Temporary Protected Status (TPS), Advance Parole, and Adjustment of Status under Arrabally

Temporary Protected Status (TPS), Advance Parole, and Adjustment of Status under Arabally

Overview of Adjustment of Status

According to INA  Section 245(a), the status of an alien who was inspected and admitted or paroled into the United States may be adjusted by the Attorney General, in his discretion and under such regulations as he may prescribe, to that of an alien lawfully admitted for permanent residence if:

  1. the alien makes an application for such adjustment,
  2. the alien is eligible to receive an immigrant visa and is admissible to the United States for permanent residence, and
  3. an immigrant visa is immediately available to him at the time his application is filed.

Overview of the 3 and 10 Year Unlawful Presence Bars

INA Section 212(a)(9)(B)(i) is broken into two (2) sub-groups:

  • Section 212(a)(9)(B)(i)(I) of the Act (3-year bar). This provision renders inadmissible for three (3) years those aliens, who were unlawfully present for more than 180 days but less than one (1) year, and who departed from the United States voluntarily prior to the initiation of removal proceedings.
  • Section 212(a)(9)(B)(i)(II) of the Act (10-year bar). This provision renders inadmissible an alien, who was unlawfully present for one (1) year or more, and who seeks again admission within ten (10) years of the date of the alien’s departure or removal from the United States.

Section 212(a)(9)(B)(ii) of the Act defines “unlawful presence” for purposes of sections 212(a)(9)(B)(i) and 212(a)(9)(C)(i)(I) of the Act to mean that an alien is deemed to be unlawfully present in the United States, if the alien is:

  • present after the expiration of the period of stay authorized by the Secretary of Homeland Security; or
  • present without being admitted or paroled.

Both the 3 and 10 year unlawful presence bars can be waived pursuant to section 212(a)(9)(B)(v) of the Act which states:

Waiver. – The [Secretary] has sole discretion to waive clause (i) in the case of an immigrant who is the spouse or son or daughter of a United States citizen or of an alien lawfully admitted for permanent residence, if it is established to the satisfaction of the [Secretary] that the refusal of admission to such immigrant alien would result in extreme hardship to the citizen or lawfully resident spouse or parent of such alien.

This waiver pursuant to 212(a)(9)(B)(v) is applied for through the I-601 “extreme hardship” waiver discussed extensively on this web site.

Triggering the Bar by Departing the United States and Matter of Arrabally

In the past, an alien who was not inspected and admitted or paroled into the United States was ineligible for adjustment of status (unless protected under INA Section 245(i)).  Such a person, when petitioned for permanent residence by a U.S. citizen spouse for example, had to leave the U.S. and attend a consular interview at the U.S. embassy abroad in order to complete the immigrant visa process.

By leaving the U.S. after accruing more than 180 days or one (1) year of unlawful presence, the 3-year or 10-year bar to admission under section 212(a)(9)(B) of the Act was triggered.  The I-601 waiver was subsequently required.

In Matter of Arrabally and Yerrabelly, 25 I&N Dec. 771 (BIA 2012), the Board of Immigration Appeals held that an alien who leaves the United States temporarily pursuant to advance parole under section 212(d)(5)(A) of the Act does not make a departure from the United States within the meaning of section 212(a)(9)(B)(i)(II) of the Act.

Advance parole is an administrative practice derived from the general parole authority in INA § 212(d)(5), giving an individual who is in the United States advance authorization to enter the United States after temporary travel abroad.  U.S. Citizenship and Immigration Services (USCIS) has the authority to grant advance parole and issue a Form I-512L, an advance parole authorization document.  Form I-512L allows a Customs and Border Protection (CBP) or other immigration inspector at a U.S. port-of-entry to parole an individual into the United States.  Advance parole does not guarantee subsequent parole into the United States.  The inspecting immigration official may, in his or her discretion, deny parole at the port-of-entry.

In a series of AAO decisions citing Matter of Arrabally and Yerrabelly thereafter, applicants who entered without inspection and subsequently obtained Temporary Protected Status (TPS), were allowed to use advance parole obtained pursuant to section 212(d)(5)(A) to temporarily leave the U.S., re-enter the U.S., and pursue pending applications for adjustment of status.  They were deemed to have NOT made a “departure” from the United States for purposes of section 212(a)(9)(B)(i)(II) of the Act.

In other words, the 3 and 10 year unlawful presence bars were not triggered.  Accordingly, the applicants were not deemed inadmissible under section 212(a)(9)(B)(i)(I) and 212(a)(9)(B)(i)(II) of the Act.  Additionally, they were deemed to have been paroled into the United States, and now eligible for adjustment of status under INA Section 245(a).

In these cases, the applicants were allowed to proceed with their adjustment of status applications in the United States based upon their  marriage to a U.S. citizen spouse.  Just as importantly, the I-601 extreme hardship waiver  was deemed unnecessary since the 3 and 10 year unlawful presence bars were not triggered.

It should be noted that this “beneficial interpretation” using Matter of Arrabally and Yerrabelly would extend to any immediate relative of a U.S. citizen applying for adjustment of status (i.e. the spouse, child under 21, or parent of a U.S. citizen son or daughter over 21 years old).

In summary, this has been welcome news for those granted TPS since Matter of Arrabally and Yerrabelly was decided.  Those who entered the U.S. without inspection and overstayed for 6 months or longer, subsequently obtained Temporary Protected Status (TPS), and are married U.S. citizens, have been able to obtain advance parole, leave the United States, and re-enter the U.S. to proceed with their adjustment of status to permanent residence without need for the I-601 extreme hardship waiver.

Other Inadmissibility Considerations

Prior to traveling abroad under advance parole, it is important to determine whether other grounds of inadmissibility may apply. Keep in mind that Matter of Arrabally and Yerrabelly discussed above benefits those who are only subject to the 3 or 10 year bar upon their departure from the United States.  As such, the inspecting immigration officer may deny  entry into the United States for those holding advance parole if the officer finds that any of the other inadmissibility grounds apply.

For example, an applicant who has already triggered the unlawful presence bars under INA Section 212(a)(9)(B) or the permanent bar under INA Section 212(a)(9)(C) (by previously leaving and re-entering without advance parole) may still be subject to these bars.

Future travel under advance parole will not cure previously incurred bars.  Immigration-related fraud or misrepresentation and false claims to U.S. citizenship can also bar admission.  Thus, prior to departing the United States, applicants with advance parole must consider all other inadmissibility grounds including criminal inadmissibility grounds identified at INA Section 212(a)(2).

Unexecuted deportation or removal order. If such an order exists, and if the applicant were to depart the United States on advance parole, he or she likely would be found to have executed the deportation/removal order and may not be able to re-enter the United States for a prescribed period of time.

To avoid this, an applicant with an unexecuted removal order can submit a motion to reopen removal proceedings with the Immigration Court or the BIA.  Once removal proceedings are reopened, the removal order no longer exists.  The applicant can then move to administratively close or terminate the reopened proceedings.  If either termination of proceedings or administrative closure is granted, the applicant can travel on advance  parole without risking the consequences of an executed removal order.  I typically contact the relevant ICE Office of the Chief Council (OCC) to request that the parties  jointly move to reopen and then administratively close or terminate the removal proceedings.

USCIS Issues Field Guidance on I-601A Provisional Waiver Applicants with Criminal Arrests or Convictions

USCIS Issues Field Guidance on I-601A Provisional Waiver Applicants with Criminal Arrests or Convictions

On March 4, 2013, the USCIS began a new provisional unlawful presence waiver program for immediate relatives of U.S. citizens whose only ground of inadmissibility is unlawful presence in the United States under section 212(a)(9)(B)(i)(I) and (II) of the Immigration and Nationality Act (INA).

The provisional unlawful presence waiver process allows immediate relatives of U.S. citizens who are currently residing in the United States to apply for a provisional waiver while in the United States, provided they meet all I-601A Provisional Waiver eligibility requirements and warrant a favorable exercise of discretion.

There are several circumstances that may render an individual ineligible for a provisional unlawful presence waiver.  For example, individuals with final orders of exclusion, deportation, or removal; individuals who are currently in removal proceedings that are not administratively closed at the time of filing; and individuals who have a pending application with USCIS for lawful permanent resident status are not eligible to apply for the provisional unlawful presence waiver.  Individuals for whom there is a reason to believe that they may be subject to grounds of inadmissibility other than unlawful presence at the time of the immigrant visa interview with a  Department of State (DOS) consular officer also are ineligible for the provisional unlawful  presence waiver. See 8 CFR 212.7(e) (2013).

If a USCIS officer determines, based on the record, that there is a reason to believe that the applicant may be subject to a ground of inadmissibility other than unlawful presence at the time of his or her immigrant visa interview with a DOS consular officer, USCIS will deny the request for a provisional unlawful presence waiver. See 8 CFR 212.7(e)(4)(i) (2013).

Since the commencement of the I-601A Provisional Waiver program, the USCIS denied I-601A waiver applications when the applicant had any criminal history.  In these cases, if the record contained evidence that an applicant was charged with an offense or convicted of any crime (other than minor traffic citations such as parking violations, red light/stop sign violations, expired license or registration, or similar offenses), regardless of the  sentence imposed or whether the offense is a Crime Involving Moral Turpitude (CIMT), USCIS denied the I-601A waiver application.

The USCIS has now issued guidance to its officers to review all evidence in the record, including any evidence submitted by the applicant or the attorney of record.

If, based on all evidence in the record, it appears that the applicant’s criminal offense: (1) falls within the “petty offense” or “youthful offender” exception under INA section 212(a)(2)(A)(ii) at the time of the I-601A adjudication, or (2) is not a Crime Involving Moral Turpitude under INA section 212(a)(2)(A)(i)(I) that would render the applicant inadmissible, then USCIS officers should not find a reason to believe that the individual may be subject to inadmissibility under INA section 212(a)(2)(A)(i)(I) at the time of the immigrant visa interview solely on account of that criminal offense.

The USCIS officer should continue with the adjudication to determine whether the applicant meets the other requirements for the provisional unlawful  presence waiver, including whether the applicant warrants a favorable exercise of discretion.

This news has been much-anticipated by potential waiver applicants who have certain convictions such as Driving Under the Influence (DUI) on their record.  Assuming the applicant’s criminal conviction(s) does not trigger a ground of inadmissibility, or their criminal conviction falls under the “petty offense” or “youthful offender” exception, waiver applicants may now proceed with their I-601A Provisional Waiver applications.

Keep in mind that it is extremely important for applicants with criminal conviction(s) in their background to prepare and submit a memorandum, together with their I-601A waiver package, clearly describing why their criminal conviction(s) does not trigger a ground of inadmissibility; or why their criminal conviction falls under the “petty offense” or “youthful offender” exception of INA section 212(a)(2)(A)(ii).

How to Prepare a Powerful Psychological Evaluation to Prove Extreme Hardship for the I-601 and I-601A Waiver

How to Prepare a Powerful Psychological Evaluation to Prove Extreme Hardship for the I-601 and I-601A Waiver

Extreme Hardship Defined

Section 212(a)(9)(B) of the Act provides, in pertinent part:

(i) In General – Any alien (other than an alien lawfully admitted for permanent residence) who -

(II) has been unlawfully present in the United States for one year or more, and who again seeks admission within 10 years of the date of alien’s departure or removal from the United States, is inadmissible.

(v) Waiver. – The Attorney General [now the Secretary of Homeland Security (Secretary)] has sole discretion to waive clause (i) in the case of an immigrant who is the spouse or son or daughter of a United States citizen or of an alien lawfully admitted for permanent residence, if it is established to the satisfaction of the Attorney General [Secretary] that the refusal of admission to such immigrant alien would result in extreme hardship to the citizen or lawfully resident spouse or parent of such alien.

Section 212(a)(6)(C)(i) of the Act provides, in pertinent part, that:

Any 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.

Section 212(i) of the Act provides, in pertinent part:

(I) The Attorney General [now the Secretary of Homeland Security (Secretary)] may, in the discretion of the Attorney General [Secretary], waive the application of clause (i) of subsection (a)(6)(C) in the case of an alien who is the spouse, son or daughter of a United States citizen or of an alien lawfully admitted for permanent residence, if it is established to the satisfaction of the Attorney General [Secretary] that the refusal of admission to the United States of such immigrant alien would result in extreme hardship to the citizen or lawfully resident spouse or parent of such an alien.

(**Please note that the I-601a Provisional Waiver requires a showing of extreme hardship to the U.S. citizen spouse or parent.  In other words, lawful permanent residents are not allowed to be the qualifying relative for I-601a Provisional Waivers).

Extreme hardship is “not a definable term of fixed and inflexible content or meaning,” but “necessarily depends upon the facts and circumstances peculiar to each case.” Matter of Hwang, 10 I&N Dec. 448, 451 (BIA 1964).  In Matter of Cervantes-Gonzalez, the Board of Immigration Appeals provided a list of factors it deemed relevant in determining whether an alien has established extreme hardship to a qualifying relative. 22 I&N Dec. 560, 565 (BIA 1999).

The factors include the presence of a lawful permanent resident or United States citizen spouse or parent in this country; the qualifying relative’s family ties outside the United States; the conditions in the country or countries to which the qualifying relative would relocate and the extent of the qualifying relative’s ties in such countries; the financial impact of departure from this country; and significant conditions of health, particularly when tied to an unavailability of suitable medical care in the country which the qualifying relative would relocate. Id.  The Board added that not all of the foregoing factors need be analyzed in any given case and emphasized that the list of factors was not exclusive. Id. at 566.

The Board has also held that the common or typical results of removal and inadmissibility do not constitute extreme hardship, and has listed certain individual hardship factors considered common rather than extreme.  These factors include: economic disadvantage, loss of current employment, inability to maintain one’s present standard of living, inability to pursue a chosen profession, separation from family members, severing community ties, cultural readjustment after living in the United States for many years, cultural adjustment of qualifying relatives who have never lived outside the United States, inferior economic and educational opportunities in the foreign country, or inferior medical facilities in the foreign country.  See generally Matter of Cervantes-Gonzalez, 22 I&N Dec. at 568; Matter of Pilch, 21 I&N Dec. 627, 632-33 (BIA 1996); Matter of lge, 20 I&N Dec. 880, 883 (BIA 1994); Matter of Ngai, 19 I&N Dec. 245, 246-47 (Comm’r 1984); Matter of Kim, 15 I&N Dec. 88, 89-90 (BIA 1974); Matter of Shaughnessy, 12 I&N Dec. 810, 813 (BIA 1968).

However, though hardships may not be extreme when considered abstractly or individually, the Board has made it clear that “[r]elevant factors, though not extreme in themselves, must be considered in the aggregate in determining whether extreme hardship exists.” Matter of 0-J-0-, 21 I&N Dec. 381, 383 (BIA 1996) (quoting Matter of lge, 20 I&N Dec. at 882).  The adjudicator ”must consider the entire range of factors concerning hardship in their totality and determine whether the combination of hardships takes the case beyond those hardships ordinarily associated with deportation.” Id.  The actual hardship associated with an abstract hardship factor such as family separation, economic disadvantage, cultural readjustment, et cetera, differs in nature and severity depending on the unique circumstances of each case, as does the cumulative hardship a qualifying relative experiences as a result of aggregated individual hardships. See, e.g., Matter of Bing Chih Kao and Mei Tsui Lin, 23 I&N Dec. 45, 51 (BI2001) (distinguishing Matter of Pilch regarding hardship faced by qualifying relatives on the basis of variations in the length of residence in the United States and the ability to speak the language of the country to which they would relocate).

The Psychological Evaluation

The psychological evaluation can thus be a powerful piece of evidence to demonstrate and prove the extreme hardship that the qualifying relative would suffer if he or she is separated from the applicant; or alternatively, if the qualifying relative leaves the U.S. and re-locates abroad in order to be with the applicant.  I will first go over an I-601 waiver application that was approved by the AAO to examine the characteristics of a successful and persuasive psychological evaluation.

The applicant in this case is a native and citizen of Mexico who was found to be inadmissible to the United States pursuant to section 212(a)(6)(C)(i) of the Act, 8 U.S.C. § 1182(a)(6)(C)(i), for fraud or willful misrepresentation of a material fact in order to procure an immigration benefit.  The applicant is married to a U.S. citizen and seeks a waiver of inadmissibility pursuant to Section 212(i) of the Act, 8 U.S.C. § 1182(i), in order to reside with her husband in the United States.

The qualifying relative (the U.S. citizen husband) was born in Texas.  He is 58 years old, and has 10 siblings, 4 children from previous relationships, and 3 grandchildren who all reside in the U.S.  He has a 88 year old elderly father.  He fears that he would not have a job if he moves to Mexico and consequently would not be able to afford visits to see his father.  He encountered a shoot-out between drug cartels and the Mexican military during a visit to see his mother-in-law during a visit to Ciudad Juarez, Mexico.  He and his nephew were stopped by armed men with machine guns who threatened their lives during a visit to see his mother-in-law in the state of Sinaloa, Mexico.  A letter from his sister-in-law confirms the violence in Los Mochis Mexico, and the general state of disrepair of the house there that the applicant and her U.S. citizen husband would have to live in.

The psychological report submitted as part of the I-601 waiver application expressly states the following:

  • The U.S. citizen husband was the middle child of eleven children who grew up in a home with a physically and verbally abusive alcoholic father.
  • The U.S. citizen husband watched and heard his mother being beaten and felt powerless to stop his father.
  • The U.S. citizen husband is very close to his siblings since they supported each other while growing up in order to survive.
  • The U.S. citizen husband grew up in Idaho where he felt a sense of discrimination and prejudice during his school years.
  • When the U.S. citizen husband was 23 years old, he was called back home from the U.S. Army because his mother had died, his father had left, and there was no one to care for his younger siblings.
  • The U.S. citizen husband’s first marriage was brief and they had a son together.  His ex-wife disappeared with his son and he was unable to find him until his son was 12 years old and complained that his mother abused him.  His son subsequently lived with him for two years.
  • The U.S. citizen husband’s physician prescribed him Prozac for his depression which dates back to his first marriage.
  • The U.S. citizen husband re-married and had two children with his second wife.  This marriage lasted 28 years.
  • When the U.S. citizen husband met his current wife (the I-601 waiver applicant), he felt there was new meaning in life.
  • He fears he will go into serious depression if she moves back to Mexico without him, and fears that if he moved to Mexico with her, he would deeply miss his children and siblings.
  • The U.S. citizen husband has a history of depression and anxiety.
  • The U.S. citizen husband has difficulty sleeping, feels anxious, and had had thoughts of suicide.
  • The U.S. citizen husband has been diagnosed with Dysthymia and Adjustment Disorder with Depression and Anxiety.
  • If the wife is not allowed to remain in the U.S., the U.S. citizen husband would experience serious psychological consequences and it his highly likely his depression would worsen to the point he would consider suicide.

In my experience, effective psychological evaluations should always include a detailed personal history of the person being examined (along with the waiver applicant and family members in general).  It should concisely and accurately detail the unique circumstances of the patient that makes him or her particularly vulnerable to hardship.

The psychological evaluation in support of a I-601 or I-601a waiver should summarize the psychological and medical history of the patient, including the length of time the patient has suffered from psychological disorders and medical illnesses; any treatments received including surgery; and the medications the patient has been prescribed.  This is particularly important because the USCIS can discount the credibility of psychological diagnoses prepared solely to support the I-601 or I-601A waiver application.  A discussion of a history of previously diagnosed psychological disorder(s) will go a long ways towards establishing credibility.

The psychological evaluation should describe the emotional impact of both separation and re-location.  In other words, it must discuss the psychological and emotional impact on the qualifying relative if he or she becomes separated from the applicant due to inadmissibility; as well as the psychological and emotional impact on the qualifying relative if he or she re-locates abroad in order to be with the applicant.

Since mental and physical well-being have been found to be closely related, the psychological report can also emphasize the physical consequences of patient’s current or future psychological state.  For example, if the patient suffers from coronary disease, then an aggravation of his or her psychological disorders could contribute to a fatal heart attack.

The psychological evaluation should state the methodology used to diagnose the patient.  It should specify all of the symptoms shown by the patient that led to a particular diagnosis.   If applicable, if should expressly state that separation from the applicant (and re-location abroad to be with the applicant) would make the psychological disorders worsen.   It should also state what the consequences will be for the patient if his or her psychological disorders worsen, including the possibilities of decompensation or suicide.

A well-written psychological evaluation should have a final section that summarizes the conclusions of the psychologist or psychiatrist.  It should emphasize all of the hardships that the patient is currently suffering from, as well as those that he will suffer (or that will grow worse) should the applicant not be admitted to the United States.

It is therefore essential that the psychological evaluation be prepared by a professional who has experience with the unique requirements of the extreme hardship standard used in I-601 and I-601a waiver applications.  If your chosen psychologist or psychiatrist does not have such experience, I suggest providing a link to this article and making sure they understand the importance of a well-written and detailed psychological report.

Parole In Place and the I-601 Waiver or I-601A Provisional Waiver

Parole In Place and the I-601 Waiver or I-601A Provisional Waiver

The USCIS has release a policy memorandum concerning the 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.

INA § 212(d)(5)(A) gives the Secretary the discretion, on a case-by-case basis, to “parole” for “urgent humanitarian reasons or significant public benefit” an alien applying for admission to the United States.  Although it is most frequently used to permit an alien who is outside the United States to come into U.S. territory, parole may also be granted to aliens who are already physically present in the U.S. without inspection or admission.  This latter use of parole is sometimes called “parole in place.”

The basic authority for parole in place is INA § 212(d)(5)(A), which expressly grants discretion to parole “any alien applying for admission to the United States.”  INA § 235(a)(1), in turn, expressly defines an applicant for admission to include “an alien present in the United States who has not been admitted.”

According the new policy memorandum issued by the USCIS:

“As noted above, the decision whether to grant parole under INA § 212(d)(5)(A) is discretionary.  Generally, parole in place is to be granted only sparingly.  The fact that the individual is a spouse, child or parent of an Active Duty member of the U.S. Armed Forces, an individual in the Selected Reserve of the Ready Reserve or an individual who previously served in the U.S. Armed Forces or the Selected Reserve of the Ready Reserve, however, ordinarily weighs heavily in favor of parole in place. Absent a criminal conviction or other serious adverse factors, parole in place would generally be an appropriate exercise of discretion for such an individual.  If USCIS decides to grant parole in that situation, the parole should be authorized in one-year increments, with re-parole as appropriate.”

Thus, for an alien who entered without inspection, a grant of parole under INA § 212(d)(5)(A) affects at least two of the eligibility requirements for adjustment of status.  First, adjustment of status requires that the person be “admissible.” INA § 245(a)(2).  Parole eliminates one ground of inadmissibility, section 212(a)(6)(A)(i).  Second, adjustment of status requires that the alien have been “inspected and admitted or paroled.” INA § 245(a).  The grant of parole under INA § 212(d)(5)(A) overcomes that obstacle as well.

The alien must still, however, satisfy all the other requirements for adjustment of status. One of those requirements is that, except for immediate relatives of United States citizens and certain other individuals, the person has to have “maintain[ed] continuously a lawful status since entry into the United States.” INA § 245(c)(2).  Parole does not erase any periods of prior unlawful status.

Consequently, an alien who entered without inspection will remain ineligible for adjustment, even after a grant of parole, unless he or she is an immediate relative or falls within one of the other designated exemptions.  Moreover, even an alien who satisfies all the statutory prerequisites for adjustment of status additionally requires the favorable exercise of discretion.

The practical effect of this memorandum is that immediate relatives of active or former members of the U.S. Armed Forces (or Selected Reserve of the Ready Reserve), who entered the U.S. “illegally” (without inspection or parole), can apply for adjustment of status inside the United States once parole in place has been granted.  They no longer need to travel back to their home country to consular process for their permanent residence.  This also means that the I-601A Provisional Waiver, or I-601 Extreme Hardship Waiver, is no longer required for this group of applicants, who would have been subject only to the unlawful presence ground of inadmissibility upon departure from the U.S.

Keep in mind that the I-601 waiver may still be required as part of the adjustment of status process for those subject to other grounds of inadmissibility, such as fraud/misrepresentation or conviction of a crime of moral turpitude.

I-601A Provisional Waiver May Not be Required for Some DACA Recipients

I-601A Provisional Waiver May Not be Required for Some DACA Recipients

The Legal Action Center has released a report which confirms a positive development for some DACA recipients who previously had only the option of applying for lawful permanent residence through the I-601A Provisional Waiver process.   I excerpt the relevant portions below:

“On June 15, 2012, the Secretary of the United States Department of Homeland Security (DHS) issued a memorandum allowing individuals who entered the United States before turning sixteen and who meet certain guidelines to pursue Deferred Action for Childhood Arrivals (DACA).  One of the benefits of DACA is that the recipient may seek permission to travel abroad temporarily for humanitarian, educational, or employment purposes.  A DACA recipient who seeks to temporarily leave and re-enter the United States must apply for advance parole.  If a DACA recipient travels abroad and returns under a grant of advance parole, then s/he is “paroled” into the United States within the meaning of INA §245(a), and may qualify for adjustment of status.”

“In Matter of Arrabally and Yerrabelly, the Board held that travel on advance parole does not constitute a “departure” for purposes of the 10-year-bar for unlawful presence under INA § 212(a)(9)(B)(i)(II).  While Matter of Arrabally and Yerrabelly addressed advance parole in the context of adjustment applications, the USCIS Administrative Appeals Office (AAO) has since applied this analysis in at least several cases involving individuals holding Temporary Protected Status (TPS), each of whom left temporarily following the accumulation of more than one year of unlawful presence and then returned to the United States under advance parole.  Based on Matter of Arrabally and Yerrabelly, the AAO found that these applicants were not inadmissible and that waivers of inadmissibility were not necessary.

Although there has been no formal written guidance on this issue yet, it appears likely that USCIS views Matter of Arrabally and Yerrabelly as applicable to DACA recipients traveling on advance parole.  Indeed, some DACA recipients have received advance parole authorizations (Form I-512L) explicitly stating that traveling abroad under advance parole is not a departure within the context of INA § 212(a)(9)(B), pursuant to Matter of Arrabally and Yerrabelly.”

Thus, advance parole may make some DACA recipients gain the dual benefit of eliminating exposure to the 3 or 10 year unlawful presence bars they are subject to pursuant to INA § 212(a)(9)(B); and gaining eligibility for adjustment of status, thereby eliminating the need to consular process through the U.S. embassy in their home country.

This positive development ONLY applies for DACA recipients who are the spouses of U.S. citizens or children (unmarried and under 21 years of age) of U.S. citizen parents, who are not subject to any other grounds of inadmissibility (aside from the 3 or 10 year unlawful presence bar under INA § 212(a)(9)(B)).  This group may no longer need to apply for lawful permanent residence through the I-601A Provisional Waiver process.  Instead, they can now apply for advance parole; depart from the U.S.; and re-enter the country to proceed with their adjustment of status to lawful permanent residence within the United States.

Keep in mind that the inspecting immigration officer at the port of entry may deny entry into the United States if the officer finds that any of the inadmissibility grounds apply.  Thus, even after being granted advance parole as a DACA recipient, you should make absolutely sure you are not subject to any of the other grounds of inadmissibility before departure from the U.S.

For example, there should be no outstanding orders of removal on file.  You should not be subject to previously incurred immigration bars, such as the unlawful presence bars under INA § 212(a)(9)(B) or the permanent bar under INA § 212(a)(9)(C), based a prior departure before obtaining advance parole.  You should not be subject to the criminal grounds of inadmissibility under INA § 212(a)(2) or for fraud/misrepresentation under INA § 212(a)(6)(C).  It is important that an immigration lawyer with particular expertise in waivers and the immigration grounds of inadmissibility guide you through this process.  Matter of Arrabally and Yerrabelly is not a precedent decision and you must proceed with caution.

I-601A Provisional Waiver

I601A Waiver

None of my clients have yet been denied on the I-601A Provisional Waiver Applications that I prepared and filed on their behalf. However, the current trend based on I-601A provisional waiver applications filed by others nationally appears to be that the USCIS is denying I-601A waivers when it has “reason to believe” that the applicant may be found inadmissible by a Department of State or consular officer at the time of his/her immigrant visa interview for a reason other than unlawful presence.

The American Immigration Lawyers Association, of which I am a member, is currently working with the USCIS in an attempt to have I-601A provisional waivers adjudicated in a more flexible and meaningful manner.

Unfortunately, the USCIS seems to be denying I-601A provisional waivers in two common situations: when applicants have had encounters with criminal law enforcement authorities in the past that do NOT constitute grounds of inadmissibility under INA Section 212; and when applicants allegedly gave false names, biographic data, or other information to the INS or DHS authorities, where such false information was NOT given in an effort to procure a visa, other documentation, or admission in violation of INA Section 212(a)(6)(C).

My current recommendation as of 08/10/2013 is to be absolutely sure NONE of the situations described below apply to you before you submit your I-601A provisional waiver application.  This means you never had any encounter whatsoever with criminal law enforcement authorities and never submitted any type of false information to the INS or DHS in the past.  Should the USCIS adopt the more flexible and meaningful approach advocated by AILA, this blog and my clients will be updated.

Denials Based on Criminal Acts That Do Not Form the Basis for an Inadmissibility Determination

Numerous reports indicate that USCIS is relying on the “reason to believe” standard to deny applications involving any prior criminal issue, no matter how minor or how long ago the incident took place.  AILA has also received reports of denials where the only offense involved a traffic citation or traffic violation.

Denials Based on Alleged Misrepresentations That Do Not Form the Basis for an Inadmissibility Determination

AILA has also received a number of examples of I-601A waiver applications that were denied based on an allegation that the applicant provided a false name or date of birth when apprehended at the border for attempting to enter without inspection.  Though some of these denials contain limited information specific to the alleged incident (year, border station), most of them are formulaic, and none acknowledge evidence that might have been submitted to explain why the incident does not render the person inadmissible.

USCIS Needlessly Denies Provisional Waiver Applications Where a Meaningful Review of the Evidence Would Reveal No Inadmissibility Concerns Other Than Unlawful Presence

Driving Under the Influence (DUI)

It is well-established that a simple DUI, without more, is not a crime involving moral turpitude and therefore, does not render a person inadmissible. See Matter of Lopez-Meza, 22 I&N Dec. 1188, 1194 (BIA 1999); Murillo-Salmeron v. INS, 327 F.3d 898 (9th Cir. 2003). This position has been acknowledged and cited by the USCIS Administrative Appeals Office in several non-precedent decisions. Moreover, a conviction for an aggravated DUI (based on multiple simple DUIs) under a statute that does not require a culpable mental state is also not a crime involving moral turpitude. Matter of Torres Varela, 23 I&N Dec. 78, 82-86 (BIA 2001).

AILA has received numerous examples of provisional waiver denials where the only incident from the applicant’s past involved a simple DUI conviction.  In many of these cases, the applicant acknowledged the incident on the I-601A form and submitted the record of conviction which revealed no aggravating factors. In at least one case, the conviction was ultimately dismissed and in most cases, the DUI occurred more than five years ago.  However, despite well-documented efforts demonstrating that the conviction would not render the applicant inadmissible, these provisional waiver applications were denied.

The Petty Offense Exception

AILA has also received numerous denials involving minor offenses that would clearly fall under the “petty offense exception” for a single crime involving moral turpitude.  An offense falls under the petty offense exception if (1) the crime was committed when the alien was under age 18, and the crime was committed (and the alien was released from confinement) more than five years before the date of the application; or (2) the maximum penalty possible for the crime did not exceed one year of imprisonment and if convicted, the alien was not sentenced to more than 6 months in prison.

Traffic Violations

Question 29 on Form I-601A seems to indicate that traffic violations are not considered when evaluating eligibility for a provisional waiver.  Yet, AILA has received troubling reports of cases that have been denied where the only offense involved appears to be one or more traffic violations.  Even if such violations could be considered relevant, they will almost always qualify for the petty offense exception.

Allegations of Providing a False Name or Date of Birth When Apprehended After Attempting to Enter without Inspection

AILA has also received many reports of denials based on a “reason to believe” the applicant is inadmissible under INA §212(a)(6)(C) for allegedly providing a false name or date of birth when the applicant was apprehended at the border for attempting to enter without inspection.  While providing a false name in conjunction with the formal inspection and admission process may certainly raise concerns regarding admissibility (for example, presenting a false passport at a port of entry), in most circumstances, simply providing a false name after an arrest for attempting to enter without inspection does not support a finding of inadmissibility under INA §212(a)(6)(C)(i) because it is not made in an attempt to “procure … a visa, other documentation, or admission into the United States” or other benefit under the INA.  Moreover, the Department of State takes the approach that misrepresentations regarding identity are material only if the alien is “inadmissible on the true facts or the misrepresentation tends to cut off a relevant line of inquiry which might have led to a proper finding of ineligibility.”  Providing a false name or date of birth after arrest (in a “catch and release” or “voluntary return” situation) when it has already been determined that the individual is inadmissible is not, by definition “material.”

I-601 Waiver Approval

I601 Waiver Approval

Our office received approval of an I-601 waiver filed on behalf of a Mexican wife and her U.S. citizen husband.  Our client entered the United States without inspection over 12 years ago with her family and has lived in the U.S. since then.   She was deemed inadmissible to the U.S. based on Section 212(a)(9)(B)(i)(II) of the Immigration and Nationality Act, for having been unlawfully present in the United States for more than one year and seeking readmission within 10 years of her last departure from the United States.

This case was decided before the current I-601A provisional waiver came into effect.  As a result, we first obtained approval of the I-130 Petition for Alien Relative.  Our client then traveled to the U.S. consulate in Ciudad Juarez to attend her consular interview where she submitted the I-601 waiver package I prepared on her behalf.  In support of her I-601 waiver application, I prepared a comprehensive legal brief going over how the facts and circumstances of her situation met the legal standards used to define “extreme hardship.”  This brief was accompanied by supporting exhibits that provided proof of the statements made in the legal brief.

INA Section 212(a)(9)(B)(v) provides that a waiver, under INA Section 212(a)(9)(B)(i)(II), is applicable solely where the applicant establishes extreme hardship to her U.S. citizen or lawfully resident spouse or parent.  Extreme hardship is “not a definable term of fixed and inflexible content or meaning, but necessarily depends upon the facts and circumstances peculiar to each case.”  Matter of Hwang, 10 I&N Dec. 448, 451 (BIA 1964 ).

In Matter of Cervantes-Gonzalez, 22 I&N Dec. 560, 565-66 (BIA 1999), the Board of Immigration Appeals (BIA) provided a list of factors it deemed relevant in determining whether an alien has established extreme hardship to a qualifying relative.  The factors include the presence of a lawful permanent resident or United States citizen spouse or parent in this country; the qualifying relative’s family ties outside the United States; the conditions in the country or countries to which the qualifying relative would relocate and the extent of the qualifying relative’s ties in such countries; the financial impact of departure from this country; and significant conditions of health, particularly when tied to an unavailability of suitable medical care in the country to which the qualifying relative would relocate.

This case was particularly challenging because our client and her husband had no children.  The U.S. citizen husband also had no medical problems of note, and his U.S. citizen parents were in relatively good health.  However, the U.S. citizen husband was in the U.S. Navy serving on board a guided missile cruiser.  Among a variety of extreme hardships discussed, we showed that the extreme psychological hardship he would suffer upon separation from his wife would seriously impact his ability to perform his critical military duties.  Alternatively, moving to Mexico to be with his wife would not be possible since that would be considered desertion and lead to a court marshal.  This case was approved and our client now resides legally inside the United States as a lawful permanent resident.