Presentation on theme: "APPLICATION FOR INADMISSIBILITY WAIVER U Visa is NonImmigrant Visa, so Need Waivers of Each Nonimmigrant Ground of Inadmissibility Derivatives need their."— Presentation transcript:
APPLICATION FOR INADMISSIBILITY WAIVER U Visa is NonImmigrant Visa, so Need Waivers of Each Nonimmigrant Ground of Inadmissibility Derivatives need their own inadmissibility waivers
COMMON INADMISSIBILITY GROUNDS Present without permission. 212(a)(6)(A) Failure to attend removal hearing 212(a)(6)(B) Visa Fraud. 212(a)(6)(C)(i) False Claim of US Citizenship. 212(a)(6)(C)(ii) Alien Smuggling. 212(a)(6)(E) Previously removed or removal order. 212(a)(9)(A ) Entry after unlawful presence. 212(a)(9)(B) EWI after unlawful presence/removal 212(a)(9)(C) Crimes 212(a)(2) et seq Health condition that creates danger to self or others 212(a)(1)(A) Drug Abuser 212(a)(1)(A) No Passport 212(a)(7)(B)(I)(I) Public Charge 212(a)(4)
POSSIBLE BARS TO ADMISSION Failure to Comply with Voluntary Departure Order Marriage Fraud (CWS)
DIFFICULT INADMISSIBILITY FACTORS Prior Removals Multiple removals Crimes involving moral turpitude Drug crimes Multiple crimes Violent crimes Gang related crimes
Do Grounds Apply? Inadmissibility ground not triggered if… –Not in 212(a) Work without permission or false SSN Driving w/o license and other traffic stops Disturbing the peace, drunk in public DUI –Not in use: fraudulent documents (274(c)) –Not a conviction Juvenile court findings Watch out for admissions –Exceptions to CIMT ground Petty offense Committed when juvenile May still need to be addressed
Identifying Inadmissibility Factors FBI or State DOJ check for –Most arrests, charges, convictions –Most immigration violations Screening Forms can check for detentions, arrests, immigration proceedings, alien smuggling, multiple EWIs, etc. –It is essential that clients tell the truth. Can include in contract. “Yes” answers on I-918 - False claim not specifically asked
Removal or Not? At the Border –Expedited Removal Process by CBP 2 interviews 3 fingerprint cards Sworn Statement (Qs about credible fear) I-860 “And don’t come back!” –Paroled in for hearing before IJ –Voluntary Return
Removal or Not? Elsewhere –Ordered removed by IJ –Got VD from IJ, but didn’t leave –After an immigration hold Voluntary Departure vs. Stipulated Removal –Possibly filed immigration papers before? –Received a notice from ICE or Immigration Court – may have “in absentia” order Asylum Adjustment through family member Ever had an immigration attorney?
WAIVER ADJUDICATION FACTORS From INA 212(d)(14): –PUBLIC AND NATIONAL POLICY Foster cooperation Need for protection of criminal justice system –AG’s DISCRETION: HARDSHIP (Include being crime victim) BALANCE OF EQUITIES –POSITIVE (Include helpfulness in investig/prosecution) –NEGATIVE (Inadmissibility, other factors) From Interim Regulations: “Humanitarian Considerations” From USCIS: –Applicant should take responsibility –Rehabilitation important
ADDRESSING INADMISSIBILITY ON THE I-918 Dealing with Yes answers –Make sure applicant knows that USCIS will do background check –Explain them on attachment(s). USCIS will assess credibility. What was the incident? What were the consequences (e.g. arrest, paid fine) Admit responsibility Express remorse Show rehabilitation –Not sure if it’s yes or no? U Inadmissibility waivers are generous, but will a “yes” answer come back to bite the applicant later? Address it how you wish on the form, and include explanation in –attachment and/or –applicant’s declaration and/or –cover letter. –Attach police/prosecution records? Pro: USCIS is a reasonable partner – why not provide? Con: USCIS may not be such a reasonable partner – why provide?
ADDRESSING INADMISSIBILITY ON THE I-192 No longer benefit in waiting for RFE if inadmissibility is clear. –Unless fee waiver becomes much harder with I-912 Change heading from 212(d)(3) to (d)(14)? Only need to complete 1-7 and 12. Question 12 –Pros and Cons of blanket waiver Easier Less clarity what was waived –No more pre-waiving 10 year bar –Describe violations or list INA sections
WAIVER DOCUMENTATION Simple “Present w/o Permission” only requires form and fee (waiver) More Serious Violations May Require More Significant Evidence Include Brief Declarations With: –Without Waiver, No U status, and I’m otherwise eligible for U status because… –Account of crime(s) and cooperation –Hardship factors if no U status –Positive equities outweigh violation Public/National Interest: Oakland, SF policy statements