inadmissibility

Process to Promote the Unity and Stability of Families (PIP Expansion)

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update

USCIS sent out an email regarding the Biden Administrations recent executive action to allow the spouses of US citizens who have been living in the US for ten years and who entered without inspection to get parole in place in order to become eligible for adjustment of status allowing them to bypass the need of obtaining an I-601A. The announcement refers to the program as the “Process to Promote the Unity and Stability of Families.” The Department of Homeland Security (DHS) had announced this on On June 18, 2024. There are no details available yet about the process beyond the basic eligibility criteria. We still don’t know the process for applying, how the applications will be adjudicated, or anything else. The email states that USCIS will begin accepting applications on August 19, 2024. It says that if you apply before August 19, 2024, USCIS will reject the application. To get the details about eligibility and the application process will all have to wait for the final rule to be published in a forthcoming Federal Register notice. When will the Expanded Parole In Place Program begin? August 19, 2024 Who is Eligible? To be considered for a discretionary grant of parole, on a case-by-case basis, under this process, you must:     YOU CANNOT FILE ANYTHING YET AND YOU SHOULD NOT LISTEN TO ANYONE WHO IS TELLING YOU THAT YOU CAN. THE FINAL RULE HAS NOT BEEN RELEASED AND NO ONE KNOWS THE PROPER PROCEDURES AT THIS TIME. USCIS WILL NOT ACCEPT ANY APPLICATIONS BEFORE AUGUST 29TH. What You Can Do Now  Although we are not currently accepting applications, you can begin to prepare to file a parole application by gathering evidence of your eligibility, such as:   For noncitizen children of requestors, evidence of eligibility could include:  — Evidence of the child’s presence in the United States as of June 17, 2024. — Evidence of the child’s relationship to the noncitizen parent, such as a birth certificate or adoption decree;  — Evidence of the noncitizen parent’s legally valid marriage to a U.S. citizen as of June 17, 2024, such as a marriage certificate; and  — Evidence of the child’s presence in the United States as of June 17, 2024.   GO TO THE OFFICIAL USCIS WEBSITE FOR INFORMATION https://www.uscis.gov/keepingfamiliestogether

Petty Offense Exception

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The “petty offense exception” applied to a person with only one conviction for a crime involving moral turpitude (CIMT). Since so many offenses can be classified as crimes involving moral turpitude, many noncitizens risk being excluded even for minor convictions. Coming within the Petty Offense Exception is one way to avoid this exclusion. This exception excuses inadmissibility, but not deportability, on account of a conviction of, or admission of committing, one crime of moral turpitude. It does not excuse any other ground of inadmissibility, such as a drug conviction. This question was sent in by someone who asked another question but in their email mentioned the petty offense exception and how they weren’t sure what it is or how it worked. Thank you so much for submitting this questions and I hope to receive more questions from readers. You can submit questions anonymously by email or by using our simple question submission form. The person must meet the following criteria under INA § 212(a)(2)(A)(ii)(II): COMMISSION OF ONLY ONE CMT If the government shows, by a preponderance of the evidence, that a noncitizen has committed a second CMT, s/he will no longer be eligible for the petty offense exception to inadmissibility. Counsel should check the defendant’s entire criminal record to make sure that s/he has committed only one crime involving moral turpitude.  Commission of a second moral turpitude offense, even if the conviction was expunged, or charges were dismissed and there was no second conviction at all, will disqualify the defendant from eligibility for the Petty Offense Exception to inadmissibility for one CMT.  On the other hand, previous non-turpitude convictions (e.g., driving under the influence, simple assault) will not disqualify the defendant from receiving the Petty Offense Exception. A court finding that a defendant violated a condition of probation does not constitute a conviction, and therefore does not establish that the defendant committed a second CMT for purposes of disqualifying him or her from the petty offense exception to inadmissibility.  However, if the conduct underlying the violation of probation constitutes CMT conduct (i.e., the commission of a second CMT), the conduct could disqualify a noncitizen from the Petty Offense Exception. Counsel should examine the petition filed in the criminal court alleging a violation of probation, and any attached documents such as police reports, and determine the nature of the conduct resulting in the allegation that the defendant violated probation. The question of whether a noncitizen has committed a second CMT is a conduct-based factor, and the noncitizen is free to contest it as a factual matter.  The client could testify in removal proceedings they did not commit the second CMT, or call other witnesses to prove this. For example, in the context of determining whether a noncitizen on supervised release from immigration detention had violated the term of the release requiring that he not “commit any crimes, “ the Ninth Circuit has held that a plea of no contest in criminal proceedings is insufficient evidence to show that the noncitizen has committed a crime, since a nolo contendere plea is not an admission of guilt to the underlying crime. Applied in this context, counsel can argue that a no contest plea cannot be used to establish that a noncitizen has “committed” another CMT, because even though there is a conviction, a no contest plea gives no proof that the offense of conviction was “committed” by the defendant. Other evidence, however, could be used to prove the conduct. Counsel can also argue (similarly to the single scheme concept applied to the two or more CMT ground of deportability) that a second CMT committed as part of the same criminal act does not disqualify a person from the Petty Offense Exception. SENTENCE IMPOSED OF SIX MONTHS OR LESS The immigrant will qualify for the Petty Offense Exception if s/he obtains a sentence imposed of six months or less, or suspended imposition of sentence with six months or less jail time as a condition of probation.  This requirement is violated by a court-ordered sentence in excess of six months, even if the person does not actually serve a sentence in excess of six months.[9]  Note, however, that the definition of “sentenced to imprisonment in excess of six months” is technical.  See, generally, Criminal Defense of Immigrants Chapter 10, supra.  For example, if a term of imprisonment in excess of six months is imposed, suspended execution of that sentence does not prevent the entire sentence (including the portion as to which execution was suspended) from being counted as a sentence for this purpose, disqualifying the noncitizen from eligibility for the Petty Offense Exception. The actual sentence imposed by the court determines whether the person meets this requirement for the Petty Offense Exception, even if the conviction occurred in a foreign country. A prison term “in excess of six months” is generally assumed to mean a term in excess of 180 days.  Counsel can argue, however, that a sentence imposed of 182 days would not disqualify a person from the Petty Theft Offense Exception, since a year consists of 365 days, and half a year (i.e., six months), would therefore consist of 182.5 days. MAXIMUM POSSIBLE SENTENCE OF ONE YEAR The Petty Offense Exception also requires that the maximum sentence of imprisonment that could have been imposed be one year or less; a greater maximum is a disqualifier. For offenses committed in the United States, the criminal statute that establishes the maximum allowable time in custody for the crime of which the defendant was convicted determines whether this requirement is met. If the conviction is for a misdemeanor rather than a felony, the Petty Offense Exception can apply, assuming the misdemeanor is punishable by a maximum of one year or less in custody.  Some states’ statutory schemes differ, however, so the particular state statute establishing the maximum for the offense of conviction must be consulted to determine whether the maximum possible sentence for the misdemeanor is one year or less in custody. Similarly, in some states, the … Read more

UNLAWFUL PRESENCE BARS CAN RUN IN THE US, BIA & USCIS AFFIRM

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UNLAWFUL PRESENCE AND THE THREE/TEN-YEAR-BAR Under the unlawful presence grounds of inadmissibility, the three- and ten-year bars at INA § 212(a)(9)(B) penalize people who are present in the US. without any lawful immigration status for more than 6 months and 12 months respectively. This could be overstaying a visa by failing to depart the US. after one’s visa expires or it may be crossing the border and then remaining in the US. without any status. These bars do not apply until the person leaves the US. and then seeks to come back or to apply for admission. Once the three or ten years have passed, the person is no longer inadmissible. In recent years, USCIS interpreted the three- and ten-year bars as only able to run if the person is outside of the United States. Thus, if the person triggered the three- or ten-year bar and then re-entered the United States before the requisite time bar had passed, they remained inadmissible, regardless of how much time passed while they were in the United States. These bars are particularly problematic for non-citizens who entered the US. without inspection (not admitted into the US. on a visa or with parole—such as non-citizens who cross the Mexican border) since they are, in most cases, not eligible to adjust status to obtain residency (a green card) in the country. Since non-citizens who entered without inspection are not eligible to adjust status here they are required to attend an interview at the US. Consulate in their home country to obtain residency. This is where the three-year and ten-year bars become such a major obstacle for non-citizens in this situation. For many years after the three and ten-year bars came into existence in 1998, non-citizens subject to the bars had no option but to the leave the US. and apply for a waiver outside of the country and spend years separated from their family until the I-601A provisional waiver (state-side waiver) allowed for the spouses and children of US. citizens (and later permanent residents) to apply for a waiver while still in the US. If the waiver is approved they are still required to leave the country and attend the interview at the US. Consulate in their home country but this allows them to significantly reduce the amount of time they are required to be outside of the country. The current processing time for an I-601A waiver is 34 months and then they must still go through the traditional visa process, so it takes a lot of time and effort to pursue these waivers. Those who do not have a citizen/resident parent or spouse have no way of getting around the three/ten-year bar. NEW USCIS POLICY AND CASE LAW New USCIS policy guidance and a recent BIA case, Matter of Duarte-Gonzalez, 28 I&N Dec. 688 (BIA 2023), however, now officially acknowledge that the simple passage of time is enough for the three- and ten-year bars to run, regardless of whether the full time period is spent inside or outside the United States. Previously, a handful of unpublished BIA cases said the three- and ten-year bars at INA 212(a)(9)(B) could run in the United States, but with Duarte-Gonzalez we now also have a precedential BIA decision taking the same position as USCIS, that the 212(a)(9)(B) time bars can run in the United States based on the plain language of the statute. This means whether an applicant is seeking adjustment of status with USCIS or applying to adjust in immigration court (before EOIR, the Executive Office for Immigration Review), this policy applies to them. Now, USCIS and EOIR will look at the amount of time that has passed since a person triggered the unlawful presence bar, without regard to where they were physically located during that time. Once the requisite number of years have passed, the ground of inadmissibility no longer applies, and no unlawful presence waiver is needed to adjust status. LIMITED BENEFIT TO THIS CHANGE Even though USCIS and the BIA now acknowledge that the 212(a)(9)(B) time bars can run while in the United States, keep in mind a person must leave the United States to trigger one of these bars. Thus, in order for the time bar to pass in the United States, they must have somehow returned after their departure. How they returned is critical. If you entered the US on a visitor visa in 2003 and overstayed but you triggered the ten-year bar by departing the US in 2005 with advance parole to go visit a sick relative, then when you return and are paroled into the US lawfully, you may wait out the remainder of the ten-year bar in the US. If you become eligible for residency in 2016, more than ten years after you tripped the bar, then you are no longer inadmissible under INA §212(a)(9)(B) pursuant to the new policy. Practically this isn’t going to benefit many people. People in the situation described above would often be able to adjust status without a waiver anyway if they were married to a US citizen and traveled on parole. Those who wouldn’t be eligible would be those who never traveled on parole and this new policy won’t benefit them. If you entered without inspection, accrued more than a year of unlawful presence and then left the US triggering the ten-year bar and then reentered the US again without inspection then this new policy will not benefit you. By reentering without inspection you would have triggered the permanent bar under INA §212(a)(9)(C). Two types of people benefit from this policy without also having a permanent bar problem: 1) Those who re-entered the United States lawfully after a departure triggering the three or ten-year bars; or 2) Those who only triggered the three-year bar with their departure (regardless of whether they re-entered the United States lawfully or not). MATTER OF DUARTE-GONZALEZ Matter of Duarte-Gonzalez, 28 I&N Dec. 688 (BIA 2023) Non-citizens who are inadmissible for a specified period of time pursuant to section … Read more

False Claim to U.S. Citizenship

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Inadmissible and deportable for making a false claim to U.S. citizenship. INA § 212(a)(6)(C)(ii); INA §237(a)(3)(D). A person who falsely represents or has falsely represented themselves to be a U.S.citizen for any purpose or benefit under the INA or any other federal or state law is inadmissible anddeportable Therefore, as written, DHS could apply these provisions to a broad range of scenarios,including someone who is underage and uses the U.S. passport of an older friend to get into a bar andhave a drink, someone who votes in an election not realizing that they are not permitted to vote, orsomeone who falsely claims to be a citizen in filling out an I-9 to get employment. There is a limitedand narrow statutory exception for certain children of U.S. citizens. INA § 212(a)(6)(C); INA § 237(a)(3)(D).INA § 212(a)(6)(C)(ii)(II); INA § 237(a)(3)(D)(ii)

245(i)

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INA 245i

WHAT IS SECTION 245(I) OF THE IMMIGRATION AND NATIONALITY ACT? Section 245(i) of the Immigration and Nationality Act (INA) allows certain noncitizens physically present in the United States to adjust status to a lawful permanent resident despite being ineligible to adjust status under INA 245(a) because they entered the United States without inspection, violated their nonimmigrant status, were employed in the United States without authorization, or are otherwise barred from adjustment by INA 245(c). Those grandfathered under INA 245(i) can waive their immigration violation(s) and adjust status upon payment of a $1,000 fee, which essentially serves as a fine. WHO IS GRANDFATHERED UNDER INA 245(I)? Immigrants who are the beneficiary of a labor certification or family-based visa petition (or less common Immigrant Petition by Alien Entrepreneur (Form I-526))that was filed on or before April 30, 2001, would be grandfathered under INA 245(i). The labor certification or petition must have been approvable when filed, even if it was never approved. Approvable when filed means that it was properly filed, meritorious in fact; and Non-frivolous. INA 245(i) also grandfathered derivative beneficiaries of theses labor certifications and visa petitions. The basis of a grandfathered individual’s eventual adjustment, however, is not restricted to the application or petition filed to preserve adjustment eligibility. The grandfathered individual’s application for adjustment of status may be based on any adjustment provision available to the individual at the time of adjustment and usually won’t be based on the grandfathering petition or labor cert. For example, a qualifying Form ETA-750 filed on or before Jan. 14, 1998, preserves the individual’s eligibility to adjust status after that date. However, the filed ETA-750 does not commit that individual to adjustment on the basis of an employment based petition. If, after Jan. 14, 1998, the individual was named as beneficiary in a family based petition or won an immigrant visa in the diversity lottery, they may adjust status on the new basis. (The immigrant visa won in the diversity lottery will not grandfather an individual, but may be used as a basis of adjustment by an individual who is already grandfathered under section 245(i)). HISTORY, AMENDMENTS, AND EXTENSIONS In 1997, 245(i) was extended and revised. Qualified applicants no longer had to submit their application for adjustment of status by October 1, 1997. Rather, an immigrant visa petition or labor certification application had to be filed on the principal applicant’s behalf on or before a newly established deadline of January 14, 1998. However, as long as this occurred no earlier than October 1, 1994, the application for adjustment of status itself (for the principal applicant or eligible spouse and children) could be filed at any time; even years after the filing deadline. In 2000, 245(i) was extended and revised again for the last time. The Legal Immigration Family Equity (LIFE) Act Amendments of 2000 set a new deadline of April 30, 2001, for the filing of the required immigrant visa petition or labor certification application on behalf of the principal applicant. As long as the filing deadline was met, the application for adjustment of status could be filed at any time. The 2000 revision of 245(i) also required that, if the immigrant visa petition or labor certification application was filed after January 14, 1998, the principal applicant had to have been physically present in the United States on December 21, 2000 (the date of enactment of the LIFE Act Amendments). CURRENT ELIGIBILITY REQUIREMENTS FOR 245(I) Under current law, an undocumented immigrant can apply for LPR status under Section 245(i) if he or she meets the following conditions: To file for adjustment under INA 245(i) you must file a Supplement A to Form I-485 along with all the forms and documents required for adjustment pursuant to whatever grounds you are adjusting status under. WILL IT BE EXTENDED AGAIN? Some people anticipate this section being extended one day as a measure to help resolve the current immigration problems. Congress retains the authority to either extend the filing deadline or eliminate it. If Congress acts on this issue, it is estimated that as many as 2.3 million unauthorized immigrants living in the United States may be able to seek a green card through sponsorship by a spouse, other family member, or employer. As we get further and further away from 2001 it seems less and less likely though. Though, May 13, 2021, Senator Catherine Cortez Masto (D-Nevada) reintroduced the Fairness for Immigrant Families Act (S.1638) that, among other things, would extend the filing deadline for §245(i) from April 30, 2001, to five years following the enactment of the Fairness for Immigrant Families Act. The information below is taken directly from the USCIS Policy Manual, Volume 7, Chapter 2: Qualifying Immigrant Visa Petition or Labor Certification Application A qualifying immigrant visa petition or permanent labor certification application is defined as a petition or application that was both “properly filed” on or before April 30, 2001 and “approvable when filed.” A qualifying immigrant visa petition may include any of the following forms: A qualifying permanent labor certification application refers to an Application for Alien Labor Certification (ETA Form 750). 1. Properly Filed Qualifying Immigrant Visa Petition For purposes of INA 245(i), an immigrant visa petition is considered properly filed if: A petition received with either an illegible or missing postmark is timely filed if INS physically received the petition by May 3, 2001, and stamped it with a “Filed Prior to 245(i) Sunset” stamp. Qualifying Permanent Labor Certification Application A permanent labor certification application is properly filed if it was filed on or before April 30, 2001 and accepted for processing according to the regulations of the Secretary of the U.S. Department of Labor (DOL) that existed at the time of filing. During the INA 245(i) qualifying time period and under authority delegated by DOL, permanent labor certification applications were generally filed directly with the state workforce agency (SWA) (such as a State Employment Service Agency) in the state where the offered job was located. The SWA indicated the filing date or receipt … Read more