inadmissibility

ESTABLISHING EXTREME HARDSHIP

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A. Totality of the Circumstances The officer must make extreme hardship determinations based on the factors, arguments, and evidence submitted. Therefore, the officer should consider any submission from the applicant bearing on the extreme hardship determination. The officer may also consider factors, arguments, and evidence relevant to the extreme hardship determination that the applicant has not specifically presented, such as those addressed in Department of State (DOS) information on country conditions or other U.S. Government determinations regarding country conditions, including a country’s designation for Temporary Protected Status (TPS). Officers must base their decisions on the totality of the evidence and circumstances presented. B. Common Consequences The common consequences of denying admission, in and of themselves, do not warrant a finding of extreme hardship. The Board of Immigration Appeals (BIA) has held that the common consequences of denying admission include, but are not limited to, the following: C. Factors Must Be Considered Cumulatively The officer must consider all factors and consequences in their totality and cumulatively when assessing whether a qualifying relative will experience extreme hardship either in the United States or abroad. In some cases, common consequences that on their own do not constitute extreme hardship may result in extreme hardship when assessed cumulatively with other factors. For example, if a qualifying relative has a medical condition that alone does not rise to the level of extreme hardship, the combination of that hardship and the common consequences of inferior medical services, economic detriment, or readjusting to life in another country may cumulatively cause extreme emotional or financial hardship for the qualifying relative when considering the totality of the circumstances.  Ordinarily, for example, the fact that medical services are less comprehensive in another country is a common consequence of denying admission; but the inferior quality of medical services, considered along with the individual’s specific medical conditions, may create sufficient difficulties as to rise to the level of extreme hardship in combination with all the other consequences. The officer must weigh all factors individually and cumulatively, as follows: First, the officer must consider whether any factor set forth individually rises to the level of extreme hardship under the totality of the circumstances.  ​Second, if any factor alone does not rise to the level of extreme hardship, the officer must consider all factors together to determine whether they cumulatively rise to the level of extreme hardship. This includes hardships to multiple qualifying relatives.  When considering the factors, whether individually or cumulatively, all factors, including negative factors, must be evaluated in the totality of the circumstances.  D. Examples of Factors that May Support a Finding of Extreme Hardship The chart below lists factors that an applicant might present and that would be relevant to determining whether an applicant has demonstrated extreme hardship to a qualifying relative. This list is not exhaustive; circumstances that are not on this list may also be relevant to finding extreme hardship.  The presence of one or more of the factors below in a particular case does not mean that extreme hardship would necessarily result from a denial of admission. But they are factors that may be encountered and should be considered in their totality and cumulatively in individual cases. All hardship factors presented by the applicant should be considered in the totality of the circumstances in making the extreme hardship determination. Some of the factors listed below apply when the qualifying relative would remain in the United States without the applicant. Other factors apply when the qualifying relative would relocate abroad. Some of the factors might apply under either circumstance.  Family Ties and Impact Qualifying relative’s ties to family members living in the United States, including age, status, and length of residence of any children. Responsibility for the care of any family members in the United States, particularly children, elderly adults, and disabled adults. Impact on the cognitive, social, or emotional well-being of a qualifying relative who is left to replace the applicant as caregiver for someone else, or impact on the qualifying relative (for example, child or parent) for whom such care is required. Social and Cultural Impact Loss of access to the U.S. courts and the criminal justice system, including the loss of opportunity to request or provide testimony in criminal investigations or prosecutions; to participate in proceedings to enforce labor, employment, or civil rights laws; to participate in family law proceedings, victim’s compensation proceedings, or other civil proceedings; or to obtain court orders regarding protection, child support, maintenance, child custody, or visitation. Fear of persecution or societal discrimination. Prior grant of U nonimmigrant status. Existence of laws and social practices in the country of relocation that would punish the qualifying relative because he or she has been in the United States or is perceived to have Western values. Access or lack of access to social institutions and structures (official and unofficial) for support, guidance, or protection. Social ostracism or stigma based on characteristics such as gender, gender identity, sexual orientation, religion, race, national origin, ethnicity, citizenship, age, political opinion, marital status, or disability. Qualifying relative’s community ties in the United States and in the country of relocation. Extent to which the qualifying relative has integrated into U.S. culture, including language, skills, and acculturation. Extent to which the qualifying relative would have difficulty integrating into the country of relocation, including understanding and adopting social norms and established customs, including gender roles and ethical or moral codes. Difficulty and expense of travel/communication to maintain ties between qualifying relative and applicant, if the qualifying relative does not relocate. Qualifying relative’s present inability to communicate in the language of the country of relocation, as well as the time and difficulty that learning that language would entail. Availability and quality of educational opportunities for qualifying relative (and children, if any) in the country of relocation. Availability and quality of job training, including technical or vocational opportunities, for qualifying relative (and children, if any) in the country of relocation. Economic Impact Economic impact of applicant’s departure on the qualifying relative, including … Read more

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)

CAN I TRAVEL ONCE MY U VISA IS APPROVED? 

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Joseph Caraccio June 4, 2023 One Comment travel, U visa INTERNATIONAL TRAVEL AS A U NONIMMIGRANT Uncategorized inadmissibility Case Law BIA FOIA USCIS FAQ SIJS Citizenship How To Visa EAD Court Q&A WebEx Asylum TPS Bond policy News Special Immigrant Video Extreme Hardship CAT criminal marriage motions SCOTUS U Visa It seems we can't find what you're looking for. Search Wiki See All Results CAN I TRAVEL ONCE MY U VISA IS APPROVED?  Once you receive the I-918 approval notice indicating you are in U nonimmigrant status, can you can travel outside of the United States? Technically, individuals in U nonimmigrant status are eligible to apply for a U visa abroad at a U.S. consulate and may be able to use that visa to reenter the United States after a trip abroad. While theoretically possible, it would not be advisable.  There are also two serious concerns that would arise relating to unlawful presence bars and the continuous physical presence requirements for U nonimmigrants to be able to adjust status and obtain a green card after three years in U status.     UNLAWFUL PRESENCE BARS There are also complications that arise from unlawful presence. If the U visa holder accrued unlawful presence, which most have, then departure from the United States will trigger a three- or ten-year bar making them inadmissible. Once a U nonimmigrant that is outside of the country has triggered a new ground of inadmissibility such as the unlawful presence, they will need to apply for a new waiver of inadmissibility on Form I-192 (any existing I-192 that was approved will only cover grounds of inadmissibility that existed at the time it was approved not grounds that were triggered after). They will be required to remain outside of the United States during the adjudication of the waiver.  Note: This is because they are outside the United States and reentering thus they must be admissible, otherwise new grounds of inadmissibility would not necessarily require a new waiver for purposes of adjustment of status.    CONTINUOUS PHYSICAL PRESENCE REQUIREMENTS FOR ADJUSTMENT OF STATUS IN THREE YEARS Further it may create an obstacle to later eligibility to adjust status to become  a legal permanent resident and get a green card. In order for U visa holders to apply for adjustment of status to lawful permanent residence, she must demonstrate continuous physical presence in the United States. The regulations state that “an alien shall be considered to have failed continuous physical presence…if the alien has departed from the United States for any period in excess of 90 days or for any periods in the aggregate of 180 days.”  Since it will almost certainly take more than 90 days to process the visa and/or waiver needed, the U visa holder will likely become ineligible for adjustment of status since they will have an interruption in their continuous physical presence.    GROUNDS OF INADMISSIBILITY TRIGGERED AFTER THE APPROVAL  U visa holders are not required to demonstrate their admissibility when applying to adjust their status pursuant to INA §245(m). When the U nonimmigrant applies to adjust status through INA §245(m), there is no need—and, actually, no mechanism—for USCIS to waive a ground of inadmissibility, and the existence of the unwaived ground of inadmissibility will not preclude them from adjusting status.  Any ground of inadmissibility may factor into USCIS’s determination as to whether discretion should be exercised in the applicant’s favor. Therefore, it is possible that a serious criminal issue or alike will ultimately end up preventing them from being able to adjust status just under a different legal ground.  Per the regulations, where new grounds of inadmissibility and other adverse factors are present at the adjustment stage, the applicant may “offset” them “by submitting supporting documentation establishing mitigating equities that the applicant wants USCIS to consider when determining whether or not a favorable exercise of discretion is appropriate.” See 8 CFR §245.24(d)(11). Depending on the nature and severity of the adverse factors, “the applicant may be required to clearly demonstrate that the denial of adjustment of status would result in exceptional and extremely usual hardship.” See 8 CFR §245.24(d)(11). [The regulations provide that “USCIS will generally not exercise its discretion favorably in cases where the applicant has committed or been convicted of a serious violent crime, a crime involving sexual abuse committed upon a child, or multiple drug-related crimes, or where there are security- or terrorism-related concerns.” Id.] In that scenario, if trying to overcome new grounds of inadmissibility, you would want to try to tie the new ground of inadmissibility or other adverse factor(s) to the applicant’s victimization and/or cooperation with law enforcement. Though such a showing is not legally required, it can serve as a strong mitigating equity. Address and provide evidence of the humanitarian considerations and disruption to family unity that will result if USCIS denies the adjustment application. REVISITING PRIOR GROUNDS OF INADMISSIBILITY & ADVERSE FACTORS ALREADY ADDRESSED It has become increasingly common for USCIS to issue Requests for Evidence (RFEs) and Notices of Intent to Deny (NOIDs) and to deny U-based adjustment applications based on grounds of inadmissibility and/or other negative discretionary factors that the U visa holder previously disclosed and addressed in the underlying U visa petition. I would be wise to anticipate this.  In the adjustment of status context, the issue is no longer one of inadmissibility but of discretion. Even if the criminal history occurred before the U visa was granted, and even if a waiver was granted for the ground of inadmissibility, you still need to present evidence of discretion to overcome these negative factors at the adjustment stage. You should decide on a case-by-case basis whether you may want to try arguing that USCIS is abusing its discretion and that they should not be relitigating these matters (in the event the adverse factors are particularly severe and may impact the outcome).  PrevPreviousRE-TAKING THE NATURALIZATION ENGLISH OR CIVICS TEST NextContacting USCISNext