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212(d)(3) Non-Immigrant Waiver Filing Process and Procedures

December 21, 2013 By Michael Cho Immigration Lawyer 3 Comments

Introduction to the 212(d)(3) Waiver for Non-immigrants

INA Section § 212(d)(3)(A) of the Immigration and Nationality Act states in relevant part:

Except as provided in this subsection, an alien (i) who is applying for a nonimmigrant visa and is known or believed by the consular officer to be ineligible for such visa under subsection (a) (other than paragraphs (3)(A)(i)(I), (3)(A)(ii), (3)(A)(iii), (3)(C), and clauses (i) and (ii) of paragraph (3)(E) of such subsection), may, after approval by the Attorney General of a recommendation by the Secretary of State or by the consular officer that the alien be admitted temporarily despite his inadmissibility, be granted such a visa and may be admitted into the United States temporarily as a nonimmigrant in the discretion of the Attorney General, or (ii) who is inadmissible under subsection (a) (other than paragraphs (3)(A)(i)(I), (3)(A)(ii), (3)(A)(iii), (3)(C), and clauses (i) and (ii) of paragraph (3)(E) of such subsection), but who is in possession of appropriate documents or is granted a waiver thereof and is seeking admission, may be admitted into the United States temporarily as a nonimmigrant in the discretion of the Attorney General. The Attorney General shall prescribe conditions, including exaction of such bonds as may be necessary, to control and regulate the admission and return of inadmissible aliens applying for temporary admission under this paragraph.

INA §212(d)(3)(A) thus waives virtually all inadmissibility grounds for non-immigrants including:

health-related grounds (communicable disease, mental illness, drug abuser or addict);
criminal grounds (including crimes involving mortal turpitude, multiple criminal convictions, drug violations, and prostitution);
likelihood of becoming a public charge;
immigration violations (including failure to attend removal proceedings, misrepresentation, false claims of citizenship, alien smuggling, aiding and abetting unlawful employment, student visa abusers, and overstays subject to three– and ten-year bars);
grounds covering persons ordered removed upon arrival, unlawful voters, and U.S. citizens who renounced citizenship to avoid taxation; and
involvement in terrorist activities and association with terrorist organizations.

The only grounds of inadmissibility not waived are certain security-related grounds:

espionage or sabotage or “any other unlawful activity”
overthrow of the U.S. government by force
inadmissibility on foreign policy grounds; and
participation in genocide or Nazi persecution

The ARO also consistently issues denials for waiver applications filed by sexual offenders such as sexual predators, pedophiles, and incest offenders. The ARO relies upon the Adam Walsh Child Protection and Safety Act’s three-tier classification of sexual offenders and its mandates for tier-based registration periods.

Legal Requirements of the § 212(d)(3) Waiver

The three criteria for granting a waiver under § 212(d)(3) are set forth in the precedent decision Matter of Hranka:

1. The risks of harm in admitting the applicant

2. The seriousness of the acts that caused the inadmissibility

3. The importance of the applicant’s reason for seeking entry.

In practice, the Admissibility Review Office in Washington D.C. will consider a number of factors in exercising discretion concerning the seriousness of the acts that caused the inadmissibility including:

the nature of the underlying offense that makes the applicant inadmissible;
the circumstances that led to the offense;
the recency of the offense;
whether the offense was isolated or part of a pattern of misconduct; and,
especially in criminal cases, whether there is evidence of reformation and rehabilitation.

The ARO will also determine the risk of harm if the applicant is admitted by considering factors that include:

the threat of terrorism or related activities,
whether there is a likelihood of continuing criminal activity,
whether admission will contribute to the illegal alien population, and
whether there is a risk to the general health in the United States.

212(d)(3)(A) Waiver Application Process

§ 212(d)(3) non-immigrant waivers are filed either at the U.S. consulate with jurisdiction of your place of residence or at a U.S. port of entry.

Filing waivers at U.S. Consulates Abroad

Each consulate has its own preferred method of accepting 212(d)(3)(A) waivers for consideration. There is no specific form or filing fee for the 212(d)(3)(A) waiver application. I always prepare a detailed legal memorandum detailing the merits of the case and how they meet the standards set forth in Matter of Hranka, the Foreign Affairs Manual, and other sources relied upon by the ARO. The consular officer will review your visa application and make an initial finding of inadmissibility.

As part of this process, the consular officer will first check to make sure that the following conditions are met:

The applicant is not inadmissible under INA 214(b) (i.e. does not have immigrant intent)
The applicant is not inadmissible under INA 212(a)(3)(A)(i)(I), INA 212(a)(3)(A)(ii), INA 212(a)(3)(A)(iii), INA 212(a)(3)(C), or INA 212(a)(3)(E) (covering security-related grounds of inadmissibility)
The applicant is not seeking a waiver of the non-immigrant documentary requirements of INA 212(a)(7)(B), which may only be waived under the provisions of INA 212(d)(4); and
The applicant is, otherwise, qualified for the non-immigrant visa he or she is seeking.

If the consular officer decides to make a favorable recommendation for a waiver, they will forward the recommendation to the ARO by typing the request into an electronic form and submitting it electronically. The ARO has access to the information on the Consular Consolidated Database so the waiver statement and supporting documents scanned into the system can also be accessed by the ARO.

The ARO will review the waiver recommendation and submit its response to the consular post through the Consular Consolidated Database along with an e-mail notification to the appropriate consular post.

Although the ARO can provide decisions in 30 days or less, it is my experience that approvals can take up to five months due to various government security clearances.

Filing waivers at a U.S. Port of Entry

Filings at the U.S. port of entry is most relevant for visa-exempt nationals such as Canadians and requires use of the Form I-192. Applications submitted to the CBP generally have to be filed in advance of the date of intended travel at a CBP-designated port of entry or pre-clearance office. The 212(d)(3)(A) waiver using Form I-192 is then forwarded to the ARO for adjudication. It can take 5-6 months for a decision.

The criteria by which the I-192 waiver for Canadians (pursuant to INA 212(d)(3)) is judged is the same as those set forth in Matter of Hranka described above.

In addition to a detailed memorandum discussing the merits of your non-immigrant waiver application in light of the legal criteria set forth in Matter of Hranka, your waiver package should also include the following:

Evidence of your citizenship.
Completed Form I-192 signed and submitted by you (no copies).
A properly executed Form G-28, if a lawyer like myself is representing you on the I-192 waiver application.
U.S. Fingerprint card FD-258. This fingerprint card will be completed by a U.S. CBP Officer at the time of submission of your application.
A Form G-325A completed and signed by you.
If you have a criminal record in any other country’s court system, you must also obtain a copy of the official court record from the actual court of conviction indicating plea indictment, conviction and disposition for each and every crime. If such record is not available, you must obtain an official letter from the court of jurisdiction stating the reason why a copy of the record is not available.
Canadians must obtain verification of your criminal record or evidence of a lack thereof from the Royal Canadian Mounted Police (RCMP) by submitting your fingerprints on Form C216C. The returned Civil Product and any accompanying records must be dated and endorsed by the RCMP within 15 months of submission with your Form I-192. For instructions, addresses and payment information, please visit the RCMP website.

If you are inadmissible to the United States because of a criminal conviction, you should submit a statement in your own words, signed by you, explaining the circumstances of each arrest, conviction, and sentence or fine imposed.

In addition, the I-192 waiver should be accompanied by evidence of your reformation of character or rehabilitation such as counseling or rehabilitation programs completed, current employment, marital status, community service etc., or any other information you wish to be considered and you believe strengthens your request.

If you are inadmissible for one of the Health Related grounds identified in the INA, e.g., drug user or addict, you will need to provide evidence of treatment/rehabilitation. Such evidence shall include, but may not be limited to, the following: A recent drug test; credible, verifiable evidence related to rehabilitative history; statement from the applicant making clear his/her commitment to refrain from using controlled substances in the United States; credible, verifiable evidence outlining subject’s program for substitution therapy/treatment and/or continued care relative to his/her drug use/addiction if allowed to enter the United States.

If you have been found inadmissible under section 212(a)(9)(B) of the INA (unlawfully present in the United States) the following detailed information should be submitted regarding

Current foreign employment.
Previous U.S. employment.
Family members presently living in the United States.
Past and current United States and/or foreign business investments.
Any and all ties you have to your present foreign country/residence.

Validity of Approved 212(d)(3)(A) Waivers

Waivers can be approved for single or multiple entries. First time waivers are generally granted only for a one year period. After one or two one-year waivers, a five-year waiver may be granted. An approved waiver will be annotated on the applicant’s visa with “212(d)(3)(A)” followed by the number of the paragraph of INA 212(a) which has been waived, the duration of stay that has been authorized, the port of entry (if specified in the order), and an indication of the purpose of the entry.

Form I-192 waiver approvals will specify one or more non-immigrant visa categories for which the 212(d)(3)(A) waiver has been approved. It does not authorize admission in any other non-immigrant visa category not noted in the conditions attached to the approval.

212(d)(3)(A)waiver approvals are not renewed. A new application and approval are required each time when it expires. However, applicants inside the United States pursuant to an approved Form I-192 waiver do not have to leave the U.S. to apply for a new waiver. They can travel to a port of entry inside the United States to submit a new waiver application.

A change or extension of status in the United States can be filed by non-immigrants who are inside the United States with an approved 212(d)(3)(A) waiver. However, the previously granted waiver may be reviewed during adjudication of the application to change or extend status.

Appeals

For applicants who apply for 212(d)(3)(A) waivers through a U.S. consular post, denial of 212(d)(3)(A) non-immigrant waiver applications cannot be appealed. The applicant can ask the consular officer why the application was denied but the consular officer may not issue a written explanation. The applicant can re-apply and the passage of time or additional evidence may lead to approval in the future.

Form I-192 waiver applicants (typically from Canada) will be notified of the reasons for the denial as well as their rights to appeal to the Board of Immigration Appeals.

Expedited Approval of the I-601 Waiver, I-212 Waiver, and 212(d)(3) Non-Immigrant Waiver

December 13, 2013 By Michael Cho Immigration Lawyer Leave a Comment

The USCIS has had a long standing policy to accept requests to expedite processing of petitions or applications where the applicant or the petitioner demonstrates reasons that merit expedited processing of a petition or application.

While almost all I-601 waiver applicants outside the United States have an interest in expeditious processing, the USCIS states that only extraordinary circumstances that present certain compelling and urgent, time-sensitive reasons merit expedited processing of the I-601 waiver.

According to a memorandum dated 2011, the types of extraordinary circumstances that may, generally, merit expedited processing of a Form I-601 are those in which there are:

“time-sensitive and compelling situations that necessitate the applicant’s presence in the United States sooner than would be possible if the application were processed under normal processing times” or
“other time-sensitive circumstances that nonetheless merit expeditious processing, principally where the failure to expedite the adjudication could result in significant delays in family reunification.”

These situations may include, but are not limited to, situations in which the applicant establishes one or more of the following:

The applicant has urgent and critical medical needs that cannot be addressed in the applicant’s country;
An applicant’s family member in the United States has a serious medical condition and has urgent and critical medical needs related to that condition that require the applicant to assist the family member in the United States;
The applicant is faced with urgent circumstances related to the death or serious illness of a family member;
The applicant or qualifying family member is a particularly vulnerable individual due to age, serious medical condition, or disability and this vulnerability is exacerbated by the applicant’s presence outside the United States;
The applicant is at risk of serious harm due to personal circumstances distinct from the general safety conditions of those living in the applicant’s country;
It would be in the national interest of the United States to have the applicant in the United States (for example, the applicant’s presence in the United States is urgently required for work with a U.S. government entity); or
As described in a request from or for a member of the Armed Forces of the United States:
- The applicant’s qualifying family member is a member of the military who is deployed or will soon be deployed; and
- The applicant demonstrates that, in light of the deployment there are compelling reasons to expedite the request due to the impact of the applicant’s absence from the United States on the applicant, the qualifying family member, or their children, if any.

The above non-exhaustive list describes some examples of situations that may, depending on the facts of the case, merit a discretionary approval of a request to expedite adjudication of a waiver request.

However, these are not the only circumstances that may warrant expeditious processing. There may also be other time-sensitive circumstances that do not necessitate the applicant’s presence in the United States sooner than would be possible under normal processing times, but that nonetheless merit expeditious processing.

For example, the applicant may be ineligible to receive a visa in the following month due to forecasted visa regression and therefore faces an even more prolonged and unanticipated separation from family members if the application is not expedited.

Similarly, the applicant may request that the case be expedited to prevent a child not covered by the Child Status Protection Act from aging out before visa issuance. There also may be circumstances in which a prior USCIS error merits expeditious processing of a request.

Requests must include sufficient evidence to support the claimed need for expedited processing or an explanation of why that evidence is not available. For example, if the request is based on an urgent, serious medical condition, the applicant should provide a medical report. If the request is based on urgent need by a U.S. government entity to have the applicant in the United States, the applicant should provide a letter from the entity supporting the expedite request.

My office has successfully obtained expedited approval of applications for the I-601 waiver. I also regularly obtain expedited approval of the I-129F Petition for Alien Fiancee and I-130 Petition for Alien Relative. In my experience, the “extraordinary circumstances” discussed in this article form the basis for successful expedite requests for the I-601 waiver, the I-212 waiver, the 212(d)(3) non-immigrant waiver, as well as other relative-based petitions. The most common basis for expedited approval that I encounter is military deployment of the U.S. citizen petitioner.

I-601 Waiver Approved by AAO for Russian Inadmissible Due to Fraud

December 7, 2013 By Michael Cho Immigration Lawyer Leave a Comment

I-601 Legal News

The applicant is a citizen of Russia who was found to be inadmissible to the United States under INA Section 212(a)(6)(C)(i) for having procured a visa or admission to the United States through fraud or misrepresentation of a material fact. The applicant resided in the United States from May 5, 2000, when he entered as a visitor for business, to March 2001, when he returned to Russia.

The applicant was found to be inadmissible for having procured a visa through a visa fraud ring by making false statements that he owned a company and was traveling to the U.S. for a trade show. He was arrested and charged with fraud and misuse or forgery of a visa on September 14, 2000, but the charges were dismissed by the U.S. District Court after the applicant cooperated with authorities in the prosecution of the fraud ring leaders.

The applicant is married to a U.S. citizen and is the beneficiary of an approved Petition for Alien Relative. The applicant seeks a waiver of inadmissibility pursuant to INA Section 212(i), in order to return to the United States and reside with his wife.

INA Section 212(a)(6)(C) provides, in pertinent part:

(i) 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.

INA Section 212(i) provides:

(1) The [Secretary] may, in the discretion of the [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 [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.

The first important point to keep in mind is that a waiver of inadmissibility under INA Section 212(i) is dependent upon showing that the bar to admission imposes extreme hardship on the qualifying relative (which includes the U.S. citizen or lawful permanent resident spouse or parent of the applicant). Hardship to the applicant or his children can be considered only insofar as it results in hardship to a qualifying relative. See Matter of Mendez-Moralez 21 I&N Dec. 296,301 (BIA 1996).

The second important point to keep in mind when preparing the I-601 waiver is that the applicant must establish extreme hardship to his or her qualifying relative(s) under two possible scenarios: the extreme hardships endured by the qualifying relative due to separation if the applicant remains abroad; and the extreme hardships endured by the qualifying relative due to re-location, if he or she moves abroad to be with the applicant.

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 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 to which the qualifying relative would relocate. 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.

Although 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 O-J-0-, 21 I&N Dec. 381, 383 (BIA 1996) (quoting Matter of Ige, 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.”

Additionally, although the AAO acknowledged that the actual hardship of each hardship factor varies with the unique circumstances of each case, it gives considerable, if not predominant, weight to the hardship of separation itself, particularly in cases involving the separation of spouses from one another and/or minor children from a parent. Salcido-Salcido, 138 F.3d at 1293.

The favorable factors that led to approval of this I-601 waiver are the following:

The applicant’s wife is a forty year-old native of Russia and citizen of the United States. She has lived apart from her husband and older daughter for over six years. Due to the economic situation in Russia, they decided that she would remain in the U.S. and support the family and the applicant would keep the children with him because she must work long hours as a nurse in order to support the family.
The U.S. citizen wife has visited Russia more than thirty times in the past six years and further states that she would have no choice but to move back to Russia if her husband’s I-601 waiver was denied
Affidavits from co-workers state that the U.S. citizen wife travels to Russia very frequently, misses her family badly, and gets tears in her eyes whenever she talks about her husband and children
The U.S. citizen wife works 24 hours of overtime per week in addition to her three 12-hour shifts as an operating room nurse in order to pay for her travels to Russia. She usually works immediately the next day after returning from Russia.
The U.S. citizen wife feels sick for 10 days after returning from her trips to Russia and states she cannot bear this situation for much longer.
The U.S. citizen wife is experiencing financial hardship due to the cost of frequent travels to Russia that cost $850 to $1350 per trip
The U.S. citizen wife has resided in the U.S. since 1999 and is regarded by coworkers as dedicated and responsible and serves as a role model for new staff.
She purchased a house in 2006 where she intended to move in with her family. If she left the U.S., she would be forced to sell the house at a $100,000 loss because the housing market has crashed. She has no way to pay for the short-fall. Low wages in Russia would mean she would never be able to pay back her debt.
The U.S. citizen wife has a mother who also lives in New York and works as a nurse. She would miss her mother terribly if she re-locates back to Russia.

Finally, in Matter of Mendez-Moralez I&N Dec. 296 (BIA1996), the BIA held that establishing extreme hardship and eligibility for a waiver does not create an entitlement to that relief, and that extreme hardship, once established, is but one favorable discretionary factor to be considered. In discretionary matters, the alien bears the burden of proving eligibility in terms of equities in the United States which are not outweighed by adverse factors. See Matter of T-S-Y-, 7 I&N Dec. 582 (BIA1957).

In evaluating whether section 212(i) relief is warranted in the exercise of discretion, the factors adverse to the alien include the nature and underlying circumstances of the exclusion ground at issue, the presence of additional significant violations of this country’s immigration laws, the existence of a criminal record, and if so, its nature and seriousness, and the presence of other evidence indicative of the alien’s bad character or undesirability as a permanent resident of this country.

The favorable considerations include family ties in the United States, residence of long duration in this country (particularly where alien began residency at a young age), evidence of hardship to the alien and his family if he is excluded and deported, service in this country’s Armed Forces, a history of stable employment, the existence of property or business ties, evidence of value or service in the community, evidence of genuine rehabilitation if a criminal record exists, and other evidence attesting to the alien’s good character (e.g., affidavits from family, friends and responsible community representatives). See Matter of Mendez-Moralez, 21 I&N Dec. 296, 301 (BIA1996). The AAO must then “balance the adverse factors evidencing an alien’s undesirability as a permanent resident with the social and humane considerations presented on the alien’s behalf to determine whether the grant of relief in the exercise of discretion appears to be in the best interests of the country. ”

Discretion was exercised in favor of the applicant due to the factors discussed above and this I-601 waiver case was approved by the AAO.

Client Approval: 212(d)(3) Waiver Approved for Mexican Professional Requiring Corporate Training in the U.S.

December 3, 2013 By Michael Cho Immigration Lawyer 8 Comments

We recently received approval for a 212(d)(3) non-immigrant waiver prepared on behalf of a Mexican client who was subject to a lifetime bar from the United States due to a charge of fraud/misrepresentation pursuant to INA 212(a)(6)(c)(i). Our client was also expeditiously removed twice from the United States and subject to the 20 years bar pursuant to INA 212(a)(9)(A)(i).

I prepared a comprehensive 212(d)(3) non-immigrant waiver in the form of a legal brief discussing the three legal factors set forth by Matter of Hranka, 16 I&N Dec. 491 (BIA 1978).

In the case, Matter of Hranka, 16 I&N Dec. 491 (BIA 1978), the Board of Immigration Appeals reversed a district director’s denial of a waiver application filed by a Canadian woman who had been deported for engaging in prostitution and admitted to previous heroin use. She filed her application only two years after having been deported. She requested entry to visit relatives and engage in various tourist activities.

In overturning the district director’s decision to deny the application, the BIA accepted as proof of rehabilitation letters from the applicant’s mother, and the principal of the high school the applicant had attended, who is a psychologist. It held that the applicant’s reasons for entering the United States need not be compelling. The BIA articulated three criteria for granting a waiver under INA 212(d)(3)

1. The risks of harm in admitting the applicant;

2. The seriousness of the acts that caused the inadmissibility; and

3. The importance of the applicant’s reason for seeking entry.

Both Department of State and the Foreign Affairs Manual specify that any nonimmigrant may request a waiver as long as his or her presence would not be detrimental to the United States. They provide that “while the exercise of discretion and good judgment is essential, generally, consular officers may recommend waivers for any legitimate purpose such as family visits, medical treatment (whether or not available abroad), business conferences, tourism, etc.” See 22 CFR 40.301 Foreign Affairs Manual (FAM) 40.301 N3. Furthermore, the Admissibility Review Office has confirmed that it will follow and adhere to Matter of Hranka in adjudicating requests for INA 212(d)(3) waivers.

In my client’s case, I addressed each of the factors laid out by Matter of Hranka while emphasizing the importance of my client’s role in the multinational company he now worked for; the critical nature of the training he needed to receive in the United States for his professional career as well as for his employer (which held direct ramifications for benefiting the economic welfare of the United States); previous Dept. of State error that directly led to his second expedited removal from the U.S.; his ties to Mexico including his wife and children; and his history of law-abiding and ethical behavior which was supported by numerous affidavits from his colleagues and friends.

Based upon these factors, my client was approved for the 212(d)(3) non-immigrant waiver by the Admissibility Review Office in Washington D.C., and subsequently, for the B-1 Visitor Visa. He is now able to enter the United States to participate in training mandated by his company and continue his successful career with a respected multinational corporation.

Removal of Conditions of Residence Approved – Client Review by Chloe P.

November 22, 2013 By Michael Cho Immigration Lawyer Leave a Comment

All client testimonials are written by my former clients who you may request to contact and speak with, depending upon their personal schedules and preferences.

I have used the services of Mr Cho’s firm twice in the last 3 years for my immigration needs, and both times my expectations were not only met, but exceeded.

The first time was when I moved to the USA and married an American citizen, we browsed the internet for weeks looking for local attorneys who could help us apply for an adjustment of status…they all charged huge fees and wanted money just for a consultation. As soon as we contacted Mr Cho, I felt that he would be able to help us. His fee was fantastic compared to everyone else – although we mostly communicated through email (I am on the opposite side of the country from his offices), he was incredibly helpful and answered all of my questions quickly and concisely. My first case was approved within 5 months and my conditional residency was granted.

I was in need of his services again when I divorced my American spouse – I had to remove the conditions of residency to stay in the country after my divorce. Mr Cho was very kind and once again prepared all of the paperwork for my case, helping me gather evidence of a bona fide marriage to submit to the USCIS. We mailed the package in the first week of July, and by the middle of October, we were asked to submit additional evidence. Less than a month after doing so and WITHOUT AN INTERVIEW, my Permanent Residency was granted and I am now a legal US Resident.

I thank Mr Cho from the bottom of my heart for all of the hard work and time he put into my cases. He cares about his clients and will do everything in his power to help them succeed.

What is a Crime Involving Moral Turpitude and When is the I-601 Waiver Required?

November 21, 2013 By Michael Cho Immigration Lawyer Leave a Comment

Legal Overview of Crimes Involving Moral Turpitude

Section 212(a)(2)(A) of the Immigration and Nationality Act states, in pertinent parts:

(i) Any alien convicted of, or who admits having committed, or who admits committing acts which constitute the essential elements of

(I) a crime involving moral turpitude (other than a purely political offense) or an attempt or conspiracy to commit such a crime … is inadmissible.

There are however three exceptions to the inadmissibility triggered by Section 212(a)(2)(A):

Purely political offense:
- Defined in DOS regulations at 22 CFR 20.41(a)(6).
- Includes offenses that resulted in a conviction obviously based on fabricated charges or predicated on repressive measures against racial, religious, or political minorities.

INA 212(a)(2)(A)(ii)(I) (also referred to as the “Juvenile Offense Exception”):
- Only 1 CIMT was committed, and
- The alien was under age 18 at the time, and
- The CIMT was committed and the alien was released (if confined) more than 5 years before the date of application for a visa, admission, or adjustment of status.

INA 212(a)(2)(A)(ii)(II) (also referred to as the “Petty Offense Exception”):
- Only 1 CIMT was committed, and
- The maximum penalty possible did not exceed 1 year, and
- If convicted, the sentence imposed did not exceed 6 months (regardless of the time actually served).

[Read more…]

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

November 15, 2013 By Michael Cho Immigration Lawyer Leave a Comment

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.

Petty Offense Exception – When the I-601 Waiver or 212(d)(3) Waiver is Not Required

November 12, 2013 By Michael Cho Immigration Lawyer Leave a Comment

Section 212 of the Immigration and Nationality Act [8 U.S.C. § 1182] sets forth classes of aliens who are inadmissible, including aliens who are convicted of certain crimes:

(a) Classes of Aliens Ineligible for Visas or Admission. Except as otherwise provided in this Act, aliens who are inadmissible under the following paragraphs are ineligible to receive visas and ineligible to be admitted to the United States:

(2) Criminal and related grounds. –

(A) Conviction of certain crimes. –

(i) In general. -Except as provided in clauses (ii), any alien convicted of, or who admits having committed, or who admits committing acts which constitute the essential elements of-

(I) a crime involving moral turpitude (other than a purely political offense) or any attempt or conspiracy to commit such a crime…

Section 212(a)(2)(A)(i)(I) thus provides that aliens who have committed a crime involving moral turpitude are inadmissible.

However, Section 212(a)(2)(A)(ii) [§ 1182(a)(2)(A)(ii)] sets forth two exceptions:

(ii) Exception.-Clause (i)(I) shall not apply to an alien who committed only one crime if

(I) the crime was committed when the alien was under 18 years of age, and the crime was committed (and the alien released from any confinement to a prison or correctional institution imposed for the crime) more than 5 years before the date of application for a visa or other documentation and the date of application for admission to the United States, or

(II) the maximum penalty possible for the crime of which the alien was convicted (or which the alien admits having committed or of which the acts that the alien admits having committed constituted the essential elements) did not exceed imprisonment for one year and, if the alien was convicted of such crime, the alien was not sentenced to a term of imprisonment in excess of 6 months (regardless of the extent to which the sentence was ultimately executed).

Section 212(a)(2)(A)(ii) (emphasized by me in bold above) is referred to as the “petty offense exception”. The practical effect of this exception is that applicants who are convicted of a single crime involving moral turpitude are not deemed inadmissible for a visa or admission into the United States if the single criminal conviction falls within this petty offense exception.

In other words, if Section 212(a)(2)(A)(ii) applies, then the I-601 waiver for intending immigrants (normally required to waive the ground of inadmissibility triggered by a conviction for a crime involving moral turpitude), or 212(d)(3) waiver for non-immigrants, is not needed.

In order to qualify for the petty offense exception, you must provide the actual state criminal statute clearly outlining the nature of the offense and the penalty at the time the offense was committed. You must also submit the court record showing the final disposition of the case, that should include the charge and the sentence. A legal memorandum clearly outlining your qualification for the petty offense exception is recommended.

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