Category Archives: immigrant visa

Adjusting to Permanent Resident Status Under INA 245(a): Bars, Exceptions and Exemptions

Section 245 of the Immigration and Nationality Act (INA) allows certain foreign nationals who are physically present in the U.S. to adjust to permanent resident status and avoid filing for an immigrant visa at the U.S. Consulate abroad.

But unless an exception or exemption applies, you are barred from filing for INA 245(a) adjustment if you are in unlawful immigration status at the time of filing a Form I-485 [INA 245(c)(2) bar]; you have violated the conditions of your nonimmigrant status or visa [INA 245c)(2) and INA 245(c)(2)(8) bars]; and/or you failed to maintain lawful nonimmigrant status when you would otherwise be eligible for employment-based immigration [INA 245(c)(7) bar].

Statutory Bars to Adjusting Status Under INA 245(a)

The bars to INA 245(a) Adjustment of Status (AOS) include the following:

1. You Are In Unlawful Immigration Status at the Time of Filing a Form I-485 Application: INA 245(c)(2) Bar

Under INA 245(c)(2), an INA 245(a) Adjustment of Status application will be denied if at the time of the Form I-485 filing, you are not in lawful immigration status. For purposes of the INA 245(c)(2) bar, lawful status includes nonimmigrants (e.g. B1/B2 visitor, F-1 student, H-1B professional worker); refugees; asylees; parolees; and foreign nationals in Temporary Protected Status (TPS​).

You are in unlawful immigration status if you have never had lawful status (e.g. entered the U.S. without inspection and admission or parole) or ​your ​lawful status ​has ended​ (expired or was rescinded, revoked, or otherwise terminated due to violation of nonimmigrant status or other reason).

Having authorized stay is different from having lawful immigration status. The timely filing of a pending application to extend or change status (Form I-129 or Form I-539), or a pending application for adjustment (Form I-485), generally provides authorized stay, but does ​not​ provide lawful immigration status.

​A person who has a timely-filed pending Extension of Status (EOS) or Change of Status (COS) application may file a Form I-485 application after his or her nonimmigrant status expires. But if USCIS denies the EOS or COS application, you are generally considered to be in unlawful immigration status as of the expiration of your nonimmigrant status and on the date the adjustment application is filed. The INA 245(c)(2) bar would then apply, unless an exemption is available.

2. You Failed to Continuously Maintain Status and/or Violated the Terms of Your Nonimmigrant Visa: INA 245(c)(2) and INA 245(c)(8) Bars

You are not eligible to file a Form I-485, Application to Register Permanent Residence or Adjust Status, under ​INA 245(a)​ if, other than through no fault of your own or for technical reasons,​you have ever:

Failed to continuously maintain a lawful status since entry into the United States. [You are barred from adjustment of status under INA 245(c)(2) if you are in unlawful immigration status on the date of filing the Form I-485 application.]

OR

Violated the terms of your nonimmigrant status​, such as worked without authorization. [You are barred from adjustment of status under ​INA 245(c)(8) not only if you violated the terms of your most recent nonimmigrant status, but also if you ever violated the terms of your nonimmigrant status at any time during any prior periods of stay in the U.S. as a nonimmigrant.​]

To be eligible for AOS, you only need to maintain your nonimmigrant status until you properly file a Form I-485 adjustment application with USCIS, ​so​ long as you do not engage in unauthorized employment after filing the adjustment application.​ But to protect yourself from being placed in removal proceedings if your Form I-485 is denied, you should continue to maintain your nonimmigrant status (e.g. H-1B) when possible.

When the ​INA 245(c)(2)​ and ​INA 245(c)(8) Bars May Be Excused

For purposes of ​INA 245(c)(2)​ and ​INA 245(c)(8)​, a failure to maintain lawful immigration status or violation of nonimmigrant status may be excused only for the specific period under consideration if: ​

a. The applicant was reinstated to F, M, or J status

If USCIS reinstates F or M student nonimmigrant status or if the U.S. Department of State reinstates J exchange visitor nonimmigrant status, the reinstatement only excuses the particular period of time the nonimmigrant failed to maintain status. The reinstatement does not excuse prior or future failure to maintain status.​

b. The applicant’s failure to maintain status was through no fault of his or her own or for technical reasons

The term  “other than through no fault of his or her own or for technical reasons”​ ​is limited to the following​ ​circumstances:​ 

  • Inaction of another person or organization designated by regulation to act on behalf of an applicant or over whose actions the applicant has no control, if the inaction is acknowledged by that person or organization.
  • Technical violation resulting from inaction of USCIS
  • Technical violation caused by the physical inability of the applicant to request an extension of nonimmigrant stay from USCIS in person or by mail
  • Technical violation resulting from Legacy ​Immigration and Naturalization Service (​INS​)​’s application of the 5-​year​ or 6-year period of stay for certain H-1 nurses, if the nurse was re-instated to H-1 status as a result of the Immigration Amendments of 1988.​

c. The applicant was granted an extension of nonimmigrant stay or a change of nonimmigrant status.

The immigration officer will consider all your current and previous entries into and stays in the United States, including current and previous applications for extension of stay (EOS) or change of status (COS).

If USCIS approves a timely filed EOS or COS application, or excuses and approves an untimely filed EOS or COS application, the approval is effective as of the date of the expiration of the prior nonimmigrant status. In that event, you will be considered to have maintained lawful​ status ​despite the gap in time between the expiration of the prior nonimmigrant admission and the date of the EOS or COS approval.

3. You Are an Employment-Based Applicant Who Is Not in Lawful Nonimmigrant Status: INA 245(c)(7) Bar

If you are an employment-based adjustment applicant who is not in a lawful nonimmigrant status at the time of filing your Form I-485 application, you are barred from adjusting status under INA 245(c)(7). This bar does not apply if you were in a lawful nonimmigrant status at the time of filing for adjustment, subsequently left the United States, and returned using an approved advance parole travel document while the adjustment application remains pending. ​

For purposes of this bar to adjustment, the term “lawful nonimmigrant status” includes a foreign national in a lawful status classified under the nonimmigrant statutory provisions(e.g. B1/B2 visitor, F-1 student, H-1B professional worker) and a foreign national in Temporary Protected Status (TPS).

​Lawful nonimmigrant status does not include parolees, ​asylees​, or certain other foreign nationals who are otherwise authorized to stay in the United States. ​

Exceptions and Exemptions to the Bars to Adjusting Status Under INA 245(a)

The ​INA 245(c)(2)​, ​INA 245(c)(8), and INA 245(c)(7)​ bars to adjustment do NOT apply to: ​

  • Immediate relatives of U.S. citizens [spouses, unmarried children under 21 years of age, and parents (if the U.S. citizen is 21 years of age or older)]
  • ​Violence Against Women Act (VAWA) self-petitioners/VAWA-based applicants
  • ​Certain foreign doctors/physicians and their accompanying spouse and children​
  • ​Certain G-4 international organization employees, NATO-6 employees, and their family members
  • Special immigrant juveniles
  • ​Certain members of the U.S. ​armed forces​ and their spouse​s​ and children​
  • ​Employment-based applicants in the 1st, 2nd, 3rd and certain 4th preference categories who meet the ​INA 245(k) exemption. [The INA 245(k) exemption applies if your failure to maintain a lawful status, engagement in unauthorized employment, or violation of the terms of your nonimmigrant status or nonimmigrant visa lasted only for 180 days or less since your most recent lawful admission.]

​Bars to Adjustment are Different from Grounds of Inadmissibility​

Bars to adjustment should not be confused with the grounds of inadmissibility listed in INA 212.

When you are inadmissible under section 212, you may not adjust status unless you qualify for a limited exception or unless a waiver of inadmissibility is available, you qualify for it, and it is granted to you. Inadmissibility grounds include health concerns (communicable disease of public health significance), criminal activity, national security, public charge, fraud and misrepresentation of material facts to gain immigration benefits, unlawful presence, and prior removals.

Consult an Experienced Immigration Attorney

Because there are various bars and inadmissibility grounds to prevent AOS, as well as exemptions and waivers available, you need to consult an immigration attorney before you file a Form I-485 application to adjust to permanent resident status.

To learn more, read our related article, Who is Eligible (and Not Eligible) for Adjustment to Permanent Resident Status? 

# # #

This article provides general information only. It is based on law, regulations and policy that are subject to change. Do not consider it as legal advice for any individual case or situation. Each legal case is different and case examples do not constitute a prediction or guarantee of success or failure in any other case. The sharing or receipt of this information does not create an attorney-client relationship.

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Who is Eligible (and Not Eligible) for Adjustment to Permanent Resident Status?

When you are physically present in the U.S., your filing for Adjustment of Status (AOS) allows you to become a permanent resident without needing to apply for an immigrant visa at the U.S. Consulate abroad.

But if you are ineligible for AOS and mistakenly file a Form I-485​, Application to Register Permanent Residence or Adjust Status, your request will not only be denied, but you may also be placed in removal proceedings due to failure to maintain lawful nonimmigrant status and/or other grounds.

General Adjustment of Status (AOS) Eligibility Requirements

Foreign nationals may file for adjustment to permanent resident status if they meet the eligibility requirements at the time of submitting their ​Form I-485 application to USCIS.

Who is generally ELIGIBLE for AOS?

Immigrant categories that permit AOS include:

Immediate relative of a U.S. citizen [spouses, unmarried children under 21 years of age, and parents (if the U.S. citizen is 21 years of age or older)]

​Other relative of a U.S. citizen or​ relative of a lawful​ permanent resident under ​a​ family-based preference category (See U.S. Department of State’s Visa Bulletin for a  list of family-based preference categories)

​Person admitted to the United States on a K-1 visa as a f​iancé(e) of a U.S. citizen and then marries the U.S. citizen. [A K-1 visa holder who enters a valid and bona fide marriage to the U.S. citizen petitioner within 90 days of arrival in the U.S. remains eligible to adjust status on that basis, even if the marriage is legally terminated (whether by death, dissolution, or divorce) prior to adjustment of status and regardless of whether he/she remarries thereafter.]

Widow(er) of a U.S. citizen

Violence Against Women Act (VAWA) self-petitioner

​Foreign national worker under an employment-based preference category (See U.S. Department of State’s Visa Bulletin for list of employment-based preference categories)

Foreign national entrepreneur (EB5 immigrant employment-based category)

Special immigrant (includes religious workers, special immigrant juveniles, certain Afghans and Iraqis, certain U.S. armed forces members, certain physicians)

Certain victim of human trafficking  (T nonimmigrant)

Certain victim of crime (U nonimmigrant)

Person granted asylum status

Person granted refugee status

Person selected in the ​Diversity Visa lottery program ​

Beneficiary of INA 245(i) benefits

Who is generally NOT ELIGIBLE for AOS?

With limited exceptions, foreign nationals who are barred from applying for AOS include:

Foreign national ​who last entered the United States without being inspected and admitted​ or paroled by an immigration officer. [INA 245(i) and VAWA-based applicants are exempt from this bar.]

Foreign national who last entered the United States on a C-1/D-1 or D-2 visa as a nonimmigrant ​crewman. [VAWA-based applicants are exempt from this INA 245(c)(1) bar.]

Foreign national who is now employed or has ever been employed in the United States without authorization. [ Immediate relatives of a U.S. citizen, VAWA-based applicants, and certain special immigrants are exempt from these INA 245(c)(2) and INA 245 (c)(8) bars.]

Foreign national who ​is not ​in​ lawful immigration status on the date of filing the Form I-485 application. [Immediate relatives of a U.S. citizen, VAWA-based applicants, and certain special immigrants are exempt from this INA 245(c)(2) bar.]

Foreign national​ who ​has ever ​failed to continuously maintain ​a ​lawful status​ since entry into the United States​, unless the failure ​to maintain status ​was through no fault of his or her own or for technical​ ​reasons.  [Immediate relatives of a U.S. citizen, VAWA-based applicants, and certain special immigrants are exempt from this INA 245(c)(2) bar.]

Foreign national ​who ​was last admitted to the United​ ​States​ ​in​ ​transit​ ​without​ ​a​ ​visa. [VAWA-based applicants are exempt from this INA 245(c)(3) bar.]

​Foreign national who was last ​admitted​ ​to​ ​Guam​ ​or the​ ​Commonwealth​ ​of the​ ​Northern​ ​Mariana​ ​Islands ​(CNMI) ​as a​ ​visitor​ ​under​ ​the Guam or CNMI​ ​V​isa​ ​Waiver Program​ and who is not a Canadian citizen. [Immediate relatives of a U.S. citizens are exempt from this bar.]

Foreign national ​who was last ​admitted ​to the United States as a nonimmigrant visitor without a visa under the ​Visa Waiver Program. [Immediate relatives of a U.S. citizens and VAWA-based applicants are exempt from this INA 245(c) bar.]

Foreign national ​who is​ deportable due to involvement in a terrorist activity or group. [​VAWA-based applicants are exempt from this INA 245(c)(6) bar, but may still be inadmissible for such activity.​]

​Foreign national who is seeking ​employment-based ​adjustment of status and ​who is not maintaining a lawful nonimmigrant status ​on the date of filing this ​application. [In some cases, the INA 245(k) exemption  excuses this INA 245(c)(7) bar.]

Foreign national who has ​ever ​violated​ ​the​ ​terms​ ​of the ​nonimmigrant status. [Immediate relatives of a U.S. citizen, VAWA-based applicants, and certain special immigrants are exempt from this INA 245(c)(8) bar.]

Foreign national who is a ​conditional permanent resident​. [Conditional permanent residents​ must instead file a Form I-751 petition to remove conditions on their status to obtain permanent residence unconditionally.]

Foreign national who was admitted to the U.S. on a K-1 nonimmigrant ​fiancé(e) visa, but did not marry the U.S. citizen who filed​ ​the petition or foreign national who was admitted as the K-2 ​nonimmigrant​ child of a fiancé(e)​ ​whose parent did not marry the U.S. citizen who filed​ ​the petition.​ 

INA 245(a) Adjustment of Status (AOS) Eligibility Requirements

Most applicants file for Adjustment of Status based on ​INA 245(a), which does not include all the possible ways of adjusting status, such as AOS of Refugees or Asylees under INA 209(b)​.

​​The AOS eligibility requirements under section 245(a) include:

1.  You must normally have​ been​ inspected and admitted​ ​into the United States​; or inspected and paroled into the United States.

Unless you are an INA 245(i) applicant or a V​iolence ​A​gainst ​W​omen ​A​ct (VAWA)​ applicant​, you must meet the Inspected and Admitted or Paroled Requirement before you apply for AOS under section 245(a).

To lawfully enter the United States, you must first present yourself for inspection to an immigration officer at a ​U.S.​ ​port of entry.

Admission

For lawful admission to occur, the immigration officer must authorize you to enter the U.S. in accordance with the procedures for admission.​  If, however, the admission was based on a false claim to U.S. citizenship or to U.S. nationality at the ​port of entry​, the lawful admission requirement is not met.

The most common documents showing lawful admission are:

Arrival/​Departure ​Record (Form I-94)

​Admission stamp in passport​, which may be verified using Department of Homeland Security (DHS) systems

Employment Authorization Card (Form I-688A), for special ​agricultural worker applicants, provided it was valid during the last claimed date of entry on the adjustment application

Temporary Resident Card (Form I-688), for special agricultural workers or legalization applicants granted temporary residence, provided it was valid during the​ ​last ​claimed date of entry on the ​adjustment​ application​

Border Crossing Card (Form I-586 or Form DSP-150​), provided it was valid on the date of last claimed entry.​

Plane tickets evidencing travel to the United States, or other corroborating evidence, when an Arrival/Departure Record is not required in the following situations:

  • a ​Canadian ​citizen admitted as a visitor for business, visitor for pleasure, or who was permitted to directly tr​ansit through the United States;​
  • a ​nonimmigrant residing in the British Virgin Islands who was admitted only to the U.S. Virgin Islands as a visitor for business or pleasure​;​
  • ​a Mexican ​n​ational admitted with ​a B-1/B-2 Visa and Border Crossing Card ​(Form DSP-150) ​at a land or sea ​port of entry​ as a visitor for business or pleasure ​for a period of 30 days to trave​l within 25 miles of the border;
  • a ​Mexican ​n​ational in possession of a ​Mexican diplomatic or official passport.

Waved through at port of entry

A wave through is when you present yourself for inspection, but the inspector waves you through the U.S.-Mexico or U.S-Canada land border, and allows you to enter the U.S. without asking any questions or checking your travel documents.  You must present a credible claim and submit supporting evidence, such as​ ​third party ​affidavits ​from those with personal knowledge about your wave through admission.

​Parole

In some situations, you may receive a grant of parole to enter the U.S. This is a temporary, discretionary act and is not an admission. Without determining whether you may be admitted to the U.S., the immigration officer may parole you in for deferred inspection or due to urgent humanitarian reasons or significant public benefits.

Parole in Place may also be issued to certain foreign nationals present without admission or parole, such as ​to a spouse, child, or parent of an ​a​ctive ​d​uty member of the U.S. ​a​rmed ​f​orces, a member in the Selected Reserve of the Ready Reserve, or someone who previously served in the U.S. ​armed forces​ or the Selected Reserve of the Ready Reserve.

2. You must properly file an adjustment of status application.​

The Form I-485 must be filed with USCIS in accordance with ​the ​form ​instructions, when you are physically present in the United States. It must be signed, accompanied by the ​proper filing fee (unless a fee waiver is granted), submitted ​at the correct filing location​,  and filed when the priority date is current.

3. You must be eligible to receive an immigrant visa and an immigrant visa must be available when you file the adjustment of status application​ and at the time of final adjudication.​

Eligibility for an immigrant visa depends on the immigrant category in which you are filing for adjustment. Except for the Immediate Relative of a U.S. citizen category, the family-based and employment-based categories typically require a wait (sometimes for years or decades) before an immigrant visa becomes available.

4. You must be admissible to the United States for lawful permanent residence or eligible for a waiver of inadmissibility or other form of relief. 

You are ineligible for adjustment if you are subject to any inadmissibility grounds listed under INA 212, such as certain criminal offenses fraud or willful misrepresentation of material facts to gain immigration benefits and unlawful presence. A waiver must be available and you must qualify for the waiver if you are inadmissible to the U.S.

​5. You must merit the favorable exercise of discretion.​

The approval of a Form I-485 application under certain categories, including INA 245(a) Adjustment, is a discretionary decision.  This means you are not entitled to adjustment even when you are eligible for it.

Besides evaluating your eligibility, the immigration officer also considers other factors such as your immigration status and history;​ family unity;​ length of residence in the United States;​ business and employment; and​ community standing and moral character.​

Statutory Bars to Adjusting Status Under INA 245(a) 

Bars to adjusting status include unlawful immigration status at the time of filing a Form I-485 (INA 245(c)(2) bar); status and nonimmigrant visa violations (INA 245c)(2) and INA 245(c)(2)(8) bars); and failure to maintain lawful nonimmigrant status when you would otherwise be eligible for employment-based immigration (INA 245(c)(7) bar). There are, however, exceptions and exemptions.

Consult an Experienced Immigration Attorney

Because there are various bars and inadmissibility grounds to prevent AOS, as well as exemptions and waivers available, you need to consult an immigration attorney before you file a Form I-485 application to adjust to permanent resident status.

To learn more, read our related article, Adjusting to Permanent Resident Status Under INA 245(a): Bars, Exceptions and Exemptions.

# # #

This article provides general information only. It is based on law, regulations and policy that are subject to change. Do not consider it as legal advice for any individual case or situation. Each legal case is different and case examples do not constitute a prediction or guarantee of success or failure in any other case. The sharing or receipt of this information does not create an attorney-client relationship.

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Approval of Form I-212 + Grant of Immigrant Visa= A True Success Story

A U.S. citizen and his permanent resident sister consulted me about their mother’s immigrant visa case, after the U.S. Consulate found her inadmissible under INA 212(a)(9)(C)(i)(I), i.e. illegal reentry following accrual of more than one year of unlawful presence in the United States.  With my counsel, their mother (my client) filed a Form I-212, Application for Permission to Reapply for Admission Into the United States, which the USCIS Field Office in Salt Lake City, Utah approved on February 17, 2017.

The I-212 approval led the U.S. Consulate to schedule the mother for a follow-up interview and issue the immigrant visa. This was her second immigrant visa application based on an approved I-130 immigrant petition her U.S. citizen son filed for her.

Ten years ago, the U.S. Consulate denied her first immigrant visa application upon finding her inadmissible under INA 212(a)(9)(B)(i)(II), i.e. accrual of unlawful presence of one year or more in the United States prior to departing the country. Because she had no qualifying relative (U.S. citizen or permanent resident spouse or parent) to be eligible for the Form I-601 [INA § 212 (a)(9)(B)(v)] unlawful presence waiver, she had to wait 10 years for that bar to expire. After waiting a decade to file her second immigrant visa application, she was shocked to hear she was still permanently barred under INA 212(a)(9)(C)(i)(I).

The mother’s description of her re-entry into the United States — following accrual of unlawful presence of more than one year — indicated she was “waved through” at a U.S. border checkpoint, even though she lacked proper travel documents. In general, this means the person entered the United States as a passenger in a car after an immigration officer waved the car through the port of entry.

I counseled the family on two different paths the mother could take to obtain the immigrant visa: (a) file a motion to reconsider with the U.S. Consulate, requesting it find that the wave through counted as a lawful admission and was not an illegal entry to trigger the permanent bar under INA 212(a)(9)(C)(i)(I); OR (b) file a Form I-212 application to be excused from the permanent bar.

Because the mother lacked objective evidence of a wave through, the family chose to file a Form I-212 application with USCIS instead of a motion to reconsider with the U.S. Consulate.

The applicant must be outside the U.S. for 10 years before she may file a Form I-212 to be excused from a section 212(a)(9)(C)(i)((I) bar. Luckily, my client had already completed the 10 years while she was waiting for the unlawful presence bar to run. After several discussions with the family, I determined there were sufficient favorable factors to get an I-212 approval.

I worked extensively with the family to prepare their written testimonies and gather supporting documentary evidence to prove their mother regretted her past immigration violations, has good moral character, and did not pose a threat to the American community. I also counseled them on how to establish that her denial of admission would cause unusual hardships to her as well as to her family in the United States. In addition, I prepared a legal memorandum outlining the facts and procedural history, citing to the evidence, and discussing why the mother deserved the waiver based on case precedents, statutory law, and existing policies.

While the Form I-212 application remained pending, I sent a follow-up letter to the USCIS Field Office,  requesting approval and including additional evidence of the hardships the U.S. citizen son, in particular, was suffering due to his mother’s absence from the United States.

After several months had passed, the sister called to ask me whether there were any additional steps to take to get the USCIS Field Office to issue a decision.  I began to explain the various ways  (including seeking Congressional assistance) until she stopped me mid-sentence and started screaming with joy. She had just received a message from her brother stating he received the I-212 approval notice!

The mother’s follow-up interview with the U.S. Consulate occurred in April 2017, and shortly after she was issued the immigrant visa. After 13 long years of separation, she may now finally reunite with her family in the United States.

The brother and sister live in different U.S. states,  and their mother lives in a South American country. Although we communicated by telephone and email and never met in person during the course of representation, we developed a strong, trust-based relationship, which contributed to a favorable outcome. This is a true success story for Dyan Williams Law PLLC and for my client and her family.

Preparing approvable Form I-212 applications are among our main areas of expertise. Clients benefit from the advice we give in filing Form I-212 requests to lawfully re-enter the United States following a removal order or other immigration violation.

Cheers,

Dyan Williams

Founder & Principal Attorney
Dyan Williams Law PLLC
(612) 225-9900
dw@dyanwilliamslaw.com

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This article provides general information only. It is based on law, regulations and policy that are subject to change. Do not consider it as legal advice for any individual case or situation. Each legal case is different and case examples do not constitute a prediction or guarantee of success or failure in any other case. The sharing or receipt of this information does not create an attorney-client relationship.

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Approval of Form I-212 + Grant of 212(d)(3) Nonimmigrant Waiver = A True Success Story

To visit the United States, a visa-exempt Canadian citizen needed a Form I-212 approval because he was previously issued a removal order by an Immigration Judge and thus became subject to a 10-year bar to reentry under INA section 212(a)(9)(A)(ii). He also required a 212(d)(3) nonimmigrant waiver due to a 20-year-old conviction, for which he was found inadmissible under INA sections 212(a)(2)(A) (i)(II)(controlled substance violation) and 212(a)(2)(C)(i)(illicit trafficker in controlled substance).

With my legal representation, he received both a Form I-212 approval and 212(d)(3) nonimmigrant waiver grant from the U.S. Customs & Border Protection in April 2017.  He may now visit the United States as a visa-exempt Canadian citizen.

After the Immigration Court denied his motion to terminate removal proceedings and determined he is removable due to his criminal offense, the Canadian citizen reached out to me for help. Despite being married to a U.S. citizen, he could not obtain a family-based green card or immigrant visa because his criminal record makes him permanently inadmissible and  there is no immigrant waiver for his offense.

He and his U.S. citizen spouse had no choice but to establish a new life in his home country. His spouse, however, continued to hold her American-based job and commute between the two countries for employment purposes.  Being able to travel to the United States and accompany his American kids to see their mother is important to him. He could not re-enter the United States without the necessary permission and waiver.

I guided him on how to prove the favorable factors outweigh the negative factors to get an approval of his Form I-212, Application for Permission to Reapply for Admission into the United States After Deportation or Removal. I also counseled him on how to address the 3 main factors for receiving a 212(d)(3) nonimmigrant waiver: the seriousness of his criminal offense that makes him inadmissible; his reasons for seeking entry into the U.S.; and why he does not pose a risk to the American community.

Facing writer’s block, my client relied on me to help him prepare his affidavit explaining the underlying circumstances that led to his conviction, describing the positive contributions he made in his profession, and the important roles he plays in his family. In addition, I advised him on the documentary evidence to submit to show he deserves the requested I-212 and 212(d)(3) waiver. Because he has an American spouse and previously applied for a marriage-based  green card, for which he is not eligible, he also had to overcome the presumption of immigrant intent to be admitted as a visitor.

Based on the legal briefs and application packets I prepared, the CBP granted both the I-212 and 212(d)(3) nonimmigrant waiver, which permits the Canadian citizen to visit the United States with his American family. Although there were many variables and obstacles in this case, it turned out to be a true success story for Dyan Williams Law PLLC and the client.

Cheers,

Dyan Williams

Founder & Principal Attorney
Dyan Williams Law PLLC
(612) 225-9900
dw@dyanwilliamslaw.com

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This article provides general information only. It is based on law, regulations and policy that are subject to change. Do not consider it as legal advice for any individual case or situation. Each legal case is different and case examples do not constitute a prediction or guarantee of success or failure in any other case. The sharing or receipt of this information does not create an attorney-client relationship.

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Potential Solutions for Visa Refusal or Visa Denial

Some visa refusals and visa denials are proper, such as when you fail to provide the requested documents to prove visa eligibility or when you are inadmissible to the U.S. due to past actions. But when the decision is improper or can be overcome, you may take remedial action if you still want to come to the U.S.

A consular officer’s decision to deny or issue a visa is not subject to judicial review, based on the doctrine of consular non-reviewability. Because consular officers have so much discretion in issuing visa decisions, it’s especially important to address complications from the get-go.

When you’re faced with a visa refusal or denial, your potential solutions include:

1. Refiling for the Nonimmigrant Visa in Section 214(b) Situations

There is no waiver to overcome the INA 214(b) ground of ineligibility (failure to overcome presumption of immigrant intent) in nonimmigrant visa cases. But the finding is not permanent, which means you may later establish nonimmigrant intent by showing a considerable change in circumstances.

When your nonimmigrant visa (e.g. B-1/B-2 visitor visa or F-1/M-1 student visa) is denied due to failure to overcome the presumption of immigrant intent, you will need to reapply for the visa and, at the visa interview, present new, persuasive evidence of strong ties to your home country.

To avoid multiple visa refusals under section 214(b), you must build strong family roots, property ownership, employment ties, and other connections to your country that you cannot abandon and will cause you to depart the U.S. before your authorized stay expires.

In 214(b) visa refusal cases, you should not reapply for the B-1/B-2 visa, for example, until your personal, professional, and financial circumstances have changed significantly. Owning a business, investing in property, having a well-paid, steady job, or starting a family in your country are positive factors.

2. Requesting an Advisory Opinion (Administrative Review)

When your visa denial is based on questions of law, you may request an Advisory Opinion from the Department of State’s Visa Office in Washington D.C. The Visa Office will not review claims that the consular officer made a mistake of fact.

The Visa Office has a dedicated email channel, LegalNet, for you and/or your attorney to request a case-specific response on the interpretation or application of immigration law. An example is when a person is denied an H-1B or L-1 visa, which allows dual intent, under section 214(b) (failure to overcome presumption of immigrant intent). Another example is when a visa applicant is charged with 212(a)(6)(C)(i)(fraud or willful misrepresentation of material fact to gain immigration benefit), even when the misrepresentation was not material and did not affect visa eligibility.

Within seven (7) business days of receiving a proper inquiry, LegalNet will provide notice that the inquiry has been received and is being processed. The complexity of the case and availability of required information affects the time frame for a substantive responses.

LegalNet will provide substantive responses only to the following types of inquiries:

  • Legal questions about a specific case when the applicant or representative has attempted to contact the consular post at least twice without receiving a final response, and where 30 days have passed since the second inquiry (unless action is required sooner to avert significant harm to the applicant)
  • Legal questions about a specific case in which the applicant or representative has received a final response from the consular post, but believes it to be wrong as a matter of law
  • Legal questions about specific cases involving T visas, U visas, Diversity visas, or adoption visas, and
  • Legal questions about specific cases involving the Child Status Protection Act (CSPA) and the Violence Against Women Act (VAWA).

The substantive response will be a summary of the advisory opinion forwarded to the consulate. Advisory opinions on applications or interpretations of law are binding on consular officers, but consular officers have sole authority to apply the law to the facts.

3. Filing a Motion to Reconsider and Rescind a Section 212(a) Inadmissibility Determination

Although there is no appeal process for a visa denial based on INA section 212(a) inadmissibility grounds, the U.S. Consulate or Embassy may reconsider its decision based on new evidence or legal arguments establishing you actually qualify for the visa.

In immigrant visa cases, the federal regulations allow  you to submit a motion to reconsider within one year of the visa denial to the consulate. No new application or filing fee is required when a timely motion is filed. Motions to reconsider must include relevant documentary evidence and legal claims to overcome the inadmissibility ground.

In nonimmigrant visa cases (except section 221(g) refusals), the only way to have your case reconsidered is to submit a new visa application and, at the visa interview, present a request to reconsider the inadmissibility finding.

It’s appropriate to file a motion to reconsider when the inadmissibility finding is based on a consular officer’s misinterpretation of the facts or law. But when the inadmissibility determination originates from the U.S. Department of Homeland Security (DHS), e.g. U.S. Citizenship & Immigration Services (USCIS) and U.S. Customs & Border Protection (CBP), the Consulate will generally instruct you to contact those agencies.

4. Applying for a Waiver of Inadmissibility 

When you are truly inadmissible or you are unable to get the erroneous inadmissibility charge vacated by the Consulate, you may apply for a waiver. A waiver grant is not a travel document to enter the U.S. Rather, it allows – but does not guarantee – admission on a Canadian passport (if you are a Canadian citizen) or a visa grant by the Consulate when you are inadmissible to the U.S.

Nonimmigrant waiver 

For nonimmigrant visa applicants, the 212(d)(3) waiver excuses almost all grounds of inadmissibility listed in section 212(a). This includes health-related grounds, criminal offenses, prostitution, smuggling, fraud or willful misrepresentation of material fact to gain immigration benefits, false claims to U.S. citizenship to gain benefits under federal, state or immigration law, and unlawful presence in the U.S. The only inadmissibility grounds that cannot be excused by the 212(d)(3) waiver involve security and related issues, foreign policy considerations, and participation in Nazi persecutions.

In Matter of Hranka, the Board of Immigration Appeals listed three factors that must be considered in deciding whether to grant or deny the waiver. These factors are also described in the Foreign Affairs Manual, which sets forth policies for the Department of State. They are:

  • The risk of harm to society if the applicant is admitted to the U.S.
  • The seriousness of the applicant’s prior immigration law or criminal law violations, which caused the inadmissibility.
  • The importance of the applicant’s reasons for seeking to enter the U.S.

The consular officer must recommend your nonimmigrant waiver request for approval before it is forwarded to the U.S. Customs & Border Protection for a final decision.

Immigrant waiver

For immigrant visa applicants, there are waivers for certain inadmissibility grounds, including fraud or willful misrepresentation, some criminal offenses, and unlawful presence.

You will need to determine whether a waiver is available for the specific section of law that makes you inadmissible. Even when a waiver is available, only certain immigrant visa applicants may qualify for it.

You qualify for the I-601 waiver [INA§ 212(i) waiver] of the lifetime fraud/willful misrepresentation bar under section 212(a)(6)(C)(i) if you are one of the following:

1. An intended immigrant who is the spouse, son or daughter of a U.S. citizen or permanent resident (or the fiance(e) of a U.S. citizen K-visa petitioner) who will suffer extreme hardship if you are not admitted to the U.S. [NOTE: Being a parent of a U.S. citizen or permanent resident child does not make you eligible for the §212(i) waiver.]

or

2. A VAWA self-petitioner who will suffer extreme hardship or whose U.S. citizen, lawful permanent resident, or qualified alien parent or child will suffer extreme hardship if you are not admitted to the U.S.

You qualify for the I-601 [INA§ 212(a)(9)(B)(v)] waiver of the 3/10 year unlawful presence bar if you are the spouse or son or daughter of a U.S. citizen or permanent resident (or the fiance(e) of a U.S. citizen K-visa petitioner) who will suffer extreme hardship if you are not admitted to the U.S. [NOTE: Being a parent of a U.S. citizen or permanent resident child does not make you eligible for the unlawful presence waiver.

You qualify for the I-601 [INA § 212(h)] waiver of crime-related inadmissibility grounds if you are one of the following:

1. An immigrant who is the spouse, parent, son or daughter of a U.S. citizen or permanent resident, or K visa petitioner, who will suffer extreme hardship if you are not admitted to the U.S.

2. A self-petitioning abused spouse or child of a U.S. citizen or permanent resident, under the Violence Against Women Act (VAWA).

3. Inadmissible only under prostitution grounds [sections 212(D)(i) or (D)(ii) of the INA]; you have been rehabilitated; and your admission is not contrary to the national welfare, safety, or security to the United States.

4. Inadmissible due to certain criminal activities (e.g. a crime involving moral turpitude; single offense of simple possession of 30 grams or less of marijuana) that occurred more than 15 years before the date of application for a visa, admission, or adjustment of status; you have been rehabilitated; and your admission is not contrary to the national welfare, safety, or security of the United States.

The I-601 immigrant waiver under section 212(h) of the INA excuses  you from the following criminal grounds:

1. Crimes involving moral turpitude

2. One controlled substance violation involving simple possession of 30 grams or less of marijuana (or an equivalent amount of hashish)

3. Two or more criminal convictions (other than purely political ones) with an aggregate sentence imposed of at least five years

4. Prostitution

5. Unlawful commercialized vice, whether or not related to prostitution

6. Certain aliens involved in serious crimes who have asserted immunity from prosecution

The immigrant waiver is not available for all crime-related grounds of inadmissibility. In particular, persons charged with the following are not eligible for the waiver:

1. 212(a)(2)(A)(i)(II)[Controlled Substance Violation] – except when it relates to a single offense of simple possession of 30 grams or less of marijuana (or hashish); or

2. 212(a)(2)(C)[Controlled Substance Traffickers]

3. 212(a)(2)(G)[Foreign government officials who committed particularly severe violations of religious freedom]

4. 212(a)(2)(H)[Significant traffickers in persons/human traffickers]

5. 212(a)(2)(I)[Money laundering]

Waiver for prior removal orders (or certain immigration violations)

Advance permission to reapply for admission into the United States is needed when you are inadmissible under sections 212(a)(9)(A)(i)(e.g. expedited removal order) and (ii) (removal order by an Immigration Judge), as well as sections 212(a)(9)(C)(i)(I) (illegal re-entry after accruing more than one year of unlawful presence) and (II)(illegal re-entry following removal order).

When any of these inadmissibility bars apply, you need an I-212 waiver to be readmitted to the U.S. or to obtain a visa as an immigrant or nonimmigrant. For more information on these inadmissibility grounds, read our article, When do you need an I-212 Waiver (and how do you get it)?

The I-212 waiver request may be filed at any time, in conjunction with a visa application, when sections 212(a)(9)(A)(i) and (ii) apply. But when sections 212(a)(9)(C)(i)(I) and (II) apply and you are an immigrant visa applicant, you must be outside the U.S. and wait ten years abroad before filing  the Form I-212.  [Note: As an alternative, if you are a nonimmigrant visa applicant, you may seek a section 212(d)(3) nonimmigrant waiver, at any time, if you are inadmissible under section 212(a)(9)(C)(i)(I), i.e. unlawful presence of more than one year, in the aggregate, and subsequent reentry without admission or parole.]

A completed and signed Form I-212,  Application for Permission to Reapply for Admission into the United States after Deportation or Removal, must be submitted – except in few situations, such as when filing for a nonimmigrant visa at certain U.S. consulates. The Form I-212 filing fee and sometimes a biometrics fee are required.

Consult an immigration attorney with expertise in visa refusals or denials

When your visa is refused or denied, and you still wish to come to the U.S., you need to contact an immigration attorney to evaluate your visa eligibility, verify whether the consulate has valid grounds to deny the visa, and discuss or pursue possible remedies.

For more information, read our related article, Common Reasons for Visa Refusal or Visa Denial.

This article provides general information only. It is based on law, regulations and policy that are subject to change. Do not consider it as legal advice for any individual case or situation. Each legal case is different and case examples do not constitute a prediction or guarantee of success or failure in any other case. The sharing or receipt of this information does not create an attorney-client relationship.

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Photo by: Anne Worner