Grounds: Prostitution, Two Convictions with Five-Year Sentence Imposed, Alien Trafficking, Money Laundering, HighSpeed Flight from Immigration ........................................................................ 5-84 Aggravated Felonies ......................................................................................... 5-86 Clearing Up a Criminal Record ........................................................................ 5-89

Chapter 5

5-1

§ 5.1

Overview of Admissibility, Deportability, Admission, and Removal

The grounds of inadmissibility are a central part of the Immigration and Nationality Act (INA) and can be found at INA § 212(a). All applicants for adjustment of status or consular processing must show that they do not fall into any of the grounds of inadmissibility and are therefore admissible. If they do fall under one of the grounds of inadmissibility, they must show they qualify for a waiver. This chapter discusses the most common inadmissibility grounds. Chapter 6 discusses the waivers for these grounds. The current law is shaped by landmark legislation that was enacted on September 30, 1996: the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA). Among other things, IIRIRA amended the INA to provide a new framework, and new penalties, used to assess entry, exclusion, deportation, and admission. PRACTICE TIP: USCIS has undertaken a comprehensive review of its adjudication and customer service policies. The result of this review will be the USCIS Policy Manual, which is the agency’s centralized online repository for USCIS’s immigration policies. The USCIS Policy Manual will ultimately replace the Adjudicator’s Field Manual (AFM) and the USCIS Immigration Policy Memoranda. At this time, the USCIS Policy Manual is not complete in many subjects, but some complete sections supersede previous policy memoranda and the AFM. The ILRC urges advocates to check the USCIS website and policy manual regularly for updates, and to rely on previous USCIS policy statements where the current USCIS Policy Manual is silent or incomplete. A.

Removal Proceedings, Admission, Parole, and the Grounds of Inadmissibility and Deportability

Removal proceedings under IIRIRA began on April 1, 1997. (Court cases started before April 1, 1997 remain in deportation and exclusion proceedings instead of removal proceedings). A key question in removal proceedings is whether the person has been admitted into the United States. PRACTICE TIP: In 2003, the Immigration and Naturalization Service (INS) was broken up and its functions placed into several different agencies within the Department of Homeland Security (DHS). In this unit, because the grounds of inadmissibility and deportability come up before various agencies depending on the context, we will refer generally to DHS. In practice, however, you will need to identify the specific sub-agency with which you are dealing (i.e., USCIS, CBP, or ICE). 1. General rules for noncitizens

Chapter 5

Our current immigration law divides noncitizens into two groups: those who are seeking admission and those who have already been admitted. Generally speaking, the terms “admission” and “admitted” are defined in INA § 101(a)(13). INA § 101(a)(13)(A) defines admission as “the lawful entry of [an] alien into the United States after inspection and authorization by an immigration officer.” Noncitizens who entered the United States with inspection, pursuant to a visa of some kind, have been admitted. INA § 101(a)(13)(A). If DHS brings them into removal proceedings, DHS has

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the burden of proving that the individual comes within a ground of deportability. See INA § 240(c)(3). On the other hand, noncitizens considered not to have been admitted to the United States are seeking admission. If challenged and placed in summary removal or regular removal proceedings, these people have the burden of proving that they do not come within one of the grounds of inadmissibility. See INA § 240(c)(2). One of the grounds of inadmissibility is being present in the United States without permission.

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The grounds of inadmissibility are found at INA § 212(a), and the grounds of deportability are found at INA § 237(a). They are similar, but not identical. The differences between them can have a serious impact on your client’s eligibility for relief from removal. Often we will use the word “people” instead of “noncitizens” or “aliens” in this unit. It is important to understand, however, that U.S. citizens are never affected by any ground of inadmissibility or deportability. On the other hand, all noncitizens—including lawful permanent residents—are potentially subject to these grounds, and therefore can legally be refused admission to or removed from the United States. 2. Who is subject to the grounds of inadmissibility? The following people are subject to the grounds of inadmissibility: • • • • • •

Undocumented individuals (those who entered without inspection); Applicants for admission at the border, such as nonimmigrant visa holders, those eligible for a visa waiver, and immigrant visa holders arriving for the first time; 1 Applicants for adjustment of status; Parolees; 2 Alien crewmen; 3 and Lawful permanent residents, including conditional residents, who fall within INA § 101(a)(13)(C).

A Note on Parole: DHS has the power to “parole in” persons who are outside the United States or at the border, even if they are inadmissible. A person who is paroled in can physically enter the United States but is not considered “admitted.” Legally, she is still considered to be seeking admission, as if she were at the border applying for admission. DHS can grant humanitarian parole to bring in persons for humanitarian reasons, for example to permit them to obtain medical care in the United States. See INA § 212(d)(5). Certain people in the United States, such as those with pending applications for adjustment of status or those who have TPS or had DACA, could seek “advance parole,” which is advance permission to go outside of the United States and be paroled back in. See 8 CFR § 212.5(e). Some inadmissible persons who are detained at the border 1

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A person with an immigrant visa from a U.S. Consulate abroad does not become a lawful permanent resident until and unless she is admitted at a U.S. border while the immigrant visa is valid, and within six months of the date the visa was granted. See 22 CFR §§ 42.72–42.64(b). 2 See INA § 101(a)(13)(B). 3 See id.

can be released from detention and come into the United States if DHS grants parole. See 8 CFR § 212.5. DHS’s position is that even after they are physically in the United States, all of these people are still deemed to be seeking admission. Thus, if they are placed in removal proceedings, they will be subject to the grounds of inadmissibility. 3. Who is subject to the grounds of deportability? The following people are subject to the grounds of deportability. The grounds of deportability are beyond the scope of this manual. • • • • •

Nonimmigrant visa holders within the United States following a lawful admission; People admitted as visa waiver entrants; Visa holder and visa waiver overstays in the United States; Refugees; 4 and Lawful permanent residents, including conditional residents, except those who fall within INA § 101(a)(13)(C). 4. The special rules governing admission of returning lawful permanent residents under INA § 101(a)(13)(C)

When lawful permanent residents travel abroad and then re-enter the United States, they generally will not be considered to be “seeking admission” at the border, and will not be subject to the grounds of inadmissibility. There are six exceptions to this rule. Under INA § 101(a)(13)(C), a permanent resident returning from a trip outside the United States is seeking admission if she: 1. 2. 3. 4. 5.

has abandoned or relinquished permanent resident status; has been absent from the United States for a continuous period of more than 180 days; has engaged in illegal activity after departing the United States; has left the United States while under removal or extradition proceedings; has committed an offense identified in INA § 212(a)(2) (grounds of inadmissibility relating to crimes), unless the person was granted § 212(h) relief or § 240A(a) cancellation of removal to forgive the offense; OR 6. is attempting to enter or has entered without inspection. Lawful permanent residents who come within any of these criteria, except those who were convicted of an offense described in INA § 101(a)(13)(C)(v) (number 5 above) before April 1, 1997, 5 will be in the same position as other noncitizens seeking admission and will be considered “arriving aliens.” They will not be admitted if they are found to come within a ground of inadmissibility.

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See Matter of D-K-, 25 I&N Dec. 761 (BIA 2012) (holding that refugees are subject to the grounds of deportability because they have been admitted to the United States). 5 See Vartelas v. Holder, 132 S.Ct. 1479 (2012), in which the U.S. Supreme Court held that INA § 101(a)(13)(C)(v) did not apply to LPRs with convictions that pre-dated April 1, 1997, the effective date of IIRIRA. These LPRs are covered under pre-IIRIRA law, under which they are not considered to be making a new admission upon return to the United States as long as the departure was “brief, casual, and innocent.”

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Example: Marc is a permanent resident. In 2005 he traveled to France for two weeks to attend a conference and then returned to the United States. He has tuberculosis, which is a health ground of inadmissibility. As a returning permanent resident, Marc is deemed not to be “seeking admission” at the U.S. border. Therefore, although DHS knows that he is inadmissible for tuberculosis, it cannot charge him with being inadmissible and place him in removal proceedings. Legally, Marc has not made a new admission. His tuberculosis is not one of the circumstances that would cause the government to treat him as an arriving alien and subject to the grounds of inadmissibility. Marc should lawfully re-enter the United States without a problem.

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Example: What if Marc takes another trip and stays outside the United States for 190 days? In that case, when he returns he will be “seeking admission,” for having been absent for more than 180 days under INA § 101(a)(13)(C)(ii). DHS can bring him into removal proceedings and charge him with being inadmissible for his tuberculosis. As a defense, he can have it treated and cured or he can apply for a waiver. 5. False admission as a U.S. citizen compared to admission on a fraudulent visa A noncitizen who gains admission to the United States by pretending to be a U.S. citizen has not yet been “admitted,” because the person was not admitted and inspected as an alien. 6 In most jurisdictions, a noncitizen who has used a fraudulent visa (e.g., a fake green card or non-U.S. passport) has been admitted, even though the admission was not lawful. 7 In Matter of Quilantan, the BIA held that the term “admission” for purposes of adjusting status only requires “procedural regularity.” 8 The Ninth Circuit has applied this reasoning to hold that a fraudulent entry constitutes admission for purposes of eligibility for a waiver under INA § 212(h) as well. 9 But note that caselaw is still unsettled as to whether a fraudulent entry constitutes an admission for other purposes of the INA. In fact, several courts have found that Quilantan does not apply to the definition of “re-entry.” 10 Thus, a person who fraudulently entered could still be charged with illegal re-entry. B.

A Short History Lesson: Exclusion and Deportation Proceedings before IIRIRA, Compared to Removal Proceedings under IIRIRA

It may be important to understand the framework for the system that was in place before the changes created by IIRIRA went into effect on April 1, 1997. This framework can be helpful to 6

See Matter of Pinzon, 26 I&N Dec. 189 (BIA 2013). Note that in Orozco v. Mukasey, the Ninth Circuit found that someone who had entered the United States using someone else’s permanent resident card had not been admitted as defined in INA § 101(a)(13)(A), but this case has since been vacated. 546 F.3d 1147 (9th Cir. 2008) (vacating previous published opinion). 8 25 I&N Dec. 285 (BIA 2010). 9 Hing Sum v. Holder, 602 F.3d 1092 (9th Cir. 2010) (“Addressing this issue of first impression in this circuit, we conclude that the plain meaning of the term ‘admission’ in § 1101(a)(13)(A), and thus the term ‘previously been admitted’ in § 212(h), refers to a procedurally regular admission and not a substantively lawful admission”). 10 See Avalos-Martinez v. Johnson, 560 F. App’x. 385, 2014 WL 1285664 (5th Cir. 2014); TamayoTamayo v. Holder, 725 F.3d 950, (9th Cir. 2013); Cordova–Soto v. Holder, 659 F.3d 1029, 1034 (10th Cir. 2011). 7

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understand pre-IIRIRA caselaw, which, in many instances, is still the guide for establishing who is deportable and admissible. Also, some cases that were begun before April 1, 1997 will continue under the old system, in deportation or exclusion proceedings, instead of in removal proceedings. Note that in 1990 and again in 1997 Congress changed the numbering and the substance of many grounds of deportation and exclusion/inadmissibility. Under pre-IIRIRA law, the grounds of inadmissibility were referred to as “grounds of exclusion.” There is no real difference between the terms “grounds of inadmissibility” and “grounds of exclusion.” If you read court opinions about cases that started before 1997, they will refer to whether the person came within the grounds of exclusion or deportation, instead of grounds of inadmissibility or deportability. Before IIRIRA created removal hearings, there were two types of hearings: deportation hearings, in which INS had to prove the person was deportable, and exclusion hearings, in which the person had to prove that she was admissible. This is the same burden of proof found today in removal proceedings. The crucial difference between the old and new system is the difference between entry and admission. In pre-IIRIRA laws, whether the person faced the grounds of deportability or inadmissibility depended on whether the person had made an entry into the United States—not whether the person had been admitted. An entry is different from an admission. Entry includes a person physically coming into the United States legally or illegally, with or without inspection. It does not include a person who is formally stopped by DHS inspectors at the border or port of entry and refused admission. An admission is an entry after DHS inspection, an adjustment of status, or a grant of certain forms of immigration status. 11 Under the old law, a person who made an entry faced the grounds of deportation. Only people who were refused admission by INS faced grounds of exclusion. In practical terms, this change affects what happens to people who entered without inspection. Before IIRIRA, those people had an advantage: because they had made an entry, the INS had to prove that they were deportable. Now, under IIRIRA removal proceedings, people who enter without inspection have a disadvantage: since they have not made a lawful entry (admission) they are considered still to be seeking admission—even if they have lived in the United States for years. Under IIRIRA rules, this means that they have to prove that they do not come within a ground of inadmissibility. Example: Mel and Sam entered the United States without inspection in 1990. The INS arrested Mel in April 1996. Because he had made an entry, he was placed in deportation proceedings and the INS had to prove that he came within a ground of deportation. The INS arrested Sam in April 1997, when removal proceedings were in effect. Lawful admission now is the test, not just entry. Because he had not been admitted, Sam was

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Gaining certain other forms of status, even if the person did not enter after DHS inspection, may also be considered an “admission.” See, e.g., Flores v. U.S. Citizenship and Immigration Serv., 718 F.3d 548, 553 (6th Cir. 2013) (holding that a grant of TPS is an “admission” in the Sixth Circuit).

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placed in removal proceedings in which he had the burden of proving that he did not come within a ground of inadmissibility. C.

Burdens of Proof

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Burden of proof is a complex and confusing subject, largely because the burden of proof shifts depending on the status of the person involved, and the situation she is faced with. The following is a brief synopsis of the differing burdens of proof. 1. The burden of proof on alienage falls on the government For noncitizens found within the United States without being admitted or paroled, the government bears the burden of proving alienage. 12 The evidence required to prove alienage is not specified by regulation. Even if the person has submitted an application for relief from removal, the information in that application cannot be held to be an admission of alienage. 13 Once alienage has been established, the noncitizen must prove by clear and convincing evidence that she is lawfully in the United States pursuant to a prior admission, or is clearly and beyond a doubt entitled to be admitted to the United States and is not inadmissible as charged. 8 CFR § 1240.8(c). For noncitizens in removal proceedings, once alienage has been established, the burden of proof shifts to the noncitizen to show the time, place, and manner of entry. 14 INA § 291. 2. The burden of proof under the inadmissibility grounds in INA § 212(a) General Rules for Noncitizens. Under INA § 240(c)(2), noncitizens who are subject to the grounds of inadmissibility, including those who are applying for adjustment of status under § 245, bear the burden of proving that they are either: 1. “clearly and beyond doubt entitled to be admitted and not inadmissible under § 212” or, 2. lawfully present in the United States pursuant to a prior admission, by clear and convincing evidence. Lawful Permanent Residents and the Burden of Proof under the Inadmissibility Grounds. Despite the general rule governing the burden of proof for those deemed “applicants for admission,” lawful permanent residents (LPRs) who are subject to the grounds of inadmissibility as arriving aliens have more rights than non-LPRs. For example, under INA § 235(b)(2), a returning LPR charged as an “arriving alien” has the right to a removal hearing under INA § 240. Furthermore, the U.S. Supreme Court 15 and the BIA 16 have held that LPRs returning from a trip abroad are entitled to due process protections, meaning that they have the right to a full and fair hearing and the right to confront the evidence against them. In addition, the Supreme Court has 12

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8 CFR § 1240.8(c); see Murphy v. INS 54 F.3d 605 (9th Cir. 1995) (holding that the burden of proving alienage always remains on the government because it is a jurisdictional matter). 13 8 CFR § 1240.11(e). An application submitted to USCIS prior to removal, however, can be used to establish alienage. 14 See also Matter of Benitez, 19 I&N Dec. 173 (BIA 1984). 15 Landon v. Plasencia, 459 U.S. 21 (1982); Kwong Hai Chew v. Colding, 344 U.S. 590 (1953). 16 Matter of Rivens, 25 I&N Dec. 623 (BIA 2011).

held that if a returning LPR is to be deprived of her status, the government may only do so in a proceeding in which the government is both the moving party and bears the burden of proof. Id. No statutory scheme invented by Congress can override these constitutional protections. 3. The burden of proof under the deportability grounds in INA § 237 For noncitizens facing the grounds of deportability, instead of inadmissibility, the government bears the burden of proving, by clear and convincing evidence, that the noncitizen is deportable. “No decision on deportability shall be valid unless it is based upon reasonable, substantial and probative evidence.” In addition, INA § 240(c)(3)(B) contains specific rules governing the type of evidence required to prove the existence of criminal convictions. The government bears the burden of proving both (1) that the noncitizen has a criminal conviction; and (2) that the conviction triggers a ground of deportability or inadmissibility. Under the Supreme Court case, Woodby v. INS, 385 U.S. 276 (1966), the standard for proving deportability was deemed to be clear, unequivocal, and convincing evidence. It’s not clear whether there is a difference between “clear and convincing” and “clear, unequivocal and convincing,” but because the Woodby decision is constitutionally based, it should be the required standard of proof. 4. A look at family-based cases For family-based adjustments and consular processing, the grounds of inadmissibility apply. This means that the applicant will always bear the burden of showing that she is admissible and eligible for permanent resident status in the United States. The rest of this unit is divided into four parts. Part One will cover the grounds of inadmissibility relating to health issues, alien smuggling, visa and document fraud, and some miscellaneous grounds. Part Two will cover the grounds of inadmissibility relating to unlawful presence, removal, and re-entry, including the three and ten year bars. Part Three will cover how crimes and criminal records affect the grounds of inadmissibility. PART ONE: THE GROUNDS OF INADMISSIBILITY -- HEALTH, ALIEN SMUGGLING, VISA AND DOCUMENT FRAUD, AND MISCELLANEOUS

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§ 5.2 Health-Related Grounds: Communicable Diseases, Required Vaccinations, Dangerous Disorders, and Addiction and Abuse To see if a person applying for an immigrant visa will be inadmissible based on a health-related ground, DHS requires the person to take a medical exam given by a doctor approved by DHS (called a “civil surgeon”) or, in consular processing, a doctor approved by the United States consulate (called a “panel physician”). The applicant cannot go to any doctor; it must be a government-approved doctor from the official list. When the test results are ready, the doctor will give the person a sealed envelope containing the results to take to the DHS or consular appointment. The person must leave the envelope sealed. She can, however, ask the doctor to tell her the results of the test, and may request a copy from the doctor before the envelope is sealed. There are four grounds of inadmissibility related to health, all spelled out in INA § 212(a)(1)(A).

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PRACTICE TIP: It is important to thoroughly prepare and screen clients on medical issues, before they depart the United States to consular process. In order to do this, you should explain the medical exam process and the issues that could impact eligibility to immigrate, especially those related to substance abuse, both alcohol and drugs. A.

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Communicable Diseases: INA § 212(a)(1)(A)(i)

People who have certain communicable diseases are inadmissible. People who are inadmissible for contagious diseases and who have certain U.S. citizen or permanent resident relatives can apply for a waiver under INA § 212(g)(1). See Chapter 6. Generally, the Department of Health and Human Services (HHS) decides which diseases or conditions make a person inadmissible. Previously, the only condition listed in the INA itself was “infection with the etiologic agent for acquired immune deficiency syndrome,” meaning anyone who was HIV positive. However, at the end of July 2008 President Bush signed the reauthorization of the President’s Emergency Plan for AIDS Relief (PEPFAR), which removed infection with HIV as a communicable disease from the grounds of inadmissibility. 17 Additionally, effective January 4, 2010, HHS through the Centers for Disease Control and Prevention (CDC) issued a final rule to remove HIV from the definition of “communicable disease of public health significance” and to remove HIV testing from the scope of the medical screening process for immigrants. Thus, immigrants seeking admission are no longer inadmissible based solely on the ground that they are HIV positive and will not be required to undergo HIV testing as part of the required medical examination. Other diseases that are designated communicable diseases are listed in the HHS regulation at 42 CFR § 34.2(b). Active tuberculosis and sexually transmitted diseases, such as gonorrhea and syphilis, are among those listed presently in the regulation as bases for inadmissibility. A person testing positive for these illnesses can have the disease treated and cured and then qualify for immigration. Or, if an illness such as tuberculosis cannot be quickly cured, the person can apply for a waiver. In October 2008 the HHS further amended 42 CFR § 34.2(b), by adding two new categories of diseases that may trigger inadmissibility: (1) quarantinable diseases designated by Presidential Executive Order, and (2) diseases that qualify as a “public health emergency of international concern which require notification to the World Health Organization (WHO) under the revised International Health Regulations (IHR) of 2005.” 18 These new categories, however, only apply to examinations performed in consular processing by “panel physicians” and will only take effect when HHS directly notifies panel physicians in the affected areas. 19 The focus of these provisions thus far has been screening for severe acute respiratory syndromes (SARS) and Ebola.

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17 Despite its elimination from the statute, those who were HIV+ continued to remain inadmissible for almost a year and a half because it had not been removed as a condition in the regulation promulgated by HHS. See 42 CFR § 34.2(b). 18 See www.cdc.gov/immigrantrefugeehealth/pdf/addendum-ti-panel.pdf. 19 See 85 Interpreter Releases 2714 (Oct. 13, 2008); 85 Interpreter Releases 2830 (Oct. 27, 2008).

B.

Failure to Prove Vaccinations: INA § 212(a)(1)(A)(ii)

The IIRIRA creates a ground of inadmissibility for failing to present evidence of vaccination against mumps, measles, rubella, polio, tetanus and diphtheria toxoids, pertussis, influenza type B, Hepatitis A, Hepatitis B, rotavirus, meningococcal disease, varicella, pneumococcal disease, seasonal influenza, and any other vaccinations against vaccine-preventable diseases recommended by the Advisory Committee for Immunization practices (ACIP). The ACIP has the power to recommend additional vaccinations. See INA § 212(a)(1)(A)(ii). Effective December 14, 2009, the CDC adopted the following criteria in deciding which ACIP-recommended vaccines that immigrants seeking admission must receive: 1. the vaccine must be an age-appropriate vaccine as recommended by the ACIP for the general U.S. population; and 2. the vaccine must do at least one of the following: a. the vaccine must protect against a disease that has the potential to cause an outbreak; or b. the vaccine must protect against a disease that has been eliminated in the United States or is in the process of elimination in the United States. 20 The current vaccine tables for children and adults based on the ACIP recommendations for the U.S. population can be found at www.cdc.gov/vaccines/schedules/index.html. For further information, see Technical Instructions for Civil Surgeons and Panel Physicians, www.cdc.gov/immigrantrefugeehealth/exams/ti/index.html. For a USCIS fact sheet on Vaccination Requirements see Appendix 5-A. The civil surgeon or panel physician will indicate successful completion of these requirements by using the required vaccination form that accompanies the medical examination form, I-693. If an individual does not have the requisite proof of previous vaccinations, this may be overcome if the person gets the vaccinations. The requirement may also be waived if the civil surgeon or panel physician certifies that the vaccination would not be medically appropriate, or if the vaccination would be contrary to the person’s religious or moral beliefs. See INA § 212(g)(2). This provision applies to visa and adjustment applications filed after September 30, 1996. C.

Mental or Physical Disorder: INA § 212(a)(1)(A)(iii)

People are inadmissible who have a mental or physical disorder and related behavior, which may pose a danger to themselves or others, or who have had such a disorder in the past that is likely to recur. See INA § 212(a)(1)(A)(iii). Both domestic violence and alcoholism can be bases for inadmissibility under this ground. Domestic violence arrests and/or convictions and drunk driving convictions can serve as evidence of a disorder. Likewise, this ground might affect people who have been committed to mental institutions for violent behavior; who have been diagnosed as sexual predators; or even who are suicidal. The Centers for Disease Control and Prevention has released Technical Instructions for Physical or Mental Disorders with Associated Harmful

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For more information, see Centers for Disease Control and Prevention, New Vaccine Criteria for U.S. Immigration, (Nov. 2009), www.cdc.gov/immigrantrefugeehealth/pdf/revised-fact-sheet-fed-reg-noticevaccination-immigration.pdf; see also Appendix 5-A.

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Behaviors and Substance-related Disorders for Panel Physicians. 21 These instructions came into effect on June 1, 2010, and should be consulted in the event that you have a client who may fall within this category due to problems with alcohol, controlled substances, or mental health issues. This ground may be waived through the filing of a waiver. See INA § 212(g); 8 CFR 212.7(b). The waiver requires substantial documentation, and the government might also require a bond.

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Alcoholism can be a basis for inadmissibility under this ground, and drunk-driving convictions can serve as evidence of alcoholism. This has increasingly become an issue for those undergoing medical evaluation through panel physicians to consular process. The “Technical Instructions for Medical Examinations of Aliens,” published by the Center for Disease Control at www.cdc.gov, lists alcoholism as a threatening mental or physical disorder that can serve as a basis for inadmissibility. 22 However, these Instructions also state that alcohol dependence or abuse must be considered the same as any other mental disorder, and requires associated harmful behavior to be classified as a medically inadmissible condition. Additionally, as an initial matter the alcoholism must be classified and meet the guidelines of a disorder, and the person should be formally diagnosed under the DSM-V before proceedings to a determination that the condition also poses a threat. USCIS updated its policy guidelines on January 28, 2014 to require a medical re-examination for alcoholism if the applicant fails to disclose to the civil surgeon during the initial medical examination that she has a single drunk driving arrest or conviction within the last five years, two or more drunk driving arrests or convictions within the last ten years, or other alcohol-related grounds. 23 This standard is much stricter than the previous one and shows that the government is taking alcohol-related offenses much more seriously. Nevertheless, a person should not be found inadmissible for a record of drunk driving arrests or convictions unless a panel physician or civil surgeon has made two findings: (1) a diagnosis or mental disorder (alcohol abuse) and (2) current harmful behavior or a history of harmful behavior related to the disorder that is likely to recur in the future, such as drunk driving or domestic violence. 24 PRACTICE TIP: A conviction related to alcohol should not, on its own, be sufficient to trigger the alcoholism inadmissibility ground. A panel physician or civil surgeon must find that the person has a diagnosis or mental disorder (alcohol abuse) and current harmful behavior or a history of harmful behavior related to the disorder that is likely to recur in the future.25 Note that under INA § 212(a)(10)(B), an “accompanying person” may be inadmissible based on the condition and needs of their companion. Under this section, if someone who is inadmissible 21

These instructions can be obtained at www.cdc.gov/immigrantrefugeehealth/exams/ti/index.html. See www.cdc.gov/immigrantrefugeehealth/exams/ti/index.html; see also 8 USCIS Policy Manual B.7, available at www.uscis.gov/policymanual/HTML/PolicyManual-Volume8-PartB-Chapter7.html [hereinafter “8 USCIS-PM”], which sets out the current guidelines for physical and mental health disorders. These new instructions rely on World Health Organization’s classifications as well as the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders (DSM). 23 8 USCIS-PM B.7. 24 9 FAM 40.11 N8.3. 25 Id. 22

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and is certified to be helpless due to a physical or mental disability, sickness or infancy, the person accompanying him or her is also inadmissible if needed for the protection or guardianship of the helpless person. D.

Drug Addicts and Drug Abusers: INA § 212(a)(1)(A)(iv)

Drug addicts and drug abusers are inadmissible. This ground of inadmissibility applies to current, not past, abuse or addiction. We can say that because the statute punishes a person who is determined “to be” an abuser/addict, which is the present tense. Current drug abuse or addiction will include any use in the past year. Theoretically, a doctor first should decide if a person is a drug abuser or addict. The Code of Federal Regulations defines “drug abuse” as “the non-medical use of a controlled substance listed in § 202 of the Controlled Substances Act, which has not necessarily resulted in physical or psychological dependence,” and “drug addiction” as “the non-medical use of a substance listed in section 202 of the Controlled Substances Act, as amended (21 USC § 802) which has resulted in physical or psychological dependence.” 42 CFR §§ (g), (h). The CDC has defined substance abuse and dependence in the “Technical Instructions for Physical or Mental Disorders with Associated Harmful Behaviors and Substance-Related Disorders.” 26 This document indicates that a finding of substance dependence (drug addiction) or repetitively abusing substances (drug abuse), will only be made if the noncitizen “meets current DSM 27 diagnostic criteria for substance dependence or abuse with any of the specific substances listed in Schedules I through V of Section 202 of the Controlled Substances Act.” The current CDC standards are a vast improvement over the past, when it considered any drug use that went beyond mere experimentation to be drug abuse. This question of drug abuse may come up in adjustment and removal proceedings in the United States, in addition to consular processing abroad. Advocates should be prepared to make sure that any finding of drug abuse or addiction is truly based on the criteria set forth in the CDC’s “Technical Instructions for Physical or Mental Disorders with Associated Harmful Behaviors and Substance-Related Disorders,” rather than on speculation. The standard for full “remission” for “drug abusers” under the DSM is a twelve-month period of no substance use or associated harmful behavior. This was updated on June 1, 2010 from a prior three-year required remission period. In practice, sometimes the panel physician will make a finding of “drug abuse” even if the applicant admits only to abusing drugs on a couple of occasions. The panel physician still retains discretion to require a longer period, and may suggest or require that the applicant undergo random drug testing, take drug abuse classes, etc., in order to meet the criteria for “remission.” When the remission period is over, the applicant must undergo a new medical exam before an immigrant visa can be issued.

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See www.cdc.gov/immigrantrefugeehealth/pdf/mental-health-pp-ti.pdf. DSM stands for the Diagnostic and Statistical Manual of Mental Disorders (DSM) published by the American Psychiatric Association, which provides a common language and standard criteria for the classification of mental disorders.

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Example: Rebeca admitted to the panel physician she smoked marijuana two or three times, with the last occasion nine months ago. She is denied as a “drug abuser” but can reapply in three months’ time—because that will be the point at which she has been in “remission” for 12 months. She should arrange for random drug testing and take classes in her country while she awaits the expiration of the remission period, and have the test results sent directly from the testing facility to the panel physician.

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There is no waiver available for this ground of inadmissibility. Note that the passage of time, however, could mean that this ground no longer applies. PRACTICE TIP: Persons whose lab tests reveal traces of marijuana or other drugs (which can remain in the body for some time, even many months) may be held inadmissible. Warn your clients before they go to see a civil surgeon or to a visa appointment—especially teenagers and young adults! You may want to speak to the young person separately from the parents. Children who have been living within the United States and are sent back to their home country for consular processing must be thoroughly screened for this issue and prepared for the medical prior to departure. Should this issue arise, the child may end up separated from parents until she can show remission. § 5.3

Alien Smuggling: Grounds of Inadmissibility and Deportability

Noncitizens who in any way and any time help bring other noncitizens illegally into the United States are inadmissible. See INA § 212(a)(6)(E). A.

Definition of Alien Smuggling

The statute defines an alien smuggler as “[a]ny person who knowingly has encouraged, induced, assisted, abetted, or aided” any other person to enter or try to enter the United States illegally. INA § 212(a)(6)(E)(i); INA § 237(a)(1)(E)(i). These provisions are worded very broadly and include sending money to someone to pay a smuggler, as well as merely encouraging someone to enter the United States illegally. The person must know she is helping someone enter illegally. If she was not aware that the other person did not have legal status to enter, she is not inadmissible under this ground. Bringing one’s own family members is alien smuggling if the situation otherwise meets the definition for alien smuggling. A finding of alien smuggling does not just cover professional alien smugglers; it also applies to people who bring in their family members. Example: Maria went to Mexico and physically helped her younger brother cross the border without inspection. She is inadmissible as an alien smuggler. Example: Sandra arranged for her elderly mother to enter the United States illegally in 2007. Sandra contacted a coyote to bring her and helped pay for the expenses, although Sandra was not there herself. Sandra is inadmissible as an alien smuggler. B.

Affirmative and Knowing Conduct

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The courts have provided guidance on what types of scenarios meet the statutory definition. If you have a case where the person might have committed alien smuggling, it will be very important to review the applicable caselaw. There might be facts that support an argument that

the situation does not meet the definition of alien smuggling. In Altamirano v. Gonzales, the Ninth Circuit reversed a finding of inadmissibility for alien smuggling where the petitioner was a passenger in a vehicle and knew that someone was hiding in the trunk. 28 The court held that: The plain meaning of this statutory provision requires an affirmative act of help, assistance, or encouragement. Here, because Altamirano did not affirmatively act to assist Martinez-Marin, she did not engage in alien smuggling. That she was present in the vehicle and knew that Martinez-Marin was in the trunk does not amount to a violation of § 212(a)(6)(E)(i). 29 In Aguilar-Gonzales v. Mukasey, the Ninth Circuit also held that merely being present and acquiescing to another’s fraudulent use of a document is not an affirmative act to constitute alien smuggling. 30 In that case, despite petitioner’s multiple refusals to allow her father to borrow her son’s U.S. birth certificate to smuggle two infants into the United States, she finally agreed to accompany and allow him to use and present the birth certificate to immigration authorities because she feared that he would stop paying the mortgage on her house if she did not do so. The Ninth Circuit found that she had not committed alien smuggling. In the Sixth Circuit, the court reversed a finding of inadmissibility for alien smuggling for a legal permanent resident who shared driving responsibilities with three friends, one of whom was an illegal immigrant, where the lawful permanent resident believed the illegal immigrant could travel back and forth across the border because he was in the process of applying for a green card. Tapucu v. Gonzales, 399 F.3d 736 (6th Cir. 2005). In the Second Circuit, the court upheld a finding of alien smuggling where the noncitizen lied at the border about another person’s residency and the whereabouts of his passport, admitted to the border patrol officers that she previously agreed to accompany the other person at the Canadian border as he tried to enter the United States, and was aware the other person had previously been deported. Chambers v. Office of Chief Counsel, 494 F.3d 274 (2nd Cir. 2007). These cases support the proposition that the statutory definition of alien smuggling requires an affirmative act of help, assistance, or encouragement, such as paying alien smugglers, making the arrangements to get aliens across the border, or providing false information and documents to immigration authorities. Mere presence during the actual act of alien smuggling with knowledge that it is being committed is not enough, at least in the Sixth and Ninth Circuits. Tapucu v. Gonzales, Altamirano v. Gonzales, Aguilar-Gonzales v. Mukasey, and Chambers v. Office of Chief Counsel, above. C.

Prearranged Plans and Sending Money

The Fourth Circuit has held that sending financial assistance directly to a child at a hotel on the border was sufficient to constitute alien smuggling, where the parents knew that the funds would be used for the child to cross the border illegally. In this case, the parents sent money to four different children over the years; each time, right after the money was sent in amounts of $3,00028

427 F.3d 586, 591-96 (9th Cir. 2005). Id. at 592. 30 534 F.3d 1204 (9th Cir. 2008).

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4,000, the children immediately crossed the border illegally and joined their parents in the United States. This pattern, together with the father’s admission that he believed he was doing “something illegal” contributed to this finding. Ramos v. Holder, 660 F.3d 200 (4th Cir. 2011).

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The Ninth Circuit has also found that an affirmative act constituting smuggling includes knowingly participating in a prearranged plan to bring people to the border and then meeting them on the U.S. side of the border to transport them within the United States. HernandezGuadarrama v. Ashcroft, 394 F.3d 674, 679 (9th Cir. 2005). In that case, the petitioner picked up seven individuals in Mexico, drove them to a town near the border where they made arrangements with a smuggler to cross, and then met up with them again once they were within the United States to drive them from Arizona to Washington. Courts have also found, however, that mere harboring or transporting of others alone is not enough to constitute alien smuggling. See United States v. Lopez, 484 F.3d 1186 (9th Cir. 2007). 31 This finding is consistent with the Fifth Circuit, which stated, in Rodriguez-Gutierrez v. INS, 59 F.3d 504, 509 n. 3 (5th Cir. 1995), that a conviction for illegally transporting undocumented immigrants does not trigger inadmissibility for smuggling because the statute only refers to aiding and abetting, not transporting. An old BIA case, Matter of M-, 7 I&N Dec. 389 (BIA 1957), also found that transporting undocumented persons within the United States does not necessarily create inadmissibility for alien smuggling. IMPORTANT NOTE: The inadmissibility and deportability grounds for alien smuggling (INA § 212(a)(6)(E), § 237(a)(1)(E)) are different from the aggravated felony based on alien smuggling (INA § 101(a)(43)(N)) in two ways. First, the inadmissibility and deportability grounds can be triggered by conduct, while an aggravated felony must be a criminal conviction. Second, the definition of smuggling is different. The alien smuggling inadmissibility and deportability grounds only apply to people who have knowingly assisted, abetted, etc. the entry of an unauthorized person into the United States. The federal criminal offense of alien smuggling, which is an aggravated felony, includes convictions for smuggling or transporting undocumented immigrants. See INA § 101(a)(43)(N), referencing INA § 274(a). 32 Some courts have held that affirmative assistance provided shortly after the person who was smuggled entered the country constitutes alien smuggling, even though the assistor had no intention to help the person enter in the first place. The Ninth Circuit held that alien smuggling includes an agreement by a family member to pay a smuggler after the person is already in the 31

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In United States v. Lopez, the Ninth Circuit reversed a conviction under 8 USC § 1324(a)(2) because the evidence showed that the defendant did not aid and abet initial transportation but just transported undocumented aliens within the United States and did so only after the initial transporter had dropped the aliens off inside the country. 484 F.3d 1186 (9th Cir. 2007); see also Rodriguez-Gutierrez v. INS, 59 F.3d 504, 509 n. 3 (5th Cir. 1995) (conviction for illegally transporting undocumented immigrants does not trigger inadmissibility because the statute only refers to aiding and abetting); Matter of I-M-, 7 I&N Dec. 389 (BIA 1957) (transporting undocumented persons within the United States does not necessarily create inadmissibility). 32 INA § 274(a) includes “transporting”; see also Matter of Ruiz-Romero, 22 I&N Dec. 486 (BIA 1999); United States v. Solis-Campozano, 312 F.3d 164 (5th Cir. 2002).

United States, but before the smuggler releases or ceases to transport the person. Covarrubias v. Gonzales, 487 F.3d 742 (9th Cir. 2007). 33 In that case, the petitioner knew that his brother planned on crossing the border illegally, but did not agree to help him until he after had crossed the border. He collected money from his other siblings and arranged payment to the smuggler. The court emphasized that he helped his brother before the smuggler released and ceased to transport him. The First Circuit found that an LPR petitioner was removable for alien smuggling even though the petitioner, after discovering that her friends intended to enter illegally, initially refused to assist them and entered the United States on her own. The petitioner, however, had a change of heart due to concern for the safety of the friends’ small child and returned to a designated meeting point on the U.S. side of the border to pick them up. The court held that because the LPR went back to the border within hours of the friends walking across, an “entry” had not yet been completed by the friends at the point she picked them up and facilitated their travel. As a result, petitioner was an “alien smuggler” as she assisted in their attempted entry. Dimova v. Holder, 783 F.3d 30 (1st Cir. 2015). On the other hand, a conviction for a federal “bringing in and harboring aliens” criminal charge does not necessarily result in inadmissibility for alien smuggling, especially if the person’s conduct and the facts do not indicate involvement or knowledge of the immediately prior illegal entry. Parra-Rojas v. Attorney General, 747 F.2d 164 (3rd Cir. 2014). In this case the LPR was being paid by an “employer” to pick up people in an upstate New York town and transport them elsewhere and was paid $500 per person each time to do so. He was charged with “bringing in and harboring aliens” as well as “transporting aliens” and pled guilty to the “bringing and harboring” count, pursuant to 8 USC § 1324(a)(B)(ii) and 18 USC § 2. However, the Third Circuit held he was not inadmissible as an “alien smuggler.” He was therefore able to adjust status without being barred under INA § 212 (a)(6)(E). Thus, never assume that a conviction for “alien smuggling” will automatically trigger inadmissibility for alien smuggling.

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WARNING: Before you concede that your client is inadmissible, make sure that she knew that the person she was helping or encouraging did not have the legal right to enter the United States. If a violation was not made knowingly, then it does not trigger the alien smuggling inadmissibility ground. Also make sure that the acts do not involve merely harboring or transporting others within the United States or merely being present or acquiescing to the illegal entry of others as the person may have engaged in alien smuggling. For more information on alien smuggling, please see the ILRC’s advisory, Alien Smuggling: What It Is and How It Can Affect Immigrants, available at www.ilrc.org/alien-smuggling-what-it-and-how-it-can-affect-immigrants.

33 See also United States v. Lopez, 484 F.3d 1186 (9th Cir. 2007) (“We hold that although all of the elements of the “bringing to” offense [under 8 USC § 1324(a)(2)] are satisfied once the aliens cross the border, the crime does not terminate until the initial transporter who brings the aliens to the United States ceases to transport them—in other words, the offense continues until the initial transporter drops off the aliens on the U.S. side of the border”).

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D.

Who Is Inadmissible as an Alien Smuggler?

A person who has knowingly encouraged, induced, assisted, abetted, or aided a person to enter, or try to enter, the United States unlawfully is inadmissible. INA § 212(a)(6)(E). Unlike the deportation ground, which is triggered only when committed during certain time periods (prior to the date of entry, at the time of any entry or within five years of the date of any entry), the inadmissibility ground will be triggered by an act committed at any time. F.

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Waivers and Exemptions

In some cases a waiver for, or possibly an exemption, may be available for alien smuggling. There are two basic requirements for both. The first is that the person must have smuggled only his or her parent, spouse, son or daughter. The second requirement is that the person must come within certain groups. The statute allows for a waiver for purposes of humanitarian grounds, family unity, or the public interest, see INA § 212(d)(11), for two groups of people: long-time permanent residents who voluntarily left the United States and are otherwise admissible; and noncitizens who are immigrating based on family petitions, except for the fourth preference brothers and sisters of U.S. citizen. There is also a limited automatic exemption for people who qualify for a benefit called “family unity.” We will discuss these waivers and exemption in detail in Chapter 6. Example: In the example above, Maria smuggled her brother. She is not eligible for a waiver or exemption because she did not smuggle a parent, spouse, son or daughter. § 5.4

Fraud and Misrepresentation

Section 212(a)(6)(C)(i) of the INA states that: An alien who, by fraud or willfully misrepresenting a material fact, seeks to procure (or has sought to procure or has procured) a visa, other documentation, or admission into the United States, or other benefit provided under this Act is inadmissible. This language means that people who use fraudulent documents such as a forged U.S. passport or green card are inadmissible. People who “misrepresent a material fact” to DHS are also inadmissible. USCIS issued recent guidance on how it determines whether the fraud and misrepresentation inadmissibility ground has been triggered. It explains that although fraud and misrepresentation can be two different actions, they share common elements, and the analysis to determine whether either a fraud or misrepresentation occurred is similar. 34 A.

Materiality

What does “misrepresenting a material fact” mean? Basically it means telling an important lie—a lie that could make a difference in the government’s decision. The lie does not have to actually influence the government’s decision; it only matters that it could have. 35 Also note that the 34

8 USCIS-PM J.2(A). See Matter of D-R-, 25 I&N Dec. 445, 450-51 (BIA 2011) (It is “not necessary for the Government to show that the statement actually influenced the agency, only that the misrepresentation was capable of affecting or influencing the government’s decision”). 35

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misrepresentation must be to a U.S. government official; misrepresentations made to airline officials, for example, do not fall within this ground of inadmissibility. 36 If the lie was not material (important to the case), the person is not inadmissible. Example: Estella immigrated through her U.S. citizen husband. During her interview, she told two lies to the consular officer when she got her immigrant visa. First, she told the officer that she had no other relatives living in the United States. Second, she told the officer that she and her husband were still married, when in fact they are divorced. The first lie was not material. The fact that Estella has other relatives in the United States would not have changed the officer’s decision. While this was a lie, it was not material in this case and therefore was not visa fraud. The second lie was material. If the officer had known Estella and her husband were divorced, he would not have granted the visa, which was based on the marriage. Estella committed visa fraud. USCIS policies instruct officers to follow a test for materiality provided by the U.S. Supreme Court in Kungys v. United States, 485 U.S. 759 (1988). This test requires that for false statements to be material they must have been “predictably capable of affecting the decisions of the decisionmaking body.” 37 The policies further instruct officers in applying this standard to consider whether either: 1) the alien is inadmissible, removable, or ineligible for the benefit sought under the true facts; or 2) the misrepresentation “tends to cut off a line of inquiry which is relevant to the alien’s eligibility and which might well have resulted in a proper determination that he or she is inadmissible.” 38 B.

Willfulness

A person will not be found inadmissible under INA § 212(a)(6)(C)(i) unless the misrepresentation was willful, meaning that it was “deliberate and voluntary.” 39 This means that a misrepresentation cannot be based on “innocent mistake, negligence or inadvertence,” 40 and that the person must know that the statement was false at the time she made it. 41 Individuals who are mentally incompetent, and small children incapable of forming an intent to deceive should not be inadmissible under this section, should applications made on their behalf contain misrepresentations. 42

36

See Matter of D-L- & A-M-, 20 I&N Dec. 409 (BIA 1991). 8 USCIS-PM J.3(E). 38 Id; see also Matter of S- and B-C-, 9 I&N Dec. 436 (BIA 1961). 39 Matter of D-R-, supra, at 451 n.3. 40 Emokah v. Mukasey, 523 F.3d 110, 117 (2nd Cir. 2008). 41 See, e.g., Atunnise v. Mukasey, 523 F.3d 830, 834-38 (7th Cir. 2008); Forbes v. INS, 48 F.3d 439, 442 (9th Cir. 1995); Garcia v. INS, 31 F.3d 441 (7th Cir. 1994). 42 See USCIS, Section 212(a)(6) of the INA, Illegal Entrants and Immigration Violators, at 22 (Mar. 3, 2009), available at www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/Static_Files_Memoranda/2 009/section212_a_6_immi_natl_act_illegal_violators.pdfp; see also Matter of G-Y-R-, 23 I&N Dec. 181 (BIA 2001). The only case on point presently regarding this issue is Singh v. Gonzalez, 451 F.3d 400, 409

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C.

Silence or Omission

In determining whether a misrepresentation has been made, it also is necessary to distinguish between misrepresentation of information and information that was merely concealed by the person’s silence. “Silence or the failure to volunteer information does not in itself constitute a misrepresentation for the purposes of INA § 212(a)(6)(C)(i).” 9 FAM 40.63 N4.2.

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Example: Maria adjusted her status to become a lawful permanent resident through her U.S. citizen husband. When she first came to the United States, she used a tourist visa that she had obtained earlier, before she decided to marry her husband. She used the tourist visa again more recently, after she was engaged to her husband and was planning to remain in the United States and become a permanent resident. However, upon her arrival to the United States the consular officer did not ask her how long she was going to stay, or whether she had any relatives in the United States. He just looked at her passport and granted her admission. Maria has not committed fraud or misrepresentation, because she never told a lie to a consular or immigration officer. D.

Burden of Proof

In general, individuals seeking an immigration benefit must prove by a preponderance of evidence that they do not fall under any ground of inadmissibility. Absent evidence that that the applicant used fraud or misrepresentation to obtain an immigration benefit, the applicant will have met the burden of proving she is not inadmissible under INA § 212(a)(6)(C)(i). 43 Where evidence exists that would permit a reasonable person to conclude that an individual is inadmissible under INA § 212(a)(6)(C)(i), the individual has the burden of proving by a preponderance of the evidence any one of the following: • • • • • E.

There was no fraud or misrepresentation; Any fraud or misrepresentation was not intentional or willful; Any fraud or misrepresented fact was immaterial; The fraud or misrepresentation was not made to procure a visa, admission, or some other benefit; or The misrepresentation was not made to a U.S. government official.44 Timely Retraction

As a defense to a charge of inadmissibility based on fraud or misrepresentation, a person can show that she timely retracted the false statement. 45 An applicant who timely and voluntarily retracts a misrepresentation may use such retraction to eliminate the consequences, including inadmissibility. 46 For a retraction to be effective, it has to be voluntary and timely. A retraction is

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(6th Cir. 2006), although the BIA and other circuits have cited to Singh favorably when distinguishing other situations involving imputation of parental intent. 43 8 USCIS-PM J.3(A); see Matter of D-L- & A-M-, 20 I&N Dec. 409 (BIA 1991). 44 8 USCIS-PM J.3(A). 45 Id. 46 See USCIS, Section 212(a)(6) of the INA, Illegal Entrants and Immigration Violators, at 21 (Mar. 3, 2009), available at www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/Static_Files_Memoranda/2

only timely if it is made both within a short period of time and not in response to the fact that the individual is about to be found out by a DHS or consular officer. 47 The period of time in which the retraction is “timely” is subject to varying interpretations. Generally, the BIA and USCIS take the position that the retraction must be within a very short period of time of the misrepresentation, at the “first opportunity.” 48 However, the Sixth Circuit has held that the period of time is not as critical as a determination of whether the misrepresentation was about to be discovered by the government. 49 F.

Waivers and Exemptions

A waiver of inadmissibility for fraud or misrepresentation is available for people who can show that certain U.S. citizen or permanent resident relatives would suffer extreme hardship if the person were removed. See INA § 212(i) and discussion in Chapter 6. Applicants for adjustment of status under § 245(h) (special immigrant juvenile status) and VAWA are exempt from inadmissibility under INA § 212(a)(g)(C)(i). § 5.5

Document Fraud: Ground of Inadmissibility and Deportability

Section 274C of the INA defines document fraud and sets out rules for a civil hearing and penalties for people who commit document fraud. This civil procedure is different from removal proceedings. A person who by final order in a § 274C civil hearing is found to commit document fraud is inadmissible and deportable. See INA §§ 212(a)(6)(F), 237(a)(3)(C). There must be a final civil court order in order to be inadmissible under this ground. Thus, this is very different from the ground of inadmissibility for visa fraud (§ 5.4) or for false claim to U.S. citizenship (§ 5.7), where the conduct itself triggers the ground of inadmissibility.

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A lawsuit, Walters v. Reno, first brought by advocates in 1996 prevented the DHS from enforcing the document fraud law for some years, and some people who were found inadmissible or deportable were able to reopen their cases. At this point, the DHS is able to enforce the law again. For a copy of the Walters settlement agreement or for more information generally, contact the National Immigration Law Center (NILC) in Los Angeles at (213) 639-3900 or go to www.nilc.org.

009/section212_a_6_immi_natl_act_illegal_violators.pdfp; see also Matter of G-Y-R-, 23 I&N Dec. 181 (BIA 2001). 47 Id. (citing, among other cases, Llanos-Senarrilos v. United States, 177 F.2d 164 (9th Cir. 1949)). 48 Matter of Namio, 14 I&N Dec. 412 (BIA 1973) (retraction must be “timely and without delay”); Eid v. Thompson, 740 F.3d 118, 125 (3rd Cir. 2014) (retraction was not timely after bona fides of marriage were already called into question); Valadez-Munoz v. Holder, 623 F.3d 1304, 1309-10 (9th Cir. 2010) (retraction after being confronted with inconsistencies and biographical information not timely); see USCIS, Section 212(a)(6) of the INA, Illegal Entrants and Immigration Violators, at 21 (Mar. 3, 2009), available at www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/Static_Files_Memoranda/2009/section212_a_6 _immi_natl_act_illegal_violators.pdfp; see also Matter of G-Y-R-, 23 I&N Dec. 181 (BIA 2001). 49 Ruiz-Del-Cid v. Holder, 765 F.3d 635 (6th Cir. 2014) (holding that four years later was not too long for retraction when there was no likelihood of discovery by the government).

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Example: Zola borrowed her sister’s border crossing card to enter the United States. Zola is about to immigrate through her U.S. citizen husband. She has never been the subject of a civil § 274C hearing. She is not inadmissible or deportable for document fraud at this time (although she might be inadmissible for visa fraud, see § 5.4).

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Example: Sally obtained a fake social security card and used it to complete Form I-9. In a civil § 274C document fraud hearing, the hearing officer issued a final order against her. Sally is inadmissible and deportable for document fraud. Does that mean your client has no problems if she confesses document fraud to DHS and there is no final order against her yet? No. The DHS might or might not choose to refer the person to a § 274C hearing. In addition, the person might be inadmissible for visa fraud. See § 5.4. Limited waivers exist for inadmissibility and deportability for § 274C document fraud. These waivers are discussed in detail in Chapter 6. In general, the waivers provide that some lawful permanent residents and some people who will immigrate through a family visa petition can obtain a waiver if they committed the offense only to help or support their spouse or child. See INA §§ 212(d)(12), 237(a)(3)(C)(ii). People who cannot qualify for these waivers might be able to clear up a document fraud problem with a waiver for visa fraud, if the document fraud they committed also constitutes visa fraud.50 For example, a person who used a false document and also made a false oral statement to a consular officer committed both types of fraud. See Chapter 6. Note that a conviction for falsely using, making, or altering a passport or other similar document can be a basis for deportation under two provisions. It is a deportable offense under INA § 237(a)(3)(B)(iii). It can also be an aggravated felony if a one-year sentence was imposed, unless the person showed that it was the first offense and was committed to aid a spouse, child or parent. INA § 101(a)(43)(P). This includes a conviction for using or making false documents. § 5.6

Insufficient Documentation

Insufficient documentation under INA § 212(a)(7) is a separate ground of inadmissibility that should be distinguished from grounds involving fraud or misrepresentation. Unlike material misrepresentation under INA § 212(a)(6)(C)(i) or false claim to U.S. citizenship under § 212(a)(6)(C)(ii), there is no intent requirement. And unlike inadmissibility for document fraud under § 212(a)(6)(F), no “final order” for violation of § 274C is required. A person is inadmissible under § 212(a)(7) for applying for admission without having proper documentation. Under § 212(a)(7)(A), immigrants who do not have “a valid unexpired immigrant visa, reentry permit, border crossing identification card or … a valid unexpired passport” or other documents needed for entry are inadmissible.

50

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This applies only if they have not received a final administrative order of document fraud under INA § 274C. See Chapter 6.

§ 5.7

False Claim to U.S. Citizenship

Any person who falsely claims to be a U.S. citizen for any purpose or benefit under the INA, or under any other federal or state law is inadmissible under INA § 212(a)(6)(C)(ii). This provision applies only to false representations of U.S. citizenship made on or after September 30, 1996, although false claims prior to that date may still fall within the fraud or misrepresentation ground of inadmissibility. No conviction is required. This ground of inadmissibility is harsh, both because it is broadly written and because the INA provides no general waiver. However, a false claim does not bar all forms of relief. See Subsection C. This provision otherwise punishes people for claiming U.S. citizenship for entry into the United States, and for any other purpose under any federal or state law. Therefore, as written, DHS could apply these provisions to a broad range of scenarios, including someone who is under age and uses the U.S. passport of an older friend to get into a bar and have a drink, someone who votes in an election not realizing that she’s not permitted to vote, or even someone who came to the United States as a baby and believes herself to be a U.S. citizen. A.

What Constitutes a False Claim to Citizenship?

By its plain language, the false claim to U.S. citizenship ground enacted in 1996 requires a showing that the false representation was made for a specific purpose—to satisfy a legal requirement or obtain a benefit that would not be available to a noncitizen under the INA or any other state or federal law. According to several circuit courts and USCIS, the person to whom the false claim to citizenship is made does not have to be a U.S. government official. Courts have found the following acts to constitute false claims to U.S. citizenship: • • • •

Falsely representing oneself as U.S. citizen to obtain a U.S. passport; 51 Using a false U.S. passport to enter the United States; 52 Using a false U.S. passport to obtain a state driver’s license; 53 Claiming U.S. citizenship in an attestation or I-9 form to obtain employment. 54

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Some other examples of false claims to citizenship that the government may also charge include: oral statements made in response to questioning by an officer to obtain a benefit such as entry into the United States; a signature on a voter registration card that specifically asked the question “Are you a U.S. citizen?”; any false declarations of citizenship to obtain a credit card, bank financing, mortgage, student financial aid, or health insurance; and any other declaration under oath or penalty of perjury, in writing or orally, that the noncitizen was a U.S. citizen in order to obtain a benefit under the INA or other state or federal laws.

51 Matter of Barcenas, 25 I&N Dec. 40 (BIA 2009); see also Jackson-Omier v. Gonzales, 246 F. App’x. 1 (1st Cir. 2007); Suarez v. Attorney General, 299 F. App’x. 153 (3rd Cir. 2008). 52 Almendarez v. Mukasey, 282 F. App’x. 326 (5th Cir. 2008). 53 Lara-Rivas v. Mukasey, 270 F. App’x. 526 (9th Cir. 2008). 54 Kirong v. Mukasey, 529 F.3d 800 (8th Cir. 2008).

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However, some limitations have been placed on the application of this provision. For example, one court found that a false claim of U.S. citizenship to a police officer was not made for any purpose or benefit under the INA, even though the individual in question was undocumented, because the assumption that anyone who is undocumented would be making a false claim for any benefit or purpose under the Act was too speculative. Castro v. Attn’y Gen. of the U.S., 671 F.3d 356 (3rd Cir. 2012). The false claim also has to have been made knowingly. 55

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Example: Omid and Marianna each arrive at a U.S. port of entry. Marianna uses a false “green card” to claim she is a legal permanent resident, but Omid uses a false U.S. passport to claim he is a U.S. citizen. Both are inadmissible for misrepresenting a material fact under INA § 212(a)(6)(C)(i). However, Omid will face far harsher consequences for his false claim to U.S. citizenship under § 212 (a)(6)(C)(ii), as he will be permanently inadmissible. Marianna, on the other hand, may be able to apply for a waiver for her misrepresentation. Example: Silvia always thought she was a U.S. citizen, until she recently learned she had been born in Mexico. Silvia will not be inadmissible for any false claims to citizenship that she made if she can prove that she did not knowingly claim to be a U.S. Citizen. Example: Joaquin intentionally misrepresented himself as a U.S. citizen at the border in San Diego on January 12, 2000 in order to gain admission to the United States. Because he willfully misrepresented a material fact to a government official in order to gain a benefit under the INA and it took place after September 30, 1996, he is inadmissible both for misrepresentation of a material fact under INA § 212(a)(6)(C)(i) and for a false claim to U.S. citizenship under § 212(a)(6)(C)(ii). Example: Barbara used her cousin’s U.S. birth certificate to apply for a Social Security card and driver’s license in 1995. Barbara is not inadmissible for a false claim to U.S. citizenship because her false claim took place before September 30, 1996. She may have other problems, however. B.

False Claim to U.S. Citizenship from Form I-9

Does checking the box of Form I-9 that the person is “a citizen or national of the U.S.” constitute a false claim to citizenship? It depends upon the facts of the case, the Form I-9 used, and whether the person is subject to the ground of inadmissibility or deportability. Federal law requires that all employers verify the eligibility of their potential employee by, for example, completing an employment verification form, called the I-9 Form. 56 The former Form I-9 had a question with a check-off box asking whether the person was a “U.S. citizen or national.” Because the question on Form I-9 included both U.S. citizen and national, an applicant could argue that she was claiming to be a national. 55

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See, e.g., Letter from Dep’t of State to Senator Harry Reid (Aug. 29, 2013); Letter from Dep’t of Homeland Security to Senator Harry Reid (Sept. 12, 2013). 56 8 USC § 1324a makes it illegal for almost any employer—public or private—to hire or continue to employ an unlawful or unauthorized alien. 8 USC § 1324a(b) requires employers to verify the eligibility of their potential employee.

Absent evidence that the person specifically claimed that she was a U.S. citizen, signers argued (and could still argue if they signed this particular Form I-9) that they do not fall within this ground. On April 3, 2009, a new Form I-9 was instituted, eliminating the ambiguity as to whether the person was indicating citizen or national when she checks the box. This revised form now has separate boxes differentiating between “Citizen” and “Non-citizen National” of the United States. Thus, checking the “U.S. citizen” box will have clearer consequences under this ground. While there are many cases (see below) finding that checking the box, coupled with testimony from the immigrant, is sufficient to find someone inadmissible or deportable under this ground, the BIA in an unpublished decision held that a woman who checked the U.S. citizen or national box on the former Form I-9 did not trigger the false claim to U.S. citizenship ground of inadmissibility to bar her adjustment of status. 57 In that case, some of the factors the court considered in finding that she did not make a false claim were that she consistently testified that she claimed to be a U.S. national and not a U.S. citizen; she believed that by claiming that she was a national she was claiming that she was born in the United States but not that she was a U.S. citizen; and her limited English abilities accounted for her checking the box. At least three circuit courts rejected the argument that checking the box on the previous Form I-9 does not trigger the false claim ground. For example, the Eighth Circuit, in Rodriguez v. Mukasey, held that a person’s testimony that he had submitted several fraudulent documents such as a driver’s license and social security card (both of which he obtained by falsely claiming to be a U.S. citizen) in conjunction with Form I-9 was sufficient to prove a false claim to U.S. citizenship. 58 The court rejected his argument that his checking the box on Form I-9 did not constitute substantial evidence to prove he represented himself as a citizen; the court specifically pointed out that “he did not testify and does not argue that he meant to indicate that he was national. Instead, he claims that he did not understand what it meant when he marked [the box].” In this case, therefore, the totality of the circumstances, including admissions to an officer that he obtained fraudulent documents in another’s name, the circumstances surrounding his submission of Form I-9, and his failure to provide evidence that he claimed national status led to the conclusion that he falsely claimed to be a U.S. citizen. Similarly, in Kechkar v. Gonzales,59 and Crocock v. Holder, 60 the Tenth and Second Circuits, respectively, held that a person who checked the “citizen or national” box on the previous Form I9 had the burden to prove that he intended to claim status as a national and upheld the lower courts’ findings in each case that the person did not have such intent.

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Matter of [Name Withheld] [A number withheld] (BIA Apr. 27, 2007), available in 84 Interpreter Releases 1088 (May 14, 2007); see also Matter of James Ochieng Oduor, A 75 904 456 Dallas (BIA Mar. 15, 2005) (DHS, by providing a signed Form I-9 with the box checked confirming he was either a U.S. citizen or national, did not show by clear and convincing evidence that the respondent falsely misrepresented himself as U.S. citizen). 58 519 F.3d 773 (8th Cir. 2008). 59 500 F.3d 1080 (10th Cir. 2007). 60 670 F.3d 400 (2nd Cir. 2012).

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USCIS recognizes that merely checking the “citizen or national” box on Form I-9 does not itself establish a false claim to citizenship, absent some evidence that the person intended to claim that she was a citizen. 61 However, if it appears the client had no idea what it meant to be a non-citizen national and intended to claim to be a citizen, then INA § 212(a)(6)(C)(ii) will likely be found to apply. 62 USCIS directs officers to attempt to establish during an interview exactly what the individual intended to indicate by checking the box on Form I-9. 63 Advocates should therefore explore the defense that some evidence is needed to prove that the client intended to claim she was a citizen specifically. This argument has succeeded in some criminal prosecutions for false claims to citizenship. C.

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Exceptions and Other Defenses for False Claim to U.S. Citizenship 1. Narrow exception

There is a limited statutory exception for certain children of U.S. citizens. The person must meet the following requirements not to be inadmissible or deportable for a false claim to citizenship: 1. Each natural/adopted parent of the person is or was a U.S. citizen; 2. The person began to reside permanently in the United States before the age of sixteen; and 3. The person reasonably believed at the time of such statement, violation, or claim that he or she was a citizen of the United States. (A reasonable belief must take into consideration the totality of the circumstances.) See INA § 212(a)(6)(C)(ii)(II). This change in the law is retroactive and cures false claims that took place on or after September 30, 1996. Note that this exception is limited and does not apply to children of lawful permanent residents or undocumented immigrants, or children with only one U.S. citizen parent, even if they really believed themselves to be U.S. citizens. Furthermore, the Ninth Circuit, in Romero-Ruiz v. Mukasey, 538 F.3d 1057 (9th Cir. 2008), held that individuals born out of wedlock who reasonably believed both parents were U.S. citizens cannot fall under this exception where it can be established that either parent is not in fact a citizen. Nonetheless, see below for other arguments. 2. Defense for minors and others who made the claim unknowingly Anyone who can prove that that the false claim was not knowingly made—meaning, the person believed she was a U.S. citizen—can assert as an affirmative defense that she does not come within the inadmissibility ground. In the fall of 2013, the government announced that it will consider it as a separate and affirmative defense for minors if the person can show that she was 61

See Karaouni, 379 F.3d 1139 (9th Cir. 2004). See Matter of Odour, 2005 WL 1104203 (BIA Mar. 15, 2005); Matter of Soriano-Salas (BIA June 5, 2007). 63 See USCIS, Section 212(a)(6) of the INA, Illegal Entrants and Immigration Violators, at 27 (Mar. 3, 2009), available at www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/Static_Files_Memoranda/2 009/section212_a_6_immi_natl_act_illegal_violators.pdfp; see also Matter of G-Y-R-, 23 I&N Dec. 181 (BIA 2001). 62

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(a) under the age of 18 at the time of the false citizenship claim; and (b) at that time lacked the capacity to understand and appreciate the nature and consequences of a false claim to citizenship. 64 The noncitizen has the burden to show that she meets both of these criteria. This policy update is not a change in statute but is an interpretation in line with caselaw that indicates that any misrepresentation must be made knowingly. Anyone who truly believed she was a U.S. citizen should not be inadmissible in light of this policy update, even if the person was not a minor. 3. Curing a false claim to citizenship with a timely and voluntary retraction A timely and voluntary retraction may cure a false claim to citizenship, 65 as with visa fraud and other misrepresentations. 66 Whether a retraction will be deemed to be timely and voluntary depends on the circumstances. The retraction generally must occur before completion of the statement and be made of the person’s own volition, e.g., before discovery of the misrepresentation by the officer. The BIA held that a timely retraction was made where a person volunteered that he had entered the United States unlawfully before he completed his statement during an interview with an immigration officer at an airport. In that interview, he attempted to establish that he was lawfully residing in the United States. Matter of M-, 9 I&N Dec. 118 (BIA 1960). The Ninth Circuit in an unpublished opinion found that a person made an effective retraction when after a border patrol officer asked for documentation of his citizenship, he promptly told the officer that he only had a work permit. 67 The Court found that he understood little English and provided clear, consistent testimony that he claimed U.S. citizenship only because he misunderstood the primary inspector’s question. Many cases have held that a retraction will not be considered timely or voluntary where it occurred long after the false statement was made or if the retraction was made after the person has realized that the claim had not deceived a DHS officer. 68

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Letter from Department of State to Senator Harry Reid (Aug. 29, 2013); Letter from Department of Homeland Security to Senator Harry Reid (Sept. 12, 2013). 65 See USCIS, Section 212(a)(6) of the INA, Illegal Entrants and Immigration Violators, at 28 (Mar. 3, 2009), available at www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/Static_Files_Memoranda/2 009/section212_a_6_immi_natl_act_illegal_violators.pdfp; see also Matter of G-Y-R-, 23 I&N Dec. 181 (BIA 2001). 66 FAM 40.63 N4.6 (“a timely retraction will serve to purge a misrepresentation and remove it from further consideration as a ground for INA § 212(a)(6)(C)(i) ineligibility”); see also Llano-Senarillos v. United States, 177 F.2d 164, 165 (9th Cir. 1949) (“If the witness withdraws the false testimony of his own volition and without delay, the false statement and its withdrawal may be found to constitute one inseparable incident out of which an intention to deceive cannot rightly be drawn”). 67 Olea-Reyes v. Gonzales, 177 F. App’x. 697 (9th Cir. 2006). 68 Matter of Namio, 14 I&N Dec. 412, 414 (BIA 1973) (retraction after a year and where disclosure of falsity of statements was imminent not timely nor voluntary); Matter of Ngan, 10 I&N Dec. 725, 727 (BIA 1964) (retraction made three years later not timely); Angeles-Robledo v. Att’y Gen., 183 F. App’x. 159 (3rd. Cir 2006) (not effective recantation where person did not recant her claim to U.S. citizenship until her second interview in which she was confronted with third-party evidence of her falsity and where her

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4. Another person made the false claim to U.S. citizenship on behalf of the applicant A false claim to U.S. citizenship does not apply if someone else made the false claim on behalf of the applicant, such as a parent making the claim for a child. 69

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NOTE: USCIS may still find persons who made false claims to U.S. citizenship prior to September 30, 1996 inadmissible under INA § 212(a)(6)(C)(i), for misrepresentation, if the claim rises to the level of material misrepresentation to obtain an immigration benefit. 70 5. Options for false claim to U.S. citizenship The penalties of the false claim to U.S. citizenship inadmissibility ground are harsh. A person who falls within this ground may be permanently inadmissible, as there is no general waiver provided. However, there are certain forms of relief that have exemptions or waivers for this ground. For example, there is an exemption for Special Immigrant Juvenile Status applicants and a waiver available for U and T nonimmigrant status applicants. In addition, a false claim to U.S. citizenship is not a bar to asylum and withholding of removal. The person may also seek the exercise of discretion if applying for a non-immigrant visa under INA § 212(d)(3)(A) or § 212(d)(3)(B); or if in proceedings in the United States, cancellation of removal might be an option. For those who are seeking non-LPR cancellation, VAWA, or naturalization, a false claim to citizenship might also impact the applicant’s ability to demonstrate good moral character. 71 Advocates should also be aware that a conviction (or absent a conviction, a formal admission) of a false claim to U.S. citizenship where fraud is involved will have the additional consequence of being a crime involving moral turpitude, potentially triggering inadmissibility. See Part Three. § 5.8

Likely to Become a Public Charge

NOTE: The law governing public charge, and especially affidavits of support, is complex. This section will summarize the law. For a more complete discussion, see Affidavit of Support and Sponsorship Requirements: A Practitioners’ Guide (National Immigration Law Center and Catholic Legal Immigration Network). To keep abreast of important new developments,

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traveling companion was the first to inform the border authorities that she was not a U.S. citizen); LlanosSenarillos v. United States, 177 F.2d 164, 165-66 (9th Cir. 1949) (retraction during examination not timely or voluntary where witness realized that the false testimony would not deceive). 69 Cable, Albright, Sec. of State, DOS-17342, 96 Stat. 239978 (Sept. 17, 1997) reprinted in 74 Interpreter Releases 1483-85 (Sept. 29, 1997). Some practitioners have argued that if someone other than the minor indicated that the minor was a U.S. citizen by presenting invalid documents at the border, the child did not make a false claim to U.S. citizenship or engage in visa fraud, but rather made an entry without inspection. See Children Lack Capacity to Make False Claims or Misrepresentations, IJ Holds in 83 Interpreter Releases 775-776 (Apr. 24, 2006). 70 See USCIS, Section 212(a)(6) of the INA, Illegal Entrants and Immigration Violators, at 28 (Mar. 3, 2009), available at www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/Static_Files_Memoranda/2 009/section212_a_6_immi_natl_act_illegal_violators.pdfp; see also Matter of G-Y-R-, 23 I&N Dec. 181 (BIA 2001). 71 See 12 USCIS-PM F.5; Matter of Guardarrama, 24 I&N Dec. 625 (BIA 2008).

practitioners should check the website of the National Immigration Law Center at www.nilc.org (click on “Public Benefits”) and/or consult a regular newsletter such as Interpreter Releases. You may also go to the USCIS website (www.uscis.gov), which contains a fact sheet entitled “How do I financially sponsor someone who wants to immigrate?” (located at www.uscis.gov/sites/default/ files/USCIS/Resources/F3en.pdf) or to the Department of State website (http://travel.state.gov/vis a/immigrants/info/info_3178.html). 72 Noncitizens whom the government believes are likely to receive cash welfare or to need longterm care at government expense can be refused admission as being “likely to become at any time a public charge.” INA § 212(a)(4). The USCIS has issued a fact sheet entitled “Fact Sheet: Public Charge,” released on April 29, 2011, and last updated November 15, 2013, which contains information pertaining to the public charge ground of inadmissibility and deportability. See Appendix 5-D. 73 There are two tests relating to public charge. Under the traditional, general test, officials shall “at a minimum” consider the person’s age, health, family status, assets, resources, financial status, education and skills, and can also consider an affidavit of support. These factors are set out in the statue. INA § 212(a)(4)(B). This provision might apply to any noncitizen seeking admission into the United States or applying for status, including someone immigrating through a family member, diversity visa, or other means. An additional requirement added in 1996 applies only to persons immigrating through a family visa petition and in some cases, employment based petitions. Under this second test, most people immigrating through a family visa petition must have an affidavit of support, Form I-864 submitted on their behalf, or they will be found inadmissible as a public charge. INA § 212(a)(4)(C). There are some exemptions and those who fall into these exemptions have to file form I-864W instead. See Subsection E. People other than family immigrants (and most employment-based immigrants) do not need to submit the I-864 affidavit of support. The I-864 affidavit of support requires the person to have a certain level of income or assets (for income, 125% of the Federal Poverty Income Guidelines), and it is legally enforceable.

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Appendix 5-C in this manual includes a copy of the 2017 version of the Poverty Income Guidelines and immigration requirements, as USCIS Form I-864P. The USCIS will continue to publish the currently applicable Poverty Income Guideline and the 125% figure each spring as Form I-864P, available online at www.uscis.gov (under the Forms Menu). Note that there is a separate chart for calculating poverty guidelines for a fee waiver. The fee waiver process relies on a determination that a person falls under 150% of the poverty guidelines. Thus these charts are not interchangeable. The Department of Health and Human Services posts current and past Poverty Income Guidelines at www.aspe.hhs.gov/poverty/index.shtml.

72 The U.S. State Department’s specific website addresses frequently change; therefore it is often more useful to go to the general website: http://travel.state.gov and click on “Affidavit of Support” rather than going to a more specific website address. 73 This can also be found on the USCIS website at www.uscis.gov/news/fact-sheets/public-charge-factsheet.

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Section I will discuss the traditional test for public charge, with a special focus on the effect of past receipt of public benefits. Section II will discuss the second public charge requirement for family immigration, the Form I-864 affidavit of support.

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Section I: The Traditional Test for Public Charge A.

Factors Considered

The traditional test to determine whether someone is likely to become a public charge is known as the “totality of the circumstances test.” This test considers several factors. The adjudicator takes into account the person’s age, health, family assets, resources, financial status, education, and skills. It is important to note that, in making this determination, the officer is not supposed to rely on a single factor, including past receipt of public benefits. Rather, the officer needs to consider all of the factors in conjunction to determine whether the intending immigrant is likely to become a public charge. See Field Guidance on Deportability and Inadmissibility on Public Charge Grounds, 64 Fed. Reg. 286289 (May 26, 1999). 74 B.

What Effect Does Receiving Public Benefits Have on “Public Charge” under the Traditional Test?

Following the inauguration of President Trump, there have been rumors about a potential change in how receiving benefits might affect a public charge determination. At the time of this manual’s writing, however, the law and policy regarding public charge are unchanged. Nevertheless, advocates should stay tuned for any future developments. Until further notice, the May 1999 “Field Guidance on Deportability and Inadmissibility on Public Charge Grounds” remains accurate guidance regarding how past receipt of public benefits may affect a person’s inadmissibility as a public charge: Past receipt of cash income-maintenance benefits does not automatically make an alien inadmissible as likely to become a public charge, nor does past institutionalization for long-term care at government expense. Rather this history would be one of many factors to be considered in applying the totality of the circumstances test. In the case of an alien who has received cash income-maintenance benefits in the past or who has been institutionalized for long-term care at government expense, a Service officer determining admissibility should assess the totality of the alien’s circumstances at the time of the application for admission or adjustment and make a forward-looking determination regarding the likelihood that the alien will become a public charge after admission or adjustment. The longer ago an alien received such cash benefits or was institutionalized, the less weight these factors will have as a predictor of future receipt. Also, the “length of time an applicant has received public cash assistance is a significant factor.75 See also the USCIS Fact Sheet on the Public Charge ground, reproduced in this unit as Appendix 5-D, which describes which types of public benefits will and will not trigger the public charge ground of inadmissibility. 74

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“Fed. Reg.” stands for Federal Register. This document can be accessed at www.gpo.gov/fdsys/pkg/FR1999-05-26/pdf/99-13202.pdf. 75 Field Guidance on Deportability and Inadmissibility on Public Charge Grounds, 64 Fed. Reg. 286289.

The basic issue is whether a person is likely to become primarily dependent on the government for subsistence, as shown by the receipt of cash benefits for income maintenance purposes, or long-term care at government expense. Some of the most important points include: •

With one exception, the DHS may not consider use of non-cash benefits (such as Medicaid or Food Stamps) by an immigrant as a basis for public charge. The exception is that if a person has received or is likely to receive long-term publicly funded institutionalization (such as placement in a nursing home or mental hospital), then the DHS can consider it as one factor in a public charge decision.

•

The DHS may consider the receipt of cash benefits in the public charge determination if they are received for the purpose of income maintenance. This includes programs such as Temporary Assistance for Needy Families (TANF), General assistance (GA), or Supplemental Security Income (SSI).

•

If the cash benefits for maintenance were received by an immigrant’s family members, these cannot be considered in the immigrant’s public charge determination unless the immigrant was relying on the cash benefits as her sole means of support.

•

One-time cash grants, and cash designated for other purposes such as childcare or job training, are not considered in public charge decisions. Similarly benefits that are “earned” (such as Social Security retirement and veterans benefits) are not counted against the immigrant.

•

USCIS and consulate officers cannot instruct nor suggest that immigrants must repay past benefits received in order to be admitted.

•

There is no public charge test for naturalization.

The DHS issued this proposed rule and immediate guidance to make sure that immigrants who really need to accept public benefits will do so. Up to the issuance of this guidance, many intending immigrants in desperate situations had been afraid to accept public benefits for fear that it would make them a “public charge” and bar them from immigrating. The DHS provided a critical guarantee in the Field Guidance, stating that immigrants can safely rely on the proposed rules and Field Guidance and collect the public benefits listed there. If the rules change later, no one who accepted public benefits relying on this proposed rule can be penalized. This guarantee will be particularly important if any current or future administration changes policies, and will help argue against applying any potential future change in policy retroactively. For more technical analyses on the interpretation of public charge, see links to government documents (www.uscis.gov) and advocates’ analyses at the National Immigration Law Center (see www.nilc.org, select “Public Benefits,” and then “Public Charge”). C.

Who Is Subject to the Public Charge Ground of Inadmissibility?

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Family immigrants and some others are subject to the traditional public charge ground of inadmissibility that is discussed here in Section I. With a few exceptions all family immigrants also must submit a legally binding I-864 Affidavit of Support. See Section II, below.

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Other groups of immigrants are subject to the traditional public charge ground discussed in this section. They do not need to submit Form I-864, but may need to file Form I-864W, the Intending Immigrant’s Affidavit of Support Exemption. These include diversity visa applicants, and abused spouses and children who self-petition under VAWA provisions. However, VAWA applicants are permitted to use all public benefits, including cash welfare, without affecting the public charge determination. INA § 212(p).

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Finally, some immigrants are not subject to the public charge ground at all. These include noncitizens immigrating as refugees and asylees; special immigrant juveniles; victims of crime or trafficking under the T and U visas; persons granted cancellation of removal, NACARA cancellation of removal, suspension, or adjustment of status; registry; and Cubans adjusting their status under the Cuban Adjustment Act. Section II: The I-864 Affidavit of Support This section will concentrate on the requirements for an I-864 affidavit of support. On October 20, 1997, the INS published interim (temporary) regulations implementing the affidavit of support requirement and creating three new forms. In June of 2006, USCIS and the Executive Office of Immigration Review (EOIR) published final regulations on affidavits of support, which made some significant changes to the original rules. 76 The final regulations took effect on July 21, 2006, and applied to adjustment applications pending on that date regardless of when they were filed. A summary and analysis of the final rule are found at “Final Rule Regarding Affidavits of Support Issued by USCIS and EOIR,” 83 Interpreter Releases 1296 (July 3, 2006) and “Analysis of Final Affidavit-of-Support Rule and Forms” by Charles Wheeler located at http://staging.nilc.org/aosupp021.html. Under the final rule every person immigrating through a family member must either 1) submit a qualifying I-864 Affidavit of Support in order to meet the public charge requirement, or 2) if they are exempt from the affidavit of support requirement, submit Form I-864W, the Intending Immigrant’s Affidavit of Support Exemption. Form I-864W can be filed under the following circumstances: 1. People who can “self-petition” under the battered spouse, child or parent provisions (VAWA); 2. People who file as widows or widowers of U.S. citizens; 3. People who already have earned or can be credited with 40 “qualifying quarters” of employment with social security payments; or 4. Persons under age 18 who become U.S. citizens at the same time that they become permanent residents, because of their parents’ U.S. citizenship. People who filed an application for adjustment of status and/or received a visa from a consular officer before December 19, 1997 did not have to file an affidavit of support or an I-864W. Subsection A below will discuss who can be a sponsor and sign the affidavit of support. Subsection B will discuss exactly how much the sponsor must earn to meet the requirement of making 125% of the Federal Poverty Income Guidelines. Subsection C will discuss ways that the 71 Fed. Reg. 35732-57. The final rule is found at 8 CFR § 213a.

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petitioner can meet the affidavit of support requirements even if she does not earn the required amount, by using assets or getting the help of co-sponsors or household members. Subsection D will discuss the serious legal responsibilities that a person takes on when she signs an affidavit of support. Subsection E will discuss the few groups of family immigrants who are not subject to the I-864 requirement. A.

Who Can Submit the Affidavit of Support: See INA § 213A(f)(1)

The person who submits an affidavit of support (Form I-864) is called the sponsor. Under INA § 213A(f)(1), a sponsor must be a U.S. citizen, a U.S. national, or a permanent resident, of at least 18 years of age. The sponsor must live in the United States, a U.S. territory or possession, or reside abroad temporarily and establish that she will live in the United States on or before the intending immigrant obtains lawful permanent residence. The petitioner (the U.S. citizen or permanent resident who has filed an immigrant visa petition on behalf of the non-citizen) must be a sponsor. No matter how low the petitioner’s income is, the petitioner must submit an affidavit of support on behalf of the intending immigrant. Example: Antonio works in the fields to support himself and his mother, who does not work because she has a disability. His mother is petitioning for Antonio. She must submit an affidavit of support, even though she will have no income except for social security benefits, and even though he supports her. The sponsor must prove that she has “the means to maintain an annual income equal to at least 125% of the federal poverty line” for her own household plus the intending immigrant and any family members immigrating with him. If the petitioner has died, in certain circumstances someone other than the petitioner may be able to act as a substitute sponsor and file the I-864. Also, sponsors who are active in the U.S. Armed Forces only need to demonstrate 100% of the poverty line. Sponsors must state whether they have received public benefits. The USCIS asks for this information to determine whether the sponsor is counting any cash benefits to meet the 125% income guideline. If the sponsor is receiving cash benefits, these cannot be used to meet the 125% income guideline. B.

What the Sponsor Must Earn: Calculating the Number of People in the Household and 125% of the Poverty Income Guidelines

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A sponsor signing an affidavit of support must demonstrate that she earns enough income to support the immigrant and the sponsor’s entire household at an income level of at least 125% of the Federal Poverty Income Guidelines. Each year the federal government decides the amount of income that brings families to the official poverty level, and publishes this as the poverty income guidelines. A copy of the poverty income guidelines for 2017 along with a calculation of 125% of these guidelines (Form I-864P), is at Appendix 5-C. The annual update of the poverty income guidelines for affidavit of support purposes do not go into effect until the first day of the second month after the date of publication in the Federal Register by the Department of Health and Human Services. It is also important to keep in mind that the DHS and the Department of State consider the poverty income guidelines in effect at the time the I-864 affidavit of support was filed, and not at the time of adjudication of the adjustment

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or immigrant visa application. For this reason, when filing the I-864 affidavit of support package, the poverty income guidelines (I-864P) should be included. Example: Rebeca has a family of three (herself and two children) and wants to immigrate her husband. With him, she will have a family of four. She lives in Illinois. Using the 2017 Guidelines in Appendix 5-C, you should see that a family of four must earn $24,600 to meet the poverty line. 125% of that is $30,750. Rebeca will have to show annual income of $30,750 in order to be able to sponsor her husband by herself.

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Determining the Size of the Household that Must Be Counted in the 125%. In Rebeca’s case, it was easy to calculate that she had two children and would have a husband, and so had a family of four. Other cases may be more complex, however. The regulations, found at 8 CFR § 213a.1, provide that the following persons, in addition to the sponsor herself, must be counted as part of the household regardless of where they reside: • • • • • •

The sponsor’s spouse; The sponsor’s children under the age of 21, unless they are emancipated and were not claimed as dependents on the sponsor’s most recent tax return; The intending immigrant; All derivatives of the intending immigrant who are obtaining lawful permanent resident status at the same time or within six months; All dependents claimed on the sponsor’s most recent tax return; and All noncitizens previously included in an I-864 affidavit of support (for immigration on or after December 19, 1997), unless the obligation has ended.

The previous (interim) rule used to require that the sponsor include all persons living at the same residence as the sponsor related by “birth, marriage, or adoption.” However, this is no longer the rule. Extended family members such as parents, siblings, aunts, uncles, cousins, and even sons and daughters who reside with the sponsor are only to be included if they are dependents of the sponsor and/or if they qualify as a “relative” and wish to be included to contribute their income and assets to the meet the required income level. See 8 CFR § 213a.1. “Relative” is defined as sponsor’s spouse, child, adult son or daughter, parent, or sibling. Example: Anne lives in Florida, and she wants to immigrate her husband Michel and his daughter Nicolette. Anne has two sons from a previous marriage. One son lives at home with her, while the other is a college student listed as a dependent on her most recent income tax return. She filed an old form I-134 Affidavit of Support for her father who immigrated in 1991 and an I-864 Affidavit of Support for her sister who immigrated in May of 2013. How many people are in Anne’s household, for purposes of calculating how many she must be able to support at 125% of the poverty income guidelines? How much money must she earn to meet the requirement?

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Anne must count herself, Michel, and Michel’s daughter (listed on the current affidavit of support), and Anne’s two sons (one lives with her, and the other is a dependent on her tax return). She must count her sister because she submitted an I-864 Affidavit of Support for her. She does not have to count the 1991 affidavit of support she filed for her father, because that was not an I-864 affidavit. Thus, in order to immigrate her husband and his daughter, Anne must meet 125% of the guidelines for a family of six. According to the

chart at Appendix 5-C, the poverty guidelines for a family of six is $32,960; 125% of that is $41,200. Therefore, Anne will have to show an income of at least $41,200 before she can immigrate her husband Michel and his daughter Nicolette. Proving Income. The final rule places significant emphasis on the sponsor’s current income to meet the income requirement. The rule states that the “greatest evidentiary weight” will be given to the sponsor’s “reasonably expected household income” in the year the application is filed instead of the income reported on the most recent tax return. 8 CFR § 213a.2(c)(2)(ii)(C). The sufficiency of income is judged upon the income reported at the time the affidavit of support is submitted and not at the time that the application for adjustment of status or visa is decided. It is important to note that an affidavit of support with a projected income which meets the financial requirements may still be rejected if there are specific facts such as a material change in employment or income of the sponsor, or the number of aliens included in Form I-864, that would provide a reasonable basis for finding that the sponsor will not be able to maintain her income at the necessary level. If rejected, the intending immigrant may also be found inadmissible as likely to become a public charge. Tax returns serve merely as evidence to show that the sponsor will likely maintain her income in the future. Instead of filing the last three years of tax returns, as was required before, the final rule requires the sponsor to submit only the most recent federal tax return. Sponsors, however, must provide the total income reported for the last three tax years in the I-864. If the sponsor was exempt from filing a tax return, she must provide a written explanation proving by a preponderance of the evidence that she was entitled to the exemption. A sponsor does not have to be employed and can use income from sources such as a pension, retirement benefits, interest income, dividends, unemployment or workman’s compensation, alimony, or child support to meet the income requirement. While receipt of cash public benefits to maintain income does not disqualify a person from being a sponsor, the sponsor cannot count any of these benefits towards income. Some examples of cash public benefits include Supplementary Security Income, and Medicaid. See the USCIS Public Charge Fact Sheet at Appendix 5-D.

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PRACTICE TIP: Helping Large Families Immigrate. The more people immigrating, the greater the income that must be shown. One strategy is to split the family into different units for immigration. For example, if a mother wants to immigrate her husband and their five children, under the 2017 Guidelines the household must earn 125% of poverty income guidelines for a family of seven. Since the poverty income guidelines for a family of seven is $37,140, the sponsor must earn a total of $46,425. If three children immigrate now, and the family waits until later to immigrate the other two, the household only has to show income now to qualify for a family of five. Since the poverty income guidelines for a family of five is $28,780 and the sponsor must earn 125% of that, the sponsor’s income must be at least $35,975. Or, the family could find a second “joint sponsor” to submit an I-864 for the other two children. See Subsection C below. Or, if the children can be credited with 40 qualifying quarters of employment from their parent, they do not need to submit an I-864 at all. Instead, they must file form I-864W to show how they are exempt from the affidavit of support requirement. See Subsection E below.

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C.

How to Satisfy the Affidavit of Support Requirement if the Petitioner Does Not Earn Enough Money: Household Members, Co-Sponsors and Significant Assets

Some clients do not earn enough income by themselves to reach 125% of the poverty income guidelines. There are three other ways in which a sponsor may satisfy the 125% requirement:

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1. Add household members’ income to the sponsor’s income; 2. Find a joint sponsor who meets the poverty guideline amount independently; and/or 3. Use “significant assets.” 1. Household income The income of the sponsor’s household members may be added to the sponsor’s income in order to reach the 125% poverty income guideline amount. See 8 CFR § 213a.2(c)(2)(i)(C)(1). The following people can be contributing household members: • • • • •

The sponsor’s spouse if residing with the sponsor (note: if the spouse is the intending immigrant she need not reside with the sponsor); The sponsor’s children if residing with the sponsor; Any other relative 77 residing in the household who is not a dependent and is at least 18 years old; Any dependents listed on the sponsor’s tax return for the most recent tax year; and The intending immigrant, subject to limitations (see below).

Previously, the household members must have resided with the sponsor for the last six months to be considered contributing household members. However, under the final rule, it is sufficient if the qualifying household member currently resides with the sponsor. In addition, if the intending immigrant is a spouse, she is not required to reside with the sponsor at all. 78 To count the intending immigrant’s income, she must be residing with the sponsor, be the sponsor’s spouse, or be claimed dependent. The income must come from lawful employment in the United States or from some other lawful source that will continue to be available to the intending immigrant after she obtains permanent resident status. Lawful employment means work performed while the worker had an employment authorization document (EAD). This lawful employment requirement creates hardship for many intending immigrants who have been working, but without authorization. In addition, offers of employment are not enough to meet the intending immigrant’s proof of income. The household member whose income is to be counted must sign Form I-864A. This is a contract between the contributing household member and the sponsor. In that contract, the household member agrees to accept “joint and several liability” for all of the sponsor’s obligations under the affidavit of support. In other words, the household member would be just as responsible as the sponsor if the sponsor were sued and had to pay money. See discussion of

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77 “Relative” is defined only to include the sponsor’s spouse, child, adult son/daughter, parent, or sibling. 8 CFR § 213a.1(2). 78 Of course, the intending immigrant spouse must intend to live with the sponsoring spouse after he or she immigrates.

liability in Subsection D. The one exception to this rule is that if the intending immigrant is the household member in question, she does not have to sign a Form I-864A contract with the sponsor, as long as she is immigrating alone (i.e., and not with a spouse or child). Example: Rebeca has two children and wants to immigrate her husband Rodolfo, who is living in Mexico. Her income of $24,000 is less than 125% of the poverty guidelines for a family of four, which is $30,750 (125% of $24,600). Rebeca’s 18-year-old daughter has always lived with her and earns $8,000 per year. Can they count her income? Yes, since Rebeca’s daughter is considered a relative, currently lives in the household, and is 18 years old, she can sign an I-864A contract with her mother and her income will be added. Their total income is $32,000, more than enough. Now let’s change the example a bit. Suppose that Rebeca’s daughter does not work, but Rebeca’s husband, the intending immigrant, is living in the household. Can he contribute his income? Maybe. An intending immigrant spouse, whether or not he lives in the sponsor’s residence, may add his income to the sponsor’s as a contributing household member as long as he is earning that income through lawful employment. This would require him to have an EAD. If he does, his income can be counted. Since Rodolfo is not bringing other family members to the United States he does not have to sign an I-864A subcontract with Rebeca. If he were immigrating with another child, however, he would have to sign an I864A contract. Does a Contributing Household Member Have to Have Lawful Status in the United States? There is no requirement in the 2006 regulation that the household member must be a U.S. citizen or lawful permanent resident or have some form of lawful status. It may, however, be difficult to convince an undocumented household member to sign the I-864A contract with the sponsor, because it will be submitted and reviewed by USCIS. What if a Contributing Household Member Is Working without Employment Authorization? Unlike the intending immigrant, there is no requirement that the income contributed by a household member come from lawful employment. 79 However, the household member must show that she has paid taxes. When to File the I-864. USCIS requires all applicants to submit the affidavit of support (I-864) with their adjustment applications. People immigrating through consular processing must also file the I-864 with the State Department’s National Visa Center before they can complete the immigrant visa process. Under the final regulation, the sufficiency of the affidavit of support is based on the income reported for the year the I-864 was submitted, not the sponsor’s income on the date the immigrant visa is adjudicated or on the date of the application for adjustment of status. Furthermore, officials must use the Federal Poverty Income Guidelines in effect at the time

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Note, however, if the household member committed document fraud to get a job—by using false documents or lying on an I-9 form—the person runs the risk of being found deportable and inadmissible for document fraud. See § 5.5.

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the affidavit is submitted, not at the time the affidavit is being reviewed. You should always confirm that you are using the most current edition by checking the form at www.uscis.gov. 2. Joint sponsorship

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If the petitioner/sponsor does not make enough money to meet the requirements of the affidavit of support, then another person can also file an affidavit of support and become a joint sponsor. Under the final rule, in addition to the primary sponsor, two joint sponsors per family on a single family petition are allowed. 8 CFR § 213a.2(c)(2)(iii)(C). No one person may have more than one joint sponsor, but all family members do not have to have the same sponsor. The joint sponsor must meet the same requirements as the original sponsor, the petitioner. The joint sponsor must be a lawful permanent resident or U.S. citizen at least 18 years of age who lives in the United States or a U.S. territory or possession. See INA § 213A(f). The joint sponsor must sign a separate affidavit of support, Form I-864. By signing the affidavit, the joint sponsor agrees to accept joint and several liability for the affidavit of support. This means that the joint sponsor will have exactly as much responsibility as the original sponsor under the affidavit of support. See discussion of liability in Subsection D. The joint sponsor must be able to meet the income requirement by herself. The petitioner’s income and joint sponsor’s income cannot be added together to meet 125% of the poverty income guidelines. (Compare this to the “contributing household member” described above. In that case, the income is added to the sponsor’s). The joint sponsor must make the income needed to support both her household and the intending immigrant at 125% of the poverty line. However, in a single family petition where there are two joint sponsors in addition to the primary sponsor, each joint sponsor need only include the person she is sponsoring as part of the household size (in addition to other members of the sponsor’s actual household), rather than everyone on the family petition. See more below. Example: Rebeca has two children and wants to immigrate her husband Rodolfo. Rebeca’s household income is less than 125% of the poverty line for her family of four. Rebeca tells you that she has a brother Esteban, a 30-year-old lawful permanent resident who lives in Michigan. He makes $45,000 a year. Esteban supports his wife and three children. If he were willing, could Esteban become a joint sponsor for Rebeca’s husband? Yes. Esteban is a permanent resident over 18 years old who lives in the United States. He must make enough income to support six people (his own household of five people, plus Rodolfo) at 125% of the poverty income guidelines. Using the chart at Appendix 5-C, we can calculate that this amount is $41, 200. Esteban will qualify because he makes $45,000 per year.

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Family Petitions with Two Joint Sponsors: Under the final rule, there is an additional option in cases where a sponsor cannot meet the income requirements to sponsor the intending immigrant and all of her derivatives. Each petition now can have up to two joint sponsors in addition to the primary sponsor, where previously only one joint sponsor was allowed. As noted above, a single joint sponsor must make the 125% of the income needed to support both her household and the intending immigrant and her derivatives. In many cases, there is no joint sponsor that can meet this threshold. With two joint sponsors, however, the household size can be reduced and the

required income level will therefore be less, since the intending immigrant and derivatives in a single family petition can be split between the two joint sponsors. Each joint sponsor then need only include those persons she is sponsoring (plus the joint sponsor’s actual household) in determining household size to calculate the necessary income to meet the poverty level. In other words, joint sponsors do not have to include every beneficiary of the family petition in calculating household size. Note, however, that no one individual on a petition can have more than one joint sponsor. Example: Kimora, the sponsor, resides in California and wants to immigrate her husband and four children from Japan. She already has one child in the United States. To meet 125% of the poverty guidelines for a family of seven, she needs to make $46,425. She does not earn enough. She has two friends, Miko and Sayako, who are willing to be joint sponsors, but when they calculate their own household size and add Kimora’s husband and four kids they each do not earn enough to meet 125% of the poverty level. However, Kimora’s joint sponsors could each sponsor different individuals in the family petition to reduce their household size and meet the required income level. Miko could sponsor Kimora’s husband and two of their children. She would then only have to show that she makes enough to support her own household plus three persons, whereas previously she would have had to sponsor five persons. Sayako could sponsor Kimora’s two other children and would therefore only have to show that she makes enough to support her own household plus two persons. 3. Significant assets A person who does not earn enough income can still meet the 125% test if she has enough “significant assets.” INA § 213A(f)(6)(A)(ii). Generally, there are two requirements: (1) the assets must be convertible to cash within one year, and (2) the net worth of the assets must be five times the difference between the sponsor’s actual income and the income the sponsor is required to have. There are two exceptions to this second requirement. First, if the sponsor is a U.S. citizen and the intending immigrant is the sponsor’s spouse or a child over 18, the value of the assets must be only three times the difference between the sponsor’s income and the required amount. See 8 CFR § 213a.2(c)(2)(iii)(2)(B)(1). Second, if the intending immigrant is an orphan to be formally adopted in the United States, the value of the assets only must equal the shortfall between the sponsor’s income and the required amount. See 8 CFR § 213a.2(c)(2)(iii)(2)(B)(2). 80 Savings accounts, stocks and bonds, certificates of deposit, life insurance policies, real estate, and personal property, are examples of significant assets. See 8 CFR § 213a.2(c)(1)(iii)(B). A sponsor, joint sponsor, or household member can use significant assets to meet or help meet the 125% line. In addition, the intending immigrant’s assets can be counted—even if the immigrant is in another country.

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Note also that some children of U.S. citizens, including adopted children, are exempt from the Affidavit of Support requirement if they would become U.S. citizens by operation of law immediately upon acquiring permanent resident status. See Subsection E.

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Example: Caroline, a U.S. citizen, has four people in her household (including herself) and wants to sponsor her husband, who is not yet part of her household. Caroline makes $20,000 in annual income. To make 125% of the poverty line for a household of five, she needs $35,975 in income. Caroline owns her house, which has a cash value (after the mortgage is paid off) of $60,000. Can she use ownership of this asset to make up the $15,975 income she is short?

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Yes. The difference between 125% of the poverty line ($35,975) and Caroline’s income ($20,000) is $15,975. Her $60,000 worth of assets is more than three times the $15,975 difference, so she will qualify. What if Caroline’s house was only worth $20,000, but her husband had stocks and bonds in the home country that could be sold for a net gain of $40,000? Caroline could combine proof of her $20,000 in real property plus proof of her husband’s ownership of the stocks to show $60,000 in significant assets. PRACTICE TIP: Mix and Match to Get to 125%. Household income, joint sponsors and significant assets may be used in combination in order to reach the 125% mark. A joint sponsor can include income from members of her household, just like the first sponsor. Significant assets belonging to a sponsor, joint sponsor, household member, or the intending immigrant can be counted. For example, if Eric agrees to be a joint sponsor, he may use a contributing household member’s income to reach 125%. Both he and the contributing household member can use significant assets to help reach the amount. D.

Obligations of the Sponsor under the Affidavit of Support

The Form I-864 Affidavit of Support will be legally enforceable against the sponsor, as well as any joint sponsor or contributing household member. See INA §§ 213A(a)(1)(B), (b). (The Form I-134 Affidavit of Support, which was used for all immigrants before December 1997 and now may be used for non-family immigrants, is not legally enforceable against the sponsor). The following is a discussion of the responsibilities of the sponsor under the I-864. Government Suit to Recover Cost of Means-Tested Benefits. Any federal, state or local government can sue the sponsor to recover the cost of federal or state “means-tested public benefits” that were received by the immigrant during the period of enforcement of the affidavit of support. In fact, under the final regulation, USCIS may disclose a sponsor’s social security number and the sponsor’s last known address to a benefits granting agency to help it obtain a reimbursement from the sponsor. Federal means-tested public benefits have been defined to include only Medicaid, the State Children’s Health Insurance Program (SCHIP), Temporary Assistance for Needy Families (TANF), and SSI. Advocates should keep abreast of which state or local benefits will be designated as being recoverable under the affidavit of support. Although these suits are legally possible, in practice there have been few government actions to obtain reimbursements for these benefits. 81 Note that government agencies cannot sue to collect reimbursement for benefits that the immigrant received more than ten years earlier. INA § 213A(b)(2)(C). See, e.g., Moody v. Sorokina, 40 A.D.3d 14 (N.Y. App. Div. 2007).

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81

The sponsored immigrant can sue the sponsor to be supported at a level equal to 125% of the poverty guidelines. See INA §§ 213A(a)(1)(B), (e)(1). There have been a few cases brought against sponsors by the sponsored persons, and all have been former spouses. Most recently, a California appellate court found that a sponsored person had standing in state court to sue to enforce the support obligation created by an I-864 and, furthermore, that the sponsored person had no duty to mitigate damages. 82 Similarly, a federal district court in Indiana upheld a sponsored person’s right to recover from her sponsor ex-husband and awarded $19,000 in damages, plaintiff’s attorneys’ fees, and held that the sponsor had a continuing obligation to support the immigrant at the 125% level until the contract terminated.83 Based on this caselaw, sponsors who file affidavits of support for their spouses should be aware that they can be found liable to their spouses even after divorce. 84 Sponsors Must Notify the Government if They Change Their Address. If a sponsor moves, she must notify both the USCIS and the state in which the sponsored immigrant resides within 30 days of changing address. The sponsor can do this by filing Form I-865; the form gives information about where it must be mailed. If the sponsor does not do this, she can be fined from $250 to $2,000, or up to $5,000 if she knows the immigrant has collected benefits. INA § 213A(d)(2). When Does the Sponsor’s Obligation Begin? The sponsor’s and joint sponsor’s obligations under the affidavit of support do not begin when the affidavit of support is submitted to USCIS, but rather when the intending immigrant obtains lawful permanent resident status. This means that a sponsor may withdraw the affidavit at any time before the intending immigrant is granted permanent resident status. When Does the Sponsor’s Obligation End? See INA § 213A(a)(3). This section sets out how long the sponsor is obligated under the affidavit of support. The sponsor’s obligation ends when: 1. The sponsored immigrant becomes a U.S. citizen; 2. The sponsored immigrant is credited for 40 “qualifying quarters” of employment as reflected by social security payments; •

A “quarter” refers to a quarter of a year, so the person will have to work at a certain wage for at least ten years to equal 40 quarters.

•

Beginning December 31, 1996, if the person receives any federal means-tested benefit during the quarter, the quarter doesn’t count.

•

A person under 18 can count all of her parent’s qualifying quarters since the day she was born, and a spouse or widower can count her spouse’s quarters earned since the date of the marriage. See Subsection E below for further discussion.

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Kumar v. Kumar, 13 Cal.App.5th 1072 (Cal. App. 2017). Stump v. Stump, 2005 WL 2757329 (N.D. Ind. 2005). 84 For more information on cases and arguments against continuing liability after divorce see Charles Wheeler, Alien vs. Sponsor: Legal Enforceability of the Affidavit of Support, available at www.ilw.com/articles/2006,0110-wheeler.shtm.

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3. The sponsored immigrant ceases to be a lawful permanent resident and has left the United States; 4. The sponsored immigrant, the sponsor (see below), or the joint sponsor dies; or

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5. The sponsored immigrant obtains a new grant of adjustment of status in removal proceedings as relief from removal. If the sponsored immigrant requires an affidavit of support for the new adjustment, only the sponsor(s) who filed new affidavits of support in conjunction with the new adjustment application will be obligated. The sponsor’s obligation does not end due to divorce, the immigrant disappearing and not communicating with the sponsor, or for other personal reasons. It does end if the sponsor dies, but the sponsor’s estate may have to pay obligations that arose before the sponsor died. See 8 CFR § 213a.2(e)(2)(ii). Example: Marie immigrated her husband Robert, with Marie’s mother filing an I-864 Affidavit of Support as a joint sponsor. Five years later, Robert began drinking heavily and divorced Marie. Three years after that he was in an automobile accident and became unable to work. Marie and her mother will remain responsible for Robert under the affidavits of support, and may be forced to repay Medicaid for his medical expenses if the government so insists. Robert might even be able to sue to force them to support him at 125% of the poverty guidelines. Their obligation will not end until Robert becomes a U.S. citizen, works 40 qualifying quarters, loses lawful permanent resident status and leaves the United States, or dies. Even after the sponsor’s obligation ends, the sponsor still is liable for debts that arose before the support obligation ended. For example, if Robert in the above example ends the obligation by becoming a U.S. citizen, Marie and her mother still will be liable for his Medicaid expenses from before he became a citizen, when the affidavit was in effect (as long as the government sues them within ten years of when he received the benefits). Many important issues about liability are not yet decided, and current policy might change. In reality, the affidavit of support has not been enforced with any frequency against sponsors. Advocates must keep abreast of developments and be honest with clients about what they do not know. Talking with a Potential Sponsor. Advising potential sponsors regarding the affidavit of support obligations is complicated for representatives. When people seek to help a family member to immigrate, they hope that things will go well. It is sad to imagine a husband simply refusing to work and suing for support, or a sister being injured and forced to collect public benefits. But bad scenarios are always possible. Sponsors, co-sponsors, and contributing household members sign up for serious liability that may last for a few years or the rest of their lives. These people must understand the responsibilities involved in signing the affidavit of support. They have a right to information and time to consider before they sign.

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In providing information about the affidavits of support, it is important first to identify who the client is—the sponsor(s), the immigrating family member(s), or some combination. You may find yourself in a position known as a “conflict of interest,” where the interests of two people you are representing conflict. If you are representing the sponsor as the petitioner and the applicant,

consider acknowledging the potential conflict of interest and generally explaining the obligations. A 2009 fact sheet about affidavits of support (in English) can be downloaded at www.nilc.org/wp-content/uploads/2016/03/sponsoredimmsbens-na-2009-08-1.pdf. This sheet provides a general overview of the affidavit of support requirements. You should make sure that your clients understand the requirements. Using their names and the name of the intending immigrant, you can describe who would be obligated under the affidavit. In some cases the sponsor is not a client. Imagine that your client is Rebeca and you really want to help her to immigrate her husband Rodolfo. To do this, she needs her brother Esteban to be a joint sponsor. Are you going to be careful to make sure that Esteban understands all the risks of the affidavit of support? If you were the advocate for the intending immigrant, you might want to urge Esteban to consult a different advocate or attorney to make sure that he wishes to take on this responsibility because Esteban’s interests may be quite different from the intending immigrant’s. E.

Exceptions to the I-864 Affidavit of Support Requirement for Family Immigrants: VAWA Self-Petitioners; Where the Petitioner Has Died; Citizenship under the Child Citizenship Act; and Those Who Have or Inherit 40 Quarters of Qualifying Income

Most people who immigrate through a family member must have a qualified I-864 Affidavit of Support filed on their behalf by the petitioner and, if needed, a co-sponsor. Some people are exempt from this requirement. Those who are exempt from filing the I-864 have to file Form I864W, the Intending Immigrant’s Affidavit of Support Exemption form. This form is used to establish that the person is not required to file an affidavit of support. 1. VAWA self-petitioners A noncitizen who has been battered or abused by a U.S. citizen or permanent resident spouse, parent, or child can file a “self-petition” under Violence Against Women Act (VAWA) provisions. These self-petitioners do not need to have someone submit an I-864 Affidavit of Support, but do need to file a Form I-864W. Unlike other family immigrants, they need only meet the general public charge test. INA § 212(a)(4)(C)(i)(III). 2. Where the petitioner has died and the intending immigrant is the widow(er) If the intending immigrant was married to and not legally separated from a U.S. citizen at the time of the citizen’s death, the intending immigrant may file a petition on her own behalf, but must do so within two years of the citizen’s death. INA § 201(b)(2)(A)(i). 85 The alien will be immigrating as the widow(er) of a U.S. citizen and therefore does not need a substitute sponsor. This applies regardless of whether the U.S. citizen spouse dies before or after approval of the petition. Since the spouse immigrates as the widow(er) of a U.S. citizen, an I-864 does not have to be filed.

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Widows/widowers of U.S. citizens are no longer required to have been married for at least two years to the citizen spouse to self-petition as a widow(er). See § 568(c) of the DHS Appropriations Act, 2010, Pub. L. No. 111-83, 123 Stat. 4142, 4186 (2009), which amended INA § 201(b)(2)(A)(i).

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Death of Sponsor in Other Cases. In other cases where the sponsor dies, there is still an affidavit of support requirement. The final rule, however, allows the use of a “substitute sponsor” if a petitioner dies after the petition is approved but before the family member immigrates. 86 A substitute sponsor must be the spouse, parent, mother-in-law, father-in-law, sibling, child (if over 18), son-in-law, daughter-in-law, grandparent, grandchild or legal guardian of the intended immigrant. See 8 CFR § 213a.1.

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3. Children who automatically derive U.S. Citizenship when they become lawful permanent residents Some noncitizen children automatically become U.S. citizens on the date that they become lawful permanent residents, through the citizenship of their parent(s). This is subject to the requirement that the child must be in the legal and physical custody of the U.S. citizen parent in order to acquire U.S. citizenship. See the ILRC’s Naturalization and U.S. Citizenship: The Essential Legal Guide for more information on derivation of citizenship. Because these children will become citizens on the same date that they become permanent residents, and because U.S. citizenship would end any responsibilities of a sponsor submitting an I-864 Affidavit of Support, the government does not require them to file an I-864 as part of their family immigration. 8 CFR § 213a.2(a)(2)(ii)(E). However, they must file an I-864W. An alien orphan adopted by a U.S. citizen may also be exempt from the I-864 requirements depending upon factors such as whether the orphan is adopted abroad or in the United States and whether the U.S. citizen parent(s) saw the child before adoption. The laws on this are complicated. For a summary, see “Final Rule Regarding Affidavits of Support Issued by USCIS and EOIR.” 83 Interpreter Releases 1296 (July 3, 2006). 4. Children born after visa acquired There is no affidavit of support requirement for children who are born after their immigrant parents receive the visa and accompany them to the United States. 8 CFR § 213a.2(a)(2)(ii)(D). 5. Persons who earn or can be credited with 40 quarters of qualifying income If the intending immigrant has earned or can be credited with 40 quarters under the Social Security Act (SSA), she is exempt from the requirement to file Form I-864 and only has to file Form I-864W. 8 CFR § 213a.2(a)(2)(ii)(C). An intending immigrant can acquire 40 qualifying quarters in the following ways: 1. Working in the United States for 40 quarters in which the intending immigrant received the minimum income established by the Social Security Administration; or 2. By being credited with quarters worked by the person’s spouse during the marriage or a parent during the time the person was under 18 years of age; or 3. A combination of the above.

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86 Under INA § 204(l), certain I-130 family petition beneficiaries who were in the United States at the time of the petitioner’s death and who continue to reside in the United States are automatically eligible to immigrate, despite the petitioner’s death. Those who do not fit within § 204(l) must ask DHS to reinstate the petition so they can immigrate. See 8 CFR § 205.1(a)(3)(i)(C).

A “quarter of qualifying income” is three months of wages at a certain level for which money has been paid into the Social Security system. Why are people permitted to avoid filing an I-864 and instead just file an I-864W just because they have 40 quarters of qualifying income? Remember that an I-864 sponsor’s liability ends when the sponsored immigrant earns 40 qualifying quarters of work. See INA § 213A(a)(3), and discussion in Subsection D above. The government recognizes that it would be pointless for the immigrant and the government to go through the I864 process, when the I-864 can never become enforceable because the person will have 40 credits of work at the moment of immigrating. How can a new immigrant already have 40 quarters of income? Remember that under SSA regulations, some people are able to claim quarters of work done by certain relatives as their own. Also, some people who have worked without authorization, using an invented or borrowed social security number, can later get credit for the quarters that they worked if they paid into the social security system at the time. And of course, people who were working here with legal employment authorization before they became permanent residents can claim their own credits. Thus, whether a person has earned and/or been credited with 40 qualifying quarters of income is important at either of two points in the process. First, if the person has the quarters at the time she applies for permanent residency, no I-864 is required. She must still file an I-864W, Intending Immigrant’s Affidavit of Support Exemption. Second, if an I-864 was submitted, the sponsor’s obligation will end at the moment that the immigrant reaches 40 qualifying quarters. Claiming a Relative’s Income. As mentioned above, children can credit the quarters that their parents, including stepparents, earned from the date of the child’s birth until the date of the child’s 18th birthday. A spouse can credit the quarters earned by the other spouse from the date of the marriage. Thus, a 20-year-old daughter who is immigrating can claim all the quarters of work her mother and/or father have earned while in the United States and before she turned 18. The same is true of an immigrating wife who can claim as her own the quarters earned by her husband during the marriage. Example: Jerry and Paloma have been married for eleven years. For the last 15 years, Jerry has been living and working in the United States as a permanent resident. He has petitioned to immigrate Paloma and Paloma’s 17-year-old son Luis. The family does not make enough income to meet the I-864 requirements. However, as Jerry’s wife, Paloma can credit Jerry’s last 11 years of work as her own.

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People in this situation do not have to file an I-864, but only an I-864W. This is because the moment Paloma immigrates, she can claim Jerry’s 40 quarters (10 years of work) and the obligations under the affidavit of support would terminate. Luis would not need to file an I-864 either. As Jerry’s stepson, he could credit all 15 years of Jerry’s work in the United States and so would easily have the 40 quarters. Claiming Credits for Work the Immigrant Did under a Bad Social Security Number. If a person who worked under an invented or borrowed social security number later obtains a legal social security number, she can fix her social security records to get her former work credits placed under her new number. In terms of avoiding the I-864 requirement, this will help applicants for adjustment of status, but not those in consular processing. A person who applies for adjustment of status receives work authorization upon filing the application. During the months or

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years she waits for the interview, she can work with SSA to get credit under the new number. But a person who goes through consular processing and who does not receive employment authorization before immigrating will not have a chance to unscramble the records and claim her hours by the time of the consular interview. Nevertheless, if that person can work with SSA to claim the 40 quarters for hours previously worked under an invalid social security number after she is admitted to the United States as a permanent resident, then the Affidavit of Support obligation of her sponsor(s) will terminate.

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Receipt of Means-Tested Public Benefits. For any period beginning after December 31, 1996, a quarter will not be “qualifying” if during it the person received any “federal means-tested public benefit.” INA § 213A(a)(3)(A). 87 § 5.9

Terrorists, Draft Dodgers, Unlawful Voters, Stowaways, Polygamists

The following are several of the less common grounds of inadmissibility. A.

Security and Political Grounds: INA § 212(a)(3)

This ground of inadmissibility defines a number of groups who are considered dangerous to U.S. security, including people engaged in espionage, sabotage, terrorist activity, people whose entrance would have “serious adverse foreign policy consequences,” members of Communist or totalitarian parties, Nazis, and people who have been involved in genocide. IIRIRA amended the statute to make inadmissible a noncitizen “who, under circumstances indicating an intention to cause death or serious bodily injury, incited terrorist activity.” This provision is effective on enactment, and applies to incitement “regardless of when it occurs.” DHS refers to this ground as TRIG, which stands for the “Terrorism-Related Inadmissibility Grounds.” TRIG can be quite expansive. For example, this can include providing “material support” to a “designated terrorist organization,” the definition of which is expanded further below. This provision may even apply to the spouse or child of a person who is determined to be inadmissible under this ground. See INA § 212(a)(3)(B)(i)(IX). The various laws which form the bases of these grounds, as well as applicable exceptions, are introduced below. For a more complete discussion, see the ILRC’s manual, Inadmissibility & Deportability, available at www.ilrc.org/publications. 1. Patriot Act and REAL ID Act In response to the attacks of September 11, 2001, Congress enacted wide-ranging legislation dubbed the “U.S. Patriot Act.” Among other things, the legislation adds new grounds of inadmissibility for representatives of foreign terrorist organizations or any group that publicly endorses acts of terrorist activity, and spouses and children of anyone inadmissible under any of the terrorism-related grounds and provides that the Attorney General or the Deputy Attorney General (with no power of delegation) may certify a noncitizen as a terrorist if they have reasonable grounds to believe that she is a terrorist or has committed a terrorist activity. In such cases, mandatory detention of a person so certified is required. Certified persons shall remain in custody irrespective of any relief from removal that they may be eligible for or granted. If the 87

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For a more complete discussion of qualifying quarters, see National Immigration Law Center and Catholic Legal Immigration Network, Affidavit of Support and Sponsorship Requirements: A Practitioners’ Guide, available at www.nilc.org.

person is finally determined not to be removable, she may no longer be detained under this section. The Real ID Act of 2005, which came into effect on May 11, 2008, expanded the terrorism grounds in the Patriot Act in many ways, including by broadening the terrorism-based grounds of inadmissibility in INA § 212(a)(3)(B) and making anyone inadmissible who “endorses or espouses” terrorist activity, anyone who has received “military-type training” from a terrorist organization, and anyone who is a member of a terrorist organization, or has provided material support to a terrorist organization or a member of a terrorist organization. 2. Exceptions and exemptions from the security and terrorism grounds By statute, a spouse or child of a person who falls within the terrorism grounds will not be found inadmissible if she did not know or should not reasonably have known of the person’s actions, or the consular officer or Attorney General has reasonable grounds to believe she has renounced the person’s actions. See INA § 212(a)(3)(B)(ii). In addition, INA § 212(d)(3)(B)(i) authorizes the Secretary to exempt certain people from the terrorism-related grounds of inadmissibility. The Secretary of Homeland Security has delegated the administration of these exemptions to USCIS. These determinations are not reviewable by any other government agency, including EOIR. Over the last few years, several exemptions have been created. USCIS separates exemptions into 1) group-based exemptions, and 2) situational exemptions. There is no affirmative process to request an exemption. The USCIS adjudicator bases her exemption decision solely on the information acquired in any affirmative application, or adjustment of status interview, and on any other records that DHS may have on the applicant. It is therefore imperative to develop the record in any affirmative application and related interview, as the applicant will not be offered an additional opportunity to produce evidence, testimony, or arguments. 88 Persons charged under the security and terrorist grounds of inadmissibility need expert legal assistance. DHS may target people who are active in political movements that oppose the United States. It may target people who are not terrorists but who are linked to groups which the United States views as terrorist, such as guerrilla groups fighting U.S.-backed governments. Clients arrested in political demonstrations might possibly be charged under this ground. For assistance in such a case, contact the National Lawyers Guild National Immigration Project at www.nationalimmigrationproject.org or by telephone at (617) 227-9727. It is important to check for updates at USCIS for the latest on this issue. B.

Ineligible for Citizenship; Draft Dodgers: INA § 212(a)(8)

People who are permanently ineligible for U.S. citizenship are inadmissible. This ground refers to a narrow group of people—not just anyone who does not meet the requirements to naturalize, such as people convicted of aggravated felonies 89 or people who failed to register for selective

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Cheri Attix, AILA Asylum and Refugee Liaison Committee, Practice Pointer: Mating Sense of Recent TRIG Exemptions, (Mar. 25, 2015). 89 Id.

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service. 90 The BIA found that this ground refers exclusively to evasion of military service, including those who leave or remain outside the United States to avoid training or performing service in the U.S. Armed Forces in time of war or a period declared by the President to be a national emergency. 91 However, if a deserter is unconditionally pardoned by the President, he may apply to naturalize. 92 Nonimmigrants who departed during a time of war or a period declared a national emergency by the President and who are now seeking re-admission as nonimmigrants are not subject to this ground of inadmissibility. 93

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Some draft dodgers and draft deserters are permanently ineligible for citizenship under another section of the INA. 94 The ineligible group is very small. It includes only people who requested an exemption from compulsory service in the U.S. Armed Forces on the ground of being an alien, or people who deserted the U.S. Armed Forces during World War II, the period 1971–1973, or during other conflicts. 95 The amnesty given by President Jimmy Carter to individuals who avoided the draft during the Vietnam War protects certain people from this bar. Keep in mind that while many different kinds of exemptions from military service are available, only a few of them bar a person from citizenship, and it is important to check the law in your circuit. A person might still be eligible for citizenship if the person falls into one of the situations set out in the USCIS Policy Manual, including if the person was not required to serve in the first place; if the request for exemption was not intelligently made; if the government granted the exemption automatically; if the exemption was not based on alienage; if the person had previously served with a NATO nation for a certain length of time, or as a treaty national; of if the person served after the exemption was requested. 96 C.

Miscellaneous

Miscellaneous grounds are listed in INA § 212(a)(10). These include: • • • • •

Practicing Polygamists (see below); People who abduct children across international borders; A guardian required to accompany a helpless applicant; Noncitizens who vote in an election in violation of any federal, state, or local law (see below); People who renounce their U.S. citizenship in order to avoid U.S. taxation.

90

INA § 212(a)(8)(B). Matter of Kanga, 22 I&N Dec. 1206 (BIA 2000). 92 31 Op. Atty. Gen. 225 (1918). 93 INA § 212(a)(8)(B). 94 INA §§ 212(a)(8), 314, 315. 95 See, e.g., Cernuda v. Neufeld, 307 F. App’x. 427 (11th Cir. 2009) (finding that a non-citizen who filed an Application by Alien for Relief from Training and Service in the Armed Forces with his local Selective Service office could be a permanent resident, but he would never be eligible for naturalization). 96 USCIS-PM-12.I(4). 91

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Two of the most common miscellaneous grounds, voting and polygamy, are discussed below: D.

Polygamy

Persons coming to the United States to practice polygamy are inadmissible. Polygamy (the ideology or religious practice of having many wives) is different from bigamy (the crime of being married to more than one person at a time). The relevant statute, regulation, and caselaw set out different tests for polygamy. Caselaw requires that the person must believe in the ideology of polygamy, 97 the regulation requires that the person have practiced or be practicing polygamy, 98 and the statute requires that the person intend to practice polygamy in the United States. 99 USCIS states that the polygamy bar applies simply when someone has practiced or is practicing polygamy. 100 However, advocates should point to the relevant statute, regulation, and caselaw, to argue that all three of these factors must exist for the bar to apply. 101 Example: Joe married Sally and never divorced her. However they have not been together for many years. Joe then married Kim in Las Vegas. Joe is not inadmissible under this ground. He does not believe in the practice of polygamy; he just did not follow legal procedures of divorce. (In California, he does not have a valid marriage to Kim because one cannot get re-married until the present marriage is terminated.) This might cause other problems for Joe and Kim, if the relationships are the basis of any immigration status or benefit, but he is not inadmissible for polygamy. E.

Unlawful Voting: INA § 212(a)(10)(D)

Any noncitizen “who has voted in violation of any federal, state or local constitutional provision, statute, ordinance, or regulation” is inadmissible under INA § 212(a)(10)(D)(i). Unlike the ground of inadmissibility for a false claim to U.S. citizenship, this ground is retroactive and therefore applies to voting before, on, or after September 30, 1996. No conviction is required. If this ground is raised against your client, get expert help. As with the false claim to U.S. citizenship ground, this is a harsh provision with no general waiver, although see below for a narrow exception and certain forms of relief that this ground would not necessarily bar. Noncitizens who vote unlawfully may also face criminal sanctions. 1. What constitutes illegal voting? The definition of unlawful voting in both INA § 212(a)(10)(D)(i) does not require guilty knowledge; it includes people who innocently believed that they were entitled to vote, which is a common mistake.

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Matter of G-, 6 I&N Dec. 9 (BIA 1953) (distinguishing polygamy and bigamy, and holding that for someone to be a polygamist it must be shown that the person subscribes to the historical custom or religious practice of polygamy). 98 8 CFR 316.10(b)(2)(ix). 99 INA § 212(a)(10)(A). 100 12 USCIS-PM F.5(H). 101 See Matter of G-, 6 I&N Dec. 9 (BIA 1953); 8 CFR 316.10(b)(2)(ix); INA § 212(a)(10)(A).

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The key to assessing whether illegal voting has occurred is not just if the person voted, but also if they did so in violation of some federal, state, or local law. Practitioners should identify and analyze the voting law that was violated, and determine if there was a requirement of guilty knowledge or some other specific intent. For example, in California, a person can only violate local election law if she voted with fraudulent intent. 102 Thus, accidentally voting in a California local election would not be unlawful voting. Nevertheless, the DHS may argue that violation of a law with no intent requirement, such as a regulation stating who can vote, will be a basis for a finding of inadmissibility or deportability. For example, 18 USC § 611 makes voting by a noncitizen in a federal election unlawful, with no intent or knowledge requirement. A noncitizen, therefore, who voted in a federal election could be found removable even if she did not have any knowledge that she was prohibited from voting. If the voting occurred on or after September 30, 1996, this could also constitute a false claim to citizenship and thus trigger removability.

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There is at least one federal case analyzing the illegal voting removal provision that practitioners should consult. In MacDonald v. Gonzales, 400 F.3d 684 (9th Cir. 2005), the Ninth Circuit considered whether a woman was deportable for voting in violation of a Hawaii election law which made it a felony for “any person [to] knowingly vote[] when the person is not entitled to vote.” While the Ninth Circuit did not explicitly hold that guilty knowledge or other specific intent is actually required to fall under the unlawful voting ground, it held that a court must find that the noncitizen violated all of the provisions of the law at issue to be removable. The Ninth Circuit held that the correct standard under the Hawaiian law at issue not only required that the petitioner knowingly voted, but also that she knew she was not entitled to vote. Because the woman was not aware that she was ineligible to vote, she was not deportable. The DHS might be persuaded to recognize the unfairness in targeting individuals who made an innocent mistake when voting and did not intend to do anything wrong even if the relevant election statute does not impose a mens rea requirement like that in MacDonald. For example, advocates reported that the Dallas District DHS office has requested trial attorneys to move to dismiss the Notice to Appear as “improvidently issued” in the case of voters who lacked fraudulent intent. 2. Exceptions and waivers for illegal voting a. Narrow exception to the illegal voting inadmissibility provision Under INA § 212(a)(10)(D), individuals who meet the following requirements will not be subject to the immigration and criminal consequences of having voted unlawfully. Note that this same narrow exception applies to individuals who have falsely claimed to be U.S. citizens (see § 5.7): 1. Each natural/adopted parent of the person is or was a U.S. citizen; 2. The person began to reside permanently in the United States before the age of sixteen; and

102

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California Election Code § 18560 states: “Every person is guilty of a crime punishable by imprisonment in the state prison … who: (a) Not being entitled to vote at an election, fraudulently votes or fraudulently attempts to vote at that election.”

3. The person reasonably believed at the time of such statement, violation, or claim that he or she was a citizen of the United States. Effective Date: This change in the law is retroactive and cures false claims and illegal voting that took place before or after the enactment of the relevant statutes. Example: Sofia told her daughter Claudia that she was a U.S. citizen. Under the belief that she was a citizen, at age 22 Claudia applied for a U.S. passport using the birth certificate her mother said belonged to her. In fact, the birth certificate was false and Sofia had lied to Claudia all those years. Both Claudia and her mother were in fact undocumented. Claudia, thinking that she was a U.S. citizen, had also voted. Unfortunately, Claudia is subject to the immigration penalties for unlawful voting because she does not qualify for the narrow exception. However, Claudia should not fall within the inadmissibility ground for false claim to U.S. citizenship since USCIS recognizes that a false claim to U.S. citizenship requires knowledge of the falsity. See § 5.7. b. Waivers for illegal voting Like false claim to U.S. citizenship, there is no general inadmissibility waiver for unlawful voting. However, unlawful voting is not a bar to asylum or restriction on removal, and can be waived for the U visa and some other forms of relief. There is no statutory bar against the act or conviction of unlawful voting for applicants requesting cancellation of removal, although unlawful voting might impact the applicant’s ability to demonstrate good moral character. F.

Stowaways: INA § 212(a)(6)(D)

Stowaways are people who have boarded onto a ship or plane without permission. They are inadmissible under INA § 212(a)(6)(D). Stowaways may seek parole into the United States pursuant to INA § 212(d)(5), or adjustment of status under INA § 245(h) (special immigrant juvenile status). PART TWO: IMMIGRATION VIOLATIONS RELATING TO UNLAWFUL STATUS AND REMOVAL Violating the immigration laws can be a basis for several different grounds of inadmissibility. This section will cover the various grounds related to these immigration violations. § 5.10 Entry, Admission, and Effective Dates

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A person who has been admitted to the United States is subject to the grounds of deportability, and a person who is seeking admission (who is either outside the United States, paroled into the United States, applying for adjustment of status, or who entered the United States without inspection or as a crewman) is subject to the grounds of inadmissibility. 103 Pay attention to when each of the following sections uses words like entry, admission, or parole. Some inadmissibility grounds only apply if the person remains in the United States. See INA § 212(a)(6). Other

103

Review § 5.1 for a detailed explanation of how the term “admission” is defined under INA § 101(a)(13).

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inadmissibility grounds only apply if the person has left the United States after a violation. See INA § 212(a)(9). It is also important to pay attention to the effective dates—when certain grounds imposed by IIRIRA and other legislation apply. For example, you will see that in calculating “unlawful presence” for purposes of the three- and ten-year bars, we count only unlawful presence starting as of April 1, 1997. But other grounds where Congress has not been specific may apply before April 1, 1997 or may have to be resolved in litigation.

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Some of the most important and complex inadmissibility bars are the “three- and ten-year” and “permanent” bars based on unlawful presence. § 5.11 Unlawfully Present in the United States without Being Admitted or Paroled Under INA § 212(a)(6)(i), a noncitizen present in the United States without being admitted or paroled, or who arrives in the United States at any time or place other than as designated by the Attorney General, is inadmissible. This ground penalizes persons who entered without inspection and remain in the United States. Additionally, it renders anyone attempting to enter the United States at a place other than a designated checkpoint, inadmissible. Entering without inspection is the most common charge in removal proceedings for those facing inadmissibility. Note that this ground is “cured” upon departure from the United States, so it does not impact those who are immigrating through consular processing. Example: Sonia entered the United States without inspection in 2000 and has not left since. She is inadmissible due to her unlawful presence without prior admission. She could be removed for being inadmissible. Example: Her sister Tania was admitted to the United States in 2000 on a visitor’s visa and has not left since. Tania is not inadmissible under this ground because she was lawfully admitted. (Note that Tania is deportable under INA § 237(a)(10)(B) because she is “present in the United States in violation of law,” and could be removed for being deportable.) Example: George entered the United States by crossing the border undetected. Shortly thereafter he was apprehended by CBP and taken into custody. The DHS, looking at the circumstances of his case, granted George parole into the country on the basis of urgent humanitarian reasons. Under current USCIS policy, George is not inadmissible under this provision once he has been paroled.104 Because George is paroled into the United States, he is not present without inspection or parole. Additionally, although George did not

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104 See USCIS, Parole of Spouses, Children and Parents of Active Duty Members of the U.S. Armed Forces, the Selected Reserve of the Ready Reserve, and Former Members of the U.S. Armed Forces or Selected Reserve of the Ready Reserve and the Effect of Parole on Inadmissibility under Immigration and Nationality Act § 212(a)(6)(A)(i), (Nov. 15, 2013), available at www.uscis.gov/sites/default/files/USCIS/La ws/Memoranda/2013/2013-1115_Parole_in_Place_Memo_.pdf.

enter through a designated checkpoint, current guidance indicates that this inadmissibility basis would only apply to someone at time of entry. 105 A.

Exemptions

This ground does not bar adjustment of status in several situations: Exception for Those Who Are Eligible for Adjustment of Status under INA § 245(i). 106 It is the official position of DHS that this ground of inadmissibility does not disqualify those who are present in the United States without being admitted or paroled from adjusting their status under INA § 245(i). 107 The BIA has also upheld this position, finding that to hold otherwise would defeat the purpose of § 245(i), a result that Congress is presumed not to have intended. See Matter of Briones, 24 I&N Dec. 355, 365 (BIA 2007). VAWA Exemption. VAWA self-petitioners are exempt from this ground of inadmissibility for adjustment of status under INA § 245(a). 108 In other words, INA § 212(a)(6)(A) is effectively waived for approved VAWA self-petitioners who entered without inspection or are present without permission or parole. 109 For more information about this, see the ILRC’s VAWA Manual: Immigration Relief for Abused Immigrants. Temporary Protected Status. USCIS has found as a policy matter that § 212(a)(6)(A) and grounds of inadmissibility under § 212(a)(9) should not apply to applicants seeking temporary protected status (TPS). 110 TPS grantees are considered to be in lawful status from the date they apply for TPS. INA § 244(f)(4). There is currently a division among federal courts regarding whether a TPS grant constitutes an “admission” and thus cures a person’s initial illegal entry for purposes of qualifying for § 245(a) adjustment. 111 In other words, depending on the circuit, a person with TPS can still be considered inadmissible under INA § 212(a)(6)(A)(i) for purposes of qualifying for adjustment of status through a family or employment visa petition under INA § 245(a) if they initially entered the United States without permission. 105

Id. See Chapter 3 for information on adjustment of status under INA § 245(i). 107 See Louis D. Crocetti, Jr., Memorandum to INS Officials (May 1, 1997), available at 2 Bender’s Immigration Bulletin 450, 452 (June 1, 1997); INS General Counsel Issues Important Opinion on EWI Eligibility for Adjustment, 74 Interpreter Releases 499 (Mar. 24, 1997). 108 Adjustment of status is the process of obtaining an immigrant visa within the United States. See Chapter 3. 109 See INA § 245(a); see also Michael L. Aytes, USCIS, Adjustment of status for VAWA self-petitioners who is present without inspection, at 2 (Apr. 11, 2008). 110 See 8 CFR § 244.3. This regulation specifically exempts TPS applicants from grounds of inadmissibility under INA sections 212(a)(4), 212(a)(5)(A)–(B), and 212(a)(7)(i). In a draft memorandum circulated in 2011, the USCIS indicated that INA sections 212(a)(6)(A) and 212(a)(9) will not be applied to those seeking TPS. USCIS indicated that to do so would be contrary to the statute. At this time, USCIS is not requiring waivers for these grounds. 111 A the time of this manual’s writing, the Sixth Circuit, the Ninth Circuit, and a handful of district courts have held that people who were granted TPS are eligible to adjust status under INA § 245(a). See, e.g., Ramirez v. Brown, 852 F.3d 954 (9th Cir. 2017); Flores v. USCIS, 718 F.3d 548 (6th Cir. 2013); Bonilla v. Johnson, -- F.Supp.3d --, 2016 WL 879161 (D. Minn. 2016).

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Discretionary Waiver for Legalization Applicants under INA § 245A and § 210. This inadmissibility ground was introduced subsequent to the legalization programs. Even if DHS were to apply them to any legalization applications still pending, DHS has the authority to grant a waiver of the grounds of inadmissibility under INA § 212(a)(6) for humanitarian, family unity, or public interest reasons, for applicants for legalization or Special Agricultural Worker status under INA § 245A or § 210. 112

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Additional Exemptions. In addition to these exceptions and waivers, inadmissibility under INA § 212(a)(6)(A)(i) does not make an individual inadmissible for purposes of: • • • • • • •

Adjustment of status under INA § 245(h) (Special Immigrant Juvenile Status); Adjustment of status under § 902 of the Haitian Refugee Immigration Fairness Act (HRIFA); Adjustment of status under § 202(b) of the Nicaraguan Adjustment and Central American Relief Act (NACARA); Adjustment of status under INA § 249 (Registry); Change of status to V nonimmigrant status under INA § 214(q); Family Unity under § 301 of the Immigration Act of 1990 (IMMACT 90); and Some applicants for adjustment under the Cuban Adjustment Act of 1966.113 § 5.12

A.

Three- and Ten-Year Bars for Those Unlawfully Present Who Depart and Then Apply for Admission and the Family Hardship Waiver

The Three- and Ten-Year Bars and the Family Hardship Waiver

The three- and ten-year bars for unlawful presence are found at INA § 212(a)(9)(B). These grounds of inadmissibility penalize people who stay too long in unlawful status in the United States, leave, and then apply for admission. These grounds are only triggered when the person departs the United States. They apply to people who originally were admitted or paroled but then stayed past the expiration of their authorization; those who entered without inspection; and those who knowingly made a false claim of citizenship to obtain permission to enter. 114 Fortunately, there is a waiver for people who are the spouses, sons, or daughters of U.S. citizens or lawful permanent residents. See Family Hardship Waiver subsection below. 180 Days/Three-Year Bar. Noncitizens who (a) beginning on April 1, 1997 are unlawfully present in the United States for a continuous period of more than 180 days but less than one year, and (b) then voluntarily depart the United States before any immigration proceedings commence, and (c) then apply for admission to the United 112

See 8 CFR § 245a.2(k)(2); 8 CFR § 245a.3(g)(2); 8 CFR § 245a.18(c); 8 CFR § 210.3(e). See USCIS, Section 212(a)(6) of the INA, Illegal Entrants and Immigration Violators, at 9 (Mar. 3, 2009), available at www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/Static_Files_Memoranda/2 009/section212_a_6_immi_natl_act_illegal_violators.pdfp; see also Matter of G-Y-R-, 23 I&N Dec. 181 (BIA 2001). 114 See USCIS, Interoffice Memorandum on Consolidation of Guidance Concerning Unlawful Presence, 22 (May 6, 2009), available at www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/Static_Files_Memo randa/2009/revision_redesign_AFM.PDF; Matter of S--, 9 I&N Dec. 599 (BIA 1962). 113

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States, are inadmissible for a period of three years from the date of departure. INA § 212(a)(9)(B)(i)(I). One Year/Ten-Year Bar. Noncitizens who (a) beginning on April 1, 1997 are unlawfully present in the United States for a continuous period of one year or more, (b) leave the United States voluntarily or by deportation/removal, and (c) then apply for admission to the United States, are inadmissible for a period of ten years from the date of departure or removal. INA § 212(a)(9)(B)(i)(II). Effective Date of April 1, 1997. Under current caselaw, this ground of inadmissibility does not start “counting” the period of unlawful presence until April 1, 1997. For example, a person who had been unlawfully present in the United States for several years but left on or before September 27, 1997 (180 days after April 1, 1997) will not be inadmissible under this ground. Continuous Period. For purposes of calculating unlawful presence under this provision, the period of unlawful presence must be continuous. A person who is unlawfully present for four months, then leaves and comes back to being without status for five months, still has not spent six months in continuous unlawful presence and does not come within the three- or ten-year bar. 115 If, however, a person accrues several periods of unlawful presence during one single stay, interspersed with other periods of lawful presence, USCIS will add the multiple periods together. 116 Example: John was admitted to the United States on a visitor visa on January 1, 2008, and his authorized stay expired on June 30, 2008. He did not leave, but married Amanda, a U.S. citizen, and filed for adjustment of status through her on November 1, 2008. While his adjustment application is pending, he did not accrue unlawful presence. His adjustment application was finally denied on April 1, 2010. His unlawful presence began to accrue again upon the final adjustment denial.117 1. Must leave before proceedings in court for the three-year bar to apply The inadmissibility ground for unlawful presence for more than 180 days but less than one year is only triggered when a person leaves the United States (whether or not under a voluntary departure grant) before being placed in immigration court proceedings. If the person is placed in removal proceedings, then receives voluntary departure from the judge or is ordered deported, and leaves after 180 days have lapsed but before accruing one year of unlawful presence, the person does not fall under this provision because she comes within a beneficial gap in the statute, described below.

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Note, however, that the “permanent” bar to inadmissibility for those who attempt to enter illegally does add time periods together to equal a year’s unlawful presence. See § 5.13. 116 See USCIS, Interoffice Memorandum on Consolidation of Guidance Concerning Unlawful Presence, 13 (May 6, 2009), available at www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/Static_Files_Memo randa/2009/revision_redesign_AFM.PDF. 117 See USCIS Interoffice Memorandum (May 6, 2009), available at www.uscis.gov/sites/default/files/USC IS/Laws/Memoranda/Static_Files_Memoranda/2009/revision_redesign_AFM.PDF.

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2. Any departure after a year or more can trigger the ten-year bar By contrast, the inadmissibility ground for one year of unlawful presence or more in the United States is triggered regardless of the circumstances under which the person leaves the United States (unless the person leaves pursuant to a grant of advanced parole, see below). It will include any departure from the United States whether the person decides to leave on her own or is required to pursuant to removal proceedings. INA § 212(a)(9)(B)(i)(II). 118

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3. Gap in the statute There is therefore a gap in the statute that helps a small number of clients. The State Department found that a person with more than 180 days but less than one year of unlawful presence who leaves the United States after being placed in removal proceedings (either through a removal order or a grant of voluntary departure) is not inadmissible under this ground at all. 119 This creates the odd result that someone who was removed has more benefits under the statute than someone who voluntarily left either of her own volition or under a voluntary departure grant before proceedings were initiated. (Note, however, if the person attempted to return illegally after a removal, she would be inadmissible under the permanent bar discussed in the next section). 4. What is a “departure”? Travel with advance parole should not be considered a departure that triggers the unlawful presence grounds of inadmissibility. 120 In the BIA’s decision in Arrabally and Yerrabelly, the BIA found that the purpose of INA § 212(a)(9)(B)(i)(II) does not apply to someone who left and returned to the United States pursuant to a grant of advance parole. Although the BIA case only specifically addressed a person with a pending adjustment application who travelled with advance parole, the reasoning of this decision arguably applies in other contexts. Since this decision, those with TPS and DACA (Deferred Action for Childhood Arrivals) who previously accrued unlawful presence have also successfully travelled on advanced parole, returned, and adjusted status here in the United States without requiring waivers for unlawful presence. In a memorandum regarding parole in place, USCIS indicated that it agrees with this broad interpretation. 121 Note, however, this interpretation could be revisited under a new administration, so always check for updates. 5. Family hardship waiver Persons with certain U.S. citizen and lawful permanent resident family members can apply for a discretionary waiver of the three- or ten-year bar. The DHS or an immigration judge can grant a waiver to a noncitizen who is the spouse, son, or daughter of a U.S. citizen or lawful permanent resident, if refusing admission to this person would result in extreme hardship to the citizen or permanent resident spouse or parent. INA § 212(a)(9)(B)(v). Note that this particular waiver is 118

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See also Matter of Lemus, 24 I&N Dec. 373 (BIA 2007), vacated by Lemus-Losa v. Holder, 576 F.3d 752 (7th Cir. 2009). 119 See 75 Interpreter Releases 543 (Apr. 20, 1998). 120 Matter of Arrabally and Yerrabelly, 25 I&N Dec. 771 (BIA 2012). 121 USCIS Policy Memorandum (Nov. 15, 2013), available at www.uscis.gov/sites/dafult/files/USCIS/Laws /Memoranda/2013-1115_Parole_In_Place_Memo_.pdf.

not available to a parent of a U.S. citizen or lawful permanent resident (unless the person also qualifies as the spouse, son or daughter of a U.S. citizen or lawful permanent resident). Also, the DHS will not consider hardship to the waiver applicant herself. As of March 2013, certain family members can apply for this unlawful presence waiver in the United States, before leaving the United States to consular process. This is considered a “provisional waiver,” and uses Form I-601A. 122 See Chapter 6 for more information. 6. Exceptions to unlawful presence Under INA § 212(a)(9)(B)(iii), unlawful presence does not accrue for purposes of the three- and ten-year bars during times that the noncitizen: 1. is under 18 years of age; 2. has a bona fide asylum application or bona fide Asylee-Refugee Relative Petition pending, unless the noncitizen works without authorization during that time (the DHS stated in memoranda that the term “bona fide” will be defined generously, as an asylum application that has any arguable basis in law and fact); 123 3. is the beneficiary of Family Unity protection under § 301 of the Immigration Act of 1990; 124 4. was battered or subjected to extreme cruelty by a U.S. citizen or permanent resident spouse or parent, or a U.S. citizen son or daughter or a member of the spouse of parent’s family, where there was a substantial connection between the battery or cruelty and the violation of the terms of the person’s nonimmigrant visa; 5. is a victim of a severe form of trafficking in persons, where the individual can demonstrate that the trafficking is at least one central reason for his or her unlawful presence in the United States. Note that the above exceptions do not apply when assessing the permanent bar under INA § 212(a)(9)(C). Because these exceptions are specifically found in INA § 212(a)(9)(B), USCIS does not apply them to INA § 212(a)(9)(C). B.

Other Cases When Unlawful Presence Is Not Counted

Other kinds of immigration status or procedures also affect unlawful presence for the three- and ten-year bars under INA § 212(a)(9)(B) and the permanent bar under INA § 212(a)(9)(C) (discussed in § 5.13 below). Some of these exceptions are policy determinations by USCIS, rather than statutory exemptions, and are thus subject to change.

122

The regulations relating to the provisional waiver may be found at 8 CFR § 212.7(e). See USCIS, Interoffice Memorandum on Consolidation of Guidance Concerning Unlawful Presence, 29-31 (May 6, 2009), available at www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/Static_Files_ Memoranda/2009/revision_redesign_AFM.PDF. 124 By USCIS policy, this exemption has been extended to Family Unity under § 1504 of the LIFE Act Amendments of 2000, for both § 212(a)(9)(B) and the permanent bar.

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1. People Who Have Affirmatively Applied for Adjustment of Status (i.e., filed their applications for adjustment before USCIS and not in removal proceedings). USCIS policies indicate that properly filed applications for adjustment of status or registry under the following sections of law stop accrual of unlawful presence and toll that accrual until the application is denied, even if it is determined that the individual was ineligible for the benefit in the first place: registry under INA § 249 and adjustment of status under: (1) INA § 209, § 245 and § 245(i); (2) NACARA § 202(b); (3) HRIFA § 902; and (4) Cuban-Haitian Adjustment Act of § 202. 125

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2. Voluntary Departure. The period during which the DHS, an immigration court, or the Board of Immigration Appeals (BIA) grants voluntary departure will not count as unlawful presence for the three- and ten-year bars. If the person granted voluntary departure fails to depart, unlawful presence begins as of the day the voluntary departure period expired. In addition, unlawful presence accrued prior to the grant of voluntary departure still counts against a person for the three- and ten-year bars. If a denial of voluntary departure is reversed on appeal, the time from the denial to the reversal is not considered unlawful presence. Unlawful presence before voluntary departure was granted still counts. 126 3. Authorized Stay for Nonimmigrants. If the person was admitted to the United States as a nonimmigrant, “unlawful presence” is only counted after the expiration date on the person’s I-94 entry document. Unlawful presence does not begin, for example, on the date that the person does something to violate her visa, but only when there is a determination that she is no longer in status. INA § 212(a)(9)(B)(ii). 127 4. Duration of Status for Nonimmigrants. If the person was admitted to the United States as a nonimmigrant for “duration of status” usually indicated by “D/S” on the I-94 or passport stamp, neither the expiration of lawful status nor a violation of the nonimmigrant’s lawful status should trigger the start of unlawful presence.128 However, a decision of an immigration judge would be sufficient to trigger the beginning of unlawful status. This policy applies to people who enter as F-1 students and their dependents or J-1 exchange students, scholars, and visitors and their dependents. It also applies to 125

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USCIS, Interoffice Memorandum on Consolidation of Guidance Concerning Unlawful Presence, 33-34 (May 6, 2009), available at www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/Static_Files_Memo randa/2009/revision_redesign_AFM.PDF. The policies further indicate that, except in cases of NACARA or HRIFA applications, persons filing the listed applications after being served with a Notice to Appear in removal proceedings will not be protected from accrual of unlawful presence. 126 For additional information regarding the effect of reinstatements of voluntary departure, petitions for review, and motions to reopen, see USCIS, Interoffice Memorandum on Consolidation of Guidance Concerning Unlawful Presence, 39-42 (May 6, 2009), available at www.uscis.gov/sites/default/files/USCIS /Laws/Memoranda/Static_Files_Memoranda/2009/revision_redesign_AFM.PDF. 127 Michael Pearson, INS Memorandum (Mar. 3, 2000), available at 77 Interpreter Releases 316 (June 5, 2000). 128 USCIS, Interoffice Memorandum on Consolidation of Guidance Concerning Unlawful Presence, 25 (May 6, 2009), available at www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/Static_Files_Memo randa/2009/revision_redesign_AFM.PDF.

Canadians who enter “uncontrolled” as B-1/B-2 tourists or business visitors, but without an I-94, as they are also considered here for “duration of status.” See 8 CFR 214.1(b). 5. Application to Extend or Change Nonimmigrant Status. The statute indicates that unlawful presence is tolled (stopped) for 120 days for people who apply to extend or change their nonimmigrant status. See INA § 212(a)(9)(B)(iv)(III). However, given DHS backlogs, the DHS has interpreted the statute to mean that the clock is stopped for up to the length of time it takes the DHS to adjudicate a change or extension of status. This applies only to certain people who timely apply to extend or change their nonimmigrant status (e.g., extend a visitor’s visa). Although the statute states that this exception applies to the three-year bar only, USCIS policies indicate that it will extend the tolling protections to the ten-year and permanent bars as well, provided several requirements are met, including that (1) the non-frivolous request for extension or change of status was timely filed; (2) the individual has not engaged in unauthorized employment either before or during the pendency of the application; and (3) the individual’s status has not lapsed prior to the filing of the request. 129 6. Lawful Permanent Residents. LPRs in removal proceedings do not begin to accrue unlawful presence until the issuance of a final administrative order by an immigration judge or the BIA terminating LPR status. 130 7. Lawful Temporary Residents. Unlike conditional residents (see below), LTRs pursuant to INA § 245A(b) do not automatically begin accruing unlawful presence following the expiration of their temporary residence status. Rather, LTRs do not accrue unlawful presence until issuance of a notice of termination by DHS (but administrative appeals of this notice toll unlawful presence), or until the commencement of removal proceedings. 131 8. Pending Applications for Legalization or Special Agricultural Worker Status under INA § 245A or § 210, or § 1104 of the LIFE Act, if properly filed, will also stop the accrual of unlawful presence until a final administrative denial.132 9. People with Family Unity Protection under both § 301 of the Immigration Act of 1990 (IMMACT 90) and § 1504 of the LIFE Act Amendments of 2000. 133

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For additional information regarding the effect of departure on certain immigration applications, such as applications for extension of status or change of status or motions to reopen, see USCIS, Interoffice Memorandum on Consolidation of Guidance Concerning Unlawful Presence, 35-38 (May 6, 2009), available at www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/Static_Files_Memoranda/2009/rev ision_redesign_AFM.PDF. 130 Id. at 44. 131 Id. at 22–23. 132 Id. at 38. 133 Family unity under § 301 of IMMACT 90 is a statutory exception under § 212(a)(9)(B) but only a policy exception for § 212(a)(9)(C); Family Unity under § 1504 of the LIFE Act Amendments of 2000 is a policy exception for both § 212(a)(9)(B) and § 212(a)(9)(C).

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10. Pending Applications for TPS. If properly filed, a TPS application will only cure unlawful presence retroactively until the time of filing if the application is approved. If the application is denied, unlawful status will have accrued since the time the previous authorized stay expired. 134

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11. Stay of Removal. Persons granted a stay of removal do not accrue unlawful presence during that period, including automatic stays granted as a result of motions to rescind an order of removal in absentia. 135 12. Deferred Action. Individuals granted discretionary deferral of removal or deferred action will not accrue unlawful presence during the period for which deferral is granted. 136 Likewise, someone granted deferred action for childhood arrivals (DACA) will not accrue unlawful presence once the application is granted. If a person files for DACA prior to their eighteenth birthday, the application is granted and that person still has DACA, USCIS will consider that person not to have accrued unlawful presence. 13. Withholding of Removal or Deportation. Unlawful presence ceases during the period for which withholding of removal or deportation is granted. 137 14. Withholding or Deferral of Removal under the Convention Against Torture (CAT) stops accrual of unlawful presence through the period of the grant. 138 15. Deferred Enforced Departure (DED) commences authorized stay on the date specified and ends when the DED is no longer in effect. 139 16. Satisfactory Departure granted under 8 CFR § 217.3 does not subject an individual to accrual of unlawful presence during the satisfactory departure period. Should the individual remain following the expiration of this period, unlawful presence begins to accrue the day after expiration. 140 C.

Time Periods That Do Count as Unlawful Presence 1. Time spent in removal/deportation proceedings does count as unlawful presence time unless the person has a valid non-immigrant visa during the proceedings, is renewing an affirmative application for adjustment of status in removal proceedings, or has a pending bona fide asylum application, as described in the exceptions above. 141

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134 USCIS, Interoffice Memorandum on Consolidation of Guidance Concerning Unlawful Presence, 38-39 (May 6, 2009), available at www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/Static_Files_Memo randa/2009/revision_redesign_AFM.PDF. 135 Id. at 42. 136 Id. 137 Id. 138 Id. at 43. 139 Id. 140 Id. 141 Note, however, that if someone files a defensive application for adjustment of status in removal proceedings, meaning the application was never filed with USCIS, the applicant does accrue unlawful presence in removal proceedings. See id. at 45.

2. Conditional residents who do not timely file a petition to become LPRs will automatically become “unlawfully present” on the date the conditional status expires. In the narrow set of circumstances in which late filings by conditional residents are permitted, acceptance and approval of such a filing will cure unlawful presence back to the expiration of the conditional status. 142 3. Persons admitted due to false claim of citizenship are regarded by USCIS as not admitted or inspected, and thus all time spent in the United States subsequent to such entry is regarded as unlawful presence unless some other authorization exists. D.

The Person Must Leave the United States in Order to Come within This Ground of Inadmissibility

The three- and ten-year bars only apply where the noncitizen seeks admission to the United States after departure or removal. Thus, it does not apply, no matter how long a noncitizen has been unlawfully present, if the person never departs the United States. Some people are eligible to immigrate through family members at their local DHS office, in a process called adjustment of status. Those people fortunate enough to adjust their status do not have to depart the United States, and so the three- and ten-year bars will not apply to them regardless of how much unlawful presence they have accumulated, so long as they have not left the United States. Others must leave the United States and go to a U.S. consulate in the home country in order to immigrate. By leaving the United States, they trigger this ground, and their unlawful presence will be counted against them. They must qualify for a waiver excusing such unlawful presence. If travel is necessary, your clients should try to obtain advance parole if at all possible to avoid triggering the three- and ten-years bars. See Subsection A, above. § 5.13 “Permanent Bar” to Persons Who Were Unlawfully Present for More than One Year or Were Ordered Removed and Who Enter or Attempt to Enter without Being Admitted A more severe ground of inadmissibility punishes people who are here unlawfully or are removed, and then re-enter or try to re-enter unlawfully instead of applying for admission. A noncitizen is subject to this ground if: 1. She has been unlawfully present in the United States for an aggregate period of more than one year beginning on April 1, 1997 143 and then enters or attempts to re-enter the United States without being admitted. See INA § 212(a)(9)(C)(i)(I); or 2. She was ordered deported or removed (regardless of how much unlawful presence she had), and then enters or attempts to re-enter the United States without being admitted after April 1, 1997. The DHS will count any unlawful re-entry after April 1, 1997, even if the deportation occurred before that date. See INA § 212(a)(9)(C)(i)(II). 142

Id. at 23. As noted above, the date that unlawful presence counts from could change in a subsequent court case. See, e.g., Carrillo de Palacios v. Holder, 651 F.3d 969 (9th Cir. 2011), vacated by Carrillo de Palacios v. Holder, 662 F.3d 1128 (9th Cir. 2011), withdrawn and superseded by Carrillo de Palacios v. Holder, 708 F.3d 1066 (9th Cir. 2013).

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This bar is permanent, and does not expire after a period of time, unlike the three- or ten-year bar. Those subject to this provision cannot even apply for a discretionary waiver of this ground until ten years after their last departure from the United States. INA § 212(a)(9)(C). Because this provision is so harsh, it has been dubbed the “permanent bar.” Notice that an important difference between the permanent and the three- and ten-year bars is that the person must enter or attempt to enter without admission to come within the permanent bar.

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Immigration advocates should see a red flag any time that a person says that she entered the United States illegally after April 1, 1997. If the person ever was deported in her life before that re-entry, or if the person spent one year or more in the United States after April 1, 1997 before that re-entry, the illegal re-entry triggers the permanent bar and destroys hope of immigration through a family petition, until the person has spent ten years outside the United States. See Subsection E for information on waivers of the permanent bar in limited circumstances. A.

Parole and the Permanent Bar

By statute, INA § 212(a)(9)(C) punishes those who either accrue a year of unlawful presence or who have been removed, deported, or excluded, then enter or attempt to enter the United States without being admitted. Parole is not an “admission” as defined in the INA. See INA § 101(a)(13)(B). However, USCIS does not consider parole pursuant to INA § 212(d)(5) to be an illegal reentry without admission that will trigger the permanent bar. This is both because a person who is paroled into the United States has obtained official permission, and because a person with parole is still considered an applicant for admission. Therefore, reentry by parole does not trigger the permanent bar. 144 B.

Exceptions to Unlawful Presence for the “Permanent Bar”

As noted in § 5.12, USCIS has interpreted the term “unlawful presence” differently for the threeand ten-year bars and for the permanent bar in § 212(a)(9)(B). The following types of status are not considered “unlawful presence” for purposes of both the permanent bar and the unlawful presence bars in INA § 212(a)(9)(B) under current USCIS policy. 145 The exceptions are listed below; please see § 5.12 above for details on each. 1. 2. 3. 4. 5. 6.

Unlawful presence before April 1, 1997; People who have affirmatively applied for adjustment of status or registry; Voluntary departure; Authorized stay for nonimmigrants; Duration of status for nonimmigrants; Application to extend or change nonimmigrant status; 146

144

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USCIS, Interoffice Memorandum on Consolidation of Guidance Concerning Unlawful Presence, 16-18 (May 6, 2009), available at www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/Static_Files_Memo randa/2009/revision_redesign_AFM.PDF. 145 Remember, however, that the permanent bar can be triggered either by a year of unlawful presence prior to departure and illegal return, or by a prior deportation, removal, or exclusion order, if the noncitizen reenters to attempts to re-enter the United States illegally after April 1, 1997. 146 For additional information regarding the effect of departure on certain immigration applications, such as applications for extension of status or change of status or motions to reopen, see USCIS, Interoffice

7. Lawful permanent residents (until a final order of removal); 147 8. Lawful temporary residents (until termination or commencement of removal proceedings); 148 9. People with family unity protection; 10. Pending applications for legalization or special agricultural worker status; 149 11. Pending applications for TPS; 150 12. Stay of removal; 151 13. Deferred action; 14. Withholding of removal or deportation; 15. Withholding or deferral of removal under the Convention Against Torture (CAT); 16. Deferred enforced departure (DED); and 17. Satisfactory departure granted under 8 CFR § 217.3. C.

Differences between Unlawful Presence for the Three- and Ten-Year Bars in INA § 212(a)(9)(B) and the Permanent Bar in INA § 212(a)(9)(C)

Because USCIS interprets the unlawful presence statute as providing more generous exceptions and waivers for the three- and ten-year bars in INA § 212(a)(9)(B) than for the permanent bar in INA § 212(a)(9)(C), it is important to be aware of the following differences. 152 1. Minors are not exempt from accumulating unlawful presence for the permanent bar, according to USCIS policy and the U.S. Consulate in Ciudad Juarez.

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2. Certain exemptions from unlawful presence found in INA § 212(a)(9)(B) (such as battered women) 153 are not deemed to apply to unlawful presence in INA § 212(a)(9)(C). USCIS takes this position, holding that these “statutory” exemptions (listed under § 5.12 Exceptions to Unlawful Presence), apply only to the three- and ten-year bars, and not the permanent bar. 154

Memorandum on Consolidation of Guidance Concerning Unlawful Presence, 35-38 (May 6, 2009), available at www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/Static_Files_Memoranda/2009/rev ision_redesign_AFM.PDF. 147 Id. at 44. 148 Id. at 22–23. 149 Id. at 38. 150 Id. at 38–39. 151 Id. at 42. 152 The ILRC believes that some of the distinctions USCIS makes between the definition of unlawful presence for INA § 212(a)(9)(B) and § 212(a)(9)(C) are arbitrary and should be challenged. Nevertheless, until these interpretations are successfully challenged, they will be difficult to overcome. 153 Under certain circumstances a person applying for benefits under the Violence Against Women Act will not be subject to the permanent bar. See the ILRC’s VAWA Manual: Immigration Relief for Abused Immigrants for additional information. 154 USCIS, Interoffice Memorandum on Consolidation of Guidance Concerning Unlawful Presence, 28-29 (May 6, 2009), available at www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/Static_Files_Memo randa/2009/revision_redesign_AFM.PDF.

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3. The permanent bar counts the “aggregate” (added together) periods of unlawful presence beginning on April 1, 1997 in calculating the one-year limit. For the three- and ten-year bars, the DHS will only consider continuous unlawful presence of 180 days or one year. If a person was in unlawful presence from July to December 2013 then left and returned from February to November of 2014, she would not have a total of one year or more for the ten-year bar because there would be no continuous one-year period. However, she would have over one year of unlawful presence for the permanent bar, because the DHS counts the total time spent in unlawful presence since April 1, 1997. D.

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Prior Deportations and the “Permanent Bar”

The permanent bar can also be triggered by a prior deportation, removal, or exclusion order under § 235(b)(1), § 240, or any other provision of law, followed by an unlawful return to the United States. INA § 212(a)(9)(C)(i)(II). According to DHS, even deportations that occurred before April 1, 1997 trigger the permanent bar, if the person makes or attempts an illegal re-entry after April 1, 1997. 155 The BIA and courts have upheld this position. 156 To date, this provision has not been applied to those who have both been deported before April 1, 1997 AND re-entered before April 1, 1997. 157 While INA § 212(a)(9)(C)(i)(II) has not been applied to those who re-entered after a removal order but before April 1,1997, reinstatement of removal provisions still apply. See § 5.16. This means that if DHS determines the person has already been ordered removed, DHS can act to deport that person without further proceedings. Thus, any prior order of removal puts an applicant at risk. E.

Waivers of the “Permanent Bar”

There are some narrow circumstances in which the permanent bar can be overcome: 1. Once ten years have passed, the person can ask for consent from DHS to reapply for admission before trying to enter from outside the United States or attempting to be readmitted from a country abroad. Consent from DHS does not authorize a person to be admitted or authorize a person to re-enter the United States without admission, but merely allows the person to apply for admission. INA § 212(a)(9)(C)(ii).

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155 Federal immigration agencies have long interpreted this provision as applying “to those aliens ordered removed before or after April 1, 1997, and who enter or attempt to reenter the United States unlawfully any time on or after April 1, 1997.” INS, Memorandum, (June 17, 1997), reprinted at 74 Interpreter Releases 1033 (emphasis added). The statute does specifically apply to those who were “ordered removed under section 235(b) [expedited removal], section 240 [removal proceeding] or any other provision of law.” INA § 212(a)(9)(C)(i)(II). 156 See, e.g., Carrillo de Palacios v. Holder, 708 F.3d 1066 n.3 (9th Cir. 2013); Morales-Izquierdo v. Dep’t of Homeland Sec., 600 F.3d 1076, 1079 (9th Cir. 2010) (finding alien inadmissible because of a September 14, 1994 order of removal). 157 See, e.g., Matter of __, San Francisco (AAO Dec. 29, 2011), published on AILA InfoNet at Doc. No. 12010465; Matter of __, VSC, 2008 WL 5063531 (AAO Aug. 26, 2008); Matter of __, DD, Chicago, Ill. 2008 WL 4051676 (AAO Apr. 29, 2008).

2. HRIFA and NACARA applicants can file a waiver of the permanent bar on Form I-601; the standard of adjudication is the same as if the applicant were filing form I-212. See 8 CFR § 245.13(c)(2); 8 CFR § 245.15(e)(3). 3. For legalization, SAW, LIFE Act Legalization, and Legalization Class Settlement Agreement Applicants, INA § 212(a)(9)(C) can be waived based on humanitarian reasons, to ensure family unity, or if it is in the public interest. 4. For TPS Applicants, INA § 212(a)(9)(C) can be waived based on humanitarian reasons, to ensure family unity, or if it is in the public interest. However, this waiver does not serve a TPS grantee who applies for adjustment of status. 5. VAWA self-petitioners can apply for a waiver of § 212(a)(9)(C) on Form I-601 if they can establish a connection between the abuse suffered and the unlawful presence, the removal, and the subsequent illegal re-entry. 6. Asylee and refugee adjustment applicants under INA § 209(c) can file a waiver. The waiver can be granted based on humanitarian reasons, to ensure family unity, or if it is in the public interest. 7. It is possible, although not necessarily likely, for a nonimmigrant to be granted a waiver of § 212(a)(9)(C) under INA § 212(d)(3). The form for a waiver of inadmissibility for a nonimmigrant is Form I-192. The nonimmigrant should make the application when applying for the nonimmigrant visa abroad. 158 8. U visa applicants can apply for a waiver of § 212(a)(9)(C), and are eligible to adjust status notwithstanding § 212(a)(9)(C). See INA § 245(m). 9. Special Immigrant Juveniles are eligible for a waiver of § 212(a)(9)(C) for humanitarian purposes, family unity, or when it is otherwise in the public interest. See INA § 245(h)(2)(B). 10. T visa applicants can apply for a waiver of § 212(a)(9)(C). See 8 CFR 212.16. 11. Registry under INA § 249 permits someone who has been residing continuously in the United States since January 1, 1972, possesses good moral character, and is not ineligible for citizenship and not deportable under INA § 237(a)(4)(B) to apply for adjustment of status to permanent residence. Applicants for Registry under INA § 249 are not subject to the permanent bar.

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12. Non-LPR cancellation of removal under INA § 240A(b) does not require that a person is admissible under this provision. Section 240A(b) cancellation is likely to benefit only those who are subject to the permanent bar due to unlawful presence. Those who have a prior deportation order are likely to be subject to reinstatement of removal, 159 and thus

158 These exceptions are found in USCIS, Interoffice Memorandum on Consolidation of Guidance Concerning Unlawful Presence, 49-50 (May 6, 2009), available at www.uscis.gov/sites/default/files/USCIS /Laws/Memoranda/Static_Files_Memoranda/2009/revision_redesign_AFM.PDF. 159 See § 5.16.

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would not have a right to a hearing to pursue § 240A(b) cancellation of removal as a remedy. F.

INA § 245(i) Adjustment and the “Permanent Bar”

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Adjustment of status is the process by which someone applies for an immigrant visa within the United States, rather than at a U.S. consulate abroad. Normally, an applicant for adjustment of status through a family member or through employment must have been “inspected and admitted or paroled” into the United States in order to be eligible to adjust status. Except for immediate relatives, 160 the applicant must also have maintained lawful immigration status prior to applying for adjustment. See INA § 245(a). See Chapter 3. INA § 245(i) is a special adjustment provision that allows those who are unlawfully present within the United States and who entered without inspection to adjust their status if a relative or employer filed an immigration visa petition or labor certification on their behalf on or before April 30, 2001, and if they pay a penalty fee. 161 It is the official position of DHS that those persons described in both provisions of the permanent bar under INA § 212(a)(9)(C)(i) are ineligible for adjustment of status under INA § 245(i). 162 The government’s position is based on BIA decisions. 163 At the time of this manual’s writing, most courts have found either that the BIA’s interpretation is reasonable, or that they must give deference to the BIA’s interpretation of the law. 164 Thus, unless a person is in a limited class of applicants that filed at a time such that their adjustment was already pending before the change in law, an application for adjustment under INA § 245(i) does not cure a violation of the permanent bar. A person can only adjust under § 245(i) if she did not trigger the permanent bar. § 5.14 Failure to Attend Removal Proceedings Noncitizens who without reasonable cause fail to attend their removal proceedings are inadmissible for a period of five years following their subsequent departure or removal from the United States. INA § 212(a)(6)(B). The five-year period does not begin until after the person leaves the country. This ground can be triggered by any departure after someone has failed to attend a hearing without reasonable cause, even if the departure is on advance parole. This 160

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Immediate relatives are the parents, spouses, and minor children of U.S. citizens, and some battered women and children under VAWA. 161 Those whose visa petitions or labor certifications were filed between January 15, 1998 and April 30, 2001 must also prove that they were physically present in the United States on December 20, 2000. See Unit 7. Derivative children and spouses also benefit from this provision. 162 USCIS, Interoffice Memorandum on Consolidation of Guidance Concerning Unlawful Presence, 20 (May 6, 2009), available at www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/Static_Files_Memo randa/2009/revision_redesign_AFM.PDF. 163 Matter of Briones, 24 I&N Dec. 355 (BIA 2007); Matter of Torres-Garcia, 23 I&N Dec. 866 (BIA 2006). 164 See Garfias-Rodriguez v. Holder, 702 F.3d 504 (9th Cir. 2012) (en banc) (reversing the Ninth Circuit’s previous holding in Acosta v. Gonzales, 439 F.3d 550 (9th Cir. 2006)); Mora v. Mukasey, 550 F.3d 231, 239 (2nd Cir. 2008); Ramirez-Canales v. Mukasey, 517 F.3d 904, 910 (6th Cir. 2008); Matter of LemusLosa, 24 I&N Dec. 355 (BIA 2007), vacated by Lemus-Losa v. Holder, 576 F.3d 752 (7th Cir. 2009).

provision took effect on April 1, 1997, and there is no waiver. This only applies to removal hearings; it does not apply to noncitizens who failed to attend their deportation or exclusion hearings begun prior to April 1, 1997. 165 In order to establish inadmissibility, the person must have actually been in removal proceedings under INA § 240, initiated by the filing of a Notice to Appear (NTA) with the immigration court. 8 CFR § 1003.14(a). USCIS concedes that all three criteria must be met for the person to be inadmissible under this ground: 1) the NTA was filed with the immigration court; 2) the record establishes that the person had notice of the proceedings and obligation to appear; and 3) the person failed to attend her removable proceedings without reasonable cause. 166 USCIS considers “constructive” notice adequate to establish notice in this context. 167 Note that noncitizens who fail to attend removal or deportation proceedings after receiving notice may be further punished in several ways, aside from this ground of inadmissibility. An immigration judge can enter an in absentia removal order against the person. 168 Under current law, if someone receives an in absentia removal order and cannot show that lack of notice or “exceptional circumstances” prevented her from attending the hearing, she will be barred from applying for most kinds of relief for ten years. See INA § 240(b)(7). Oral notice of the hearing in the person’s own language or a language the person understands is required for this provision to apply. Exceptional circumstances are defined under INA § 240(e) as: battery or extreme cruelty to the person in removal proceedings or to any child or parent of that person; the person’s serious illness; the serious illness or death of an immediate family member; or something equally serious that is beyond the control of the applicant. 169 In cases that arose before IIRIRA, noncitizens must show that there was a “reasonable cause” to justify their failure to appear, which is a lower standard than the “exceptional circumstances” required by IIRIRA. If they cannot make this showing, they will be barred from relief for five years. INA § 240(b)(7). USCIS policies indicate that “reasonable cause” is generally regarded as “something that is not within the reasonable control of the alien.” 170 Ultimately, these policies direct the officer considering an application for admission, adjustment of status, or other relief, to 165

Virtue, Acting Exec. Assoc. Comm., Memorandum, HQ IRT 50/51.2, 96 Act 043 (June 17, 1997). See USCIS, Section 212(a)(6) of the INA, Illegal Entrants and Immigration Violators, at 12 (Mar. 3, 2009), available at www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/Static_Files_Memoranda/2 009/section212_a_6_immi_natl_act_illegal_violators.pdfp; see also Matter of G-Y-R-, 23 I&N Dec. 181 (BIA 2001). 167 USCIS, Section 212(a)(6) of the INA, Illegal Entrants and Immigration Violators, at 13 (Mar. 3, 2009), available at www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/Static_Files_Memoranda/2009/sec tion212_a_6_immi_natl_act_illegal_violators.pdfp. 168 Id. 169 Id.; see also Matter of N-B-, 22 I&N Dec. 590 (BIA 1999) (finding that reasonable cause is less stringent than the exceptional circumstances standard and holding that serious illness that required later surgery was sufficient to meet burden); Matter of Ruiz, 20 I&N Dec. 91 (BIA 1989) (finding a properly documented illness a valid excuse for failure to appear). 170 USCIS, Section 212(a)(6) of the INA, Illegal Entrants and Immigration Violators, at 14 (Mar. 3, 2009), available at www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/Static_Files_Memoranda/2009/sec tion212_a_6_immi_natl_act_illegal_violators.pdfp.

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make an independent determination based upon the “reasonable cause” standard after considering the evidence presented in the pending application.

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§ 5.15 Past Removal or Deportation/Exclusion A.

Past Removal/Deportation Exclusion

Before IIRIRA, a person who had been deported was inadmissible for five years, and a person who had been excluded was inadmissible for one year, following the departure from the United States. IIRIRA increased these penalties and applied them retroactively. See INA § 212(a)(9)(A). Under current law, the following persons are inadmissible for ten years following their departure from the United States: 1. People who were ordered removed under INA § 240, not arising from time of arrival (i.e., in any removal proceedings except those initiated at arrival); 2. People who left the United States after an order of removal was outstanding; and 3. People who were ordered excluded or deported (i.e., under the pre-IIRIRA deportation or exclusion proceedings). The law imposed a new, retroactive penalty on people in the third category, who at the time they were excluded or deported would have been inadmissible only for one or five years. Recognizing this, the DHS has stated that these people will have some advantage in terms of applying for a waiver. See Chapter 6. A person who is subject to an expedited removal order at the border or a removal order from an immigration judge after proceedings initiated immediately upon the person’s arrival in the United States relating to the person’s “admissibility” is then subsequently inadmissible for a period of five years after the date of their removal. INA § 212(a)(9)(A). 171 Anyone with a prior order is inadmissible for twenty years if she has been ordered excluded, deported, or removed more than once. People who were removed and who have an aggravated felony conviction are inadmissible, without a time limitation. A waiver is possible in all these situations. This inadmissibility ground is triggered upon any departure from the United States, including advance parole. B.

Waiver

The DHS can waive this ground of inadmissibility, under INA § 212(a)(9)(A)(iii). The government asserts that this can only be done before the person returns to the United States, and the BIA agrees. See Matter of Torres-Garcia, 23 I&N Dec. 866, 873 (BIA 2006). For people who will consular process, and trigger this ground of inadmissibility upon leaving the country to consular process, it is possible to file an I-212 waiver before departing. See Chapter 6 for more information. Order of Exclusion or Deportation before IIRIRA. DHS has stated that unless there are negative factors, it will grant the waiver if the person has already stayed out of the United States 171

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Before IIRIRA, people who had been ordered “excluded” were inadmissible for only one year following the exclusion order.

for five years past a deportation/removal, or one year past an exclusion/removal for inadmissibility, 172 although the current bar that applies to them is ten years. In other words, DHS appears to be willing to give a break to people who already have stayed out at least as long as they were required to before IIRIRA passed. Note, however, that there is no time limit as to when DHS can grant a waiver. DHS can grant a waiver of inadmissibility under this ground on the day after someone was removed. Example: Manuel was deported in 2010 under an old Order to Show Cause. His U.S. citizen daughter wants to immigrate him. Manuel remains inadmissible for ten years, until 2020, under current law. However, DHS has said that it will be generous in granting waivers for people like Manuel who have already stayed out five years. § 5.16 Reinstatement Reinstatement is not a ground of inadmissibility, but it is important to remember. If a person who was deported or removed re-enters the United States without permission, DHS may be able to reinstate the old order and remove the person without any further consideration. INA § 241(a)(5). A.

Important Warning about the Automatic Reinstatement of Prior Deportation or Removal Order

If a person illegally re-enters after being deported or removed, DHS can simply “reinstate” the prior deportation or removal order and remove the person, without giving the person the opportunity to apply for any other relief such as cancellation, asylum, or adjustment of status. Under the statute, someone subject to reinstatement is “not eligible and may not apply for any relief.” See INA § 241(a)(5). This refers to actually having a formal notice of intent to reinstate issued. The only exception is if the person will apply for withholding of removal, protections under the Convention Against Torture, or NACARA. See 8 CFR 1241.8(d), (e). Effective Date. The U.S. Supreme Court has held that reinstatement applies retroactively to all prior deportations and exclusions before and after April 1, 1997, and to all illegal entries after deportation or exclusion, whether before or after April 1, 1997. In other words, it does not matter when the person returned to the United States. She is subject to reinstatement if she returned unlawfully any time after a deportation or exclusion order. Fernandez-Vargas v. Gonzales, 548 U.S. 30 (2006). Because this is a ruling from the U.S. Supreme Court it is binding law throughout the country.

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Before IIRIRA, people who had been ordered “excluded” were inadmissible for only one year. Under pre-IIRIRA law, the factors to be considered in whether or not to grant a waiver of the prior deportation or exclusion included the person’s character, hardship to family members, person’s length of residence in the United States, rehabilitation, and why and how recently the person was deported. See, e.g., Matter of Tin, 14 I&N Dec. 371 (Reg. Comm’r. 1973). These factors should still be applicable to applications for waivers of removal or deportation under IIRIRA.

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Most federal circuit courts, however, have ruled that there is still an exception to reinstatement under Fernandez-Vargas for a person who, before the effective date of IIRIRA (April 1, 1997) had already taken steps to change status, such as applying for adjustment of status. 173 B.

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Effect of Filing for Adjustment of Status under INA § 245(i) Prior to Reinstatement

Because there is the possibility of reinstating a prior removal order, it is risky for those that would otherwise be eligible to adjust to apply. This risk relates only to those with very old removal orders that somehow now have adjustment eligibility. Example: Miguel was deported in 1984. He came back to the United States with a fake visa in 1996. Now he wants to apply for adjustment of status through his U.S. citizen wife under INA § 245(a). Is it safe for him to do that? Miguel is subject to reinstatement of removal (in addition to having a fraud problem). DHS may reinstate his prior deportation order at any time. In many districts, USCIS will adjudicate an adjustment application before referring such a case to ICE for removal, barring other negative factors such as certain criminal convictions. Nonetheless, it is unclear whether this policy will remain intact. In addition, should the adjustment application be denied, Miguel will be facing reinstatement for certain. Someone in Miguel’s situation will need to weigh the risks and consider his alternatives before filing to adjust. WARNING: Severe penalties apply to people who fail to attend their removal hearing, fail to depart under voluntary departure, or who disobey other laws relating to removal/deportation. Any person in the United States with a prior deportation order must obtain legal counseling and understand all her options before approaching DHS. If you are not a highly skilled and experienced attorney or accredited representative, you should seriously consider referring out a case where the government might attempt to reinstate a prior removal or deportation order. PART THREE: CRIMES AND THE GROUNDS OF INADMISSIBILITY GENERAL APPROACH: Be Cautious, but Don’t Give Up Hope. This area of the law is extremely complex and constantly changing, and even small criminal convictions can have terrible immigration consequences. Still, it is possible that your client has some hidden defense arguments that you do not suspect, even if the case looks like a lost cause. In many cases skilled attorneys have won terrific and surprising victories in this area. The rule is, if you think there is any danger that a conviction will cause immigration problems, do not send the person to immigration authorities, and do not concede that the person is removable. If you need it, get help in your analysis. Unless you are a real expert, often the best help that you can provide is (a) to refer the case out to an expert, and (b) at the same time, start the process of locating their criminal 173

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See Arevalo v. Ashcroft, 344 F.3d 1 (1st Cir. 2003); Faiz-Mohammed v. Ashcroft, 395 F.3d 799, 809-10. (7th Cir. 2005); Lopez-Flores v. DHS, 387 F.3d 773 (8th Cir. 2004); Ixcot v. Holder, 646 F.3d 1202 (9th Cir. 2011); Valdez-Sanchez v. Gonzales, 485 F. 3d 1084 (10th Cir. 2007); Sarmiento-Cisneros v. Ashcroft, 381 F.3d 1277 (11th Cir. 2004).

court records, which the expert will need to see. For a thorough analysis of the immigration consequences of crimes, refer to the ILRC’s Defending Immigrants in the Ninth Circuit: Impact of Crimes under California and Other State Laws. 174 § 5.17 Clients with Criminal Records People who have been convicted of certain crimes, or who have done certain “bad acts” without being convicted, can be removed. Problems with drugs, crimes involving moral turpitude (such as fraud, theft, or violence), prostitution, firearms, sexual crimes, and a host of other offenses can cause problems. Even very minor offenses can make the person inadmissible, deportable, or unable to establish good moral character. In addition, a large group of offenses, ranging from murder to alien smuggling to theft have been designated as aggravated felonies. Convictions may fit this category even in cases where the sentence was suspended. Also, many misdemeanor non-violent offenses qualify as “aggravated felonies.” Aggravated felonies carry the most severe immigration consequences. See § 5.27. If there is any chance that your client has been arrested or convicted of a crime, you must find out all the facts and analyze the case. Do not rely on the client’s memory. Often people who go through the criminal court system do not understand or are not clearly told what has happened. Also, many people are embarrassed about criminal problems and may understate what really happened. You, or whoever handles the criminal part of the case, must obtain the facts and do the analysis. If possible, the best time to do this is before the client has any contact with any immigration authority. Getting the Facts. To properly analyze the case we need to see the client’s official criminal records. Tell the client that DHS will have the person’s complete criminal record. DHS will obtain this record by sending the person’s fingerprints to the FBI. We need to have at least as much information as DHS in order to prepare a defense. Three records are most important: 1. Get a copy of the FBI report. The FBI report will show arrests from state, local, and federal agencies nationwide. DHS or the U.S. consulate will generally have this. If you get a copy as well, then you will know what DHS or the consulate will see. 2. Client’s State Rap Sheet. We need state rap sheets because FBI reports are often wrong or do not contain enough detail. This document will ensure that you get your client’s entire criminal record in a particular state. Note, each state has a different procedure to obtain criminal records. For directions, see Appendix 5-F. 3. Get a complete copy of the record from the court where the client was convicted. This last step is important. A representative cannot rely on just a rap sheet to assess whether or not a particular conviction might trigger immigration consequences. A complete copy of

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Additionally, the ILRC provides free practice advisories and updates on criminal issues in immigration law. See www.ilrc.org/crimes.

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the court records is essential to properly analyze any criminal disposition. Check the court’s website or call the court clerk to get the requirements for obtaining these records. In many states, Superior Courts handle felonies and Municipal Courts handle misdemeanors. There is often a fee to obtain a copy of the entire file. Once you get the record, it will help to determine the immigration consequences of the conviction(s).

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For more information about obtaining records, see the ILRC’s manual, FOIA Requests and Other Background Checks: A Practical Guide for Filing Records Requests in Immigration Cases, available at www.ilrc.org/publications. Doing the Analysis. To analyze a criminal case, we must answer several questions. 1. Is the person inadmissible or deportable because of a conviction or criminal conduct? 2. If the person is in removal proceedings, what ground of inadmissibility or deportability is the client charged with? 3. What potential relief is available? For example, is the client eligible for a waiver? Even if the person is not charged with removability, does the crime impact eligibility for relief? 4. Is the conviction an aggravated felony? 5. Can the person eliminate the conviction under state law by using some form of postconviction relief? If so, will the post-conviction relief eliminate the conviction for immigration purposes? This area of the law is complex. To start, it is important to identify the rules that apply under the most current caselaw. Federal courts and the Board of Immigration Appeals issue frequent decisions that can change the immigration consequences of an offense, and some of these changes apply retroactively to past convictions. In addition, each state has its own criminal laws and ways of clearing up criminal records. If the client has been convicted in state court, we need to understand exactly how DHS views the laws of that particular state. Resources. Special books are available. See “For Further Information” at the end of this chapter. In addition, it is a good idea to consult with a back-up center or an expert immigration attorney. If you need to get information about state criminal law and sentencing, it is sometimes possible to get information by calling the Office of the Public Defender in the county where the person was convicted. § 5.18 What Is a Criminal Conviction? Many, but not all, of the criminal grounds of inadmissibility require the person to have been convicted of a crime. If we can show that there is no conviction, in many cases the inadmissibility ground may not apply. But practitioners also must be aware of the criminal inadmissibility grounds that are based on mere conduct, and thus apply even without a conviction, such as admitting to certain drug or moral turpitude offenses or where the government asserts that it has “reason to believe” the person ever has been or helped a drug trafficker. Additionally, where grounds are triggered by conduct alone, but where a conviction exists, the conviction will provide additional evidence for DHS that the person committed the conduct.

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Finally, sometimes a person can be charged with a crime and go to court, but not receive a “conviction” for immigration purposes. This takes place in several contexts: 1. 2. 3. 4. 5. 6. 7.

An acquittal; A deferred prosecution, plea, or in some cases, sentence; Juvenile delinquency dispositions; Cases on direct appeal might not be a conviction in some circuits; Dismissal under a pre-plea diversion scheme; Judgments vacated for cause; and Infractions (sometimes).

For more information about each of these, see the ILRC’s free practice advisory on what a conviction is for immigration purposes, § N.2 Conviction, available at www.ilrc.org/chart, or ILRC’s manual, Inadmissibility & Deportability, available at www.ilrc.org/publications. § 5.19 What Evidence Can the DHS Submit to Show a Conviction? Section 101(a)(3)(B) of the INA sets out rules for what evidence can be used to show that a conviction occurred. Advocates who go to court do not want to simply admit that a conviction exists. Rather, we want to hold the DHS to its burden of proof and make the DHS produce good evidence of a conviction. In case you need to produce evidence of a conviction—for example, to prove that the conviction was for a less serious offense than what the DHS says—it is a good idea to try to follow these rules. A few examples are the original or a certified copy of: • • • • • • •

An official record of judgment and conviction. An official record of plea, verdict and sentence. A docket entry, from court records that indicates the existence of the conviction. Official minutes of a court proceeding or a transcript of a court hearing in which the court takes note of the existence of the conviction. An abstract of a record of conviction prepared by the court. Any document or record prepared by, or under the direction of, the court in which the conviction was entered that indicates the existence of the conviction. Any document or record showing the conviction that is maintained by a jail or prison as their basis for holding the person.

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The regulation at 8 CFR § 1003.41 contains a similar list, but goes further by adding a catchall category which states, “any other evidence that reasonably indicates the existence of a criminal conviction.…” This suggests that documents not listed in INA § 240(c)(3)(B) may be considered by the court as proof of existence of a conviction based on the circumstances of the case. However, whenever the government presents documents to prove a conviction which are not included in INA § 240(c)(3)(B), counsel should challenge the sufficiency of that evidence, and should argue that 8 CFR § 1003.41 is “ultra vires,” meaning that a regulation goes beyond the

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scope of the statute, and is therefore unenforceable. Note that certain electronic documents must be authenticated or reliable to be admissible.175

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§ 5.20 What Is a Sentence for Immigration Purposes? Immigration law has its own definition of what a criminal sentence is. This definition comes into play several times, but the most common are: (a) some offenses are aggravated felonies if and only if a sentence of a year or more is imposed (see § 5.27) and (b) an offense only comes within the petty offense exception to the moral turpitude inadmissibility ground if a sentence of six months or less has been imposed, and the potential sentence is a year or less (see § 5.24). For immigration purposes, any time that a judge orders the person to spend time in jail as a result of a conviction, it will count as a “sentence imposed.” INA § 101(a)(48)(B). This is even true if the judge technically “suspends imposition of sentence” (does not impose a sentence) and instead just orders the person to go to jail as a condition of probation. If a judge imposes a sentence and “suspends execution” (does not make the person serve some or all of the time), the entire sentence the judge imposed still counts as the “sentence imposed.” Probation alone does not count as a sentence and advocates should be sure to distinguish this from a sentence of imprisonment. However, under the law of a few states, such as Georgia and Texas, the term probation sometimes is used to refer to a sentence. Persons dealing with convictions and probation from those states should consult an expert to determine what sentence actually was imposed. Example: Bernardo was convicted of misdemeanor fraud, his first offense. He was given three years of probation. Imposition of sentence was suspended and he was ordered to spend 100 days in jail as a condition of probation. Bernardo has a “sentence imposed” of 100 days. Therefore, he will qualify for the petty offense exception to moral turpitude inadmissibility because his sentence is less than six months. (Notice that the three years of probation has no effect.) § 5.21 How to Analyze a Past Conviction: The Categorical Approach With a few exceptions, immigration authorities must use a group of rules called the “categorical approach” to determine whether a criminal conviction triggers a ground of removal. Expert use of the categorical approach is one of the most important strategies available to immigrants convicted of crimes. This is especially true now that the Supreme Court again has addressed how the analysis must be applied, most recently in Mathis v. United States, 136 S.Ct. 2243 (2016); Moncrieffe v. Holder, 133 S. Ct. 1678 (2013); and Descamps v. United States, 133 S. Ct. 2276 (2013). These decisions effectively overrule a lot of past precedent, to the benefit of immigrants. There still is confusion about the categorical approach, however. Circuit courts of appeals have different rulings, and the Attorney General has withdrawn BIA cases that had attempted to analyze it.176 175

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See Matter of J.R. Velasquez, 25 I&N Dec. 680 (BIA 2012), for authentication requirements for documents listed in 8 CFR § 1003.41(d). 176 See Matter of Chairez and Sama, 28 I&N Dec. 686 (A.G. 2015), withdrawing Matter of ChairezCastrejon, 26 I&N Dec. 478 (BIA 2015), and Matter of Chairez-Castrejon, 26 I&N Dec. 349 (BIA 2014).

The categorical approach is a way to determine whether your client’s particular conviction fits within the categories of crimes listen in the Immigration and Nationality ACT (INA). The INA is full of criminal law terms. Removal grounds include terms such as “crime of domestic violence,” “firearms,” “controlled substance,” “crime of child abuse,” “crime involving moral turpitude,” “aggravated felony,” etc.177 We use the categorical approach to assess whether a particular crime fits within one of these categories. Under the categorical approach, we compare the penal code or statute of a person’s conviction to the generic immigration definition of a crime. The person’s conviction will be evaluated not by what he or she did, but by the most minimal, least egregious conduct that has a realistic probability of being prosecuted under that statute. 178 This is a great advantage. Here our defense goal is (a) to identify some conduct that violates the criminal statute but falls outside the generic immigration definition, and (b) to show that there is a “realistic probability” that this conduct is prosecuted under the statute. For a more in-depth discussion, see ILRC, How to Use the Categorical Approach Now, available at www.ilrc.org/how-use-categorical-approach-now, and other free practice advisories available online. 179 A.

Where the Categorical Approach Does Not Fully Apply

The Supreme Court has held that a few removal grounds are a kind of “hybrid,” with part of the ground subject to the categorical approach and part to a more fact-based or “circumstance specific” inquiry. The part of the removal ground that is circumstance specific does not have to be listed in the statute, and it can be proved by any relevant and probative evidence, including from outside the record of conviction. Common examples of circumstance-specific factors are (a) the amount of loss, for the aggravated felony of a crime of fraud or deceit in which loss to the victim exceeds $10,000; 180 (b) the amount of marijuana in determining whether the person comes within the deportation ground exception, or waiver of inadmissibility, based on possession of 30 grams of marijuana or less; 181 and (c) potentially, the domestic relationship element of a crime of domestic violence. 182 For further discussion of these grounds see ILRC’s Inadmissibility and Deportability Manual, or “How to Use the Categorical Approach Now” at www.ilrc.org/how-usecategorical-approach-now. 1. Conduct-based removal grounds The categorical approach generally does not apply to fact-based inquiries, such as whether the person comes within a removal ground based on conduct rather than on a criminal conviction. 177

See INA §§ 212(a)(2), 237(a)(2). Moncrieffe, supra. 179 In “Practice Advisories” at www.nipnlg.org, scroll to see advisories relating to Matter of ChairezCastrejon (now withdrawn), Descamps, Moncrieffe, and Mellouli. At www.ilrc.org/crimes scroll to see “Great Ninth Circuit Case on Divisible Statutes; California Burglary Never Is Attempted Theft (Rendon v. Holder)” and “Moncrieffe and Olivas-Motta: Fourteen Crim/Imm Defenses in the Ninth Circuit.” 180 See INA § 101(a)(43)(M), discussed in Nijhawan v. Holder, 557 U.S. 29 (2009). 181 See discussion in Matter of Hernandez-Rodriguez, 26 I&N Dec. 408 (BIA 2014). 182 See discussion in “How to Use the Categorical Approach Now” at www.ilrc.org/crimes.

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Examples of conduct-based grounds are being inadmissible for engaging in prostitution, or being inadmissible or deportable as an abuser or addict. The Ninth Circuit has held that the categorical approach does apply if a criminal conviction is the only evidence of the conduct. It held that a returning permanent resident was not inadmissible 183 under the prostitution ground where (a) the criminal conviction was the only evidence, and (b) the conviction was for an offense that did not meet the generic definition of prostitution under the categorical approach, because the minimum conduct was a broadly defined “lewd act” for a fee, whereas the generic definition of prostitution is sexual intercourse for a fee. 184

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2. Purely discretionary decisions The categorical approach does not apply in a purely discretionary decision, e.g., whether an applicant merits a grant of asylum, a waiver of inadmissibility, or a finding of good moral character as a matter of discretion. Thus, the strict limits of the categorical approach might apply to a conviction during the “deportability” phase of a hearing, but the judge may consider underlying facts of the conviction, as well as any other relevant and probative evidence, in making a purely discretionary decision during the relief phase. 3. Bars to eligibility for relief that are not removal grounds The BIA has held that the categorical approach does not wholly apply to some conviction-based bars to eligibility for relief that are not also removal grounds. This includes a conviction of a “particularly serious crime” (bar to asylum and withholding), 185 conviction of a “violent or dangerous offense” (potential bar to asylum, asylee or refugee adjustment waiver under INA § 209(c), or a waiver under INA § 212(h)), 186 and a “significant misdemeanor” (bar to DACA). 187 The BIA held that the circumstance-specific test applies in determining whether a visa petitioner was convicted of a “specified offense against a minor,” which under the Adam Walsh Act can bar a U.S. citizen or permanent resident from petitioning for a relative. 188

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See discussion of burden of proof at Kepilino v. Gonzales, 454 F.3d 1057, 1059-61 (9th Cir. 2006). While the opinion is somewhat hard to follow on this issue, it would appear that the government would have the burden of proving that the conditional resident was not seeking a new admission after return from a trip abroad. See INA § 101(a)(13)(C). 184 Kepilino v. Gonzales, supra. 185 Matter of N-A-M-, 24 I&N Dec. 336 (BIA 2007). 186 See “violent or dangerous” crime in cases such as Matter of Jean, 23 I&N Dec. 373 (A.G. 2002) (asylum) and the regulation governing waivers under INA § 212(h), 8 CFR 8 CFR § 1212.7(d). See discussion in Torres-Valdivias v. Holder, 766 F.3d 1106, 1110 (9th Cir. 2014), declining to apply the categorical approach to determining whether the offense is a violent or dangerous crime. 187 The categorical approach is not discussed in DHS materials on DACA, and does not appear to be applied. See materials on www.ilrc.org/daca. 188 Matter of Introcaso, 26 I&N Dec. 304 (BIA 2014).

§ 5.22 Overview of Immigration Consequences of Crimes The following categories of crimes comprise the most common of the adverse immigration consequences that flow from criminal offenses for immigrants: 189 • • •

The grounds of deportability, at INA § 237(a)(2); The grounds of inadmissibility, at INA § 212(a)(2) 190 and The definition of aggravated felony, at INA § 101(a)(43). Aggravated felony convictions bring the most severe immigration consequences.

Criminal offenses may fall into the grounds of inadmissibility, the grounds of deportability, or both. In addition, conviction of an aggravated felony is not only a ground of deportability, but a bar to eligibility for many forms of relief from removal. Immigration practitioners should be aware that a criminal offense can trigger more than one inadmissibility and/or deportability ground or bar to relief from removal. Thus, a single offense can cause numerous adverse consequences. This section will provide a summary of the criminal grounds of inadmissibility, including: 1. Admission or conviction of a crime involving moral turpitude; 191 2. Admission or conviction of a controlled substance (drug) offense; 192 3. A DHS or consular official knows or has reason to believe the person has participated in trafficking in a controlled substance; 193 4. Prostitution and commercialized vice; 194 5. Two or more criminal convictions where the total aggregate sentence is at least five years; 195 6. Serious criminal activity where the person has asserted immunity from prosecution; 196 7. Foreign Government officials who have committed particularly severe violations of religious freedom; 197

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Other consequences beyond the three categories listed below can adversely affect persons applying for asylum (if convicted of a “particularly serious crime”), temporary protected status (if convicted of two misdemeanors or a felony), or a few other types of immigration status. DACA had unique eligibility requirements under which a person was barred from DACA with a conviction of any felony, significant misdemeanor or more than two misdemeanors of any kind. See www.ilrc.org/files/documents/ilrc-2012daca_chart_1.pdf. 190 The crimes-based grounds of inadmissibility are also incorporated as bars to establishing “good moral character” under INA § 101(f). 191 INA § 212(a)(2)(A)(i)(I). Note the exceptions to this ground in INA § 212(a)(2)(A)(ii). 192 INA § 212(a)(2)(A)(i)(II). 193 INA § 212(a)(2)(C). 194 INA § 212(a)(2)(D). 195 INA § 212(a)(2)(B). 196 INA § 212(a)(2)(E). 197 INA § 212(a)(2)(G).

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8. Significant traffickers in persons, including beneficiaries of trafficking other than children; 198 and 9. Money laundering. 199

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Conviction of an aggravated felony is a ground of deportability, but it is worth discussing separately because it triggers many additional terrible consequences for noncitizens. Aggravated felonies are discussed in detail in § 5.27. § 5.23 Inadmissibility Based on Drug Offenses A.

Conviction of an Offense Relating to Controlled Substances

Drug convictions are extremely serious. A person who is convicted of any offense “relating to” controlled substances (illegal drugs) as they are defined under federal law is inadmissible. INA § 212(a)(2)(A)(i)(II). This includes “any state, federal or foreign law or regulation relating to controlled substances.” Even minor offenses such as being under the influence of drugs, or possessing a small amount of drugs, will meet this ground. Although it is an inadmissible offense under INA§ 212(a)(2)(A)(i)(II), a person may be eligible for a waiver of inadmissibility under INA § 212(h) if she has been convicted of a single offense involving simple possession of 30 grams or less of marijuana. However, the BIA has held that possession of 30 grams or less of marijuana in a prison, or in a drug-free zone, such as a school, is an offense that cannot be waived by INA § 212(h). 200 B.

Drug Abuse and Drug Addiction

A person who is currently a drug addict or drug abuser is also inadmissible under the “health” grounds in INA § 212(a)(1)(A)(iii). A finding that someone falls into this ground must be made by an authorized physician. 201 The definition of drug abuse and addiction are discussed at § 5.2. C.

Admits Committing a Drug Offense

As stated above, any conviction relating to a controlled substance will render a person inadmissible. However, a person can be inadmissible for a controlled substance offense without a conviction. People are inadmissible if they admit committing any drug offense—even if they were never charged or convicted. INA § 212(a)(2)(A)(i)(II). The DHS has begun asking more about this ground, so it is important to understand it and warn your clients. Note that even if marijuana is legal under state law, it is still a federally controlled substances offense. Thus, noncitizens who smoke marijuana, even if they do so legally under state law, can be found inadmissible. See Appendix 5-G for a community advisory on the dangers of legalized marijuana for immigrants. 198

INA § 212(a)(2)(H). INA § 212(a)(2)(I). 200 See Matter of Moncada-Servillon, 24 I&N Dec. 62 (BIA 2007); Matter of Martinez-Zapata, 24 I&N Dec. 424 (BIA 2007). 201 Those immigrating through consular processing must go to “panel physicians” authorized by the U.S. Department of State. Those immigrating through adjustment of status, within the United States, must go to physicians known as “civil surgeons,” who are authorized by USCIS. 199

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In order to fall under this ground of inadmissibility, the person must make a formal admission of conduct that is a crime in the jurisdiction where it occurred, to an officer. 202 If a DHS officer or any other person asks a client if he or she has ever committed a drug offense, the client should stop and ask to speak with a lawyer. One court held that an admission to a medical doctor in a visa medical examination that the person had used drugs was a formal “admission” for this purpose! 203 Warn clients that any admission of a crime might be used against them. There is an important exception to this ground. If a charge has been brought to criminal court and the result was less than a conviction (for example, charges were dropped, or the conviction was vacated, or a disposition that was not equal to a conviction occurred, such as a juvenile finding), the person cannot be charged with being inadmissible for “admitting” the offense. Thus, under these circumstances, neither a guilty plea in the original criminal case, nor even a new admission of guilt made to an immigration judge, is a basis for inadmissibility as an “admission” of a controlled substance offense. 204 D.

“Reason to Believe” That the Person Is or Was a Drug Trafficker

A person is inadmissible if the DHS has “reason to believe” that he or she is or ever was a drug trafficker. INA § 212(a)(2)(C). Assume that even minors will be charged under this ground, since a “conviction” is not required. DHS must demonstrate that it has substantial and probative evidence that the noncitizen was engaged in the business of selling or dealing in controlled substances. 205 Drug trafficking means selling (or even giving away illegal drugs when that is connected with dealing), 206 but it does not mean getting drugs for your own use. DHS does not need a conviction to have “reason to believe” the person trafficked; it may rely on evidence such as police reports, witness statements, or the person’s own statements. It is important to note that DHS probably will consider evidence from a juvenile delinquency disposition in determining that there is a “reason to believe” the person is a drug trafficker. This is true even though a juvenile delinquency disposition is not a conviction. See § 5.18. Under a harsh amendment, this ground also punishes the family members of the suspected drug trafficker. The spouse, son and daughters of a person who is inadmissible for drug trafficking under this ground also are inadmissible, if they benefited financially or in any way from the 202

See Matter of K, 7 I&N Dec. 594 (BIA 1957). Pazcoguin v. Radcliffe, 292 F.3d 1209 (9th Cir. 2002). 204 See, e.g., Matter of C.Y.C., 3 I&N Dec. 623, 629 (BIA 1950) (dismissal of charges overcomes independent admission); Matter of Seda, 17 I&N Dec. 550, 553 (BIA 1980), overruled in part on other grounds by Matter of Ozkok, 19 I&N Dec. 546 (BIA 1988) (criminal court proceedings that do not amount to a conviction for immigration purposes is not an admission); Matter of E.V., 5 I&N Dec. 194 (BIA 1953) (where expungement eliminates offense for immigration purposes (under the laws at the time), then independent admission to immigration judge is not “admission” for inadmissibility). 205 Matter of Davis, 20 I&N 536, 541 (BIA 1992), using Black’s Law Dictionary definition of “trafficking” meaning “commerce; trade; sale or exchange of merchandise, bills, money and the like.” 206 Distribution for free when connected to drug sales could be held trafficking. See Matter of MartinezGomez, 14 I&N Dec. 104 (BIA 1972) (pled to maintaining place where drugs dispersed, current H&S § 11366; although sale was not required, the statute was aimed at preventing trafficking of drugs in such premise).

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trafficking within the last five years. Applicants for benefits based on family abuse—such as VAWA—should avoid volunteering information about their abusive relative’s drug trafficking, so that they do not give DHS “reason to believe” they somehow benefited. E.

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What Are Some Other Defenses That May Be Available for a Controlled Substance Offense?

In some cases a court disposition with some relation to drugs will not cause immigration penalties. Here, it is best to consult an expert immigration practitioner. Accessory after the Fact and Other Offenses That Do Not Inherently “Relate To” Controlled Substances. Accessory after the fact and misprision of felony are offenses that relate to helping someone who has committed a crime. The BIA has found that these offenses do not cause inadmissibility as controlled substance convictions, even if the crime that the other person had committed related to drugs. 207 The State Controlled Substance List Does Not Match the Federal Lists. For immigration purposes a controlled substance (illegal drug) is defined by federal drug schedules (lists of controlled substances) at 21 USC § 802. Many states have a state list of controlled substances that is slightly different from the federal list, and that may contain drugs not on the federal list. In those states, if the record of conviction of a controlled substance offense does not identify which controlled substance was involved, there may be no proof that the drug was one that is on the federal list. Therefore, there is no proof that the offense “related to” controlled substances as defined in the INA, and the person is not deportable. See Matter of Paulus, 11 I&N Dec. 274 (BIA 1965) and the Supreme Court opinion, Mellouli v. Lynch, 135 S. Ct. 1980 (2015). There is currently a circuit split on whether this argument will help someone who is allegedly inadmissible due to a controlled substances offense, because the burden is on the person to show that she was not convicted of a federally controlled substance.208 The law on this issue is in flux, so be sure to check the law in your circuit. Clearing Up the Conviction. In most jurisdictions, a drug conviction can only be eliminated for immigration purposes if a criminal court judge vacates the conviction because of a constitutional or other legal error. A conviction will not be eliminated for immigration purposes by so-called “rehabilitative relief”—where the criminal court legally erases the conviction not because of constitutional or other legal error, but because the person completed probation, fulfilled other conditions, or for humanitarian purposes. One example of rehabilitative relief that is commonly known is called an expungement. 209 There is an important exception to this rule. In immigration proceedings held in states within the Ninth Circuit only, a state’s rehabilitative relief will eliminate the immigration consequences of a 207

See, e.g., Matter of Batista-Hernandez, 21 I&N Dec. 955 (BIA 1997). See, e.g., Sauceda v. Lynch, 819 F.3d 526 (1st Cir. 2016) (finding that the petitioner satisfied his burden of proof to show eligibility for relief where the record was ambiguous as to whether the substance at issue was a federally controlled substance), compared with Marinelarena v. Sessions, 869 F.3d 780 (9th Cir. 2017) (finding that the petitioner had not satisfied her burden of proof to show eligibility for relief where the record was ambiguous as to the controlled substance at issue). 209 Matter of Roldan, 22 I&N Dec. 512 (BIA 1999). 208

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first conviction for simple possession of a controlled substance or certain other minor drug offenses, such as possession of drug paraphernalia, if and only if the conviction was entered on or before July 14, 2011. For more information on controlled substances, see § N.8 Controlled Substance, available at www.ilrc.org/chart. § 5.24 Crimes Involving Moral Turpitude A conviction or admission of a crime involving moral turpitude is a ground of inadmissibility. See INA § 212(a)(2)(A)(i). A.

Definition of a Crime Involving Moral Turpitude

There is no set definition of a crime involving moral turpitude, and many legal cases involve battles over which crimes qualify. Courts have held that moral turpitude “refers generally to conduct that shocks the public conscience as being inherently base, vile, or depraved, contrary to the rules of morality and the duties owed between man and man, either one’s fellow man or society in general.” 210 In Matter of Silva-Trevino, 24 I&N Dec. 687 (A.G. 2008), former Attorney General Mukasey stated that moral turpitude requires a “reprehensible act” with some form of scienter (intent), “whether specific intent, willfulness, or recklessness.” 211 While that decision was vacated for other reasons, the BIA might continue to employ this standard. Importantly, a crime committed negligently is not a crime of moral turpitude. Until further guidance is provided, you should examine the definition provided in Silva-Trevino in addition to caselaw in your jurisdiction to determine whether and how the courts have ruled on the particular offense in question. 212 In general, the following types of crimes have been held by courts to involve moral turpitude: 1. Intent to commit fraud; 2. Intent to commit theft and to permanently, as opposed to temporarily, deprive the owner of the benefit of the property; 3. Intent to cause or threaten great bodily harm; 4. A willful act or recklessness that threatens death or serious harm. Reckless is defined as a conscious disregard of a known, substantial, and unjustifiable risk, which the BIA held includes when the reckless disregard is caused by voluntary intoxication; 213

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Matter of Danesh, 19 I&N Dec. 669, 670 (BIA 1988). 24 I&N Dec. 687, 706 (BIA 2008). This decision has since been vacated by Matter of Silva-Trevino, 26 I&N Dec. 550 (A.G. 2015) (Silva Trevino II). Practitioners should continue to assume recklessness may be sufficient mens rea to commit a crime involving moral turpitude. 212 The Ninth Circuit, for example, has held that an offense is a crime of moral turpitude if it falls into either one of two categories: (1) it involves fraud by having either an element of the offense as fraud or being inherently fraudulent or (2) is a crime of an especially morally offensive character, meaning the offense is vile, based, or depraved, violates societal moral standards, and is committed willfully or with evil intent. Navarro-Lopez v. Gonzales, 503 F.3d 1063, 1074-75 (9th Cir. 2007) (en banc) (Reinhardt, J., concurring). 213 See, e.g., Matter of Leal, 26 I&N Dec. 20 (BIA 2012) (Arizona Revised Statute 13-1201A is a CIMT).

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5. Some offenses that have malice as an element; 6. Some sex offenses in which lewd intent is an element. Thus, murder, rape, voluntary manslaughter, robbery, theft with permanent intent (grand or petit), arson, some more serious forms of assault, and forgery all have been consistently held to involve moral turpitude. On the other hand, crimes that involve none of the above elements have been held not to involve moral turpitude, including involuntary manslaughter (except where criminal recklessness is an element), 214 simple assault or battery, “breaking and entering” or criminal trespass, driving under the influence, “joyriding,” and various weapons possession offenses.

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Example: Your client has been convicted of “felonious assault.” You look that offense up in your state Penal Code and underlying caselaw, and see that it requires intent to cause great bodily harm. Now you know that the offense probably involves moral turpitude. What makes this analysis complicated is that different states may define the same offense differently. For example, some state laws define “shoplifting” as requiring an “intent to commit theft with an intent to permanently deprive” the owner. Someone convicted of shoplifting in that state has been convicted of a crime involving moral turpitude. In another state if you looked up shoplifting in the state law it would not mention “intent to commit theft” or “intent to steal.” In some states anyone who takes an item outside of a store without paying for it—even by accident—can be found guilty of “shoplifting.” A person convicted of shoplifting in that state arguably would not have a moral turpitude conviction. See discussion of other case examples in the next section. Surprisingly many offenses that look like they should be moral turpitude offenses have been held not to be. For example: •

Not all theft crimes involve moral turpitude. A theft crime involves moral turpitude only when it contains the element of specific intent to steal or otherwise permanently deprive the owner of his or her property permanently. 215 If the defendant only intended to take the property temporarily, it’s still theft, but it should not be a moral turpitude crime. 216

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The BIA held that where criminally reckless conduct is an element of the offense under the penal code, involuntary manslaughter is a crime involving moral turpitude. Matter of Franklin, 20 I&N Dec. 867 (BIA 1994); see also Matter of Perez-Contreras, 20 I&N Dec. 615 (BIA 1992) (third degree assault statute that involved criminal negligence but not recklessness is not turpitudinous). Recklessness may not be an element of involuntary manslaughter under some state statutes. See, e.g., Calif. Penal Code § 192(b). 215 See Matter of V-Z-S, 22 I&N Dec.1338, fn. 12 (BIA 2000); Matter of R-, 2 I&N Dec. 819, 828 (BIA 1947); Wala v. Mukasey, 511 F.3d 102 (2nd Cir. 2007). Note, however, that the BIA has ruled inconsistently on this issue. 216 See also Matter of Grazley, 14 I&N Dec. 330 (BIA 1973) and Matter of D-, 1 I&N Dec. 143 (BIA 1941) (finding that a taking could constitute “theft” even if it did not include the turpitudinous element of intent to permanently deprive the owner of his or her property); Matter of R-, 2 I&N Dec. 819, 828 (BIA 1947) (“It is settled law that the offense of taking property temporarily does not involve moral turpitude”); Wala v. Mukasey, 511 F.3d 102, 106 (2nd Cir. 2007) (“Under BIA precedent, however, not all larcenies are CIMTs.”) See also Matter of Jurado, 24 I&N Dec. 29 (BIA 2006) (holding that where a theft statute does

•

Battery against a spouse or romantic partner where the statute can be violated by a mere offensive touching is not a crime of moral turpitude, under the categorical approach. 217 Watch out for statutes that require an “injury”; see if there is a requirement that the person intended to cause a real injury.

•

Simple assault is generally not a crime of moral turpitude, but assault with a deadly weapon or intentionally, or perhaps recklessly, causing great bodily injury is a crime of moral turpitude. The difference is that simple assault generally covers behavior that is not necessarily violent, but assault with a deadly weapon or with intent to cause great bodily injury covers behavior that is, or has the potential to be, much more serious. The required intent is key to moral turpitude. If a person commits an offensive touching (e.g., just pushing or poking someone) that unexpectedly results in an injury, or if a person negligently injures another, this is not necessarily moral turpitude. You should look closely at the statute’s elements and the caselaw interpreting those elements.

•

Simple driving under the influence is not a crime involving moral turpitude—even if there are multiple convictions. The BIA, however, found that a conviction for the single offense of driving a car while under the influence and while knowingly prohibited from driving at all (e.g., on a suspended license) is a crime involving moral turpitude, 218 and the Ninth Circuit en banc deferred to this decision in Marmolejo-Campos v. Holder, 558 F.3d 903 (9th Cir. 2009). 219 If a person was convicted of two separate offenses—driving under the influence, and driving with a suspended license—this should not equal a crime involving moral turpitude, even if the conduct involved for both offenses arose out of the same incident.

•

A false statement to a police officer under certain statutes (e.g., California Penal Code § 148.9) may not be a crime of moral turpitude, but any offense involving fraud or perjury is a crime of moral turpitude.

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Engaging in prostitution is a crime of moral turpitude for the prostitute; jurisdictions may differ as to whether being a customer is. 220

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These examples illustrate that it is not always easy to determine what constitutes a crime of moral turpitude. Never look at the labels of the offense to guess whether it involves moral turpitude or not specify whether the offense involves an intent to deprive the owner permanently as opposed to temporarily of the property, the reviewing authority may look to the circumstances of the case to determine whether a permanent taking was intended and therefore, whether the offense involves moral turpitude). 217 Matter of Sanudo, 23 I&N Dec. 968 (BIA 2006); see also Galeana-Mendoza v. Gonzales, 465 F.3d 1054 (9th Cir. 2006). 218 Matter of Lopez-Meza, 22 I&N Dec. 1188 (BIA 1999); see also Marmolejo-Campos v. Gonzales, 558 F.3d 903, (9th Cir. 2009). 219 If the DUI statute includes simply sitting in a vehicle while under the influence, however, that ought not to be a CIMT. See Hernandez-Martinez v. Ashcroft, 329 F.3d 1117 (9th Cir. 2003) (physical control of the vehicle, without driving, is not a CIMT even if this is done while knowingly on a suspended license); see also Marmolejo-Campos, 558 F.3d 903, 912-13 (9th Cir. 2009). 220 Matter of W-, 4 I&N Dec. 401 (BIA 1951); but see Rohit v. Holder, 670 F.3d 1085 (9th Cir. 2012) (holding that solicitation of a prostitute is a crime of moral turpitude).

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not. Instead, look to wording of the statute under which your client was arrested or convicted and the caselaw in your jurisdiction to determine what is a crime of moral turpitude in your jurisdiction.

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One final complication—although a beneficial one—is that the categorical approach applies to moral turpitude determinations. See § 5.21. The law is changing very quickly in this area, and often to the immigrant’s benefit. Some offenses that used to be held to be divisible for moral turpitude purposes, now should be found never to be crimes involving moral turpitude, regardless of what conduct the person committed or what information is in the record of conviction. For all of these reasons, if there is any doubt about whether or not your client falls within the crime involving moral turpitude removal grounds, you should not concede removability; instead you should argue that your client’s crime is not a crime of moral turpitude. It is important to investigate caselaw, and seek expert assistance if you are unsure of possible arguments. Your best rule is, do not assume the offense involves moral turpitude until you have a thorough, up-to-date, and expert analysis. See “For Further Information” at the end of this chapter. § 5.25 The Crime Involving Moral Turpitude Petty Offense and Youth Exceptions A.

Inadmissible for One Conviction

A person who has admitted to or been convicted of just one crime involving moral turpitude (CIMT) is inadmissible unless the offense falls within one of the exceptions discussed below. INA § 212(a)(2)(A)(i)(I). B.

Petty Offense Exception to the Inadmissibility Ground

The “petty offense exception” is found at INA § 212(a)(2)(A)(ii)(II). A person qualifies for this exception, and therefore is automatically not inadmissible, if three facts are true: 1. This is the first time the person has committed a CIMT); 2. The maximum possible sentence for the offense is one year or less; and 3. The sentence imposed in the person’s case was six months or less. Recall that immigration law has its own definition of sentence. To evaluate whether a sentence of at least six months was imposed, see § 5.20. Example: Bonnie and Clyde are arrested. Bonnie is convicted of fraud, a CIMT. It is a misdemeanor offense that has a maximum one-year penalty. This is her first offense. She receives a three-month sentence. Bonnie comes within the petty offense exception since it was her first conviction of a crime involving moral turpitude, the maximum penalty for the offense was not more than a year, and the sentence imposed was not more than six months. She is not inadmissible.

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Clyde is convicted of robbery, a CIMT. This is his first offense. The maximum sentence for that crime is five years. No matter what sentence he gets, Clyde cannot qualify for the petty offense exception, since robbery has a maximum possible sentence of five years. Clyde is inadmissible.

C.

Youthful Offender Exception to the Inadmissibility Ground

A young person who was convicted as an adult may qualify for the youthful offender exception. The person will not be inadmissible if while under the age of 18 he or she committed only one offense involving moral turpitude, and the commission and release from any resulting imprisonment occurred over five years before the current application. INA § 212(a)(2)(A)(ii)(I). (Note that a young person whose case was handled in juvenile delinquency proceedings does not need this exception, since those proceedings do not result in convictions in the first place.) D.

Admission of a Crime Involving Moral Turpitude

A person who formally admits committing a crime involving moral turpitude is inadmissible, even if there is no conviction. INA § 212(a)(2)(A)(i). This must be a formal admission of a crime, made to an officer. 221 The DHS does not often use this ground, but your clients should be warned. If there is any reason to think that a DHS officer may question your client about some specific incident, the client should get a lawyer’s advice and go to the interview with a lawyer. If the person is alone, he or she should refuse to answer questions. Example: Anna is questioned by a DHS officer in a secondary inspection interview at the airport. The officer tells her that he wants to ask her questions to see if she has ever committed a theft. Anna should refuse to answer and ask to speak with a lawyer. Note that if the behavior that was admitted was the subject of a criminal court proceeding, and if that proceeding did not result in a conviction, the person should not be found inadmissible based on an admission. For example, if a person was charged with an offense but the charges were dismissed, or was convicted and the conviction was vacated, then the person should not be found inadmissible based on admitting facts about the offense—even if he or she later makes a formal admission of the crime to an immigration judge or officer. 222 § 5.26 Other Grounds: Prostitution, Two Convictions with Five-Year Sentence Imposed, Alien Trafficking, Money Laundering, HighSpeed Flight from Immigration A.

Prostitution and Commercialized Vice

People who are coming to the United States to engage in prostitution or who within the last ten years have “engaged in prostitution” are inadmissible under the “prostitution ground.” So are people who work with them in the business, who benefit from the proceeds of prostitution, or who come to the United States in order to engage in other forms of commercialized vice. See INA § 212(a)(2)(D).

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See Matter of K, 7 I&N Dec. 594 (BIA 1957). See, e.g., Matter of C.Y.C., 3 I&N Dec. 623, 629 (BIA 1950) (dismissal of charges overcomes independent admission); Matter of E.V., 5 I&N Dec. 194 (BIA 1953) (where expungement eliminates offense for immigration purposes, an independent admission to an immigration judge is not an “admission” sufficient to establish inadmissibility).

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Prostitution is defined as offering sexual intercourse (as opposed to other lewd acts) for a fee. 223 This provision will apply even if the person engaged in prostitution in a jurisdiction where it is legal. 22 CFR § 40.24(c). The prostitution ground does not include customers, 224 but see below discussion regarding moral turpitude issues.

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While no conviction is required for this finding, one or more convictions for prostitution can serve as evidence. But the conviction should establish that the offer was for sexual intercourse for hire, as opposed to other lewd acts. 225 A single act of prostitution does not amount to engaging in prostitution under this provision. Rather, “prostitution” is defined as engaging in a pattern or practice of sexual intercourse for financial or other material gain. 226 Moral Turpitude. Prostitution constitutes a crime involving moral turpitude. Jurisdictions may differ as to whether conviction for being the customer is a crime involving moral turpitude. 227 A waiver of inadmissibility may be available under INA § 212(h). Aggravated Felony. A conviction for running a prostitution business is an aggravated felony. INA §§ 101(a)(43)(I), (K). B.

Total Sentence of Five Years for Two or More Convictions

People are inadmissible if they have been convicted of two or more offenses of any kind, and the total time of the sentences imposed (ordered) for those convictions add up to five years or more. For example, a person who was sentenced to two years for one conviction and four years for another would be inadmissible regardless of how much time he or she actually served. INA § 212(a)(2)(B). For the definition of sentence imposed, see § 5.20. Note that this ground of inadmissibility requires at least two convictions. Example: John was convicted of fraud and sentenced to five years in prison. Is he inadmissible under INA § 212(a)(2)(B)? No, because he has only one conviction, even though the sentence was five years. Under this ground, except for purely political offenses, it does not matter what kind of offense was involved or whether or not the crimes were part of a “single scheme of criminal misconduct.” C.

Traffickers in Persons

If the government knows or has “reason to believe” an individual has been involved in “severe” forms of human trafficking, the individual is inadmissible under INA § 212(a)(2)(H)(I). “Severe”

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Matter of Gonzalez-Zoquiapan, 24 I&N Dec. 549 (BIA 2008); Matter of T-, 6 I&N Dec. 474 (BIA 1955); Matter of R.M., 7 I&N Dec. 392 (BIA 1957). See also 22 CFR § 40.24(b). 224 See Matter of Gonzalez-Zoquiapan, supra. 225 Kepilino v. Gonzales, 454 F.3d 1057 (9th Cir. 2006) (if a conviction is the only evidence of prostitution, it must prove under the categorical approach that the offense involved offering intercourse for a fee). 226 Matter of Gonzalez-Zoquiapan, 24 I&N Dec. 549 (BIA 2008); Matter of T-, 6 I&N Dec. 474 (BIA 1955). See also 22 CFR § 40.24(b). 227 However, the Ninth Circuit in Rohit v. Holder, 670 F.3d 1085 (9th Cir. 2012), held that a conviction for soliciting a prostitute as a customer is a crime involving moral turpitude.

trafficking refers to sex trafficking of persons under the age of 18, or trafficking of any persons who are forced by the traffickers to work as indentured labor or slaves. D.

Money Laundering

A person whom the government has reason to believe has engaged in or plans to engage in certain types of money laundering is inadmissible. INA § 212(a)(2)(I). A conviction for money laundering is an aggravated felony if the funds involved more than $10,000. INA § 101(a)(43)(D). See also the aggravated felony category for RICO offenses, which can involve money laundering, at INA § 101(a)(43)(J). E.

Federal Conviction for High-Speed Flight from an Immigration Checkpoint

This is a ground of deportation under INA 237(a)(2)(A)(iv). § 5.27 Aggravated Felonies Aggravated felony is defined at INA § 101(a)(43). Although there is no aggravated felony ground of inadmissibility, conviction of an aggravated felony brings terribly harsh immigration consequences. IMPORTANT NOTE: Just because a crime is an aggravated felony does not necessarily mean that it will make a person inadmissible. This is because there is no specific “aggravated felony” ground of inadmissibility. Whether an aggravated felony will make someone inadmissible depends on whether the particular aggravated felony falls within one of the grounds of inadmissibility, e.g., crime involving moral turpitude. A person with an aggravated felony can successfully adjust status and become a lawful permanent resident! An aggravated felon is: • • • • • • • •

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Ineligible for release on bond and subject to mandatory detention during removal proceedings under INA § 236(c); Ineligible for asylum, although the person might be eligible for “restriction on removal” (also called withholding of removal) or the protections of the Convention Against Torture; Ineligible for § 240A cancellation of removal; Deportable, if convicted of an aggravated felony after admission. INA § 237(a)(2)(A)(iii). Can be deported without a hearing before an immigration judge, if the person is not a permanent resident; Ineligible for a § 212(h) waiver, if the person is a permanent resident who comes within certain statutory bars to eligibility; Once removed from the United States is inadmissible and barred from returning to the United States, unless a discretionary waiver is granted; Permanently barred from establishing good moral character if the conviction was on or after November 29, 1990; and If removed and returns to the United States without permission, potential federal prosecution for illegal re-entry and a tough prison sentence under 8 USC § 1326(b)(2).

WARNING: Prison Sentence for Illegal Re-Entry after Conviction of an Aggravated Felony. A person who is convicted of an aggravated felony and removed, and then returns illegally to the

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United States can be sentenced to up to twenty years in federal prison just for the illegal re-entry. 8 USC § 1326(b)(2). Warn your clients that they can encounter this severe penalty just for returning to the United States after being removed! A.

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What Is an Aggravated Felony?

What we may think of as relatively minor crimes—for example, selling $10 worth of marijuana, shoplifting with a one-year suspended sentence, or “smuggling” one’s baby sister across the border illegally—are aggravated felonies. Advocates must be very careful in advising clients. For example, many people have been arrested right in their naturalization interview, upon renewal of their green card, or re-entry to the United States after a trip abroad because they had an old conviction for an offense that turned out to be an aggravated felony. The definition of aggravated felony is found at INA § 101(a)(43), which is a list of dozens of common-law terms and references to federal statutes. It covers a broad range of crimes, including some that might not appear to some to be especially egregious, such as non-violent misdemeanors. In case of doubt, you should read INA § 101(a)(43) carefully, and ask an expert for advice if necessary. Note that the person must be convicted of the aggravated felony to come within the definition. Postconviction relief for legal or constitutional error will remove the penalties. 228 The following is a list of the offenses referenced in INA § 101(a)(43) arranged in alphabetical order. The capital letter following the offense refers to the subsection of § 101(a)(43) where the offense appears. • • • • • • • • • • • •

Alien smuggling: smuggling, harboring, or transporting of aliens except for a first offense in which the person smuggled was the parent, spouse or child. (N) Attempt to commit an aggravated felony (U) Bribery of a witness—if the term of imprisonment is at least one year. (S) Burglary: if the term of imprisonment is at least one year. (G) Child pornography: (I) Commercial bribery: if the term of imprisonment is at least one year. (R) Conspiracy to commit an aggravated felony. (U) Counterfeiting: if the term of imprisonment is at least one year. (R) Crime of violence as defined under 18 USC 16 resulting in a term of at least one year imprisonment, if it was not a “purely political offense.” (F) Destructive devices: trafficking in destructive devices such as bombs or grenades. (C) Drug offenses: any offense generally considered to be “drug trafficking,” plus cited federal drug offenses and analogous felony state offenses. (B) Failure to appear: to serve a sentence if the underlying offense is punishable by a term of 5 years, or to face charges if the underlying sentence is punishable by 2 years. (Q, T)

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Post-conviction relief refers to reopening and vacating or making changes to the initial criminal conviction. Usually this is done by a criminal lawyer, and requires an assessment to determine if there were any errors in the initial conviction process or grounds to change the original disposition.

• • • • • • • • • • • • • • • • • •

• • • • •

False documents: using or creating false documents, if the term of imprisonment is at least twelve months, except for the first offense which was committed for the purpose of aiding the person’s spouse, child or parent. (P) Firearms: trafficking in firearms, plus several federal crimes relating to firearms and state analogues. (C) Forgery: if the term of imprisonment is at least one year. (R) Fraud or deceit offense if the loss to the victim exceeds $10,000. (M) Illegal re-entry after deportation or removal for conviction of an aggravated felony (O) Money laundering: money laundering and monetary transactions from illegally derived funds if the amount of funds exceeds $10,000, and offenses such as fraud and tax evasion if the amount exceeds $10,000. (D) Murder: (A) National defense: offenses relating to the national defense, such as gathering or transmitting national defense information or disclosure of classified information. (L)(i) Obstruction of justice if the term of imprisonment is at least one year. (S) Perjury or subornation of perjury: if the term of imprisonment is at least one year. (S) Prostitution: offenses such as running a prostitution business. (K) Ransom demand: offense relating to the demand for or receipt of ransom. (H) Rape: (A) Receipt of stolen property if the term of imprisonment is at least one year. (G) Revealing identity of undercover agent: (L)(ii) RICO offenses: if the offense is punishable with a one-year sentence. (J) Sabotage: (L)(i) Sexual abuse of a minor: (A) (Warning: the BIA held that this includes misdemeanor consensual sex with a person under age 18, as long the statute requires a “significant” age difference between the defendant and minor (e.g., three years); this does not apply within the Ninth Circuit)229 Slavery: offenses relating to peonage, slavery and involuntary servitude. (K)(iii) Tax evasion: if the loss to the government exceeds $10,000 (M) Theft: if the term of imprisonment is at least one year. (G) Trafficking in vehicles with altered identification numbers if the term of imprisonment is at least one year. (R) Treason: federal offenses relating to national defense, treason. (L)

Every offense should be examined closely to determine whether it is an aggravated felony or not. Some offenses are aggravated felonies only if a sentence of one year or more has been imposed, while others are aggravated felonies regardless of the sentence. For example, a burglary offense is an aggravated felony only if a sentence of one year or more has been imposed, whereas murder, rape, and sexual abuse of a minor are aggravated felonies regardless of the sentence.

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Matter of Esquivel-Quintana, 26 I&N Dec. 469 (BIA 2015) (outside the Ninth Circuit, Cal. PC 261.5(c) is an aggravated felony).

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Some offenses are aggravated felonies only if they fall within a particular federal definition. For example, whether a controlled substance offense will be considered “illicit trafficking in a controlled substance” under INA § 101(a)(43)(B) depends on whether it falls within either § 102 of the Controlled Substances Act or 18 U.S. Code § 924(c). See discussion below.

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Even Misdemeanor and Non-Violent Offenses Can Be Held to Be Aggravated Felonies. Both misdemeanor and felony convictions can be aggravated felonies under INA § 101(a)(43), depending on the elements of the offense. For example, in United States v. Campbell, 167 F.3d 94, 98 (2nd Cir. 1999), a conviction of misdemeanor theft with a suspended one-year sentence was held to be an aggravated felony. Both state and federal convictions can be aggravated felonies. Foreign convictions can as well, if the person completed the resulting imprisonment within the last fifteen years. INA § 101(a)(43) (last paragraph). Some offenses that may look like aggravated felonies really are not, for technical reasons. The categorical analysis discussed in § 5.21 is a great resource for arguing that many serious offenses that appear to be aggravated felonies are actually not, thereby preserving additional immigration defense options for noncitizen clients. Drunk Driving as an Aggravated Felony. For some years immigration authorities asserted that drunk driving was a crime of violence, and deported thousands of persons with a DUI conviction and a one-year sentence. The U.S. Supreme Court rejected that argument, holding that negligent driving under the influence is not a “crime of violence” and so does not become an aggravated felony when a one-year sentence is imposed. Leocal v. Ashcroft, 125 S.Ct. 377 (2004). Several Circuit Courts of Appeals have held that a crime of violence requires a higher degree of intent than recklessness. B.

An Aggravated Felony Must Be a Conviction

A person must be convicted of an aggravated felony to suffer penalties. State and federal convictions are aggravated felonies, as are foreign convictions if the person completed the resulting imprisonment within the last fifteen years. Vacating the conviction or other appropriate postconviction relief that removes the judgment for constitutional or other legal error will remove the conviction for immigration purposes. See § 5.28. For more information on aggravated felonies, see ILRC’s § N. 6 Aggravated Felonies, available at www.ilrc.org/chart. § 5.28 Clearing Up a Criminal Record In some cases, it is possible to erase a criminal conviction and clear up the person’s record. We have already mentioned dispositions that do not equal a conviction in the first place, such as treatment in juvenile court or a pre-plea diversion. See § 5.18. This discussion is different: it concerns how to get rid of a criminal conviction once you have one. Practitioners often refer to this process as postconviction relief. The discussion is not very detailed, since the law of each state is different, and state laws are different from federal law. You will need to research the law in your state. But you can keep a few principles in mind:

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A.

Expungement and Other “Rehabilitative” Relief Usually Have No Effect on Immigration Consequences

Different states provide different legal ways that a person can clean up his or her criminal record and “erase” a prior conviction even if there was no legal error in the conviction, and often based on the person successfully completing probation or meeting other requirements. These are known as forms of “rehabilitative relief.” In 1999 the BIA reversed 50 years of Attorney General precedent and held that “expungements” and other rehabilitative relief do not eliminate a conviction. Matter of Roldan, 22 I&N Dec. 512 (BIA 1999). Many of your clients may have been advised in the past (or even recently) that an expungement will help them, or that deferred adjudication is safe because it is not a “conviction.” Be sure to advise all clients about this. With few exceptions discussed below, a person who was charged, and at some point pled guilty, has a conviction for immigration purposes—even if the state court or state law says that there is no conviction because the plea later was withdrawn pursuant to an expungement, deferred adjudication program, or diversion program. Exception for Some Drug Offenses. This exception applies only in the Ninth Circuit and only for convictions entered into on or before July 14, 2011. 230 There, an expungement or other “rehabilitative relief” such as deferred adjudication will eliminate a first conviction for certain minor drug offenses such as simple possession, possession of drug paraphernalia, and giving away a small amount of marijuana. 231 This also applies to foreign relief for a first foreign conviction of these offenses. 232 The BIA will not apply this beneficial rule in immigration hearings held outside of the Ninth Circuit.233 There are two disqualifiers. First, even if rehabilitative relief is obtained under state law, if the individual violated the conditions of his or her probation, or the terms of the rehabilitative relief, the expungement is not effective. Second, if the person benefitted from a pre-plea diversion program before getting the expungement, that expungement is not effective.234 B.

A Conviction Can Be Vacated or Erased by an Extraordinary Writ; This Requires the Help of an Attorney

Most courts will find that a conviction that is vacated for cause (because of constitutional or other legal error in the conviction) no longer exists for immigration purposes. These errors could include that your client’s constitutional rights were violated, when they were not properly warned of the real immigration consequences of a plea bargain, or other errors. The U.S. Supreme Court held that the

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The Ninth Circuit en banc overruled its decade old rule in Lujan-Armendariz v. INS, but the old Lujan rule will remain helpful to those who were convicted before July 14, 2011. See Nunez-Reyes v. Holder, 646 F.3d 684 (9th Cir. 2011) (en banc). The court, however, held that a conviction for “under the influence” even if eliminated by rehabilitative relief, will remain a conviction for immigration purposes. For more information, see ILRC’s practice advisory on the effect of the Nunez-Reyes decision, available at: www.ilrc.org/crimes. 231 Lujan-Armendariz v. INS, 222 F.3d 728 (9th Cir. 2000) (possession); Cardenas-Uriarte v. INS, 227 F.3d 1132 (BIA 2000) (lesser offense) and 18 USC § 841(b)(4) (giving away a small amount of marijuana); Ramirez-Altamirano v. Mukasey, 554 F.3d 786 (9th Cir. 2009) (possession of drug paraphernalia). 232 Dillingham v. INS, 267 I&N Dec. 996 (9th Cir. 2001) (foreign offense). 233 Matter of Salazar, 23 I&N Dec. 223 (BIA 2002). 234 Estrada v. Holder, 560 F.3d 1039 (9th Cir. 2009).

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Sixth Amendment of the U.S. Constitution requires defense counsel to provide affirmative, competent advice to a noncitizen defendant regarding the immigration consequences of a guilty plea. See Padilla v. Kentucky, 130 S.Ct. 1473 (2010). Federal and many state laws allow for the conviction to be vacated with a showing of ineffective assistance of counsel under Padilla, if prejudice is shown. In order to raise such a claim, an immigrant who was not advised of the immigration consequences of her plea must have a legal means to go back into court to raise this claim in the jurisdiction where the conviction took place. You should consult with an expert in criminal law to see if the relevant state laws allow an immigrant to raise such a claim. A writ of habeas corpus, writ of error coram nobis, motions to vacate, and other motions can be used to vacate convictions depending on the jurisdiction.

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Immigration authorities generally recognize that this procedure eliminates any conviction, including for a drug offense. However, the Fifth Circuit Court of Appeals has held that a vacated conviction still exists for immigration purposes. 235 Vacating a conviction is an expensive and involved process. If your client has a drug conviction or any other convictions where there is no immigration solution you may want to refer him or her to a pro bono program or a private criminal attorney who is expert at criminal law to see if the conviction can be vacated as soon as possible. Do not delay in referring the case to such an expert! Because there are often strict timelines for obtaining post-conviction relief (for example, sometimes the convicting jurisdiction has to possess actual or constructive custody over the person) and this process can take some time, it must be pursued as soon as possible. FOR FURTHER INFORMATION, see: National Lawyers Guild, Immigration Law and Defense (West Group) Chapters 5, 6 American Immigration Law Association (AILA), Kurzban’s Immigration Law Sourcebook (www.aila.org, click on “Publications”) The Immigrant Legal Resource Center’s website: www.ilrc.org. Practice advisories are posted here; please check individual sections in the immigration law tabs. American Immigration Council (AIC), Legal Action Center’s Litigation Clearinghouse Newsletter (www.americanimmigrationcouncil.org) National Immigration Law Center, Immigrants Rights Update (newsletter published eight times a year that covers changes in immigration law, regulation, and government policy, free of charge by subscribing via email at www.nilc.org by clicking on “Publications”) FOR INFORMATION ON CRIMINAL ISSUES, see: Brady et al, Defending Immigrants in the Ninth Circuit (formerly California Criminal Law and Immigration) (Immigrant Legal Resource Center, www.ilrc.org) Kesselbrenner and Rosenberg, Immigration Law and Crimes (West Group) 235

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Renteria-Gonzalez v. DHS, 310 F.3d 825 (5th Cir. 2002); Gonzalez-Maldonado v. Gonzales, 491 F.3d 284 (5th Cir. 2007).

Tooby, Criminal Defense of Immigrants; Aggravated Felonies; Crimes Involving Moral Turpitude; Safe Havens (www.nortontooby.com) Immigration Advocates Network (IAN), Immigration and Crimes Resource Library (www.immigrationadvocates.org; note, membership required) FOR INFORMATION ON PUBLIC CHARGE AND AFFIDAVIT OF SUPPORT, see: National Immigration Law Center and Catholic Legal Immigration Network, Inc., Affidavits of Support and Sponsorship Requirements: A Practitioner’s Guide (National Immigration Law Center (NILC); www.nilc.org) National Immigration Law Center, Guide to Immigrant Eligibility for Federal Programs, 4th edition (www.nilc.org, click on “Publications”) FOR INFORMATION ABOUT HEALTH GROUNDS, see: Center for Disease Control (www.cdc.gov) “The Technical Instructions for Medical Examiners of Aliens” (www.cdc.gov)

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The National Immigration Law Center (NILC) houses many resources on health and immigration (www.nilc.org)

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CHAPTER 5 GROUNDS OF INADMISSIBILITY

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INDEX OF APPENDICES Appendix 5-A

USCIS, Vaccination Requirements

Appendix 5-B

USCIS, Section 212(a)(6) of the Immigration and Nationality Act, Illegal Entrants and Immigration Violators (Mar. 3, 2009)

Appendix 5-C

USCIS, Form I-864: 2017 HHS Poverty Guidelines for Affidavit of Support

Appendix 5-D

USCIS, Fact Sheet: Public Charge (Apr. 29, 2011)

Appendix 5-E

USCIS, Public Charge Questions and Answers (May 25, 1999)

Appendix 5-F

Instructions for Obtaining Criminal Record Checks and Requests for Criminal Records

Appendix 5-G

ILRC, Warning for Immigrants on Medicalized and Legalized Marijuana

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APPENDIX 5-A USCIS VACCINATION REQUIREMENTS

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Available at www.uscis.gov/news/questions-and-answers/vaccination-requirements Introduction These Questions and Answers provide basic information about the general vaccination requirements for immigrants (including individuals seeking adjustment of status), and specifically about the assessment made by the civil surgeon to determine whether an applicant meets the vaccination requirements. These Questions and Answers do not address the vaccination assessments conducted by panel physicians overseas. For refugees only, health departments may be considered a civil surgeon for purposes of completing the vaccination record. Background Under the immigration laws of the United States, a foreign national who applies for an immigrant visa abroad, or who seeks to adjust status to a permanent resident while in the United States, is required to receive vaccinations to prevent the following diseases: • • • • • • • • •

Mumps Measles Rubella Polio Tetanus and Diphtheria Toxoids Pertussis Haemophilus influenzae type B Hepatitis B Any other vaccine-preventable diseases recommended by the Advisory Committee for Immunization Practices

The Advisory Committee for Immunization Practices (ACIP) is an advisory committee to the Department of Health and Human Services (HHS)/Centers for Disease Control and Prevention (CDC) that recommends immunizations for the general U.S. population. Starting Dec.14, 2009, when the ACIP recommends new vaccines for the general U.S. population, CDC will assess whether these vaccines should be required for immigration purposes on a regular and on an asneeded basis according to specific criteria set by CDC. CDC is responsible for publishing the Technical Instructions for the Medical Examination of Aliens in the United States. These documents set the requirements for the immigrant medical examination and are binding on civil surgeons. The Technical Instructions include a vaccination component, specifying how the civil surgeon has to conduct the vaccination assessment. The civil surgeon records the results of the medical examination, including the results of the vaccination assessment, on USCIS Form I-693, Report of Medical Examination and Vaccination Record.

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If a foreign national applies for an immigrant visa abroad, that individual has to receive the medical examination by a panel physician designated by the U.S. Department of State (DOS). CDC issues separate instructions to panel physicians designated by DOS to conduct medical

examinations abroad. For more information about panel physicians, please consult DOS' website at http://travel.state.gov/visa/immigrants/info/info_3739.html. Questions and Answers Q. Where can I find information about vaccinations in general? A. CDC publishes information about vaccinations in general and information about the vaccine requirements for immigration purposes at http://www.cdc.gov/vaccines/. Q. Why do immigrants and adjustment of status applicants have to show proof they have received certain vaccinations? A. In 1996, Congress provided in legislation that every immigrant entering the United States, or every individual seeking adjustment of status to that of a legal permanent resident, show proof that he or she was vaccinated against vaccine-preventable diseases. The text for this requirement is in the Immigration and Nationality Act (INA), section 212(a)(1)(A)(ii). Q. How does the CDC decide which vaccines are required for immigration purposes? A. Some of the vaccines that are required are specifically listed in the INA. In addition to these, the statute also requires that an individual receive any other vaccinations recommended by the ACIP. CDC uses the following criteria in determining which of these recommended vaccines should be required for immigration purposes: • •

The vaccine must be an age-appropriate vaccine as recommended by the ACIP for the general U.S. population, and At least one of the following: o The vaccine must protect against a disease that has the potential to cause an outbreak; or o The vaccine must protect against a disease eliminated in the United States, or is in the process of being eliminated in the United States.

Q. I am seeking immigrant status in the United States but had a medical examination abroad by a panel physician; I also received some vaccines. Do I have to repeat the medical examination and get the vaccines again? A. Please read the instructions to Form I-693 to determine if you must repeat the medical examination, including the vaccination assessment, based on your current status in the United States.

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Q. How do I know which vaccines are required for immigration purposes? A. A civil surgeon is required to follow the Technical Instructions for the Examination of Aliens in the United States, including the 2009 Technical Instructions to Civil Surgeons for Vaccinations, and any updates published online. CDC publishes the vaccination requirements and medical examination instructions (including a detailed table listing all required vaccines) at http://www.cdc.gov/immigrantrefugeehealth/exams/ti/civil/vaccination-civil-technicalinstructions.html Q. Do I have to receive all the required vaccines, even though I have been vaccinated before? A. No. The civil surgeon will review your vaccination records at the time of your medical examination to see whether you have proof of earlier vaccinations against vaccine-preventable

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diseases that are appropriate for your age category. It is important that you take any written vaccination documentation you may have to the civil surgeon when you have your immigration medical examination.

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If you lack any vaccinations required for your age category, the civil surgeon will administer the vaccines as needed. In the alternative, you can also choose to obtain the required vaccines from your private healthcare provider. However, because only a civil surgeon is authorized to complete the vaccination assessment on the Form I-693, you must return to the civil surgeon with the proof that you have received the missing vaccines. In addition, some individuals are immune to vaccine-preventable diseases, and they know of the immunity because their private healthcare provider has tested them. If you have any written evidence of immunity, you should take this documentation to your civil surgeon. This will enable the civil surgeon to determine which vaccines you need to receive. Q. Do I have to receive all the vaccines on CDC's vaccination list for the immigrant population, or only the ones that are age appropriate? A. You are required to document receipt of vaccines that are age appropriate for you. The civil surgeon will annotate Form I-693 to indicate that you were not required to receive a particular vaccine because it was not age appropriate at the time of the medical examination. Q. Do I have to receive all the vaccines that are on CDC's list and that are age appropriate, although I may have a medical condition that prevents me from receiving the required vaccines? A. If you have a medical condition that prevents you from receiving a vaccine that is appropriate for your age, the civil surgeon will annotate the Form I-693 accordingly and mark the vaccine as contraindicated. A contraindication is a condition that prevents you from receiving a particular vaccine. CDC lists in its Technical Instructions what is considered a contraindication. It is up to the civil surgeon to determine whether you have such a condition that prevents you from receiving a particular vaccine at the time of the immigration medical examination. Q. Certain vaccine series can only be completed with multiple visits to the civil surgeon. Am I required to complete the entire series before the civil surgeon can sign the Form I-693? A. You are only required to receive a single dose of each vaccine when you visit the civil surgeon. You are encouraged to follow up with your private health care provider to complete the series. Once you have received the single dose appropriate at the time, the civil surgeon can sign and certify the Form I-693. Q. I am pregnant and do not wish to receive any vaccinations. Do I still have to get them to be able to obtain permanent resident status in the United States? A. If you are pregnant, the CDC's Technical Instructions direct the civil surgeon how to evaluate the vaccines you are able to receive during pregnancy. If the civil surgeon cannot safely administer a required vaccine, he/she will annotate the Form I-693 by marking the vaccine as contraindicated. See the CDC "Guidelines for Vaccinating Pregnant Women" page for information on pregnancy and vaccinations in general.

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Q. Can the civil surgeon safely administer all vaccines that are required all at once? A. The civil surgeon will let you know if you can receive all the vaccines at once, or if there is a

concern based on your particular medical condition that will not allow you to receive all required vaccines at once. Q. When does the flu season start for purposes of the seasonal flu vaccine requirement? Since the seasonal flu vaccine is required, do I have to get the seasonal flu vaccine if it is not the flu season? A. For purposes of the immigration medical examination, the flu season starts on October 1 and ends on March 31 each year. If your immigration medical examination is during this period, you are required to have the seasonal flu vaccine. If you have an immigration medical examination completed between April 1 and September 30, when it is not the flu season for immigration purposes, you are not required to document that you have received the seasonal flu vaccine. Q. I heard that the vaccine against herpes zoster (zoster) and the Human Papillomavirus (HPV) are required vaccines. Is this true? A. From Aug. 1, 2008, until Dec. 13, 2009, the zoster and the HPV were required vaccines for immigration purposes. However, the zoster vaccine was not available from Aug. 1, 2008, through Dec. 13, 2009, and USCIS posted a message on the Web to inform civil surgeons they could annotate the vaccination record with "not available" if they were not able to obtain the vaccine. In 2009, CDC changed the vaccination requirements based on ACIP's recommendations. As of Dec. 14, 2009, the zoster and the HPV vaccine were no longer required. Q. I had my immigration medical examination before Dec. 14, 2009, before the zoster and HPV vaccines were eliminated. I was required to have one of them, but did not receive it. My Form I-693 says that I refused to have the HPV or zoster vaccine. Will my I-693 be returned or my application denied? A. On Dec. 14, 2009, vaccines against herpes zoster (zoster) and HPV are no longer required. It is irrelevant that you did not receive either the zoster or the HPV because beginning on Dec. 14, 2009; you are no longer inadmissible solely because you did not have the vaccine. USCIS will not return your Form I-693, nor will it deny your application because you did not receive the vaccine. Q. Who pays for the vaccinations? A. The applicant is responsible for paying the appropriate fee for all vaccinations directly to the civil surgeon, as agreed upon with the civil surgeon. You should ask about the price of the vaccinations before the medical examination or the administration of the vaccinations. Q. Can I be forced to be vaccinated for immigration purposes? A. If you refuse to receive the vaccines required for immigration purposes, as mandated by the immigration laws of the United States, your application for legal permanent resident status may be denied.

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Q. What will happen if I refuse to receive one or all of the required vaccines? A. Tell the civil surgeon if you do not wish to receive the required vaccines or a particular vaccine. You should also tell the civil surgeon the reason you do not wish to receive the vaccine(s). In this case, a waiver may be available to you, but only under the following circumstances: •

You are opposed to vaccinations in any form– that is, you cannot obtain a waiver based on an objection only as to one vaccination

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• •

Your objection must be based on religious beliefs or moral convictions; and The religious or moral beliefs must be sincere.

The form used to apply for a waiver depends on the adjustment category under which you are seeking legal permanent residence status. For example, refugees and asylees seeking adjustment of status should file Form I-602, Application by Refugee for Waiver of Grounds of Excludability. Individuals seeking adjustment of status as a result of an approved Form I-130, Petition for Alien Relative, or Form I-140, Immigrant Petition for Alien Worker, would file Form I-601, Application for Waiver of Grounds of Inadmissibility.

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Q. My civil surgeon says that a vaccine is currently not available. What should I do? A. Ask the civil surgeon whether another health care provider may have the vaccine. If another physician or department or pharmacy carries the vaccine and can administer the vaccine, you should get the vaccine and request documentation that you have received the vaccine. Bring the written record back to the civil surgeon so that s/he can complete the Form I-693. HHS/CDC monitors which vaccines are not available in the United States, or which vaccines may experience a shortage. If CDC determines there is a nation-wide shortage of a vaccine, it will recommend to USCIS to post a message on www.uscis.gov to explain to applicants and civil surgeons whether the vaccine is required and under what circumstances. The information is available on USCIS’ Form I-693 page, the Immigration Medical Examination page, or the Designated Civil Surgeon page. Q. Will USCIS accept a Form I-693 if the vaccination chart is incomplete? A. No. The vaccination chart should have at least one entry in each row for each vaccine. If the vaccination chart is not properly completed at the time of the medical examination, USCIS may return the Form I-693 to you with instructions on how to correct it. If you refuse a vaccine because of religious or moral reasons, the civil surgeon will mark this on the Form I-693. In this case, you will have to apply for a waiver. Q: Where can I find more information about the vaccination requirements for immigration purposes and how these requirements affect the completion of Form I-693? A. CDC publishes the Technical Instructions including the vaccination component http://www.cdc.gov/immigrantrefugeehealth/exams/ti/civil/technical-instructions-civilsurgeons.html For more information about the civil surgeon program, the completion of Form I-693, or the adjustment of status application, please visit www.uscis.gov, or call USCIS’ National Customer Service Center at 1-800-375-5283 (TTY 1-800-767-1833). Last Reviewed/Updated: 07/14/2015 Available at www.uscis.gov/news/questions-and-answers/vaccination-requirements

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APPENDIX 5-F OBTAINING CRIMINAL RECORD CHECKS Be sure to tell all applicants that Department of Homeland Security (DHS) will have a copy of any criminal records that exist. A good starting place is to obtain a FBI criminal background check, which will have a review of criminal history in any state. In addition, we recommend obtaining a copy of the state summary of criminal history. If they have been arrested in several states, applicants can request the state summaries in each of those states. Finally, any applicant who might have a conviction should try to obtain the copy of the court “docket” from the court where the case was held. It is best, however, to obtain a copy of the entire court file. See below for directions to obtain these criminal records. FBI Criminal and Immigration Record Check If you have ever been arrested or detained by federal law enforcement, including immigration officers at the border or in the United States, OR you have been arrested in a state other than California, request your U.S. Criminal History Summary from the Federal Bureau of Investigation (FBI). Steps 1. Fill out the FBI Criminal History Summary Request form (see page 3 for the form) a. If the request is for a couple, family, etc., all persons must sign the form. b. Include your complete mailing address. c. Please provide your telephone number and/or e-mail address, if available. d. It is not necessary to answer all of the questions: only those with a star (*) e. Social Security number is optional: do not put one unless it is a valid SSN number f. For “Reason for Request” you can choose: “personal review” 2. Have your fingerprints taken on the FBI form (see page 4 for the form) a. Check the list of places to have your fingerprints taken b. Call the fingerprinting service in your area and ask: i. Do they provide ink card fingerprinting for FBI record checks? ii. What is the fee for taking prints? iii. What kind of ID is required? c. Your name and date of birth must be provided on the fingerprint card. 3. Get a money order or cashier’s check for $18 made payable to the Treasury of the United States. Don’t forget to sign it.

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a. Cash, personal checks, or business checks are not accepted. b. If the request is for a couple, family, etc., include $18 for each person.

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4. Send your request packet to the FBI: a. fingerprint card b. completed and signed request form c. fee payment

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FBI CJIS Division – Record Request 1000 Custer Hollow Road Clarksburg, WV 26306 5. It may take five or seeks weeks to receive your criminal history summary back from the FBI. If it takes longer, you can call the FBI’s Customer Service Group at (304) 625-5590.

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Copy of FBI Fingerprint Ink Card

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California DOJ Criminal Records Check Check your own state’s criminal justice website for instructions on how to obtain criminal records, as they may have forms available online, similar to California’s, described below: For California Residents Only CA DOJ Records Requests requires:  Digital fingerprint scan  $25 fee Steps 1. Find the Live Scan location convenient for you. a. Check the list of CA Live Scan sites b. Call ahead to ask what forms of identification are accepted. c. You may also want to double check their fee for taking prints 2. Fill out the Live Scan Form (Form BCIA 8016) (see page 6) a. Check “Record Review” as the “Type of Application” b. Enter “Record Review” on the “Reason for Application” line. c. Fill out all your personal information. d. Leave blank any questions you don’t know the answer to 3. Take the completed form to any Live Scan site for fingerprinting services. a. If needed, ask the Live Scan operators for assistance filling out the form b. Live Scan means that the fingerprints are sent digitally to the DOJ from the Live Scan site c. The Live Scan operator can accept your payment of $25 to the DOJ

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Additional questions can be directed to the DOJ Record Review Unit at (916) 227-3835.

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How to Obtain Your Court File If you have had contact(s) with the police, you will need to obtain all court records relating to the contact(s). Your court records can be obtained from a variety of sources. Here is a list of the most common sources: 1. The superior court where you were convicted. They will only have information for convictions from that county and not other counties. You can go in person and make copies of the documents in your file. 2. If the Public Defender’s Office represented you in your criminal case, it may be able to provide you with a copy of your file or assist you in requesting your records from the court. In some counties, the public defender may help you even if that office did not represent you in your case. Contact the Public Defender’s Office in the county where the incident happened and tell them that you need to obtain your court records. 3. Your attorney, parole officer, probation officer, or contacts within the courts or law enforcement community who can assist you in obtaining your records. Please note: You will be required to pay a fee (varies by county) to the court in order to obtain your records. Some courts allow fee waivers so be sure to ask if this option is available for that specific court. Calling the Court Some courts do not have an online process by which you can request your court records. In these situations, it is best to call the court directly and request your records over the phone. 1. You should start by calling the court clerk at the criminal court as they are used to dealing with general questions and can direct you to the correct person who can assist you. If you cannot find the specific number for the court clerk, you can typically call the main number for the court itself, press the option to speak with an operator, and ask to be transferred to the “records” department. Although you do have the option of leaving a message, it is always best to try and speak with an actual person. Try calling multiple times if necessary until you can actually speak to someone who can assist you.

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2. Tell the clerk that you would like a copy of your criminal court records. Provide your identifying information (name, birthdate) and the year of the incident. Ask what the procedure is to obtain the court records. 3. The clerk will typically ask you to come in and fill out a request form and pay the fee in order to obtain the records. If you live far away, the clerk can mail you the request form for you to fill out and mail back. You will also have to mail in a check to pay for the fees.

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4. Once the records are available, the court will contact you to come in and pick up the documents. If you request the records to be mailed to you, the court will typically require a return envelope with your mailing address and prepaid postage. 5. For older records (10+ years), the court may not have these documents available on the premise and will have to order them, which may take anywhere from a couple of weeks to a few months. Once the records are available, the clerk should contact you to let you know. 6. Always ask the clerk what the estimated time frame is for getting your record. If a substantial amount of time has passed and you have not heard back from the court, you should call the clerk and ask about the status of your records. Unfortunately, courts are not always as organized as we would like them to be and your record request may have gotten lost or been neglected. Be proactive about following up!

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APPENDIX 5-G WARNING FOR IMMIGRANTS ON MEDICAL AND LEGALIZED MARIJUANA The Problem •

28 states 1 and the District of Columbia have legalized medical marijuana. Eight states2 and the District of Columbia have legalized recreational marijuana for adults.

•

Immigrants may reasonably think that using marijuana according to these state laws will not hurt their immigration status. Unfortunately, that's wrong!! It is still a federal offense to possess marijuana, and federal law controls for immigration.

•

If a non-citizen admits to an immigration official that he or she has ever used marijuana, the person can face very serious immigration problems – if he or she applies for a green card, applies for U.S. citizenship, travels outside the U.S., or ICE just questions them on the street. This is true even if the person never was convicted of a crime, just used marijuana at home, and it was legal under state law.

•

More and more, immigration officers are asking noncitizens if they have ever used marijuana– especially in states that have legalized marijuana.

What to Do: Legal Self-Defense for Noncitizens •

Don’t use marijuana until you are a U.S. citizen. Don’t work in a marijuana shop.

•

If you have a real medical need and there is no good substitute for medical marijuana, get legal counsel.

•

Never leave the house carrying marijuana, a medical marijuana card, paraphernalia (like a pipe), or accessories like marijuana T-shirts or stickers. Don’t have photos or text about you and marijuana on your phone, Facebook, or anywhere else.

•

Most important, never admit to any immigration or border official that you ever have used or possessed marijuana, unless you have expert legal advice that this is OK. If a federal official asks you about marijuana, say that you don’t want to talk to them and you want to speak to a lawyer. You have the right to remain silent. Stay strong – once you admit it, you can’t take it back. If you did admit this to a federal officer, get legal help quickly.

Immigrant Legal Resource Center, www.ilrc.org

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January 2017

Medical marijuana is legal in Alaska, Arizona, Arkansas, California, Colorado, Connecticut, Delaware, Florida, Hawaii, Illinois, Maine, Maryland, Massachusetts, Michigan, Minnesota, Montana, Nevada, New Hampshire, New Jersey, New Mexico, New York, North Dakota, Ohio, Oregon, Pennsylvania, Rhode Island, Vermont, And Washington. 2 Recreational marijuana is legal for adults in Alaska, California, Colorado, Massachusetts, Nevada, Oregon, and Washington, and soon will be in Maine.

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CHAPTER 6 WAIVERS OF INADMISSIBILITY

This chapter includes: § 6.1 § 6.2 § 6.3 § 6.4 § 6.5 § 6.6 § 6.7 § 6.8 § 6.9 § 6.10 § 6.11 § 6.12

Waivers of Grounds of Inadmissibility .............................................................. 6-1 What Is a Waiver? .............................................................................................. 6-2 What Is Discretion? ............................................................................................ 6-2 Guiding Principles .............................................................................................. 6-3 Waiver of Inadmissibility for Visa Fraud........................................................... 6-4 Invalid Documents and Document Fraud Waiver of Inadmissibility ................. 6-5 Waiver of Inadmissibility/Exemption for Alien Smuggling .............................. 6-7 Waiver for Communicable Disease, Lack of Vaccinations, or Dangerous Mental Disorders under INA § 212(g) ........................................... 6-10 Waivers for Unlawful Presence, Past Removal, and Other Related Immigration Offenses ....................................................................................... 6-13 Waiver for Certain Crimes under INA § 212(h) .............................................. 6-21 Procedure for Applying for a Waiver ............................................................... 6-24 How Do You Establish Extreme Hardship? ..................................................... 6-25

§ 6.1

Waivers of Grounds of Inadmissibility

As we have covered so far in this manual, people may be inadmissible if they have certain problems relating to a criminal record, health, immigration offenses (such as making a misrepresentation or using false document, prior removal or deportation, alien smuggling, or unlawful presence), likelihood of relying on cash aid in the U.S. and security reasons. Sometimes, a person who is inadmissible cannot immigrate. However, USCIS can waive (forgive) certain grounds of inadmissibility in its discretion. If USCIS agrees to waive the ground of inadmissibility, the person may immigrate. In this section, we will discuss the requirements for certain waivers and waiver applications. In this chapter, we will focus on waivers that one might seek in conjunction with a family-based immigration process. These same waivers for inadmissibility might be used by someone seeking status through consular processing, adjustment of status, as well as by a permanent resident as a defense to removal. In some cases a waiver is not possible. However, there are other possible forms of relief for those that are inadmissible. For certain relief, some grounds of inadmissibility or deportability may not apply at all. Here, we focus on waivers that one might seek in conjunction with a family-based adjustment of status or consular process.

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§ 6.2

What Is a Waiver?

To obtain a waiver is to obtain “forgiveness” of the ground of inadmissibility or deportability. The USCIS is saying, “Even though we could deny you, you have shown that you deserve to be admitted and we have decided to let you immigrate.” To obtain a waiver, the person must submit an application for a waiver to USCIS or the immigration judge using Form I-601 (for family and employment based immigrants, including K visa holders), Form I-602 (for asylees), Form I-192 (for nonimmigrants), or Form I-212 (specific waiver for prior deportations). 1 Some deportation waivers do not require a form—the application is made in writing to the immigration judge. Only certain grounds of inadmissibility and deportability, under certain circumstances, can be waived. Example: Muata is inadmissible for visa fraud under INA § 212(a)(6)(C)(i). He wants to immigrate through his U.S. citizen wife. INA § 212(i) states that the Attorney General (that means the USCIS, or an immigration judge if the applicant is in removal proceedings) in his or her discretion may waive the visa fraud ground of inadmissibility, if the alien meets certain requirements. Muata meets one of the requirements because he is the spouse of a U.S. citizen, therefore he is eligible to apply for the waiver. To be granted, he must show his wife will suffer extreme hardship if the waiver is denied. If USCIS grants the waiver, he can become a permanent resident. Some grounds of inadmissibility cannot be waived. People inadmissible under those grounds cannot immigrate through a family visa petition. Example: Ira has a U.S. citizen wife and six U.S. citizen children. He is inadmissible because he has a conviction for sale of drugs. There is no waiver for this ground of inadmissibility. Ira cannot immigrate through his family. § 6.3

What Is Discretion?

USCIS is not required to grant an application for a waiver of inadmissibility. It has the discretion to grant the waiver. The person must submit evidence to convince USCIS that it should grant the waiver. The same is true for waivers of inadmissibility or deportability before an immigration judge in removal proceedings Discretion is an important concept in immigration law. Some benefits are mandatory, meaning that USCIS or the immigration judge (IJ) must grant the application if the person meets the requirements. For example, if you prove that your client is the unmarried son of a lawful permanent resident, USCIS must approve your second preference visa petition. Another example is an “exception” to the ground of inadmissibility or deportability—for example, there are several “exceptions” for people that are not subject to the three- and ten-year bars for unlawful presence—such as minors under age 18. The only proof needed to qualify for the exception would be a birth certificate for the minor. 1

There are other forms required for other applications in removal proceedings that are waivers or similar to waivers, such as § 212(c) or cancellation of removal. See www.justice.gov/eoir/formspage.htm.

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In contrast, if a benefit is discretionary, USCIS or the IJ has the choice to decide whether or not to grant the benefit. Our task is to present facts that will convince USCIS or the IJ that the applicant deserves the waiver, so that it will be approved. Much more is therefore required in terms of proof and documentation in a waiver application than in an application for a mandatory benefit. § 6.4 A.

Guiding Principles

Reading the Immigration and Nationality Act (INA)

Each form of relief from removal and each immigration benefit is different; and only certain grounds of inadmissibility or deportability, under certain circumstances, can be waived. Therefore, you must read the section of the INA that describes the benefit or form of relief your client seeks, in order to see which grounds of inadmissibility or deportability apply, and what waivers, if any, are available. How can you find the waiver sections in the INA? Most waivers are noted within the section of the INA that sets out the ground of inadmissibility or deportability. Look at the section that sets out the specific ground you are interested in. It will either contain the waiver or refer you to another section of the INA where the waiver is located. For example, INA § 212(a)(9)(B) contains the inadmissibility ground that bars people from admission for three or ten years based on unlawful presence. The same section contains the waiver for that ground at INA § 212(a)(9)(B)(v). On the other hand, look at INA § 212(a)(6)(C), which contains the ground of inadmissibility for misrepresentation. Section 212(a)(6)(C)(iv) states that there is a waiver and refers you to a different section, INA § 212(i). If you turn to INA § 212(i), you will find the waiver provision for those that have made a misrepresentation or committed fraud. B.

Waivers vs. Exceptions

There are some cases where a waiver may not be necessary at all. For example, sometimes there is an “exemption” or “exception” to the ground of inadmissibility for certain people. It is very important to recognize the difference between proving your client qualifies for an “exception,” which is mandatory, and proving eligibility for a “waiver,” which is discretionary. If someone falls within an exemption or exception, it applies automatically and there is no need to submit a waiver application. Example: Sonia is applying for permanent residence through her husband. She has one petty theft conviction, for which she was sentenced to two days in jail and six months of probation. This may be a crime of moral turpitude. There is an inadmissibility ground for crimes of moral turpitude under INA § 212(a)(2)(A)(i)(I). However, Sonia is not inadmissible because her offense, even if it is a crime of moral turpitude, falls within the “petty offense exception” to this ground of inadmissibility found in INA § 212(a)(2)(A)(ii)(II). Sonia does not need a waiver in order to immigrate. Example: Rosario has a conviction for possession of less than an ounce of marijuana. She is inadmissible under INA § 212(a)(2)(A)(i)(II) for having violated a law relating to

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controlled substances. Rosario will need a waiver under INA § 212(h) before she can immigrate. 2 C.

Qualifying Relatives

Many waivers require the applicant to demonstrate that certain U.S. citizen or lawful permanent resident relatives in order to qualify. These relatives are referred to as “qualifying relatives” because—with one exception—all waivers require that the applicant show that the “qualifying relative” would experience a certain standard of hardship if the waiver were denied. The exception is the waiver for misrepresentation under the Violence Against Women Act (VAWA) under INA § 212(i), which permits the VAWA self-petitioner applying for the waiver to prove hardship to him or herself. Otherwise, a U.S. citizen or lawful permanent resident relative is necessary in order for the applicant to qualify for the waiver. Read the following sections carefully and note which family relationships are required because the various waivers require different relationships. For example, look at the waiver provision at INA § 212(i). With the exception of a VAWA self-petitioner, the applicant for this waiver must be the spouse, son, or daughter of a U.S. citizen or lawful permanent resident and must be able to show that this U.S. citizen or lawful permanent resident relative would experience extreme hardship if the applicant is denied the waiver. This means that only a U.S. citizen or lawful permanent resident spouse or parent can be the qualifying relative. Example: Wu and John both need to get a waiver for visa fraud. Wu is married to a permanent resident. John is the father of a U.S. citizen, but has no other family members in status. Wu can apply for a waiver because he is the spouse of a lawful permanent resident. John cannot apply for a 212(i) waiver, because being the parent of a U.S. citizen is not a qualifying relationship for this waiver. § 6.5

Waiver of Inadmissibility for Visa Fraud

Under INA § 212(a)(6)(C), a person who has committed visa fraud 3 is inadmissible. This ground can be waived at the discretion of USCIS. To be eligible to apply, the person must: • •

Be the spouse, son, or daughter of a U.S. citizen or lawful permanent resident, and Show that the U.S. citizen or lawful permanent resident relative would suffer extreme hardship if the USCIS denied the waiver. Example: Tse lied to a consular officer to get a visa to enter the United States. Now he is immigrating through his citizen wife. Because he is the spouse of a U.S. citizen, he can apply for an INA § 212(i) waiver of the visa fraud ground of inadmissibility. He must show that denial of the waiver will cause his wife extreme hardship.

Many people can use an INA § 212(i) visa fraud waiver to excuse some forms of document fraud. See discussion of waivers for document fraud, below.

2

Note that simple possession of 30 grams or less of marijuana is the only type of controlled substance offense that can be waived under the inadmissibility grounds, and the only controlled substance offense for which there is an exception under the deportability grounds. 3 See Chapter 5 for a discussion of visa fraud/misrepresentation ground of inadmissibility.

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Note: people who were wrongfully admitted to the United States due to a misrepresentation—i.e., those who were inadmissible at admission—may be eligible for a waiver of deportability under INA § 237(a)(1)(H). Usually, these persons are deportable because they committed visa fraud to gain admission, but innocent misrepresentations may also be addressed through this waiver. The person must either: • • •

Be the spouse, parent, son or daughter of a U.S. citizen or lawful permanent resident, and Have been in possession of an immigrant visa or equivalent document and otherwise admissible at the time of admission to the United States. OR Be a VAWA self-petitioner (no qualifying relatives required if VAWA).

PRACTICE TIP for Fraud/Misrepresentation Waivers: Whenever possible advocates first should try to convince the USCIS examiner or consular officer that the applicant has not committed a violation of INA § 212(a)(6)(C) because visa fraud waivers are very difficult to obtain. For example, a client may have lied about something to the government, but the lie did not really have anything to do with whether the application could be approved (not “material”), such as providing the wrong date of birth in a marriage petition case. Other misrepresentations may be unintentional or innocent mistakes. In neither case should a client be found inadmissible. Sometimes as a practical matter, if USCIS insists a waiver is required and indicates it is likely to be granted, it may be wise to go ahead file the waiver but also write down the ground of inadmissibility as “alleged misrepresentation” on the form, so that you’re not admitting to doing anything wrong, just acknowledging that USCIS is accusing the client of a violation. Other times it may be best to appeal a finding of inadmissibility that is wrongly decided. § 6.6

Invalid Documents and Document Fraud Waiver of Inadmissibility

Those that do not have proper documentation when they present themselves for admission may face inadmissibility under INA 212(a)(7)(A), and possibly under § 212(a)(6)(F). Remember from Chapter 5 that insufficient documentation under INA § 212(a)(7)(A) is a separate ground of inadmissibility that should be distinguished from grounds involving fraud or misrepresentation. Unlike material misrepresentation under INA § 212(a)(6)(C)(i) or false claim to U.S. citizenship under § 212(a)(6)(C)(ii), there is no intent requirement. And unlike inadmissibility for document fraud under § 212(a)(6)(F), no “final order” for violation of § 274C is required. A.

Waiver of Inadmissibility for Persons Inadmissible at Admission

Those who are inadmissible at admission—may be eligible for a waiver of removability under INA § 212(k). This waiver covers those who have immigrant visas but are found to be inadmissible under INA § 212(a)(5)(A) [employment immigrant requirements] or INA § 212(a)(7)(A)(i) [lacking in proper documents], and who did not know, and could not reasonably have known, that they were inadmissible. In other words, it is different from the inadmissibility waiver under INA 212(i) and the deportability waiver under INA § 237(a)(1)(H) because it will not waive a misrepresentation. This waiver can be used at the time of the initial admission, or later on, after the wrongful admission has been discovered, sometimes many years later.4 4

The waiver is available both for persons charged with inadmissibility and deportability because they were inadmissible on entry. Kyong ho Shin v. Holder, 607 F.3d 1213, 1218 (9th Cir. 2010).

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Example: Carla immigrated through a second preference visa as the unmarried daughter of a permanent resident, even though she was married. She disclosed her marriage to the consular officer, who approved the visas for her, her husband, and her children. Carla does not discover that she and her family were wrongfully admitted as permanent residents until she files an application for naturalization. She and her family members can apply for a waiver under INA § 212(k) because they did not lie about their marital status, and did not know that the consular officer was making a mistake when he approved their immigrant visas. B.

Waiver for Those with Final Orders under INA § 274C

One of the few good things IIRIRA did was to create (limited) waivers for inadmissibility and deportability for INA § 274C document fraud. The waivers are set up similarly, but not identically, to the waiver for alien smuggling. It is very important to remember, however, that a person does not need a waiver for INA § 274C document fraud and is not inadmissible or deportable on that basis unless there is a “final order” by an administrative law judge which finds that the person has committed document fraud under INA § 274C, although that person may still be inadmissible for visa fraud for the same actions. See discussion in Chapter 5, § 5.3. Under INA § 212(d)(12), the waiver of inadmissibility is available to: 1. Lawful permanent residents who temporarily left the country voluntarily, and are otherwise admissible, and 2. Noncitizens seeking admission or adjustment based on any family visa petitions. The applicants must not have previously been fined under INA § 274C and must have committed the offense “solely to assist, aid, or support the noncitizen’s spouse or child (and not another individual).” The waiver will be granted “for humanitarian purposes or to assure family unity.” What does “assist, aid, or support” mean in document fraud? At this writing, there is no regulation or case law on the meaning of how someone commits document fraud to “assist, aid or support” a family member. What do you think this ought to mean? Should it include? • • • •

Using a false document to get a job to support your spouse or child? Getting a false document for your spouse or child to use to get a visa? Helping your spouse or child fill out a false application for immigration benefits? Other?

When must the family relationship occur? The waivers for alien smuggling specifically include a phrase stating that the applicant must have helped someone who at the time of the smuggling occurred had the necessary family relationship with the person being smuggled (e.g., must have been legally married). The document fraud waivers discussed here do not contain this phrase. Since Congress did not include this requirement in the document fraud statute, it should not apply, although USCIS does not agree with this interpretation. 5

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March 3, 2009 USCIS Interoffice Memorandum, titled, Section 212(a)(6) of the Immigration and Nationality Act, Illegal Entrants and Immigration Violators; Revisions to the Adjudicator’s Field Manual.

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C.

Can a Waiver under INA § 212(i) Cure Document Fraud?

People who cannot qualify under the INA § 274 waivers discussed above might be able to clear up a document fraud problem with a waiver for visa fraud, if the document fraud they committed also constitutes visa fraud. Visa fraud can be waived for inadmissibility [INA § 212(i)] and deportability [INA § 237(a)(1)(H)]. Example: Sonya wishes to adjust her status based on a petition by her U.S. citizen mother. Sonya tells you that she entered the United States on a visitor’s visa that she obtained from the U.S. Embassy in Poland using her sister’s identity and documents. What she did constitutes both visa fraud (lying to get an immigrant visa) and document fraud (using her sister’s documents to get an immigration benefit). Sonya does not have a spouse or child, and therefore would not be eligible for a document fraud waiver if she received an INA § 274C final order (the fraud was not to assist a spouse or child). Neither USCIS nor ICE has ever charged Sonya with document fraud or given her a notice for an INA § 274C hearing. If Sonya applies for adjustment and submits a visa fraud waiver based on hardship to her U.S. citizen mother, the USCIS might grant it and not charge her with document fraud under INA § 274C. Then she can immigrate. If the USCIS decides to charge her with document fraud, and she receives a final order, however, Sonya will be both ineligible to adjust her status and deportable with no relief from deportation. 6 See Matter of Delia Lazarte-Valverde, 21 I&N Dec. 214 (BIA 1996). In the past, the USCIS has said that if someone in Sonya’s position—a person who committed visa and document fraud and has not yet been summoned to an INA § 274C document fraud hearing—later submits an application to immigrate through a family visa and submits an INA § 212(i) visa fraud waiver, the USCIS will consider the visa fraud waiver. If the USCIS grants the visa fraud waiver, it will not try to bring the person to the INA § 274C document fraud hearing. (See March 1993 letter from the INS Central Office to the San Francisco District Director, reprinted in Interpreter Releases, Vol. 71, No. 6, page 219, February 7, 1994.) This policy is not codified in a regulation or decision, and there is no guarantee that the USCIS will always follow it. Moreover, now that there is a special waiver for document fraud as of April 1997, the USCIS could change its policy. Advocates should stay abreast of developments and talk with other experienced advocates to see how the USCIS is handling waivers at your office. § 6.7 A.

Waiver of Inadmissibility/Exemption for Alien Smuggling

Waiver of Inadmissibility

A person, who at any time has knowingly helped an alien enter, or try to enter, the United States unlawfully is inadmissible under INA § 212(a)(6)(E). Lately, USCIS has increased questioning on this ground, including at the time of naturalization.

6

Sonya is deportable because she entered the United States with a visitor’s visa. See INA § 101(a)(13).

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There are two types of relief: 1. A discretionary waiver for returning permanent residents and for people who apply for immigration based on family petitions, except for 4th preference brothers and sisters of U.S. citizens; and 2. An exemption for certain persons who were present in the United States on May 5, 1988, were eligible for the “Family Unity” program, are immediate relatives or second preference beneficiaries, and who are applying for Family Unity or immigration through a family visa petition. The waiver will waive inadmissibility, but does not “waive” the bar to showing good moral character.7 People who must establish good moral character will not be able to do so if they have helped someone enter illegally during the period in which they need to show good moral character. Additionally, those who will immigrate through 4th preference petitions (brothers and sisters of U.S. citizens) or work petitions, or who are applying for many other forms of relief are not eligible for a waiver of this ground of inadmissibility. Further action to persuade Congress to make this standard more humane is needed. 1. Lawful permanent residents and family immigrants—a discretionary waiver A waiver for alien smuggling is available both to those seeking admission and immigrating as immediate relatives or through a first, second, or third preference visa petition, as well as to permanent residents who are seeking admission or are in removal proceedings. Why would permanent residents be seeking admission? They might fall into one of the categories of actions that cause a lawful permanent resident to be “seeking admission” after a trip outside the United States [gone for over 180 days, inadmissible under INA § 212(a)(2), etc.] See INA § 101(a)(13). To be eligible to apply, the resident or family immigrant must have smuggled in his or her spouse, parent, son or daughter, and no one else. The relative must have had that status at the time of the smuggling. INA § 212(d)(11). Example: Mary, a permanent resident, crossed the border without inspection while smuggling her fiancé Harry across the border. Although they later married, Mary is not eligible for this waiver because, at the time she smuggled him, Harry was not her husband. If the person meets these requirements, she then must convince USCIS to grant the waiver because of one or more of these following grounds: •

For “humanitarian purposes.” For example, the person might be ill and unable to get good medical care in the home country;

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Good Moral Character is a separate requirement for certain benefits and relief, such as naturalization. See INA § 101 (f) for things that bar a person from showing good moral character. Usually, good moral character is only required for a specific period of time, depending on the benefit sought. A person can waive a ground of inadmissibility, but would still be found to lack good moral character until enough time has passed.

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• •

To “assure family unity.” For example, the person might be leaving behind a permanent resident spouse and child in the United States; or When it is “otherwise in the public interest.” For example, the person might be an active church member or a valued employee whom the community would miss. Example: Juanita arranged for someone to smuggle her baby into the United States. Now she has married a U.S. citizen and wants to immigrate through her husband as an immediate relative. When she goes to her visa appointment, she will submit a waiver application to the official. She will demonstrate that she smuggled only her child, and that USCIS should grant the waiver based for humanitarian reasons, to assure family unity, or on other public interest grounds.

These three categories are quite broad, and most good evidence about a person’s life will fit within one or more of them. At some point, the waiver application should state which ground or grounds the evidence is supporting. For example, an application might state “This waiver should be granted for humanitarian purposes and to ensure family unity: Regina would be in grave danger if she returned to Mexico, where drug cartels have killed almost her entire family, and her family in the United States cannot support themselves without her here.” Note: Lawful permanent residents also can apply for a waiver of deportability for alien smuggling, if they meet the same requirements. See INA § 237(a)(1)(E)(2). Some relatives of legalized aliens may qualify for something better than this waiver: an automatic exemption. See next section. 2. “Family Unity” relief: automatic exemption for some relatives of legalized aliens A person is automatically exempted from the alien smuggling ground of inadmissibility if she is eligible for the “Family Unity” as originally enacted in 1990. For more information, see Unit 16 of the ILRC’s Guide for Immigration Advocates. In particular, the person must: • • • •

Be an “eligible immigrant” for Family Unity—which includes the spouse, or child of a legalized alien (“child” is defined as less than 21 years of age as of one of two specific dates in 1988); Have been physically present in the United States on May 5, 1988; Be immigrating as a second preference beneficiary, or immediate relative, or as someone who is applying for Family Unity; and Have, before May 5, 1988, smuggled only a spouse, parent, son, or daughter.

These persons automatically are not inadmissible, under INA § 212(a)(6)(E)(ii). They do not have to apply for a waiver for inadmissibility. NOTE: No Good Moral Character for Alien Smugglers! A person who is inadmissible for alien smuggling is ineligible to establish good moral character, if the offense occurred during the good moral character period indicated by the statute for a particular benefit or relief. Sanchez v. Holder, 560 F.3d 1028 (9th Cir. 2009). Good moral character is a requirement for INA § 240A(b) cancellation of removal (and the former suspension of deportation), some voluntary departure, registry and naturalization to U.S. citizenship.

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§ 6.8 A.

Waiver for Communicable Disease, Lack of Vaccinations, or Dangerous Mental Disorders under INA § 212(g)

Communicable Disease

People who have a communicable disease that makes them inadmissible can apply for a waiver if they meet the following requirements: 1. The person is the spouse, unmarried son or daughter, or the minor lawfully adopted child of a U.S. citizen, a lawful permanent resident or a noncitizen who has been issued an immigrant visa, or 2. The person has a son or daughter who is a U.S. citizen or lawful permanent resident or who has been issued an immigrant visa, or 3. The person is a VAWA self-petitioner 8 As of January 4, 2010, HIV testing is no longer required as part of the required medical examination for immigrants, and persons with HIV are no longer considered inadmissible under INA § 212(a)(1)(A)(i). In addition, consular offices must consider whether people with communicable diseases might be a pubic charge under INA § 212(a)(4). Even if USCIS grants a waiver for the communicable disease ground of inadmissibility, a person may still be refused admission as someone likely to become a public charge. A “reasonable calculation of the person’s future ability to pay expected costs of treatment” is made. The person may obtain a waiver, if he or she has sufficient resources based on personal and family income, strong I-864 affidavits of support, insurance, or other resources. See 69 Interpreter Releases (April 27, 1992). B.

Vaccinations

There is a ground of inadmissibility for immigrants who fail to present evidence of vaccination against certain “vaccine preventable diseases.” INA § 212(a)(1)(A)(ii). See § 2.1. In 2009, the CDC adopted specific vaccination criteria for persons seeking a U.S. immigrant visa: 1. the vaccine must be an age-appropriate vaccine as recommended by ACIP for the general U.S. population, and 2. at least one of the following: a. the vaccine must protect against a disease that can potentially cause an outbreak, which is defined as the occurrence of more cases of disease than expected in a given area or among a specific group of people and that occurs over a given period of time, or b. the vaccine must protect against a disease that has been eliminated in or is in the process of being eliminated from the United States. Under these criteria, required age-appropriate vaccination include diphtheria, tetanus, pertussis, polio, measles, 8

INA § 212(g). K-1 Fiancés and K-3 spouses of US citizens and their derivative children are also eligible for a waiver of this ground, under the non-immigrant visa waiver provisions in INA § 212(d)(3). See 22 CFR § 41.81, N.9, N.9.1 & N.9.2.

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mumps, rubella, rotavirus, haemophilus influenzae type b, hepatitis A, hepatitis B, meningococcal, varicella, pneumococcal, and influenza. There have been significant changes to the immigration vaccination requirements over the past few years. For example, the HPV vaccine is no longer required for females between ages 11–26, and the zoster vaccine does not have to be administered to persons 60 years old or over. Also, meningococcal conjugate vaccine, specifically tetravalent meningococcal conjugate vaccine, should be given to persons between the ages of 11–18, and the influenza vaccine is required for persons 6 months through 18 years of age. 9 This vaccination requirement applies to immigrant visa and adjustment of status applications filed after September 30, 1996. It does not apply to applications filed before September 30, 1996. In order to avoid unnecessary vaccinations, those people vaccinated as children or adults should prepare by obtaining documentation, if available, of past vaccinations either in the United States or in their home countries to take with them to their medical exam. It is also a good idea to check with the doctor in advance as to what documentation she or he wants to see as proof of past vaccinations. People who are inadmissible because they are not vaccinated can apply for any of three waivers, listed in INA § 212(g)(2)(A–C): (A) Applicant has received vaccines but he or she did not have the documentation to prove it when he or she filed. If your client has received the vaccination(s) but failed to present documentation at the time of filing, he or she must present documents to the civil surgeon indicating when the missing vaccines were given and obtain a certified medical examination report, Form I-693. INA § 212(g)(2)(A). (B) Civil surgeon or other listed official certifies that applicant’s missing vaccination is not “medically appropriate.” A particular vaccination would not be medically appropriate if: 1. The vaccine is not recommended for the alien’s specific age group; 2. The vaccine is medically contraindicated (e.g., allergies, pregnancy); 3. The applicant has taken the initial vaccine but is unable to complete the entire series within a reasonable time; or INA § 212(g)(2)(B). NOTE: INA §§ 212(g)(2)(A) and (B) listed above are “blanket waivers” and do not require the applicant to fill out the I-601 form or pay the required fee.

9

See Appendix K: USCIS Vaccination Requirements as of March 2010; see also “Vaccination Requirements for U.S. Immigration: Technical Instructions for Panel Physicians,” Dec. 14, 2009 at: www.cdc.gov/immigrantrefugeehealth/pdf/2009-ti-vaccination.pdf.

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(C) The vaccination would be contrary to the applicant’s religious beliefs. Applicants for this waiver must show that: 1. They are opposed to vaccinations in any form; 2. The objection is based on religious beliefs or moral convictions (whether or not they are a member of a recognized religion); and 3. The religious belief or moral conviction is sincere. 10 The USCIS Policy Manual directs adjudicators to assess the “subjective good faith” of the applicant, by generally considering all “credible circumstances and accompanying evidence.” They indicate that, although generally applicants must be opposed to any and all vaccinations, proof of past vaccinations should not result in automatic denial of a waiver, if plausible reasons for an intervening change in beliefs can be advanced.11 This is a “non-blanket waiver”; applicants must file an I-601 form and pay the required fee. INA § 212(g)(2)(C). The vaccines are not required for admission of internationally adopted children, ten years of age or younger. To qualify for this waiver, the adopting parent(s) must sign an affidavit promising that the child will receive the required vaccinations within 30 days of admission to the United States or at the earliest time that is medically appropriate. The doctor must sign the affidavit before the visa issuance. INA § 212(a)(1)(C)(i–iii). All USCIS required vaccinations are now medically available in “one shot” treatments for the initial doses of each vaccine, and usually only the first dose in a vaccination series is required for the medical exam, though the applicant will be expected to continue the series. Therefore, all can be taken in one doctor’s visit, though some people may want to spread them out over several visits instead. All applicants must still see a civil surgeon, if adjusting status in the U.S., or a physician assigned through the U.S. Consulate abroad where the person is applying for an immigrant visa. Though personal physicians may administer vaccines, the applicant must go to an approved physician in order to obtain certification of the vaccinations. Also, the approved physician must administer the rest of the medical exam for immigration. The USCIS will use the certification to determine whether the applicant receives a waiver. If your client qualifies for a blanket waiver, he or she does not need to fill out the I-601 form or pay a fee, but the civil surgeon must still fill out an I693 medical examination and its supplement. C.

Mental or Physical Condition Posing a Threat to Others

The government can impose a bond and require several conditions and controls as a requirement for a waiver, under INA § 212(g)(3). USCIS policies require approval of the DHS Secretary after consultation with the HHS Secretary, which in turn requires CDC involvement, which must review whether an individual has a suitable health care provider in the United States. 12 Further, 10

75 Interpreter Releases 700 (May 18, 1998). USCIS Policy Manual, Volume 9, Waivers, Part C -- Waivers for Health Related Grounds of Inadmissibility, Chapter 3: www.uscis.gov/policymanual/HTML/PolicyManual-Volume9-PartCChapter3.html. 12 Id. at 20–21. 11

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the USCIS recommends that applicants for these waivers submit a complete medical history and accompanying report including, inter alia, a recommendation regarding treatment reasonably available in the United States expected to significantly reduce the likelihood of future harmful behavior. 13 There is no general waiver for drug abuse or addiction in INA § 212(g). 14 However, possible waivers are available for U visa recipients (see INA § 245(m)) and Special Immigrant Juveniles (see INA § 245(h)), and for all others, a subsequent finding (after reexamination at the applicant’s expense) that he or she is in remission will remove this ground of inadmissibility. A person who fails to comply with terms and controls imposed as part of a waiver of the health grounds, will be inadmissible. The Department of Health and Human Services has to certify that the person failed to comply. INA § 237(a)(1)(C)(ii). These issues arise in cases with driving under the influence charges and domestic violence charges. In addition, they may arise during the medical exam. See Chapter 5 for more information on these inadmissibility grounds. § 6.9 A.

Waivers for Unlawful Presence, Past Removal, and Other Related Immigration Offenses

Waiver of Three- and Ten-Year Grounds of Inadmissibility for Unlawful Presence

Persons who have spent a certain period of “unlawful presence” 15 in the United States may be barred from admission for three or ten years. INA § 212(a)(9)(B). These unlawful presence bars only apply if the person leaves the United States, which includes anyone immigrating through consular processing. These bars do not apply if the person is eligible to adjusts status in the United States, unless the person has previously departed and reentered after accruing “unlawful presence,” (for example, re-entering with a non-immigrant visa). 16 An applicant who has triggered the 3- or 10-year bar may be granted a waiver if they can show a U.S. citizen or lawful permanent resident spouse or parent would suffer extreme hardship if the applicant was denied permanent residence. INA § 212(a)(9)(B)(v). Note that a U.S. citizen or lawful permanent resident child cannot serve as a qualifying relative for the unlawful presence waiver, only a U.S. citizen or lawful permanent resident spouse or parent. Also, hardship to the waiver applicant himself or herself is not considered.

13

Id. CDC updated the Technical Instructions in 2010 to provide clarification that the diagnosis of physical and mental disorders with associated harmful behavior and substance-related disorders is made based on existing medical standards, as determined by the current version of the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders (DSM). The new Technical Instructions can be found at www.cdc.gov/immigrantrefugeehealth/pdf/mental-health-cs-ti.pdf. 15 Unlawful presence is counted from April 1, 1997. Periods of unlawful status before April 1, 1997 do not trigger the unlawful presence bars. 16 Departures with advance parole generally do not trigger the three or ten year unlawful presence bars. See Chapter 3, supra, and Matter of Arrabally and Yerrabelly, 25 I&N Dec. 771 (BIA 2012). 14

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Example: Quan entered the United States as a visitor in January 2009 with permission to stay until July 1, 2009, but never left. He was discovered, placed in removal proceedings, and finally removed on October 25, 2010. Later his U.S. citizen son became 21 years old and applied to immigrate Quan. Is Quan inadmissible? Why or why not? If so, is a waiver available? Quan is inadmissible and subject to the ten-year bar. Counting from July 1, 2009 (the day his presence became unlawful) he was in the United States for more than a year in unlawful status before he was removed. Unfortunately, if Quan’s son is his only lawful permanent resident or U.S. citizen relative, Quan will not qualify for a waiver because a U.S. citizens or lawful permanent resident son or daughter cannot be a qualifying relative for the unlawful presence waiver. He will have to wait for ten years after the date of his removal to return. If, however, Quan’s wife or parent is a U.S. citizen or lawful permanent resident, Quan will be eligible for the waiver. He will have to show that his wife or parent will suffer extreme hardship if USCIS denies the waiver. The petitioning relative, the person who filed the I-130, and the qualifying relative for the waiver can be different family members. If USCIS denies the waiver, Quan cannot immigrate until he has spent ten years out of the United States, which would be October 25, 2020. Other Waivers. Several other classes of individuals may be eligible for waivers of the threeand/or ten-year bars, including: • • • •

Non-immigrants, who may apply for advance permission to enter pursuant to the discretionary waiver available under INA § 212(d)(3); Asylees and refugees, pursuant to INA § 209(c); Applicants for Temporary Protected Status (TPS), to assure family unity, or for humanitarian or public interest purposes under INA § 244; 8 CFR 244.3 (however a separate waiver may still be required to further adjust status); Certain legalization applicants pursuant to INA § 245A or 210.17

Applicants for adjustment of status can submit the I-601 waiver with their application for permanent residence or upon request form USCIS. Applicants for immigrant visas who are consular processing must submit requests for waivers of the 3- and 10-year bars to USCIS while abroad using Form I-601. The waiver is submitted after the consulate has made the determination that the applicant is inadmissible and subject to the bar. But remember that the form is merely the starting point in preparing a waiver—a significant amount of corroborating documentation is also required to have a chance at approval. For a real-life example of a well-prepared waiver application, see appendices to this chapter. NOTE: Only those subject to this ground of inadmissibility, such as family-based adjustments, must waive applicable grounds of inadmissibility. There are many forms of relief that waive some grounds of inadmissibility in different ways, such as adjustments based on asylum, U nonimmigrant status and T visa holders. Remember to explore all options for your client.

17

See Appendix G, pp. 46–48.

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B.

The “Provisional Waiver”

The “provisional waiver” or “stateside waiver” was instituted by DHS through regulation in 2013. 18 The process allows applicants residing in the U.S. and intending to apply for immigrant visas through consular processing, to apply for a waiver of the 3- or 10-year bar from inside the U.S., prior to departure for their immigrant visa interviews. The purpose of this procedural change was to ameliorate the difficulties caused by lengthy family separation while waiting for waiver adjudication abroad. However, this procedure does not change the requirements for an unlawful presence waiver, nor make such a waiver easier to obtain. To Qualify for a Provisional Waiver, an Applicant: 1. Have an approved I-130 petition filed by an immediate relative, or an approved visa petition with a current priority date; 2. Must have a pending immigrant visa case with the Dept. of State and the visa processing fees must be paid; 3. Must have a qualifying relative—either a U.S. citizen spouse or parent—who will suffer extreme hardship if the applicant is not able to immigrate; 4. Must not be inadmissible or need a waiver for any other reason than the three/ten unlawful presence bars; 5. If in removal proceedings, these proceedings must be administratively closed or terminated prior to filing for the waiver. The “statutory relative” does not have to be the petitioner, but must be a U.S. citizen parent or spouse. There must be significant documentation that this relative will suffer extreme hardship if the applicant is not approved for a waiver. Remember, a U.S. citizen child is NOT a qualify relative for this waiver under either process. Example: Maribel entered the United States without inspection in 1990 and has in the United States without documents ever since. Maribel’s daughter, Jenna, is now 21 years old and has filed an I-130 for her mother, which was approved. Maribel has no other U.S. citizen relatives. Maribel does NOT qualify to apply for a “waiver of unlawful presence. Example: Would it help if Maribel married her LPR fiancé? Maribel would qualify to apply for an unlawful presence waiver—she could use the provisional waiver process and apply before leaving to consular process. Her daughter could petition for her, and she would be able to show hardship to her LPR spouse.

18

8 CFR 212.7(e).

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UNDERSTANDING THE DIFFERENCES BETWEEN REGULAR AND PROVISIONAL WAIVERS FOR UNLAWFUL PRESENCE Regular I-601 Waiver

Provisional I-601A Waiver

Where can it be used?

AOS with USCIS, Consular Processing, immigration court

For Consular Processing only

When can it be used?

After Consular Interview once Prior to Departure from US to Inadmissibility Grounds Are attend Consular Interview Identified

Who Can be Qualifying Relative?

USC or LPR spouse or parent

USC or LPR spouse or parent

What does it waive?

Any eligible ground of inadmissibility

Unlawful presence only (3/10year bar)

What has to be shown?

Extreme Hardship to USC or LPR spouse or parent

Extreme Hardship to USC or LPR spouse or parent

* PRACTICE TIP: Because visa applicants are often subject to more than one ground of inadmissibility, each potential “provisional waiver” applicant must be carefully screened. The provisional waiver does not waive the “permanent bars” for unlawful reentry or attempt to reenter after accruing a year of unlawful presence in the aggregate, or after a prior removal or deportation. If this basis for inadmissibility, or any other, should come to light at the consular interview, the applicant will be stuck abroad and ineligible to reenter, despite having an approved “provisional waiver.” The provisional waiver will be revoked and the applicant’s only option is to file a regular waiver application from abroad. However, in the case of a ‘permanent bar’ the applicant is ineligible to file for a waiver of the “permanent” bar until she spends ten years outside of the US. Example: Monica first entered the U.S. in 2005 without inspection. She left in 2010 because her mother was gravely ill. Monica returned to the U.S., again without inspection, one month later. She is ineligible for the provisional waiver because she is subject to the “permanent bar,” and in fact is ineligible for any waiver until she has been outside the U.S. for ten years. Example: John entered the U.S. with a fake green card. He now wants to apply for a provisional waiver because he is married to a U.S. citizen, who has filed a visa petition on his behalf. John, however, is ineligible for a provisional waiver, because he is inadmissible on another basis, for “visa fraud.” He is, however, eligible to apply for both the three/ten year unlawful presence bar waiver and a visa fraud waiver abroad, after his consular interview. Whether he should in fact go to a consular interview and then apply will depend on the strength of his particular waiver case.

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Procedures to Apply: 1. After paying the visa fees, the applicant must notify the National Visa Center (NVC) that she is applying for the provisional waiver by sending an e-mail to [email protected]. 2. The form for the provisional waiver is I-601A; check the www.uscis.gov website for the current filing fee. 3. The waiver applicant must show extreme hardship to that U.S. citizen spouse or parent should the applicant not be granted a waiver and unable to live as a lawful permanent resident in the U.S. See § 6.13 infra and the ILRC’s Hardship in Immigration Law manual. No Reinstatement of Provisional Waiver if a Consular Officer Determines Additional Inadmissibility. If a consular officer determines that an applicant is inadmissible on another ground, the provisional waiver approved by USCIS will be automatically revoked. The new regulation does not make any provision for reinstating a provisional waiver if the consular officer’s determination is overturned. The provisional waiver applicant will have no opportunity to file a motion to reopen, reconsider, or appeal the decision. Example: Ronaldo is granted a provisional waiver. At his medical exam at Ciudad Juarez, the doctors determine he is a risk to himself or others based on the health related grounds, due to a DUI in his record from six months before. The consular officer finds him inadmissible, and he loses his provisional waiver approval for unlawful presence. Ronaldo will need to apply for the unlawful presence waiver again through the regular waiver process, as well as document that he should no longer be subject to the health related grounds of inadmissibility. He will have to remain in Mexico during the pendency of his case. Administrative Closure Required if the Applicant Is in Removal Proceedings. The court must first administratively close the case before a provisional waiver can be granted. Then, before the applicant leaves the U.S. for her visa interview, the case should be re-calendared and proceedings terminated or dismissed. Failure to do so could create problems for the applicant while travelling and prevent the applicant’s re-entry with the provisional waiver. An “administrative closure” order is not the same as a “termination” order, since with “administrative closure” the person remains in removal proceedings. Example: Sally’s U.S. citizen mother petitioned for her and the I-130 is approved. Sally was in removal proceedings back in 2010, but her case was “administratively closed” and she was granted “prosecutorial discretion.” Sally can apply for a provisional waiver now since her case is already “administratively closed,” but after her waiver is approved, she must ask the immigration court and the Office of Chief Counsel to put her case back on the court calendar and “terminate” proceedings, before she departs the U.S. for her consular interview. PRACTICE TIP: While it is clear that DHS envisioned EOIR agreeing to terminate proceedings in these cases, there is no rule requiring that EOIR do so. Alternatively, after the provisional waiver

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is granted, an applicant who applied while her case was administratively closed should ask for her case to re-calendared and terminated before she leaves to process. Those with Criminal Issues Risk a Referral to ICE and Immigration Court if Denied. USCIS presently states that it will follow its own, current referral policy on issuing NTAs. 19 The current policy contemplates referrals to ICE in cases with egregious public safety concerns or fraud. In addition, if the applicant appears inadmissible or deportable for any criminal offense, USCIS will complete the waiver adjudication and refer the applicant to ICE. USCIS states that it will not refer a case to immigration court for a simple denial where there are no security, criminal or fraud concerns. Adjudication of the Provisional Waiver Denial: The denial of a provisional waiver by USCIS may be because the applicant is not prima facie eligible or failed to show sufficient hardship to a qualifying relative. If otherwise eligible and additional evidence can be presented, an applicant can reapply for a provisional waiver. If the applicant is found ineligible for a provisional waiver but can apply for a regular I-601 waiver she will have to consider how strong of a waiver case she can present and weigh that against the risk of leaving the U.S. without knowing whether it will be approved. However, the hardship standards of the two waivers are identical, so if there was not sufficient evidence of hardship in the provisional waiver and no additional factors or documentation can be presented in a second application, it may not be in the applicant’s interest to pursue a regular waiver from aboard. Approval: Approval of a provisional waiver does not confer any status or benefit on the applicant. The applicant is not, as a result, authorized for employment or for travel aboard. Furthermore, it does not protect the applicant from accruing unlawful presence or from being placed in removal proceedings. An approved provisional waiver permits the applicant to travel abroad for the consular appointment to go through the regular immigrant visa process. Only final approval of the waiver and the immigrant visa application at the consulate and the applicant’s subsequent entry as a lawful permanent resident confers permanent status and related benefits. Revocation of Previously Approved Waiver: An approved provisional waiver can be revoked at the consulate if the underlying visa petition is denied (for example, a marriage is found to not be bona fide) or otherwise invalid or revoked. Furthermore, criminal issues in the interim period between approval of the waiver and the consular appointment can trigger additional grounds of inadmissibility that will lead to the revocation of the provisional waiver. Similarly, subsequent unauthorized entries in to the U.S. will also cause the provisional waiver to be revoked. Applicants should be advised that provisional approval merely allows them to proceed with normal consular processing and subsequent acts can impact the waiver. C.

Waiver of the “Permanent Bar” for Persons Who Re-Enter Unlawfully after Removal or One Year Unlawful Presence

People inadmissible under INA § 212(a)(9)(C)(i) can apply for a general waiver, but not until ten years after their last departure from the United States. INA § 212(a)(9)(C)(ii). 19

The current USCIS NTA referral policy can be found at www.uscis.gov/USCIS/Laws/Memoranda/Static_Files_Memoranda/NTA%20PM%20(Approved%20as%2 0final%2011-7-11).pdf.

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Example: Joan entered the United States in January 2006 and has lived without lawful status in the United States with her U.S. citizen husband since then. She left in December 2009 and returned without inspection two weeks later. What grounds of inadmissibility apply to her? Joan is subject to the ten-year bar because she was in the United States without lawful status for more than a year and then she left. However, she is also subject to the permanent bar because she was present in the United States for periods adding up to a year, left, and returned illegally. She will not be eligible to apply for a waiver of this ground of inadmissibility until she remains outside of the U.S. for ten years. NOTE: Illegal reentry triggers the permanent bar if the person reenters after an aggregate period of unlawful presence of more than a year. That is, even if the person was never unlawfully present for a year at a time, she can become subject to the permanent bar if she reenters illegally after her periods of unlawful presence add up to more than a year. Note also that, unlike the unlawful presence bar in INA § 212(a)(9)(B), there is no exception for minors written into this section of the law. Therefore, even a child who accumulated a year or more of unlawful presence in the United States before departing and returning illegally may be subject to the permanent bar. 20 D.

Past Removal or Deportation, INA § 212(a)(9)(A)

The Attorney General can waive the ground of inadmissibility for prior removal or deportation, before the person reenters the United States. INA § 212(a)(9)(A)(iii). However, if the person reenters the United States after April 1, 1997, he or she may also be subject to the permanent bar, which can only be waived after the person spends ten years outside the United States, and reinstatement of removal. Example: Jake entered the United States in January 1990. He was deported in 1994. He remained in the country to which he was deported, where he met and married his U.S. citizen wife in 1998. Jake can apply for a waiver of his prior deportation to permit him to consular process and, if approved, enter the U.S. as a lawful permanent resident. People who are in the United States—as opposed to outside the United States immigrating though a U.S. consulate—may not be able to apply for a waiver of a prior deportation or removal because USCIS can reinstate the prior removal order and deny most forms of relief. Some USCIS offices have indicated that they will not contemplate a request for a waiver of this ground of inadmissibility from a person who is in the United States. CAUTION: Any prior contact with immigration authorities at time of crossing is a red flag. If your client has an expedited removal order from her past, she could be barred under the so-called “permanent bar” due to illegal re-entry after a removal order. In addition, she could be subject to

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The U.S. Consulate in Ciudad Juarez does NOT exempt minors from the permanent bar. Other Consulates may decide differently, but be careful in advising clients with this problem, including minors.

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reinstatement of the prior removal order, which means ICE could begin a removal process without referring her to an immigration judge. Thus, in practice, a person who has re-entered the United States illegally 21 after being deported or removed is not likely to get a chance to apply for a waiver of the prior deportation or removal in an application for adjustment of status. The USCIS will probably reinstate the prior order and deny the person a chance to go before an immigration judge. Any person in this situation must obtain careful counseling and understand all their options before approaching the USCIS. Example: Gregorio is a Mexican national who first entered the United States in 1992. In 1994 he was placed in deportation proceedings and deported. He returned to the United States without inspection in 1995 and married his U.S. citizen spouse in 1997. In 2001 Gregorio’s wife filed a visa petition on his behalf. After the petition was approved, Gregorio filed an adjustment application under INA § 245(i). He also subsequently filed an I-212 Application for Permission to Reapply for Admission into the United States After Deportation or Removal. In cases like this, once the USCIS realizes that Gregorio was deported and re-entered without permission, it will likely reinstate his deportation order and remove him without allowing him to pursue adjustment of status. WARNING: If you have a client who has applied for adjustment, but is subject to reinstatement of removal, and the client is sent a request for an interview at USCIS that is not a standard adjustment interview notice, your client may be detained at the appointment. Clients can also be detained and removed at the adjustment interview. In such cases, it may be best for the client not to appear at the interview and/or withdraw the application for adjustment. In any case, clients should be advised about the possibility of reinstatement. Individuals deported before April 1, 1997 were told at the time of their deportations that they were inadmissible for five years while those who were excluded were told that they were inadmissible for one year. However, IIRIRA’s provisions regarding prior removals (including those who left pursuant to exclusion or deportation orders) are retroactive and these individuals are subject to the higher penalties of having to stay out of the country for at least five years for those with exclusion orders and ten years for those with deportation orders. The USCIS has stated that unless there are negative factors, it will grant the waiver if the person has already stayed out the one year after having been excluded from the United States or five years after having been deported. In other words, the USCIS appears to be willing to give a break to people who already have stayed out at least as long as they were required to before IIRIRA passed. However, USCIS is not likely to do so for those who re-entered the U.S. illegally, since those individuals would be subject to reinstatement of removal. Note, also that there is no time restriction as to when USCIS

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Illegal re-entry is generally thought of as re-entry without inspection, but may also include other types of entry, such as entry with fraudulent documents. It’s not clear at this time whether “illegally re-entering” will be interpreted by the BIA and the courts to mean more than entry without inspection.

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can grant a waiver. If the applicant could persuade the USCIS to do so, it could grant a waiver for any person inadmissible under this ground on the day after the person was removed. 22 Congress stated that standards developed for the former exclusion ground should continue under the IIRIRA waiver of inadmissibility. Under that law, in deciding the waiver, USCIS will consider such factors as the person’s character, the hardship to family members, the person’s length of residence in the United States, rehabilitation, and why and how recently the person was deported. See, e.g., Matter of Tin, 14 I&N 371 (Reg. Comm’r. 1973) and Matter of Lee, 17 I&N Dec. 275 (Comm. 1978). CAUTION: Several penalties apply to people who fail to attend their removal hearing, depart after the expiration of voluntary departure, or fail to comply other laws relating to removal and deportation. See ILRC’s A Guide for Immigration Advocates and Removal Defense for more information on this subject. § 6.10 Waiver for Certain Crimes under INA § 212(h) Some people who are inadmissible for criminal offenses are eligible for a discretionary waiver. These include people who are inadmissible because of a crime involving moral turpitude, prostitution, one conviction of possession of 30 grams or less of marijuana, or total sentences of five years for two or more convictions. There are three ways to be eligible for this waiver. 1. The applicant must be the spouse, parent, son or daughter of a U.S. citizen or permanent resident, and establish that denial of the person’s admission would result in extreme hardship to that relative; or 2. The person must have committed the crime at least fifteen years ago (or at any time, if the person is only inadmissible for prostitution), must be able to show that granting his admission would not hurt national welfare or safety; and must be able to show that he is rehabilitated, or 3. The person is a VAWA self-petitioner. 23

22

Note that the inadmissibility ground under INA § 212(a)(9)(A) is distinct from the inadmissibility ground for failure to attend removal proceedings under INA § 212(a)(6)(B). This ground of inadmissibility has no waiver provision. Thus someone who fails to appear, without reasonable cause, and receives an in absentia order of removal will not be eligible for a waiver for 5 years. See INA § 212(a)(6)(B). 23 A VAWA self-petitioner is a spouse, child, or parent who has suffered battery or extreme cruelty at the hands of a permanent resident or U.S. citizen spouse, parent, son, or daughter. See the ILRC’s VAWA Manual for more information on the special rules governing these immigrant victims of domestic abuse.

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The law has two additional strict requirements that only apply to lawful permanent residents and/or former lawful permanent residents. 24 Since being admitted to the United States as a permanent resident, the person applying for an INA § 212(h) waiver must: • •

Have lawfully resided continuously in the United States for seven years preceding the date of initiation of removal proceedings, and Not have been convicted of an aggravated felony after having previously been admitted to the United States as a lawful permanent resident.

Thus, the statute treats permanent residents more harshly than it treats undocumented people because in addition to the general waiver requirements for all those applying for an INA § 212(h) waiver, lawful permanent residents and former lawful permanent residents must comply with the two additional requirements mentioned immediately above. Example: Cheryl became a lawful permanent resident in 2004, the same year that Meryl entered the United States illegally. Both Cheryl and Meryl married U.S. citizens, and both were convicted of felony grand theft with a one-year sentence imposed in August of 2008. This conviction is both a crime involving moral turpitude and an aggravated felony. The ICE brings removal proceedings against both of them. Meryl, who is undocumented, can qualify for INA § 212(h) relief when she immigrates through her husband. She can apply for a waiver of the moral turpitude theft crime, although it also is an aggravated felony. There is no requirement that she have spent a certain amount of time in the United States. Cheryl, the permanent resident, would not be eligible for an INA § 212(h) waiver. If she wants to try to save herself from removal by “re-immigrating” through her U.S. citizen husband and applying for an INA § 212(h) waiver, she must show: a) that she was not convicted of an aggravated felony, and b) that she resided lawfully for seven years between the time she became a permanent resident and the time removal proceedings were begun against her. It does not appear that she can show either. It is important to consider and investigate with your client, however, how each element of a waiver may or may not apply to her. For example, the seven years of lawful residence requirement does not limit the LPR applicant to count only permanent residence or lawful permanent resident status. Any “lawful residence” counts. If the applicant for the waiver was here on a temporary visa such as a tourist or student or had temporary residency or temporary protected status (TPS) or other status prior to adjusting to permanent residency, time in that status should count as well. See Yepez-Razo v. Gonzales, 445 F.3d 1216 (9th Cir. 2006); Onwuamaegbu v. Gonzales, 470 F.3d 405 (1st Cir. 2006), Matter of Blancas, 23 I&N Dec. 458 (BIA 2002), and Matter of Rotimi, 24 I&N Dec. 567 (BIA 2008). However, a noncitizen has not “lawfully resided” in the United States during the time that he or she was a visa overstay or during time spent awaiting the adjudication of adjustment of status or asylum applications, if the person lacked any other basis for lawfully residing in the United States. Matter of Rotimi, supra. 24

Returning lawful permanent residents can be considered arriving aliens, and therefore subject to the grounds of inadmissibility, under certain circumstances that are described in INA § 101(a)(13)(C). See Chapter 1.

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It is important to obtain expert assistance in cases where your client has been in different kinds of immigration status before applying for permanent residence. Example: Upon questioning Cheryl further, it is discovered that before becoming a permanent resident, she had obtained “V” visa status in October of 2001 and before that had TPS for one year. Do these facts affect Cheryl’s possibility of obtaining a 212(h) waiver? Several Courts of Appeal have held that the aggravated felony bar in this waiver only applies to those persons who have “previously been admitted to the United States as a lawful permanent resident.” While the BIA has held that “admitted” should include being admitted through the adjustment of status process, 25 the Third, Fourth, Fifth, Eleventh and arguably the Ninth Circuit Courts of Appeal have interpreted the phrase in the INA § 212(h) waiver language to mean only admitted or entered into the United States from outside the country as a permanent resident. See Hanif v. Holder, 694 F.3d 479 (3rd Cir. 2012); Bracamontes v. Holder, 675 F.3d 380 (4th Cir. 2012); Leiba v. Holder, 699 F.3d 346 (4th Cir. 2012); Martinez v. Mukasey, 519 F.3d 532 (5th Cir. 2008); Martinez v. Mukasey, 519 F.3d 532 (5th Cir. 2008); Lanier v. United States AG, 631 F.3d 1361 (11th Cir.2011). 26 Although the Ninth Circuit appears to support the interpretation in Martinez v. Mukasey and the other Circuit Courts (Sum v. Holder, 602 F.3d 1092 (9th Cir. 2010)), the BIA has said in Matter of Rodriguez, 25 I&N Dec. 784 (BIA 2012), that it will only apply this interpretation in the Third, Fourth, Fifth and Eleventh Circuits for now. Cases such as these are very complicated, as the law is not settled. Example: With more investigation, it is discovered that Cheryl has never left the United States since she had her “V” visa status. She adjusted to permanent residency here in the United States. Does this change Cheryl’s chances, at least in the Third, Fourth, Fifth and Eleventh Circuits? YES, at least in these Circuits, and probably in the Ninth as well, because Cheryl can say she is not subject to the aggravated felony bar to § 212(h) relief because she was admitted in V visa status, and did not make a new admission when she adjusted status to lawful permanent resident. Generally speaking, people apply for a § 212(h) waiver when they are applying for an immigrant visa abroad through consular processing, or when they apply for adjustment of status to permanent resident in the United States. For a while, ICE was arguing that someone who is already a lawful permanent resident and is returning from a trip abroad could only apply for a § 212(h) waiver while applying for readjustment to permanent residency at the same time. In other words, they must have a family member that could file a new visa petition for them and readjust to lawful permanent resident with a waiver. However, the Board of Immigration Appeals (BIA) held in Matter of Abosi, 24 I&N Dec. 24 (BIA 2007) that returning permanent residents

25

Matter of Rodriguez, 25 I&N Dec. 784 (BIA 2012). The logic of these cases applies equally to the seven years of continuous lawful residence requirement for those “admitted” as lawful permanent residents. 26

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can apply for a “stand-alone” § 212(h) waiver, and are not required to apply for readjustment at the same time. 27 § 6.11 Procedure for Applying for a Waiver A.

General Overview

If immigrating through a U.S. consulate abroad, the person must apply for the waiver outside of the United States, unless the person is only applying for an unlawful presence waver through the I-601A process. The consular official will rule whether the person is inadmissible at the interview. After the official has said that the person is inadmissible, the person submits the waiver application. It used to be that each consulate had different procedures for filing waivers of inadmissibility. However, now all waivers must be filed with USCIS, at specific locations depending on the type of visa petition in question. 28 Nevertheless, in general the waiver cannot be filed until a consular officer makes a finding that the immigrant visa applicant is inadmissible. Once that finding has been made, the person submits the waiver form I-601, the fee, and the supporting documents to the appropriate USCIS address. More than one waivable ground of inadmissibility may be included with the same waiver. Unfortunately, it will often take the USCIS office several months to approve the waiver. Generally, during that time the person will be stuck outside the United States. In some cases involving particular hardship, it may be possible to persuade CBP to parole the person back into the United States during this time. When the I-601 is approved, USCIS will send notice to the consulate and the person or her representative. The consulate will request another visa number for the person and schedule a second appointment. Historically there has been one exception to this difficult procedure. 29 People who were inadmissible solely because of re-entry after past deportations are allowed to apply for a waiver before leaving the United States. They make the waiver application on form I-212 (“Request for Admission”), not form I-601. If, however, the person will need another waiver in addition to the re-entry waiver, she will need to submit both concurrently abroad. A few USCIS offices abroad require the I-601 form instead, so check before sending your client to the interview. As USCIS has routinely changed its view on the timing of I-212 waivers, you should check to determine if applicants can apply for a waiver before leaving the United States in your jurisdiction. Also, anyone who was previously deported and then illegally re-entered the U.S. after April 1, 1997 is subject to the permanent bar and may face very serious problems. If USCIS denies an application for a waiver, you may appeal the case to the Administrative Appeals Unit (AAU). The I-601 and the I-212 are deceptively simple forms to complete. The heart of the request however is not in the form but in the documents you attach to show why USCIS should grant the 27 Note that presently an application for a “stand-alone” 212(h) waiver might not work in the 11th Circuit, which has set out a contradictory interpretation in Poveda v. United States AG, 692 F.3d 1169 (11th Cir. 2012). 28 Go to www.uscis.gov, then click on the Forms menu to find the I-601 and instructions on filing. 29 See below for the “Provisional Waiver” process that constitutes an exception to this process.

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waiver in its discretion (e.g., declarations and documents showing hardship). Never submit just an I-601 form or I-212 form. Always include substantial documentation to show why the person deserves to have USCIS grant the waiver. An excerpted sample I-601 waiver request is in Appendix 6-A. People may also submit an I-601 waiver application along with an application to adjust status in the United States. See Chapter 3. B.

Provisional Unlawful Presence Waiver and Form I-601A

In 2013, USCIS instituted a new provision that allows certain individuals who are subject to the three and/or ten year bars under INA § 212(a)(9)(B) to file a provisional waiver of inadmissibility prior to leaving the US for their consular interviews. Note that this is a change in the administrative process involved in the waiver for the 3-year and 10-year bars, and not a change in the law. The applicable waiver is still that which is found under INA § 212(a)(9)(B)(v). However, with the new provisional waiver process, an applicant can apply for this waiver of inadmissibility while still in the United States waiting for their consular interview. This will allow applicants to avoid having to wait for adjudication while abroad, away from their family and their life in the United States; and it will also allow them to avoid the risk of getting stuck outside the US, barred from reentry, if the waiver is denied. Therefore, this waiver is only applicable in cases undergoing consular processing, and it is not relevant in adjustment of status cases. The advantage to this process is that a provisional waiver approval can dramatically reduce the time that an individual must remain abroad before issuance of an immigrant visa. Neither the filing nor the approval of a provisional unlawful presence waiver application will confer any legal status on the person granted the waiver; protect against accruing more unlawful presence; confer employment authorization; confer travel authorization (such as advance parole); or protect the person from being placed in removal proceedings or from being removed from the United States. Denial of the I-601A Waiver. If an I-601A waiver is denied, there is no appeal process. A person can re-file a new waiver, but only if the immigrant visa case is still pending with the Department of State. In such a case, an applicant must notify the Department of State of his or her intent to file a new I-601A waiver. An applicant can also re-file form I-601A if a new petition process is started. If a consular officer determines inadmissibility at the immigrant visa interview, an applicant can also still try to file the regular I-601 waiver with the USCIS Lockbox after attending their immigrant visa interview. § 6.12 How Do You Establish Extreme Hardship? A.

What Is Extreme Hardship?

The requirement to prove hardship has historically appeared in various contexts in the Immigration and Nationality Act (INA). Proving “extreme hardship” was (and still is) required for several waivers of inadmissibility. Extreme hardship is the standard applied to several waivers of inadmissibility, including those made under INA §§ 212(h), 212(i), and 212(a)(9)(B)(v) (the much-used waiver for unlawful presence), and in applications for the extreme hardship waiver to

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remove the conditional basis of permanent residence under INA § 216(c)(4). In waivers for inadmissibility, we only see a stricter standard of hardship in one context: waivers for crimes. Where the applicant is asking to waive violent or dangerous crimes, the courts have required the stricter exceptional and extremely unusual hardship standard. 30 The former INA § 244(a) also provided a form of discretionary relief called suspension of deportation for a noncitizen who, among other criteria, could show that her deportation would result in “extreme hardship” to herself and/or to her U.S. citizen or Lawful Permanent Resident (LPR) spouse, parent(s), or child(ren). There has never been a definition of what “extreme hardship” entailed for the waivers or for suspension of deportation. Until recently, our understanding of the term was primarily developed through case law, as the BIA and federal courts have developed a long list of factors that are relevant to a showing of extreme hardship. In November of 2014, former President Obama directed the U.S. Citizenship and Immigration Services (USCIS) to issue guidance clarifying the “extreme hardship” standard. 31 Two years later, USCIS issued seven chapters of guidance on extreme hardship, providing information and examples on hardship factors and considerations. 32 This guidance is an excellent starting point to understanding what factors to draw out in your client’s case. Showing that a client has met the requisite hardship standard is difficult not only because “hardship” is not defined, but also because the hardship determination is a discretionary one. This means that the adjudicator has a lot of freedom when deciding whether a particular situation constitutes hardship. Because the hardship determination ultimately hinges on the individual opinion of the adjudicator when looking at the specific factors of a particular case, it is hard for practitioners to feel confident when assessing a client’s case. Indeed, a level of caution is important. Representatives should be very careful when discussing hardship with their clients and make sure to emphasize that no matter how strong the case may appear, at the end of the day, the adjudicator will decide whether the factors in the case are sufficient. There is no bright line rule, and no particular outcome can be guaranteed. B.

Hardship Factors

The USCIS guidance on hardship discusses several hardship factors and relevant caselaw. 33 Nonetheless, every case is distinct and it is important to consider any possible hardship factor that relates to your client. The only regulations addressing extreme hardship factors stem from the former relief, suspension of deportation. In 1999, the Department of Justice issued regulations to guide the interpretation of “extreme hardship” for suspension of deportation cases. The Nicaraguan Adjustment and Central American Relief Act (NACARA) regulations refer to those same factors, saying that for purposes of NACARA, extreme hardship will be determined as set forth in the regulations for suspension

30

See Matter of Jean, 23 I&N Dec. 373 (A.G. 2002). DHS, Expansion of the Provisional Waiver Program (Nov. 20, 2014), available at www.dhs.gov/sites/default/files/publications/14_1120_memo_i601a_waiver.pdf. 32 9 USCIS-PM B. 33 9 USCIS-PM B. 31

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of deportation. 34 The factors set out by the regulations, codified at 8 CFR § 1240.58, are as follows: Factors that may be considered in evaluating whether deportation would result in extreme hardship to the alien or to the alien’s qualified relative include, but are not limited to the following: 1. The age of the alien, both at the time of entry to the United States and at the time of application for suspension of deportation; 2. The age, number, and immigration status of the alien’s children and their ability to speak the native language and to adjust to life in another country; 3. The health condition of the alien or the alien’s children, spouse, or parents and the availability of any required medical treatment in the country to which the alien would be returned; 4. The alien’s ability to obtain employment in the country to which the alien would be returned; 5. The length of residence in the United States; 6. The existence of other family members who are or will be legally residing in the United States; 7. The financial impact of the alien’s departure; 8. The impact of a disruption of educational opportunities; 9. The psychological impact of the alien’s deportation; 10. The current political and economic conditions in the country to which the alien would be returned; 11. Family and other ties to the country to which the alien would be returned; 12. Contributions to and ties to a community in the United States, including the degree of integration into society; 13. Immigration history, including authorized residence in the United States; and 14. The availability of other means of adjusting to permanent resident status. There are no other regulations that specify hardship or even refer back to these factors for other forms of relief. Therefore, practitioners may find it helpful to reference the factors outlined by these regulations even for cases outside of the suspension of deportation or NACARA context. You should not limit yourself to the factors suggested in 8 CFR § 1240.58, or to any other list for that matter. It is critical to think broadly and creatively as you approach the hardship element of a client’s case. C.

Three Critical Points about Extreme Hardship

After years of caselaw, we do have some important guiding principles to help build a legal case for our clients. You can draw on these principles in a cover letter that addresses the legal reasons you believe the facts of your client’s case rise to the level of extreme hardship. First, the immigration judge must consider all of the factors relevant to extreme hardship. 35 Second, the immigration judge must specifically consider the evidence offered to support the 34

8 CFR § 1240.64(c). There is, however, a rebuttable presumption of extreme hardship for certain applicants under NACARA. 8 CFR § 1240.64(d).

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applicant’s case, rather than just relying on how immigrants generally would be affected by the same or similar hardships. 36 Third, the judge must consider the cumulative effect of all the hardship that the respondent shows. 37 Even if no single hardship would be enough for extreme hardship, the person should still meet this requirement if all the hardships together would be extreme. 38 PRACTICE TIP: The USCIS Policy Manual has created a list of Particularly Significant Factors or certain circumstances that weigh heavily in support of a finding of extreme hardship. These are circumstances or factors that tend to result in greater harm than the common consequences of separation or relocation. While the presence of these particularly significant factors do not guarantee a finding of extreme hardship, they do strongly suggest it. It is worth reviewing them to see if any apply to the applicant’s situation. One particularly significant factor is the Substantial Displacement of Care of Applicant’s Children. This factor addresses family unity and how relocation or separation can disrupt the environment and support system of a child. If the applicant’s family would remain in the U.S., discuss with the applicant how the children’s care would be impacted. The applicant’s spouse may have been the primary caregiver, but now the spouse has to return to work to provide for the children, causing the financial burden of childcare. For a full examination of extreme hardship and how to craft a strong waiver, see ILRC’s Hardship in Immigration Law.

35

Matter of Ige, 20 I&N Dec. 880, 882 (BIA 1994); Matter of OJO, 21 I&N Dec. 381, 383 (BIA 1996); Matter of Recinas, 23 I&N Dec. 467, 472 (BIA 2002); Ramos v. INS, 695 F.2d 181, 186 (5th Cir. 1983). 36 See Matter of Ige, 20 I&N Dec. 880 at 882; Matter of OJO, 21 I&N Dec. 381 at 385. 37 See Matter of Ige, 20 I&N Dec. 880 at 882; Matter of OJO, 21 I&N Dec. 381 at 403 (concurring opinion); see also Arrozal v. INS, 159 F.3d 429, 433 (9th Cir. 1998). See also USCIS Policy Manual, Volume 9, Part B, Chapter 5(C). 38 Matter of Recinas, 23 I&N Dec. 467, 472 (BIA 2002). See also Matter of OJO, 21 I&N Dec. 381 at 383.

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CHAPTER 6 WAIVERS OF INADMISSIBILITY INDEX OF APPENDICES Appendix 6-A

Sample Waiver Application including Cover Letter, Declaration and List of Supporting Documents in Support of Waiver of Unlawful Presence Bar

Appendix 6-B

Sample Provisional Unlawful Presence Waiver

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CHAPTER 7 SPECIAL ISSUES: THE VIOLENCE AGAINST WOMEN ACT (VAWA)

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This chapter includes: § 7.1 § 7.2 § 7.3 § 7.4 § 7.5

§ 7.1

Overview of Self-Petitioning under the Violence Against Women Act (“VAWA”)

IMPORTANT NOTE: This section is an introduction, not a manual. VAWA applications are complicated and this chapter will only introduce the subject. For an indepth manual on VAWA, including sample materials and information, please consult The VAWA Manual: Immigration Relief for Abused Immigrants produced by the Immigrant Legal Resource Center (ILRC) and Catholic Legal Immigration Network, Inc. (CLINIC). Check the website www.ilrc.org for details on ordering the VAWA Manual. ILRC also recommends that advocates assisting VAWA applicants keep abreast of new developments by subscribing to the “VAWA Updates” listserv. To do so, contact ASISTA at [email protected]. Congress first passed the Violence Against Women Act (VAWA) in 1994. This expansive federal law contains provisions that allow spouses and children abused by their U.S. citizen (USC) or lawful permanent resident (LPR) spouse or parent, and parents abused by their U.S. citizen sons or daughters, to “self-petition” for a green card, rather than having to turn to the abusive relative to file the petition on their behalf (you will recall from Chapter 1 that for family-based immigration ordinarily the immigrant must have a family member file a petition for them). Due to the activism of domestic violence survivors and their advocates, in 2000, 2005, and 2013 Congress passed amendments that greatly improved the VAWA immigration provisions, by simplifying and expanding the protections and removing some of the obstacles created by earlier versions of the law. The immigration provisions of VAWA are an attempt to correct a very widespread problem: many immigrants are forced to stay in abusive relationships because their abusive family member can use a noncitizen’s lack of immigration status as a tool for coercion and control. For example, too often an abusive spouse will refuse to file a family visa petition in order to control an undocumented spouse. Or the abusive spouse will threaten to withdraw a petition or even call officials at the Department of Homeland Security to deport the immigrant spouse if he or she attempts to leave, resist the abuse, or call the police.

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Overview of Self-Petitioning under the Violence Against Women Act (“VAWA”) .................................................................................................. 7-1 Requirements for VAWA Self-Petition of an Abused Spouse ........................... 7-3 Requirements for a VAWA Self-Petition for an Abused Child ....................... 7-11 Requirements for a VAWA Self-Petition for an Abused Parent ...................... 7-14 Procedures for Self-Petitioning under VAWA ................................................. 7-15

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Congress did not want to see U.S. immigration laws used as another weapon in an abuser’s arsenal. So it created VAWA to permit someone in this situation to self-petition on his or her own, without having to rely on the abusive spouse or parent to file the family visa petition. In 2005, Congress expanded these provisions to permit parents of abusive U.S. citizen sons and daughters to also self-petition. VAWA provides these self-petitioners with some benefits that go beyond those available in regular family visa petitions. As long as the self-petition is approved, even if no adjustment application has been filed, the VAWA self-petitioner can work legally in the United States and will not be deported during the months or years it may take for the petitioner’s priority date to become current. Plus VAWA self-petitioners can apply for adjustment of status in the United States, rather than having to leave the country to process their visas at a U.S. consulate in their home country. Also, a VAWA self-petitioner can receive many public benefits unavailable to other noncitizens. Most victims of domestic violence are women, and for the sake of clarity this chapter will refer to the abuser as “he” and the victim as “she.” It is important to note, however, that men are sometimes the victims of domestic violence and women are sometimes the abusers. The VAWA immigration provisions apply regardless of the gender of the abuser, covering abused husbands and wives, abused children and parents of both genders, and abused spouses in legal same-sex marriages. VAWA protects children abused by a USC or LPR parent. And frequently, even if the child was abused and the parent was not, the noncitizen parent may also qualify for VAWA, or if the parent was abused and the child was not, the child may also qualify. See § 7.2 for a discussion of children and VAWA. PRACTICE TIP: Getting the Word Out. The self-petitioning provisions of VAWA can help a lot of people get out of abusive situations and get the medical and other supportive benefits that they and their children need. However, in order to benefit from VAWA, people first have to learn that it exists. Immigrant advocates have an urgent task of informing potential self-petitioners, and domestic violence service providers, about the availability of this relief. For outreach materials, go to www.cliniclegal.org, www.asistahelp.org, or www.ilrc.org. VAWA self-petitions are both similar to and different from regular family visa petitions. On one hand, the VAWA self-petitioner must prove the same types of facts as in a regular family visa petition. The self-petitioner must offer proof of the abuser’s LPR or USC status to show that the abuser would have been able to petition for her, she must show that a valid and bona fide marriage and or child/parent relationship existed, and she must have a current priority date in order to become a permanent resident. Thus, with some important exceptions, the eligibility requirements discussed earlier in Chapter 1 on family visa petitions also apply to self-petitions under VAWA. On the other hand, VAWA self-petitioners benefit from important exceptions to the normal requirements for a marriage petition. For example, in some cases the VAWA selfpetitioner can immigrate even if the abuser is no longer an LPR or USC, if the marriage has ended in divorce, or if the abused spouse believed that the couple was married but in reality the marriage was invalid. The VAWA self-petitioner must meet additional requirements that don’t apply to regular marriage petitions. For example, she must prove that she has good moral character, that the abuse

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occurred, and that she lived with the abuser at some point. These VAWA requirements are discussed in Subsection A of the next section, § 7.2, below. Subsection B describes how to document that a self-petitioner has met the requirements. Section 7.3 describes VAWA as it applies to children who are abused by an LPR or USC parent. Section 7.4 describes VAWA as it applies to parents who are abused by a USC son or daughter. Section 7.5 describes the procedure for filing a VAWA case.

§ 7.2 A.

Requirements for VAWA Self-Petition of an Abused Spouse

General Overview

In order to self-petition under the Violence Against Women Act, an abused spouse must prove that: 1. The abuser is (or was) an LPR or USC; 2. The self-petitioner is (or was) the spouse of the LPR or USC abuser, or the parent of a child who was abused by the self-petitioner’s LPR or USC spouse; 3. The LPR or USC abused the self-petitioner (or the self-petitioner’s child) during their marriage; 4. The marriage that forms the basis of the self-petition was a good faith marriage; 5. Either the self-petitioner is residing in the United States, or if living abroad, the LPR or USC abuser subjected the self-petitioner or her child to abuse in the United States, or is an employee of the U.S. government or armed forces; 6. The self-petitioner lived with the abuser; 7. The self-petitioner is a person of good moral character; and 8. In some circumstances, the child of the abused spouse qualifies for status even if the child herself was not abused, and the parent of an abused child qualifies for status even if the parent herself was not abused. 1. The abuser is (or was) an LPR or USC Under VAWA, the abuser must be a lawful permanent resident or a U.S. citizen. The exceptions to this requirement are: 1. The abuse may have occurred before the abuser became a USC or LPR; 2. If the abuser loses his lawful immigration status related to or due to an incident of domestic violence, the victim may still qualify to self-petition. That self-petition, however, must be filed within two years of the date the abuser loses status; 3. If the abuser loses immigration status for any other reason after the self-petition is approved, that loss of status will not affect the self-petitioner’s case; and

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Again, this chapter covers important VAWA developments, but does not provide enough information for someone to represent a VAWA client. If you take on a VAWA case, be sure to get more information and/or assistance from the ILRC (www.ilrc.org), or an agency such as the Catholic Legal Immigration Network, Inc. (CLINIC) (www.cliniclegal.org), ASISTA (www.asistahelp.org), or another VAWA-expert agency.

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4. If an abusive LPR spouse naturalizes, a pending self-petition will automatically be reclassified as self-petition of a spouse of a USC. See § 7.4 on procedures, below. Note that VAWA self-petitioner derivatives will remain eligible for VAWA under INA § 204(l) even if the abuser dies while the principal’s VAWA application is pending or approved.

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2. The self-petitioner is (or was) the spouse of the LPR or USC abuser The marriage is considered valid if it was valid in the place where it was performed or celebrated. This includes common law marriages and same-sex marriages from places where they are legally recognized (see Practice Pointer below). The exceptions to the spousal relationship requirement are: 1. If the marriage was terminated and there was a connection between the abuse and the termination of the marriage, the self-petition can be filed within two years of the termination of the marriage; 2. If the marriage was terminated for any reason after the self-petition was filed, that termination will not affect the self-petition; 3. If the abusive USC (not an LPR) spouse dies, the self-petition can be filed within two years of the USC spouse’s death. (A widow or widower self-petition may be an easier route than VAWA, however VAWA provides more benefits, so both possibilities should be investigated); 4. If the marriage was not valid because a prior or concurrent marriage of the abuser’s was not legally terminated, but the abused spouse believed the marriage was valid and a wedding ceremony was performed, a self-petition may still be filed; and 5. If the self-petitioner remarries after the approval of the self-petition, the self-petition will not be revoked. PRACTICE POINTER: Family-Based Immigration and VAWA Benefits Extended to SameSex Couples in 2013. In June 2013, the U.S. Supreme Court decided in United States v. Windsor, 133 S.Ct. 2675 (2013) that Section 3 of the Defense of Marriage Act (DOMA) was unconstitutional in restricting the federal interpretation of “marriage” and “spouse” to only apply to opposite-sex unions. Thereupon, then-President Obama and DHS Secretary Napolitano directed USCIS to review immigrant visa petitions filed on behalf of a same-sex spouse in the same manner as those filed on behalf of an opposite-sex spouse and to ensure that federal benefits for same-sex legally married couples would be implemented swiftly and smoothly. As a result, same-sex I-130 marriage petitions and adjustments of status are now routinely filed and approved. Abused spouses in same-sex marriages also benefit under VAWA where the abusive spouse was or is a USC or LPR. Make sure to research and prove that your client’s same-sex marriage was valid and legal in the location in which it took place at the time of the marriage.

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3. The self-petitioner, or a child of the self-petitioner, was battered or subjected to extreme cruelty by the LPR or USC abuser VAWA requires that the self-petitioner show that she or her child “has been battered or has been the subject of extreme cruelty” by the LPR or USC abusive spouse. The USCIS may consider a wide range of behaviors, including where the USC or LPR spouse:

• • • • • • •

Threatened to beat or terrorize her; Hit, punched, slapped, kicked, or hurt her in any way; Emotionally abused her, such as insulted her at home or in public; Sexually abused or exploited her, including molesting her, forcing her to have sex when she did not want to, or forcing her to prostitute herself; Threatened to take her children away or hurt them; Threatened to deport her or turn her over to immigration; Controlled where she went, what she could do, and whom she could see or to whom she could speak and/or when she could communicate with her family or friends; Controlled her ability to make or spend money; Forcibly detained her; Engaged in a pattern of acts that alone would not normally constitute abuse; or Threatened or committed acts of violence against a third person or thing in order to scare or pacify her.

The USCIS Vermont Service Center (VSC) adjudicates all VAWA self-petitions, regardless of the self-petitioner’s residence. VSC staff are trained in domestic violence issues and have been flexible in applying the definition of abuse. For further information on what constitutes battery or extreme cruelty, please visit the ASISTA website at www.asistahelp.org. Example: Annette came to the United States from the Philippines four years ago as a student and married Greg, a U.S. citizen, two years later. When her visa expired, Greg began to fill out the forms for her to get a family visa petition, but he never filed it. For the past year, Greg has been isolating Annette from her friends and family. He controls all the finances and forbids her to leave the house without him. One day, about a month ago while Greg was at work, Annette left the house to help a sick friend. Greg came home early and was waiting at the house when Annette returned. He yelled at her, threatening to turn her over to immigration and have her deported. Upon hearing Greg’s yelling, Annette’s cherished dog, “Baby,” ran into the room. Greg kicked Baby severely several times until Annette begged him to stop. Greg then told Annette, “Baby got what he deserved and if you don’t shape up, you will too.” This is not the first time Greg has mistreated Baby. Greg’s behavior may qualify as extreme cruelty to Annette. 4. The marriage is (or was) a “good faith” marriage A self-petitioner must not have entered into the marriage with the USC/LPR spouse solely for the purpose of obtaining immigration status. This is the usual test for a marriage forming the basis for a family visa petition. However, see the special VAWA exception for marriages that may have been polygamous due to a previous marriage of the abuser.

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5. The self-petitioner must either reside in the United States or meet certain requirements to file from abroad

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A self-petitioner does not need to have continuous physical presence in the United States to file the petition. Additionally, a self-petitioner who recently moved to the United States can qualify. Noncitizens living abroad can self-petition if: a. the abusive spouse is an employee of the U.S. government or member of the U.S. armed services, or b. the abusive spouse subjected the self-petitioner or the self-petitioner’s child to battery or extreme cruelty in the United States. 6. The self-petitioner lived with the LPR/USC abuser There is no specified amount of time the self-petitioner must have lived with the abuser, nor must she live with the abuser at the time the self-petition is filed. Thus a self-petitioner can qualify even if she only lived with the abuser for a short time, or only in another country. Example: Sara lived with her aunt before marrying Andrew. Soon after she married and moved in with Andrew, he began to abuse her. To avoid Andrew’s abuse, Sara returned to her aunt’s house. She spends most of her time there, even sleeping several nights a week in her old bedroom. Does Sara meet this requirement? Yes. Sara did reside with Andrew for a short time. There is no minimum length of time she must have resided with him. 7. The self-petitioner must be a person of good moral character The self-petitioner must demonstrate good moral character by providing police clearance letters for the three years prior to the filing of the VAWA self-petition. She must show generally that none of the bars to good moral character listed in INA § 101(f) apply, or if they do, that one or more of the exceptions noted below applies. She also must show that she has not done other things the USCIS considers would demonstrate a lack of good moral character. Special Exceptions for VAWA Self-Petitioners of the Good Moral Character Bars in INA § 101(f). A VAWA self-petitioner may be excused from a good moral character bar if she can show (1) a connection between the abuse she suffered and the act or conviction that caused the moral character problem, and (2) that there is waiver available for that act or conviction under the inadmissibility or deportability grounds. For information on applicable waivers, check out the ASISTA website at www.asistahelp.org or see the information contained in The VAWA Manual which can be ordered from the ILRC at www.ilrc.org. 8. Children of the self-petitioner may qualify for derivative status A self-petitioning spouse should list her children (unmarried, under 21 years old) on the selfpetition so that they can obtain the same benefits as the self-petitioner, including deferred action, work authorization, and eligibility to adjust to LPR status. The child does not have to show that he has been abused. A derivative child of a self-petitioning spouse or child will not “age out” by turning 21. Instead he or she will become a self-petitioner in their own right and automatically be considered a

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petitioner for the preference category for unmarried sons and daughters and will retain the parent’s original self-petition date as his or her priority date. 1 Similarly, if the child of a USC abuser marries, he or she will automatically be considered a petitioner for family-based third preference. 2 No new petition need be filed. 3

PRACTICE TIP: Other Immigration Relief for Abused Spouses and Other Family Members •

Conditional Residence: If your client is a conditional resident (has a temporary green card through a petitioning spouse based on a marriage that was less than two years old at the time the permanent resident application was submitted), a VAWA self-petition need not be filed. Conditional residence means the USC or LPR spouse already filed a petition, the petition was approved, and the immigrant spouse actually received a conditional “green card” that lasts for two years. In conditional residence cases, the married couple must together file a petition (called a “joint petition”) to remove the condition near the end of the two-year period. Instead of enduring the harmful relationship for this period and hoping her spouse will help file the joint petition, the conditional resident may have the option of leaving the relationship and obtaining a special “battered spouse waiver” to remove the condition on her own. See Chapter 3 of this manual for more information on conditional residence.

•

Crime Victim Visas: Battered men, women, and children who do not qualify for VAWA (for example, because they are not legally married or their abusive spouse is not a USC or LPR) may be eligible for the “U” nonimmigrant visa status created in 2000. 5 The U visa benefits victims of crimes who are willing to help in a criminal investigation or prosecution of perpetrators of crime. This visa is not limited to domestic violence crimes committed by

1

INA § 204(a)(1)(D)(i)(III). INA § 204(a)(1)(D)(i)(I). 3 Id. 4 However, even though she is over 21, Ann may be able to retain 2A status under the CSPA formula for second preference beneficiaries. See Footnote 1 above. 5 See INA § 101(a)(15)(U). 2

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Example: Harriet was abused by her lawful permanent resident husband, George. He did not abuse Harriet’s child Ann, and Ann did not live with Harriet and George. Harriet’s situation met all the requirements for VAWA, so she submitted a self-petition with 19year-old Ann’s name listed on it. Harriet and Ann were both approved as VAWA selfpetitioners and received “Deferred Action” status (see discussion of the VAWA selfpetition process below, at § 7.5) and employment authorization, and were put on a list to receive a second preference immigrant visa when it becomes available in a few years. When Ann turns 21, the USCIS will automatically move her from the second preference “2A” list (for spouses and unmarried children under 21 of lawful permanent residents) to the second preference “2B” list (for unmarried sons and daughters of lawful permanent residents over 21). 4 Although it will take Ann longer to get her immigrant visa in this new category, she will maintain her legal permission to live and work in the United States until it is available.

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lawful USC or LPR spouses. There are no requirements as to who the perpetrator must be—he or she could be a stranger or a relative, a U.S. citizen or an undocumented person. The offense could involve sexual attack, physical attack, kidnapping, incest, or many other types of criminal offenses. The “U” visa provides temporary status and can lead to permanent residency. U visas are covered in great detail in The U Visa: Obtaining Status for Immigrant Victims of Crime, a comprehensive manual on U visas available through the Immigrant Legal Resource Center (ILRC) at www.ilrc.org/publications. Note that another visa, the “T” visa, is also available to persons who were victims of human trafficking for sex or labor. 6 For more information on the T visa, the Immigrant Legal Resource Center (ILRC) has a publication entitled, Representing Survivors of Human Trafficking: A Promising Practices Handbook that may be ordered at www.ilrc.org/publications. •

Cancellation of Removal for Domestic Violence under VAWA: Abused spouses and children who are in removal proceedings and have lived in the United States for at least three years may be eligible for VAWA cancellation of removal. VAWA cancellation, like VAWA self-petitioning, leads to permanent residence status. The requirements and process for winning a VAWA cancellation case are covered in the ILRC’s VAWA Manual which can be ordered at www.ilrc.org.

•

Asylum for Domestic Violence: Some clients may be eligible for asylum if they can show that they were persecuted, or have a well-founded fear of future persecution, based on their race, religion, nationality, political opinion, or membership in a particular social group. Recent cases and changes in immigration rules on domestic violence cases have made asylum a possibility for obtaining protection and legal status for some victims of domestic abuse. For assistance with these cases, advocates should consult with experts in genderbased asylum law, including the National Immigration Project of the National Lawyers Guild at www.nationalimmigrationproject.org and the Center for Gender and Refugee Studies at http://cgrs.uchastings.edu. The ILRC also has an Essentials of Asylum Law manual available for order at www.ilrc.org.

•

Employment Authorization for Abused Spouses of Certain Nonimmigrant Professionals: The derivative spouses of certain nonimmigrant professional visa holders can obtain work authorization if the derivative spouse can demonstrate that during the marriage she (or a child) has been battered or subject to extreme cruelty perpetrated by the principal. It does not create a separate visa status or route to legal permanent residency for the abused derivative spouse. This provision was created by VAWA 2005 and applies to abused derivative spouses of A (diplomatic visas), E (iii) (treaty-based travel), G (visa category related to officials or employees of foreign governments of international organizations), and H (business visa, multiple categories). 7 To qualify, the abused spouse must show that she is married to a qualifying nonimmigrant spouse; or was married to a qualifying nonimmigrant spouse and that spouse died within the two years prior; lost qualifying nonimmigrant status due to an incident of domestic violence; or the marriage was terminated within the two years prior and there is a connection between the termination

6 7

See INA § 101(a)(15)(T). INA § 106(a)(15).

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of the marriage and the battery or extreme cruelty perpetrated by the former spouse; was last admitted to the United States as a nonimmigrant under INA § 101(a)(15)(A), (E)(iii), (G), or (H); was battered or subjected to extreme cruelty (or her child was battered or subjected to extreme cruelty) perpetrated by the nonimmigrant spouse during the marriage and after admission as a nonimmigrant under INA § 101(a)(15)(A), (E)(iii), (G), or (H); and currently resides in the United States. B.

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Documenting Eligibility for a VAWA Self-Petition

1. Proving that the abuser is an LPR or USC The VAWA self-petition asks for proof of the abuser’s lawful immigration status or U.S. citizenship. If the applicant is unable to comply, USCIS will attempt to verify an abuser’s status through its computer records. 10 However, this process may delay processing of the self-petition, and if the search fails, it will lead to a denial. Most likely, USCIS will not have records from U.S.-born individuals who have never filed any paperwork with the Service. Therefore, it is in the self-petitioner’s best interest to prove the abuser’s legal status. If the abuser is an LPR, the selfpetitioner can try to find the abuser’s “A” number on his lawful permanent resident card (“green card”). For information regarding a person born in the United States, the self-petitioner can contact the state or county office of vital statistics (often the county clerk) to try to obtain a copy of the abuser’s birth certificate. An internet website (www.vitalcheck.com) lists many local offices that provide vital statistics throughout the United States. Sympathetic friends or relatives can also help the applicant in locating the information. If the abuser lost his lawful status due to or related to an incident of domestic violence, the selfpetition should include a record of the deportation or removal, revocation of U.S. citizenship, or denaturalization proceedings that indicate the loss of status. The self-petitioner should also provide affidavits and other evidence showing that the loss of status was due to an incident of domestic violence. 2. Proving that the self-petitioner is (or was) married to the LPR or USC The self-petitioner should include a copy of her marriage certificate from her marriage to the abuser. If either spouse had a prior marriage, the self-petitioner should submit final divorce 8

INA § 204(a)(1)(J). The ILRC has a free resource with tips and ideas for documenting a VAWA self-petition. This documentgathering guide can be downloaded at our website at www.ilrc.org at the VAWA page or directly using this link: www.ilrc.org/resources/document-gathering-for-self-petitioning-under-the-violence-against-womenact. 10 8 CFR § 204.2(c)(2) (spouse), 8 CFR § 204.2(e)(2)(child). 9

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VAWA self-petitioners must provide some documents to prove that they are eligible for VAWA; however VAWA recognizes that victims of domestic violence may face greater than normal obstacles to getting documentation. Therefore, although the self-petitioner is required to prove that she meets the VAWA requirements, the USCIS is required to accept “any credible evidence” as proof. 8 The following is a description of the VAWA requirements that the applicant must document, and suggestions for finding documents. 9

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decrees or death certificates to prove the legal termination of the prior marriage(s). Regarding the marriage between the applicant and the abuser, if this marriage has also been terminated, the USCIS will not require that a divorce decree specifically state that the termination of the marriage was due to domestic violence. Although the self-petitioner must demonstrate that the battery or extreme cruelty led to or caused the divorce, evidence submitted to meet the core VAWA eligibility requirements may be sufficient to demonstrate the connection between the divorce and the abuse. If the abuser was a U.S. citizen, and he died within two years of the filing of the self-petition, the abuser’s death certificate should be submitted. If the abuser was married to someone else at the same time that he and the self-petitioner were married (a bigamist) but a marriage ceremony was actually performed between the abuser and the self-petitioner, the self-petitioner should show her good faith belief that the abuser was free to marry and provide evidence of a marriage ceremony. 3. Proving the battery or extreme cruelty The most important evidence of domestic violence is the self-petitioner’s own declaration. It should be very detailed in its descriptions of the abuse, including, if possible, the approximate date that the abuse began, a description of each incident of physical injury, verbal threats, accounts of other cruelty, attempts to leave or seek help, difficulty in leaving, and feelings about the abuse. The self-petitioning case will be strengthened by other proof of abuse, including a civil protection order, police records, criminal court records, complaints, medical records, evidence of torn clothing, broken furniture, photographs of injuries, affidavits (a notarized statement), declarations (a statement signed under penalty of perjury), or letters from witnesses such as friends, relatives, or neighbors which support the self-petitioner’s statements, or from shelter workers, police officers, counselors, social workers, medical workers, clergy, and experts on domestic violence. A corroborating affidavit from a domestic violence counselor is extremely helpful in any case. Where physical abuse was not present, the key to claims of extreme cruelty is to include evidence of the self-petitioner’s subjective perception of the abuse. The self-petitioner must document in her self-petition not only the acts and behavior of her abuser, but also that she perceived those acts or behavior as extreme cruelty. This should be addressed in the self-petitioner’s declaration. 4. Proving that the marriage was in good faith Evidence of the self-petitioner’s good faith intent may include proof that one spouse has been listed on the other spouse’s insurance policies, property mortgage or lease, jointly-filed income tax forms, joint bank accounts, birth certificates of children born from the marriage, letters, cards, and e-mails from the courtship, photographs of the wedding ceremony and/or family events, and cards, letters and declarations from neighbors, friends and relatives. 5. Proof of residence with the USC or LPR spouse A self-petitioner should submit any available record showing her as residing at the same place as her spouse. The records do not have to show that the residence was in the United States, nor that the residence is current. Some suggestions are school records for the couple’s child(ren), letters addressed to each or both spouse(s), lease agreements or rent bills, utility or other bills, medical

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records, tax returns, property deeds, and insurance policies. Affidavits, declarations or letters from landlords, family members, neighbors, friends, or other people who know they lived together may be sufficient if other records are not available.

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6. Proof of good moral character

PRACTICE TIP: Community Cooperation in Gathering Documents. Domestic violence counselors and shelter staff are key partners in preparing VAWA cases. If possible, you should always work with such a counselor. They can help the self-petitioner develop her story for her affidavit, identify others who can provide affidavits, help collect documents and write corroborating affidavits about the abuse. You should work with them to develop safety plans that include collecting and protecting essential documents. Similarly, police departments, district attorneys, courts, and hospitals are important sources of documents, including reports of domestic violence. They can expedite the process of getting those reports to domestic violence victims. Information on the procedural steps for filing a self-petition under VAWA is found in § 7.4, below. § 7.3 A.

Requirements for a VAWA Self-Petition for an Abused Child

General Overview

A child (unmarried and under 21 years old) of an abusive LPR or USC may also file a selfpetition if he or she meets the following provisions: • • • • • •

The abuser is (or was) an LPR or USC; The self-petitioner is the child (unmarried, under 21, qualifying parent/child relationship) of the abuser; The LPR or USC abused the self-petitioning child; Either the self-petitioning child is residing in the United States, or if living abroad meets certain requirements; The self-petitioning child lives or lived with the LPR or USC parent; and The self-petitioning child can establish good moral character.

NOTE: A child who was not abused may qualify as a derivative beneficiary of an abused parent’s VAWA self-petition; see discussion in § 7.2, Subsection A.8 above.

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The self-petition must be accompanied by a copy of police or law enforcement clearance letters or record checks from jurisdictions (including other countries) where the self-petitioner has resided for six months or more during the three years preceding the filing of the self-petition. If there are good moral character issues, the self-petitioner should write an affidavit explaining how the problems are related to her experience of domestic violence. In such cases, the application should also include affidavits from responsible people who can attest to the self-petitioner’s good moral character. If the self-petitioner has criminal charges or convictions, she must submit court documents, including the charging document, the indictment, and the disposition of the case.

1. The abusive parent is (or was) an LPR or USC The rules and exceptions to the requirement that the abuser be a lawful permanent resident or U.S. citizens are the same for a child as those of an abused spouse above. 2. The self-petitioning child is the “child” of the LPR or USC abuser

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A self-petitioning child must meet the immigration law definition of a “child”—in other words, he or she must: •

Be unmarried;

•

Be under 21, although an exception was created to allow an abused child to self-petition up to the age of 25, as long as the abuse was one of the central reasons for the delay in filing (See Practice Pointer note below); and

•

Have a qualifying “parent/child” relationship with the LPR or USC abuser. This qualifying relationship includes all natural children born in wedlock, as well as some step-children, adopted children, and children born out of wedlock. See Chapter 1 for the definition of a parent/child relationship under the INA. The self-petitioning child does not have to be the child of a self-petitioning spouse.

“Aging Out” of Status. A self-petitioning immediate relative child who “ages-out” (that is, loses her status as a “child” by turning 21) after filing the self-petition is automatically considered by the USCIS to remain a VAWA self-petitioner. A child of an LPR will be considered a selfpetitioner in the appropriate visa category for “sons or daughters” (that is, a child over 21 of a USC or LPR). She does not have to file any additional paperwork, and her priority date remains the original self-petitioning date. She may be able to utilize the CSPA to remain in the 2A category, depending on when her immigrant visa became available and how long it took for her I360 petition to be adjudicated. Subsequently, when the CSPA no longer applies for the petition of a son or daughter of an LPR, the self-petition is moved from the family-based 2A to the 2B classification. Although it will take these self-petitioners longer to get their immigrant visas, they will maintain deferred action status and eligibility for work authorization during the entire waiting period. 11 Example: Joaquin’s mother Maritza is an LPR. Maritza often beats Joaquin and disappears for days at a time, so Joaquin successfully self-petitions under VAWA. Because his mother is an LPR, he will be given a priority date as a 2A category. Even if his priority date does not become current until after his 21st birthday, he will still be able to adjust status through his self-petition. However, his category may change to 2B if he is not protected by the CSPA, because he will be an unmarried son of an LPR. PRACTICE POINTER: Abused Children May Be Able to Self-Petition under VAWA until the Age of 25. Although generally abused children cannot self-petition once they turn 21 (because the definition of a child under immigration law is unmarried and under the age of 21), some abused children may be able to self-petition up to age 25 if they can show the abuse was at least “one 11

The CSPA, or Child Status Protection Act, should permit VAWA applicant children over 21 to remain in their original categories. See Chapter 1 for more information on the CSPA.

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central reason” for the filing delay. In September 2011, USCIS issued policy guidance on this issue. According to their policy memorandum, the self-petitioning son or daughter must have been qualified to file the self-petition on the day before the individual attained age 21. This means that all qualifying factors must have been in place on that date. It also specified that “one central reason” is one that is caused by or incident to the battery or extreme cruelty to which the selfpetitioner was subjected. The battery or extreme cruelty is not required to be the sole reason for the delay in filing, but to be considered central, the nexus between the battery or extreme cruelty and the filing delay must be more than incidental or tangential.

The definition of abuse for a VAWA self-petition is discussed in § 7.2. Not only acts and threatened acts of violence against the child, but such acts against a third person (including the other parent), or against a thing may qualify as abuse if deliberately used to perpetuate extreme cruelty against the child. Witnessing domestic violence is also a form of extreme cruelty. Note it is not a requirement that the abuse occurred while the self-petitioning child lived with the abuser. 4. The self-petitioning child is residing in the United States at the time the selfpetition is filed, or if filing from abroad meets certain requirements The self-petitioning child does not need to have continuous physical presence in the United States to file the petition. A self-petitioning child who recently moved to the United States can qualify. Noncitizen children living abroad can self-petition, where: a. The abusive parent is an employee of the U.S. government or member of the U.S. armed services, or b. The abusive parent subjected the self-petitioning child to battery or extreme cruelty in the United States. 5. The self-petitioning child lives or lived with the abusive LPR or USC parent The self-petitioner does not need to be currently living with the abusive parent. There is no specified amount of time the child must have lived with the abusive parent. Any period of visitation will count. Thus a child can qualify even if she or he only lived with the abusive parent for a short time. 6. The child is of good moral character Children under 14 years of age are presumed to possess good moral character and therefore do not have to do anything to show this. If the self-petitioning child is 14 years or older, the rules are the same as for a self-petitioning spouse, which are described in § 7.2. Juvenile delinquency dispositions are not considered criminal convictions and therefore usually do not qualify as statutory bars to good moral character. Be careful, however, of juvenile delinquency dispositions relating to drug sales or prostitution, which might bar good moral character. PRACTICE TIP: Other Immigration Options for Battered Children Some children may not qualify for VAWA, while others may qualify but find another form of relief is better for them.

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3. The LPR or USC abused the self-petitioning child

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•

Special Immigrant Juvenile Status (SIJS): Children who are under the jurisdiction of a juvenile court (including dependency, delinquency, or probate) and have been subjected to abuse, neglect, abandonment, or similar basis under state law may qualify for SIJS. There is no requirement that the parent be an LPR or USC, and SIJS visas fall under the employment-based fourth preference category, which often has much shorter wait times (or none at all) for a visa, depending on the child’s country of origin. SIJS cannot be denied based on age if the noncitizen was under 21 and unmarried on the date the SIJS application was filed. However, it is often recommended that the juvenile court retain jurisdiction over the case until the entire application is decided and the child receives lawful permanent residency. 12

•

Acquisition of Citizenship: Children of U.S. citizens may already be U.S. citizens because they acquired citizenship at birth in another country from a U.S. citizen parent.

•

Asylum: Some children may be eligible to apply for asylum based on traditional arguments, or because they were street children or even victims of domestic violence.

•

Immigration through Adoptive Parent: A child who is adopted by age 16 may be able to immigrate through the adoptive parent, if the parent is a USC or LPR.

Please also see “Other Immigration Relief for Abused Spouses” in § 7.2, above. B.

Documenting Eligibility for a VAWA Self-Petition for a Child

Please see § 7.2 for a general discussion of documentation needed to prove that an abused spouse or child has met the requirements for a VAWA self-petition. In addition, the self-petitioning child must provide documentation showing the parent-child relationship, like a birth certificate, school, or medical records. If the abuser is a stepparent, the child must submit a copy of his parents’ marriage certificate, in addition to the child’s birth certificate. If the child is adopted, copies of the legal adoption and proof of two years legal and physical custody must be submitted. § 7.4 A.

Requirements for a VAWA Self-Petition for an Abused Parent

General Overview

Parents of abusive U.S. citizen sons or daughters are also able to apply for VAWA selfpetitioning. 13 For more detailed information on this provision under VAWA, see the August 30, 2011 USCIS memorandum entitled, “Eligibility to Self-Petition as a Battered or Abused Parent of a U.S. Citizen; Revisions to Adjudicator’s Field Manual (AFM) Chapter 21.15 (AFM Update AD 06-32).” 14 12

See INA § 101(a)(27)(J) and 8 CFR § 204.11, and Special Immigrant Juvenile Status and Other Immigration Options for Children & Youth available from the Immigrant Legal Resource Center at www.ilrc.org/sijs. 13 Violence Against Women and Department of Justice Reauthorization Act of 2005 (commonly referred to as “VAWA 2005”). This Act was signed into law on January 5, 2006. 14 This memorandum may also be found on the USCIS website at www.uscis.gov/USCIS/Laws/Memoranda/2011/August/VAWA-Elder-Abuse.pdf.

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A parent of an abusive USC son or daughter may file a self-petition if he or she meets the following provisions: 1. The abuser is (or was) a USC (note parents are not eligible if the abuser was an LPR); 2. The self-petitioner is the parent of and has a qualifying parent/child relationship with the abusive son or daughter; 3. The USC abused the self-petitioning parent; 4. The self-petitioning parent lives or lived with the USC son or daughter; and 5. The self-petitioning parent can establish good moral character. The rules and exceptions to this requirement are the same for a parent as those for an abused spouse above. 2. The self-petitioning parent has a USC “son or daughter” who is an abuser A son or daughter is a person who once qualified as a child, but now may be over 21 or married. The parent must have had a qualifying “parent/child” relationship with the USC abuser. This qualifying relationship includes all natural children born in wedlock, as well as some stepchildren, adopted children, and children born out of wedlock. See Chapter 1 for the definition of a parent/child relationship under the INA. 3. The USC abused the self-petitioning parent The definition of abuse for a VAWA self-petition is discussed in § 7.1. 4. The self-petitioning parent lives or lived with the abusive USC son or daughter The self-petitioner does not need to be currently living with the abuser, and there is no specified amount of time the parent must have lived with the abusive son or daughter. The self-petitioning parent does not need to have continuous physical presence in the United States to file the petition. A self-petitioning parent who recently moved to the United States can qualify. There is nothing in the statute that requires an abused parent to show residence in the United States. 5. The self-petitioning parent is of good moral character The rules for good moral character are the same as for a self-petitioning spouse, which are described in § 7.1. § 7.5

Procedures for Self-Petitioning under VAWA

Obtaining lawful permanent residence through VAWA self-petitioning is a two-step process for all but immediate relative applicants. First, the abused spouse, child, or parent files the selfpetition via Form I-360 by mail to the USCIS Vermont Service Center VAWA Unit. If the selfpetition is approved, the self-petitioner waits for a visa to become available based on the selfpetitioner’s priority date. This may take several years through the family preference process. If the abuser previously filed an I-130 petition for the abused relative, the priority date on that earlier petition may be utilized to allow the self-petitioner to immigrate more quickly. Then, the self-petitioner applies to adjust status to lawful permanent residence, and must prove that she is

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1. The abusive son or daughter is (or was) a USC

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admissible to the United States. Unlike the regular family visa petition process, however, VAWA self-petitioners obtain permission to live and work in the United States, and receive public assistance, while they wait to adjust status. Immediate relative self-petitioners may—though are not required to—file an application for adjustment of status concurrently with the self-petition.

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A.

Filing the Self-Petition

The VAWA self-petition, whether from a self-petitioner living in the United States or abroad, is submitted on Form I-360 (although this may change in the future). The self-petitioner does not have to include her own address on the I-360, but can instead list the name of a friend, or your agency, in the c/o space, along with that person’s address. This gives the USCIS an alternative address to send correspondence, and therefore helps prevent the self-petitioner’s abuser from discovering that she has filed a self-petition. The self-petitioner must also send documentation showing how she meets the VAWA requirements. The following list of documents is the minimum required. Additional proofs, including those described in the ILRC’s VAWA Document-Gathering Guide, make the case stronger. •

The self-petitioner’s affidavit or declaration that describes her relationship with the abuser, the history and nature of the abuse, the good faith nature of the marriage, and her good moral character;

•

Police clearance letters for each place the self-petitioner has lived for at least six months during the prior three years (a clearance letter or “records check” sheet generated by a state’s law enforcement agency may suffice for all locales where self-petitioner lived within that state);

•

Proof of the self-petitioner’s identity and status (like a birth certificate and passport);

•

Proof of the abuser’s status as an LPR or USC;

•

Proof of the qualifying relationship to the abuser (spouse, child, or parent);

•

Proof of the self-petitioner’s residence at some point with the abuser; and

•

Proof of the battery or extreme cruelty suffered.

•

Currently, there is no filing fee for self-petitions filed by abused applicants. (If an I-485 is filed concurrently, the normal fees apply, although the applicant may request a fee waiver for both the I-485 and biometrics, if eligible).

You should include a cover letter that describes how the self-petitioner meets each requirement and what documents are included with the application. If an approvable petition was filed earlier on the self-petitioner’s behalf, the letter should request that the priority date from that petition be applied to the current self-petition. If an attorney or DOJ-accredited representative is representing the self-petitioner, that person should attach a G-28 Notice of Entry of Appearance. Write “VAWA Unit” in large, red letters on the front of the envelope containing the self-petition package, the cover letter, and the I-360 itself (as well as all correspondence with the USCIS regarding the case).

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We recommend that you mail the petition certified mail, return receipt requested. Also make sure to keep copies of everything you submit including the completed I-360 form and all supporting documents. The self-petition must be mailed to:

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USCIS Vermont Service Center VAWA Unit 75 Lower Welden Street St. Albans, VT 05479-0001

After sending the prima facie letter, the USCIS will do a more thorough review of the selfpetition and documentation provided. If more documentation is needed, the USCIS will request it in a “Notice of Action” called a Request for Evidence, or RFE. The additional documentation must be sent to the USCIS within the time limit specified on the RFE otherwise the self-petition may be denied. If the USCIS does not approve the self-petition, it will send the self-petitioner a Notice of Intent to Deny, which gives her additional time to respond with necessary facts and documents. If the USCIS denies the self-petition, the applicant may file a Motion to Reconsider or Reopen with the Vermont Service Center or she may refile a new self-petition. If the self-petition is approved, the USCIS will mail the self-petitioner an Approval Notice (I797). Normally, this includes an “Initial Grant of Deferred Action.” This means that although the USCIS knows the self-petitioner is present in the United States without lawful immigration status, it will not deport her before she can adjust to lawful resident status. At this point, the USCIS also tells the self-petitioner that she may file an I-765 to obtain work authorization (Employment Authorization Document or EAD). Self-petitioners who are immediate relatives or have current priority dates from another previously filed petition can also concurrently file their adjustment applications (the I-485 packet). A VAWA applicant also files their I-485 packet, as with the I-360, with the Vermont Service Center. Upon receiving a VAWA approval notice, self-petitioner spouses, parents, or children of USCs are eligible to immediately apply for lawful permanent residence. However, self-petitioner spouses or children of LPRs who receive an approval notice on their I-360 from Vermont are subject to the visa allocation system and must wait for their priority date to become current prior 15

See the chart prepared by the National Immigration Law Center at www.nilc.org/issues/economicsupport/table_ovrw_fedprogs/ that describes what benefits are available to “qualified aliens,” a category which includes VAWA self-petitioners.

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When the USCIS receives the self-petition, it issues a receipt notice that includes the receipt date and the applicant’s priority date. Within several weeks, the self-petition will be reviewed to determine whether it states facts that, if proved true, would lead to approval. If it does, the USCIS will mail to the self-petitioner (or whoever she listed in the address section) a letter stating that she is “prima facie” eligible under VAWA. This is NOT a final approval letter, but the selfpetitioner can use this letter as proof of her status as a “qualified alien” to receive many forms of public assistance. 15 If a self-petitioner needs benefits right away, even before she will receive the notice of prima facie eligibility, she may file a short, one-page affidavit stating that she meets the eligibility requirements with USCIS. USCIS generally gives self-petitioners a chance to supplement their self-petitions.

to filing for lawful permanent residence. The priority date for self-petitioners is the date USCIS received their I-360 form. However, if the abuser had filed an I-130 prior to the self-petition, the self-petitioner can use the I-130’s priority date for his or her self-petition.

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B.

Special Exceptions to Grounds of Inadmissibility and Waivers for VAWA SelfPetitioners

VAWA self-petitioners, like most people who are trying to gain status through family-based petitions, are subject to most grounds of inadmissibility (listed in Chapter 5) and may be eligible to apply for waivers of some of those grounds (discussed in Chapter 6). This section discusses only the special, additional exceptions and waivers available to VAWA self-petitioners. Note that as a separate matter, several grounds of inadmissibility having to do with unlawful presence do not apply to someone who entered the United States before April 1, 1997. •

Re-Entry after Removal or Unlawful Presence (Permanent Bars): A discretionary waiver is available to VAWA self-petitioners who can demonstrate a connection between domestic abuse and her (1) removal, (2) departure from the United States, (3) reentry/ies into the United States, or (4) attempted reentry/ies into the United States. Since approved self-petitioners can adjust status in the United States, they may be able to avoid the unlawful presence bars since those bars are triggered by a departure from the United States.

•

Unlawful Presence (3- & 10-Year Bars): An exception to the three- and ten-year unlawful presence bars is available to approved VAWA self-petitioners and their derivative children who have accrued more than 180 days or one year or more of unlawful presence and then depart the United States and later seek admission. The selfpetitioner must show a substantial connection between the abuse suffered, the unlawful presence in the United States, and the departure.

•

Visa Fraud: A discretionary waiver is available to VAWA self-petitioners who have procured or sought a visa or admission to the United States, or any other USCIS benefit, by fraud or willful misrepresentation of a material fact. The self-petitioner must show that failure to obtain a waiver would cause extreme hardship to herself or to her USC, LPR, or “qualified alien” parent or child, including a child who is a derivative beneficiary of the self-petition. This waiver does not apply to false claims of U.S. citizenship made on or after September 30, 1996.

•

Public Health: A discretionary waiver is available to VAWA self-petitioners who have a disqualifying communicable disease. VAWA self-petitioners must nonetheless still comply with medical exam and vaccination requirements at adjustment.

•

Criminal Convictions: A discretionary waiver is available for the grounds of inadmissibility relating to 1) crimes of moral turpitude, 2) multiple criminal convictions, 3) simple possession of 30 grams or less of marijuana, 4) prostitution and commercialized vice, and 5) having sought immunity from criminal prosecution. No showing of extreme hardship is required, as in the regular 212(h) waiver.

•

Public Charge: The Violence Against Women Reauthorization Act of 2013, Pub. Law 113 (Mar. 7, 2013), clarified that the public charge ground of inadmissibility under INA

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§ 214(a)(4) does not apply to VAWA self-petitioners. There is no need for a VAWA selfpetitioner to submit either the I-864 or I-134. However, she will need to file an I-864W, Request for Exemption for Intending Immigrant’s Affidavit of Support. C.

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Adjustment of Status

VAWA allows approved self-petitioners to adjust status in the United States under INA § 245(a). It also exempts them from INA § 245(c), which bars adjustment for people who have been employed without work authorization, failed to maintain lawful status, entered on C or S nonimmigrant status, entered under the visa waiver program, or are deportable as a terrorists. Approved VAWA self-petitioners should be allowed to adjust status in the United States, even if they originally entered without inspection and cannot show a connection between the entry and the abuse. 17 In order to adjust status, the self-petitioner may submit an adjustment of status (I-485) packet concurrently with the I-360 to the USCIS Vermont Service Center or to the Chicago lockbox or the Vermont Service Center based on an already approved I-360 and current priority date. Many advocates choose to file the I-485 with the Vermont Service Center because they are more accustomed to handling VAWA-related adjustments and because they seem to be more generous in granting fee waivers. Later the self-petitioner will be scheduled for an adjustment interview at a district office where USCIS will decide whether to grant lawful permanent residency. VAWA 2005 and its legislative history indicated a possible shift to adjudicating VAWA adjustment of status applications at a centralized location such as the Vermont Service Center. However, as of the writing of this manual, that process is not in place. The ILRC recommends that advocates assisting VAWA applicants keep abreast of developments about this and other issues by subscribing to the “VAWA Updates” listserv. To do so, contact ASISTA at [email protected].

16

See § 5.11 and INA § 212(a)(9) regarding these bars. See Aytes memo, April 11, 2008, “Adjustment of Status for VAWA self-petitioner who is present without inspection: Revision of Adjudicator’s Field Manual (AFM) Chapter 23.5,” which can be found in 85 No. 17 Interpreter Releases 1272 (April 21, 2008) attached as Appendix 7-A. 17

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VAWA applicants can apply to adjust status inside the United States, instead of having to go outside the country and process their green card at a U.S. consulate abroad. There is no special additional fee for VAWA applicants to adjust status in the United States, as there is under INA § 245(i). As discussed in Chapter 3, Adjustment of Status is a procedure where applicants for lawful permanent resident status may complete their paperwork and interviews in the United States—even if they entered the United States without inspection. This is a tremendous advantage for VAWA applicants, who otherwise might be required to leave the United States for consular processing and thus become subject to the 3- and 10-year unlawful presence bars. 16

CHAPTER SEVEN SPECIAL ISSUES: THE VIOLENCE AGAINST WOMEN ACT (VAWA) INDEX OF APPENDICES Aytes memo, April 11, 2008, “Adjustment of Status for VAWA selfpetitioner who is present without inspection: Revision of Adjudicator’s Field Manual (AFM) Chapter 23.5” which can be found in 85 No. 17 Interpreter Releases 1272 (April 21, 2008)

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Appendix 7-A

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Appendix 7-A-1

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Appendix 7-A-2

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Appendix 7-A-3

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Attorney of the Day Service ILRC Technical Assistance

Since 1979, the ILRC has provided a unique, nationwide consultation service called Attorney of the Day (AOD), in which your immigration case questions are answered by our expert staff attorneys. We offer consultations on several aspects of immigration law to attorneys, employees of nonprofit organizations, public defenders, and other practitioners that assist immigrants. There are two options available:

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This option allows you to secure an on-going contract with us for a lower rate than the one-time consultation fee. You can create an individual or group contract so that members of your organization have access to this service. To begin the process, we obtain a signed contract and collect an initial deposit. Each time you contact us with a question, we will deduct the pro-rated charge from this deposit. You will be billed when your account falls below $50.

One-Time Consultation

This option allows you to ask questions on a one-time basis. Payment must be made by VISA, MasterCard, or American Express. Please have your credit card information handy when you contact us. There is a minimum charge of 1/10 hour. All charges will be prorated. AOD consultation hours are Monday through Thursday between 10:00 am and 3:00 pm Pacific time. Inquiries will be answered within two business days, excluding Fridays. Questions can be sent to [email protected]. For more information, please visit https://www.ilrc.org/technical-assistance or call 415255-9499.

Reprint Permissions To reprint any of the information contained in an ILRC publication, please see our Reprint Permissions Policy available on our website at: https://www.ilrc.org/publications/reprint-permissions The following are guidelines for ILRC materials to appear in printed or electronic* format: All materials produced or published by the ILRC are protected by copyright. By submitting a request form, you agree to abide by our copyright restrictions and requirements. *For access to ILRC materials on intranets or public websites, ILRC will only allow for hyperlinking to the electronic materials already available on ILRC’s website, and grantee will specifically state that the ILRC material is available only for internal use and not for commercial use or mass distribution. For materials to appear in printed, electronic, or audio format, you may be granted a one-time usage license to copy and distribute the materials. You may not modify, delete or add any text, images or audio to the materials without express permission from the ILRC. All materials must be copied or distributed in whole, not in part. If the materials are to appear within another medium, or as a shortened version of the original, ILRC must review the particular usage before it can grant permission. All materials must be used in conjunction with the following credit line: Reprinted from [insert name of the original material] with permission of the Immigrant Legal Resource Center, San Francisco, CA, 415-255-9499; www.ilrc.org.

Subscribe to ILRC Listservs The ILRC maintains several e-mail listservs that address developments within specific areas of immigration law. We welcome you to join one or all of them. To do so, follow these instructions for each hotline, and YOU must self-subscribe to the ones of your choosing. You can join the listservs by visiting https://www.ilrc.org/subscribe, then select “Subscribe” and complete the simple form as instructed. There are eight lists to choose from: Education @ ILRC Want to stay informed about ILRC training opportunities and recent publication releases? This listserv will be dedicated to keeping you updated about our unique and timely educational resources. Famvisa Family immigration topics and updates, including legal developments and practitioner materials pertaining to accessing and applying the benefits of 245(i) through the LIFE Act. SIJS (Special Immigrant Juvenile Status) Immigrant children’s rights advocacy and policy updates. NACARA (Nicaraguan Adjustment & Central American Relief Act) Network of advocates, pro bono attorneys, and nonprofit agencies who are working directly with clients in the adjustment process.

ESSENTIAL ILRC PUBLICATIONS

Hardship in Immigration Law How to Prepare a Winning Case in Waiver and Cancellation of Removal Cases. This uniquely useful manual, designed as a toolbox, is an essential reference tool for immigration practitioners. Practical and informative, it breaks down the elements that the BIA and federal courts have identified as relevant to claims of hardship, and demonstrates how to work with clients to elicit the information that will best present their hardship claims. Naturalization and U.S. Citizenship: The Essential Legal Guide Consisting of 15 chapters and extensive appendices, the entire process of representing a naturalization applicant from the initial client meeting through the oath of allegiance is thoroughly addressed. Overall the reader will learn detailed eligibility requirements for naturalization and helpful suggestions on both procedural issues and ways to effectively work with naturalization clients. We discuss what to do if a naturalization application is denied and how to determine if a client may already be a U.S. citizen through either acquisition or derivation of citizenship. You will find a thorough discussion of the recent changes in the law concerning citizenship for children. Inadmissibility & Deportability A practical and easy-to-use manual for beginning immigration attorneys, paralegals, non-profit community-based organizations, and other advocates on the grounds of inadmissibility, deportability, and waivers. Written in plain English and filled with explanatory examples, charts, tips, samples, and practical suggestions, this guide covers the essential topics for representing immigrant clients, including health-related inadmissibility grounds, alien smuggling, visa fraud, document fraud, false claims to citizenship, public charge, unlawful presence, three-year bars, ten-year bars, permanent bars, past removals, criminal records, crimes involving moral turpitude, petty offense and youth exceptions, and more. A Guide for Immigration Advocates The Guide is unique among immigration law manuals because it is a comprehensive, detailed overview of immigration law that is both practical and easy to use. Instead of merely containing articles on immigration law topics, it is a how-to manual, containing clearly worded explanations of each subject and includes sample applications, charts, and practical advice on working with your clients to elicit the information you need in order to assist them efficiently and accurately. To receive information on new publications: Sign up for our Education Listserve at www.ilrc.org/subscribe