Inadmissibility and Waivers

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Proposed Guidance on Extreme Hardship

Charles Wheeler

The USCIS circulated draft guidance on October 7th interpreting the term “extreme hardship” and explaining how it should be applied to waiver applications. Three of the most common waivers currently require the applicant to establish extreme hardship to a qualifying relative: the three- and ten-year bars due to unlawful presence; fraud or misrepresentation; and criminal conduct.  For the first two waivers the qualifying relative must be a U.S. citizen or LPR spouse or parent; if the waiver is for criminal conduct, the qualifying relative could be a U.S. citizen or LPR spouse, parent, or child.  The guidance sets forth in greater detail and specificity how adjudicators should weigh various hardship factors.  The following is a summary.



On November 20, 2014 DHS Secretary Jeh Johnson issued a memo directing the USCIS to expand eligibility for the provisional waiver program to include other family-based categories and provide additional guidance on the definition of extreme hardship.  The intended purpose of the guidance is to “provide broader use of this legally permitted waiver program.” In addition to clarifying the factors to be considered, the Secretary directed the agency “to consider criteria by which a presumption of extreme hardship may be determined to exist.”


Should I Stay or Should I Go?

Adjudicators currently require waiver applicants to demonstrate that the qualifying relative would suffer extreme hardship in two scenarios: if he or she were to relocate to the applicant’s country, and if he or she were to remain in the United States separated from the applicant. This requirement is set forth in the adjudicator’s training manual (Standard Operating Procedures, or SOP) and is now boilerplate language in every written decision, even though it is not explained to the applicant in the instructions to the Form I-601 or I-601A. One of the most significant proposed changes is to reduce the burden of demonstrating extreme hardship to the qualifying relative.  The guidance would allow the applicant to decide whether the qualifying relative would either relocate or remain in the United States, depending on what is “reasonably foreseeable.”  The applicant would then only have to establish extreme hardship in one of those scenarios rather than both. 


Written decisions on unlawful presence waivers reveal that it is easier to establish that the qualifying relative would suffer extreme hardship due to relocating to the applicant’s country.  Decisions often cite the qualifying relative’s lack of foreign language skills, unfamiliarity with the foreign country, inability to find comparable employment, the stress in relocating to a different culture, and any health-related factors that would be exacerbated by such a move. In most cases it is more difficult to establish that the qualifying relative would suffer extreme hardship due to separation from the waiver applicant. The proposed change would likely encourage applicants to show why it is reasonably foreseeable that the qualifying relative would accompany them to the foreign country in order to maintain family unity and why such a move would result in extreme hardship.


In the Aggregate

Adjudicators are reminded that the hardship factors must be considered in the aggregate and that no single hardship, taken in isolation, needs to rise to the level of extreme.  This principle is already set forth in administrative appeal decisions and is codified in the SOP.  But emphasizing it in the guidance may encourage applicants to set forth all of possible hardship factors in the event that, taken together, they add up to extreme hardship.


Surviving Relatives

The guidance also explains that widow(er)s whose U.S. citizen spouse had filed an I-130 petition before dying qualify to file a waiver if they were residing in the United States at the time of the death and continue to reside here.  The same is true under INA § 204(l) for other family members where the petitioner or principal beneficiary has died after filing an I-130 petition and where they meet the residency requirements.  In those cases, the agency will presume extreme hardship and will allow eligibility for the waiver even though the qualifying relative has died.


Hardship to a Non-Qualifying Relative

Children cannot be qualifying relatives under the requirements for waivers for fraud or unlawful presence. Nevertheless, “the hardship experienced by someone who is not a qualifying relative (including the applicant) can itself be the cause of hardship to a qualifying relative.” The guidance encourages applicants to describe the emotional hardship that the qualifying relative parent would experience due to the suffering of a child who must either relocate to a foreign country or remain separated from the applicant.  This “derivative hardship” is one of the factors that adjudicators must consider in weighing the totality of the circumstances.


The Hardship Factors

The guidance points out that any factor that the applicant presents should be considered, in addition to the five most common ones: family ties, social and cultural impact, economic impact, health-related issues, and country conditions.  It then spells out examples of what hardships might fall within each of the five categories.  For example, social and cultural impact could be evidenced by loss of access to U.S. courts, our criminal justice system, and the protection of family law proceedings (protection orders, child support, visitation). It could also be demonstrated by fear of social ostracism and lack of access to social institutions and support networks.  Other examples include the more obvious: lack of language skills, quality of educational opportunities, assimilation into U.S. culture, and community ties here versus in the foreign country.  The country conditions category could include the designation of TPS, civil unrest or generalized level of crime and violence, and State Department Travel Warnings.


Presumption of Extreme Hardship

Probably the most significant part of the guidance is the last section where the agency identifies five circumstances that “are especially likely to result in findings of extreme hardship.”  It is not the same as presumption, but it is edging close to that.  Obviously, we will need to pressure the agency to follow the Secretary’s mandate and use that term.  According to the draft guidelines, if any of these circumstances exist at the time of filing and at the time of adjudication, or at least at the latter stage, the agency would give them great weight:

  1. If the qualifying relative is an asylee or a refugee from the country of possible relocation
  2. If either the qualifying relative, their spouse, or a member of the household that the qualifying relative is legally responsible for is disabled or suffers from a medical/physical condition that makes travel to the foreign country detrimental to their health or safety
  3. If the qualifying relative is on active duty with any branch of the U.S. Armed Forces
  4. If the Department of State has issued either a country-wide travel warning or one for a region of the country where the applicant or the qualifying relative would likely relocate
  5. If separation would result in the qualifying relative becoming the primary caretaker for the couple’s children or otherwise take on significant parental or other caregiving responsibilities.

The fourth circumstance is particularly significant for applicants from Mexico, Honduras, and El Salvador where the State Department has recently issued country-wide or region-specific travel warnings.  The fifth circumstance would benefit any applicant or qualifying relative who is responsible for the welfare of a child, regardless of the child’s citizenship or immigration status.

New and Proposed Rules and Policy Guidance

Fee Waivers (Form I-912)

On July 9, 2015, CLINIC submitted a second round of comments concerning revisions to Form I-912 (initial comments were submitted in May). On August 6, 2015, USCIS met with advocates to discuss further. At that time, USCIS indicated that it had received sufficient feedback on the proposed revision and no further comments were to be collected. Although Form I-912 indicates that it expired May 31, 2015, the May 10, 2013 version or other previous versions may be used until a new version is issued.

Expansion of the Provisional Waiver Program

On July 22, 2015. USCIS published a proposed rule that would expand the current provisional waiver program in two significant ways: (1) allowing other immigrant visa applicants and (2) allowing Lawful Permanent Resident (LPR) parents and spouses to be “qualifying relatives”. At the present time, only U.S. citizen parents and spouses qualify. (For more information, read our article.) 

In preparing its comments to the proposed rule, CLINIC collected feedback from affiliates representing all regions of the United States. CLINIC submitted comments on September 18, 2015. CLINIC will continue to monitor the progress of this initiative and is now preparing for the release of policy memoranda that would define the extreme hardship standard.

Board of Immigration Appeals Recognition & Accreditation

On September 17, 2015 the Executive Office for Immigration Review (EOIR) announced a new proposed rule governing recognition and accreditation (R&A).  It also issued two final rules, each addressing various aspects of legal representation. The proposed rule is titled Recognition of Organizations and Accreditation of Non-Attorney Representatives. The two final rules are titled List of Pro Bono Legal Service Providers for Individuals in Immigration Proceedings and Separate Representation for Custody and Bond Proceedings.

On September 21, CLINIC staff hosted a webinar in which it presented each proposed change and explained the implications for nonprofit organizations. CLINIC is soliciting comments for each of the key areas of proposed change and is working actively with its network of affiliates and other national organizations to provide formal written comments to EOIR by the November 30th deadline.  CLINIC chairs the BIA R&A liaison group, a forum to discuss comments on the proposed rules. Please submit comments here.

USCIS Form N-400, Application for Naturalization

On Monday, September 28, USCIS announced the extension of a comment request period for proposed revisions to Form N-400. USCIS is requesting comments on its proposed updates to Form N-400, Form N-400 Instructions, Public-facing guidance, and USCIS's proposed online N-400 form.  Comments are due by November 12, 2015. (80 FR 58292, 9/28/15). 

Draft Extreme Hardship Policy Guidance for Waiver Applications

On October 7, 2015, USCIS circulated draft guidance interpreting the term “extreme hardship” and explaining how it should be applied to waiver applications. The proposed policy guidance is in draft form only and has not yet gone into effect.

The guidance would set forth, in greater detail and specificity, how adjudicators should weigh various hardship factors in a waiver application. For example, applicants would only have to establish extreme hardship to the qualifying relative if that family member were to relocate with the applicant or remain in the United States separated from the applicant, depending on which is more reasonably foreseeable.  Currently, the waiver applicant has to establish extreme hardship under both scenarios. 

In addition, the guidance lists five special circumstances that strongly suggest the existence of extreme hardship. One of the listed special circumstances is when the State Department has issued a travel warning with respect to a country or a region of a country.

Comments on the draft guidance are due on November 23, 2015. CLINIC will be preparing model comments and circulating them to affiliates. Please see the link below from USCIS to access the text of the draft guidance and contact us at if you have any specific questions or comments.


USCIS Proposes Expansion of Provisional Waiver Program

Charles Wheeler

The USCIS published a proposed rule in the Federal register on July 22, 2015 that would expand the current provisional waiver program in two significant ways. They can be accessed by going to this link: The agency is allowing the public 60 days to comment on the proposed regulatory change. The provisional waiver program is currently open only to immediate relatives who, upon leaving the United States to consular process, will trigger the three- or ten-year bar for unlawful presence. It allows these immigrant visa applicants to file for a waiver of the unlawful presence bar in the United States prior to departing if they will be found inadmissible only for the unlawful presence ground of inadmissibility. To have the provisional waiver approved, they must establish that their U.S. citizen parent or spouse will suffer extreme hardship if the waiver is not approved.

The first way that the USCIS proposes expanding the provisional waiver program is to allow other immigrant visa applicants – in addition to immediate relative – access to it. This means that all other beneficiaries of family-based petitions (Form I-130) may apply for the waiver. This would include all preference-based categories (adult or married children of U.S. citizens; siblings of U.S. citizens; and spouses and unmarried children of LPRs).  It would also allow access to beneficiaries of approved employment-based petitions (Form I-140), VAWA self-petitions (Form I-360), widow(er) petitions (Form I-360), and special immigrants (Form I-360). It allows access to the derivative spouse and children in the above categories. And it also proposes expanding the program to diversity visa lottery winners. The selection of the person for the diversity visa program would be considered the functional equivalent of having an approved immigrant visa petition.

The second way that the USCIS would prose expanding the program is to allow LPR parents and spouses to be “qualifying relatives.” At the present time, only U.S. citizen parents and spouses qualify.

The USCIS limited eligibility in the current program to immediate relatives who had their interview with the consulate scheduled on or after January 3, 2013. The proposed expanded program would maintain that cut-off date for immediate relatives, even if they became eligible for the program for the first time under broader definition of “qualifying relative.” For all others, the cut-off date will be the effective date of the final regulation. Those who are scheduled for a consular interview before that date will be ineligible to apply for the provisional waiver under the proposed rule. Given the likelihood that the Service will maintain those cut-off dates in the final regulation, practitioners should counsel clients not to pay the immigrant visa fees and complete the Form DS-260 if they want to participate in the provisional waiver program. Those clients who are scheduled for an immigrant visa between now and the date of the final rule will not be able to take advantage of the expanded eligibility criteria.

The proposed rule also included certain statistical information. For the first seven months of the program in 2013, the National Benefits Center approved 64 percent of the applications it adjudicated and denied 36 percent. During fiscal year 2014, the agency’s approval rate increased to 71 percent, which it maintained for the first four months of fiscal year 2015.

Practitioners are encouraged to submit written comments on the proposed regulation by September 21, 2015. CLINIC plans to submit comments and specific objections to the cut-off dates. Comments should be sent to Laura Dawkins, Chief, Regulatory Coordination Division, Office of Policy and Strategy, USCIS, DHS, 20 Massachusetts Ave., NW, Washington, DC 20529. They may also be emailed to Whichever means you use, be sure to include the DHS Docket No. USCIS-2012-0003 in the correspondence. 

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Three Decisions Address Definition of Admission

By Susan Schreiber

The concept of admission is central to many critical issues in immigration law. If your client was “admitted,” he or she may qualify to adjust status under INA § 245(a). If your client was “admitted,” he or she is subject to the grounds of deportability, not inadmissibility, and the government will have the burden of proof. And if your client was “admitted,” this may impact on available remedies for relief from removal.

Three recent decisions address the issue of admission in the context of eligibility for an INA § 237(a)(1)(H) waiver and in the context of Family Unity status.  Each of these cases is described below:

  • Matter of Agour, 26 I&N Dec. 566 (BIA 2015)

If you have ever had clients who became an LPR when they weren’t eligible for this status, you may be familiar with INA § 237(a) (1) (H) as a possible option to rescue your client from removal. Under this section, an LPR who obtained status based on a misrepresentation may be eligible to retain residency if they can show that they (a) were inadmissible at the time of admission based on a misrepresentation, whether willful or innocent; (b) are the spouse, parent, son or daughter of a USC or LPR; and (c) are in possession of an immigrant visa or equivalent document and was otherwise inadmissible at the time of admission. 

What does the statutory language mean when it refers to inadmissible at the time of admission? That was the issue in Matter of Agour, where an LPR who allegedly adjusted status based on fraudulent evidence of bona fide marriage sought to apply for an INA § 237(a)(1)(H) waiver. The immigration judge determined she was not eligible for this relief, finding that adjustment of status is not an admission for purposes of this statute.  On appeal, the Board disagreed with the judge, holding that “an alien’s adjustment of status within the United States constitutes an admission for purposes of the waiver at section 237(a) (1) (H) of the Act.”

In arriving at this decision, the Board reviewed the history and purpose of this waiver of deportability, as well as the many cases that have held that an adjustment of status constitutes an admission depending on the context in which the term is used.  In particular, the Board noted that INA § 237(a)(1) creates deportability for those who were inadmissible at the time of entry or adjustment of status, and that limiting waiver eligibility to only those who were admitted with an immigrant visa would lead to an “incongruous application of section 237(a) of the Act.”

As the Board observed, this is the first published decision addressing the availability of an INA § 237(a) (1) (H) waiver to LPRs who adjusted status.   To read the full decision, click here.

  • Matter of Fajardo Espinoza, 26 I&N Dec. 603 (BIA 2015)
  • Medina-Nunez v Lynch, No 14-70657 (9th Cir. 2015)

On June 8, 2015, two decisions were issued that represent bad news for anyone hoping to argue that a grant of Family Unity status constitutes an admission under INA § 101(a)(13)(A).  In Matter of Fajardo Espinoza, the Board affirmed its prior holding in Matter of Reza, 25 I&N Dec. 296 (BIA 2010) that approval of Family Unity status is not an admission as defined in the statute. And in Medina-Nunez  v  Lynch,  No. 14-70657 (9th Cir. 2015), the Ninth Circuit came to the same conclusion,  rejecting it’s prior ruling on this issue and giving deference to the Board’s holding in the  Matter of Reza decision.

What is Family Unity and why is it arguably an admission? Family Unity benefits are available to certain spouses and children of persons who legalized their status under the amnesty or seasonal agricultural worker programs. Family Unity status permits these qualifying relatives to have protection from deportation and employment authorization if they entered the United States before May 5, 1988 (amnesty cases) or December 1, 1988 (SAW cases) and have continuously resided in the United States since then. The regulations governing the Family Unity program are found at 8 CFR § 236, and applications are submitted on a Form I-817. Some, but not all, inadmissibility grounds apply to eligibility.  Family Unity grantees receive a two-year period of “voluntary departure,” which may be extended as long as the Family Unity beneficiary remains eligible for the program.

In the recently decided Fajardo Espinoza case, an LPR charged with deportability for a controlled substance offense sought to apply for cancellation of removal. In order to satisfy the eligibility requirement of residing in the United States for seven years after “admission in any status,” Mr. Fajardo Espinoza sought to rely on the Family Unity status he held prior to becoming an LPR through adjustment of status. Although the Board had already decided this issue in Matter of Reza,  this case arose in the Ninth Circuit, where the court had held, in Garcia-Quintero v Gonzales, 455 F.3d 1006 (9th Cir. 2006) that a grant of Family Unity does constitute an admission. In declining to follow the Ninth Circuit ruling on this issue, the Board noted that the court decision was made prior to Reza and thus did not have the benefit of the Board’s analysis of this issue. Further, the Board reiterated its view that while Family Unity approval does confer a “status,” it does not fall within the definition of admission as set forth in the statute.

On the same day that the Board was deciding not to defer to the Ninth Circuit Garcia-Quintero decision, the Ninth Circuit retreated from that decision and determined that it would defer to the Board’s decision in Matter of Reza.  As a result, the LPR in that case, who was similarly seeking to rely on Family Unity status to satisfy the post-admission residency requirement for cancellation of removal, was unable to qualify for relief.

Although this issue will likely be litigated in other circuits, for now both the Board and the Ninth Circuit are in agreement that a grant of Family Unity status does not constitute an admission.

Finally! BIA Gets It Right on 212(h) Bar for LPRs

By Susan Schreiber

In 1996, Congress amended INA § 212(h) to bar waiver eligibility for an alien with an aggravated felony conviction if that individual had "previously been admitted to the United States as an alien lawfully admitted for permanent residence..." Since then, the language of this so-called “aggravated felony bar" has been the subject of two BIA decisions and ten appellate court decisions.  The Board decisions, Matter of Koljenovic, 25 I&N Dec. 219 (BIA 2010) and Matter of E.W. Rodriguez, 25 I&N Dec. 784 (BIA 2012), interpreted this language as applying to all LPRs, including those who entered the United States EWI or in a nonimmigrant status.  The Eighth Circuit, finding the statutory language ambiguous, issued a decision deferring to the Board's interpretation.  Roberts v Holder, 745 F.3d 928 (8th Cir. 2014).  In contrast, nine appellate court decisions rejected this interpretation and viewed the language of 212(h) as not applying to those LPRs who adjusted status in the United States.  Only the First Circuit has yet to rule on this issue.

On May 12, the Board released a decision bowing to the weight of authority on this issue by holding that an alien who adjusted status in the United States and who has not entered as a LPR is not barred from establishing 212(h) eligibility as a result of an aggravated felony conviction. Matter of J-H-J, 26 I&N Dec. 563 (BIA 2015).  Now, only those who entered the United States as LPRs and thereafter are convicted of an aggravated felony are precluded from establishing 212(h) eligibility based on an aggravated felony.  The Matter of Koljenvic and Matter of E.W. Rodriguez decisions have been withdrawn.

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Intent is Irrelevant to Unlawful Voting

By Ilissa Mira

Unlawful voting has serious consequences for noncitizens.  The BIA confirmed this in a precedent decision finding that a noncitizen is removable under INA § 237(a)(6)(A), regardless of whether the alien knew that he or she was unlawfully voting in violation of 18 USC § 611(a).  Matter of Fitzpatrick, 26 I&N Dec. 559 (BIA 2015).

The Respondent in this case was a lawful permanent resident, who applied for an Illinois driver’s license and signed a voter registration form indicating that she was a United States citizen.  In her naturalization application and during her interview, she disclosed that she had registered to vote and had voted in a federal election.  Specifically, she voted in a local school board election on a ballot that included candidates for both local office and federal office.  The IJ found her removable under INA § 237(a)(6)(A) for unlawful voting and under § 237(a)(3)(D) for false claim to citizenship.  Respondent did not dispute that she had voted in a general election involving candidates for federal office and that she was not a U.S. citizen at the time she voted.  Instead, the case hinged on whether DHS was required to show that she intended to vote in violation of 18 USC § 611 or whether the act of unlawfully voting in a federal election was sufficient to make her removable under INA § 237(a)(6)(A).

Under 18 USC § 611, it is unlawful for any noncitizen to vote “in any election held solely or in part for the purpose of electing a candidate for federal office.”  The Respondent argued that she was unaware that she was acting unlawfully by voting, and that DHS failed to meet its burden of proof because it did not show that she had specific intent to violate the law.  Relying on a prior Seventh Circuit decision, the BIA held that § 611 is a statute of general intent, which requires only that “the defendant performed the acts that the law forbids, understanding what he was doing.”  Kimani v. Holder, 695 F.3d 666, 699 (7th Cir. 2012).  Under this reasoning, it does not matter that the noncitizen is uninformed that it is unlawful for him to vote.  The act of voting alone is sufficient to violate § 611 and trigger deportability.  

The Ninth Circuit reached a different conclusion in McDonald v. Gonzales, 400 F.3d 684 (9th Cir. 2005), a case involving a lawful permanent resident who voted in a Hawaii state election and was subsequently charged with removability.  The Ninth Circuit found that the respondent in this case did not violate Hawaii law because she was unaware that she was not entitled to vote.  Noting that it was not bound by Ninth Circuit decisions, the Kimani court distinguished McDonald v. Gonzales, because it involved a state statute with different language, which unlike 18 USC § 611(a), required “proof of an alien’s knowledge that voting [was] forbidden.”  Matter of Fitzpatrick, 26 I&N Dec. 559 (BIA 2015) note 4.

Limited exceptions to § 611 apply if the election is 1) held partly for some other purpose; 2) the noncitizen is authorized to participate in the election under state or local law; and 3) voting for such other purpose is conducted in way that allows the noncitizen to vote for a valid state or local purpose, but not the opportunity to vote for a candidate for federal offices.  18 USC § 611(a)(1)-(3).  Additional exceptions exist where the noncitizen reasonably believed at the time of voting that he or she was a U.S. citizen.  Id. § 611(c).

The BIA found that the statute requires all three criteria of § 611(a) to be met before the exception would be applied.  The respondent was unable to meet this requirement, although the election was “held partly for some other purpose,” because she could not demonstrate that she was authorized to vote in the local election and that voting for school board officials was held independently from the voting for federal officials.

This decision illustrates the importance of educating clients about who is eligible to vote and counseling them on the harsh penalties for unlawful voting.

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Seventh Circuit Finds IJs Have Jurisdiction of 212(d)(3) Waivers for U Nonimmigrants


If you represent U visa and U status applicants, you already know that immigration judges have no jurisdiction over applications for U status or for applications for adjustment of status under INA § 245(m).  By statute, USCIS has exclusive jurisdiction over theses applications, including waivers of inadmissibility under INA § 212(d)(14), the waiver provision that exclusively applies to the U status applicants.

A recent decision in the 7th Circuit, L.D.G. v. Holder, No. 13-1000 , (7th Cir. 2014), opens the door for immigration judge jurisdiction over non-immigrants waivers under INA § 212(d)(3).  In L.D.G., a respondent in removal proceedings sought a continuance while she pursued U status. Because the applicant was also inadmissible on multiple bases, including crime-based inadmissibility, she filed an application for a waiver, which was denied by USCIS, resulting in the denial of U status.  The respondent then asked the immigration judge to independently consider her application for a waiver of inadmissibility and the judge determined that he lacked jurisdiction to do so.  On appeal, the Board upheld the decision of the immigration judge, and L.D.G. appealed to the Seventh Circuit.

The court's decision notes that there are two inadmissibility waiver provisions under INA § 212(d) that are potentially available to U status applicants and only one of them limits jurisdiction to USCIS.  By statute, only USCIS may grant the special waiver under § 212(d)(14) available to U applicants, but the inadmissibility waiver at § 212(d)(3)(A) vests the authority to waive inadmissibility to the Attorney General, which includes immigration court as part of the Department of Justice.  Reviewing the statutory language, the court concluded that 212(d)(14) and 212(d)(3)(A) waivers "can and do co-exist, and...the IJ has jurisdiction to grant a waiver of inadmissibility to a U visa applicant..."  As a result, the court remanded the case back to the IJ to consider the respondent's application for a waiver.

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New BIA Decision Expands LPR EligibilIty for 212(c) Waivers

By Susan Schreiber

If you represent LPRs in removal proceedings, you will want to take a close look at the Board's recent  decision in Matter of Abdelghany, 26  I&N Dec. 254 (BIA 2014), which presents a new framework for analyzing LPR eligibility for INA § 212 (c) waivers.  It will likely result in more LPRs qualifying for this relief.

In Abdelghany, an LPR with a conspiracy to commit arson conviction was charged with deportability on aggravated felony grounds and requested relief under 212(c).   Relying on the "comparable grounds" test, an immigration judge found Mr. Abdelghany to be ineligible for this waiver because the aggravated felony deportability ground did not have a "statutory counterpart" in the grounds of inadmissibility.  Although Mr. Abdelghany's underlying conviction would most likely trigger inadmissibility as a crime of moral turpitude, the comparable grounds test, as applied by the Board, precluded 212(c) eligibility where the charged deportability ground covers more or fewer offenses than any inadmissibility ground.  Since Mr. Abdelghany was charged with deportability for an aggravated felony, not a crime of moral turpitude, the immigration judge found that the comparable grounds test barred his eligibility for relief.

During the pendency of the appeal, however, the Supreme Court, in Judalang v. Holder, 132 S. Ct. 476 (2011), invalidated the Board's comparable grounds test, characterizing it as "arbitrary and capricious."  The Court directed the Board to fashion another policy regarding eligibility for 212(c) relief.  That new policy, set forth in the Abdelghany decision, represents the Board's attempt to establish 212(c) eligibility rules that do not lead to deportable LPRs being declared ineligible for relief "on the basis of mechanical distinctions arising from the structure of the immigration statute" Abdelghany at 259.

Which LPRs are eligible under the new Board analysis?  First, the decision abandons the comparable grounds test and concludes that all otherwise qualified applicants may apply for 212(c) relief to waive any ground of deportability, unless the applicant is subject to the certain security and international child abduction inadmissibility grounds found at INA § 212(a)(3)(A), (B), (C), or (E), and INA § 212(a)(10)(C).  Second, the Board removes any 212(c) eligibility distinction based on whether the LPR pled guilty or was found guilty after trial.   Note, however, that LPRs still remain subject to other statutory provisions precluding 212(c) eligibility.  This includes LPRs deportable based on certain specified deportability grounds in Section 440(d) of AEDPA, and LPRs convicted of aggravated felonies between November 29, 1990 and April 24, 1996, who served a term of imprisonment of five years or more.  Nevertheless, the  Abdelghany decision represents a major expansion of the availability of 212(c) relief from removal for long-term LPRs.

CLINIC Newsletter - February 2014 - VOL. XVIII No. 2

In this issue…                        

  • Visa Bulletin                                                                                              
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Recent Decisions on Immigration Law and Crimes

By Susan Schreiber

Three recent circuit court decisions provide some good news for immigrants related to immigration consequences of criminal offenses. These decisions, summarized below, address (a) analyzing when an offense is a crime of moral turpitude; (b) LPR eligibility for an INA § 212(h) waiver; and (c) conviction finality.

  1. Silva-Trevino v Holder, No. 11-60464 (5th Cir. 2014)

In 2008, the U.S. Attorney General issued a BIA precedent decision, Matter of Silva Trevino, 24 I&N Dec 687 (BIA 2008), which radically changed the analysis used to determine when an offense is considered a crime of moral turpitude.  Prior to the AG's decision, moral turpitude was analyzed based on the crime as described by the statute , with consideration of the record of conviction permitted where the statute was deemed to be "divisible," i.e. including multiple sections where some but not all sections described turpitudinous conduct.  The AG Silva Trevino decision departed from that analysis by allowing for the consideration of extrinsic evidence – evidence outside the record of conviction – to determine if an offense involves moral turpitude.  Since then, the AGs analysis has been rejected in the 3rd, 4th, 9th, and 11th circuits, with the 7th  and 8th circuits deferring to the AG's approach.   Now the 5th Circuit, hearing Mr. Silva-Trevino's case, has vacated the AG decision and rejected the analysis allowing for the consideration of extrinsic evidence.   This is important news in the “crimm-imm” field because the Silva-Trevino AG decision allowed for a dramatic expansion of crime-based inadmissibility and deportability based on crimes of moral turpitude.   It is likely that we will see more developments on this issue, perhaps including a new BIA precedent decision.

1. Negrete- Ramirez v Holder, No. 10-71322 (9th Cir. 2014)

INA § 212(h), the waiver available for certain crime-based inadmissibility grounds, was amended in 1996 to limit LPR eligibility for this waiver. Under the terms of the statute, no waiver may be granted to an alien "previously admitted to the U.S." as an LPR if that individual was either convicted of an aggravated felony or does not have seven years of continuous lawful residence in the U.S. before being placed in removal proceedings.  Although this statutory language may initially seem unambiguous, advocates have argued that the limitation, as written, applies only to those who entered as LPRs at the border, and not to those LPRs who adjusted status after arrival in the United States.

What does the BIA say?  In two different decisions, two years apart, the BIA has upheld the applicability of the 212(h) LPR bar to all LPRs, regardless of status at entry.  Matter of Koljenovic, 25 I&N Dec. 219 (BIA 2010); Matter of E.W. Rodriguez, 25 I&N 784 (BIA 2012).   The BIA's analysis of the statute, however, was not persuasive to the Ninth Circuit, which joined the 3rd, 4th, 5th, 7th and 11th circuits in finding that the 212(h) bar does not apply to an LPR who adjusted status in the U.S.  It remains to be seen whether this significant rejection of the BIA's analysis of 212(h) may persuade the Board to revisit this issue.   

2. Orabi v. Attn'y Gen., 738 F.3d 535 (3rd Cir. 2014)

When is a conviction final for immigration purposes?  Can a noncitizen be charged with inadmissibility or deportability based on a conviction that is on direct appeal?  Since the enactment of IIRAIRA in 1996 and the inclusion of a definition of conviction in the INA at section 101(a)(48)(A), courts in the 1st, 2nd, 5th, 7th, 9th and 10th circuits, have determined that the statutory definition eliminated the finality requirement.  In the recent Orabi decision, however, the court  disagreed with sister circuits, holding that the principle that a conviction does not attain sufficient finality for immigration purposes until a direct appeal has been waived or exhausted is "alive and well" in the Third Circuit.  This is good news for those in Delaware, New Jersey, Pennsylvania and the U.S. Virgin Islands, the districts covered by the Third Circuit.

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DHS and DOS Announce New TRIG Exemptions

By Tatyana Delgado

On February 5, 2014, the Department of Homeland Security (DHS) and Department of State (DOS) announced two new exemptions from the terrorism-related inadmissibility grounds (TRIG) found at INA§ 212(a)(3).  

TRIG aims to exclude individuals who have or will engage in terrorist activities, such as providing material support to terrorist organizations or their members.  Material support includes providing transportation, communications, funds, explosives, or training, among other activities. 

Terrorist organizations are divided into three categories or ‘tiers.’  Tier I organizations are known as Foreign Terrorist Organizations (FTOs) and Tier II organizations are those found in the DOS Terrorist Exclusion List (TEL).  Tier III organizations, which are groups of two or more individuals engaged in terrorist activities, are undesignated and do not appear on a published list.  See 212(a)(3)(B) of the INA.

In the recent announcement, DHS and DOS acknowledged that TRIG bars certain individuals who are not threats to public safety or national security from obtaining immigration benefits.  As such, DHS and DOS will not apply certain inadmissibility grounds related to material support (specifically, paragraphs 212(a)(3)(B)(iv)(VI)(bb) and (dd) of the INA) to the following:

a) Individuals who provided insignificant material support to Tier III organizations or members of such organizations, or to a person that the individual knows, or reasonably should know, has or will commit a terrorist activity.  See Federal Register Notice, 79 FR 6913, available here.

b) Individuals who provided limited material support to Tier III organizations or members of such organizations, or to a person that the individual knows, or reasonably should know, has or will commit a terrorist activity.   The limited material support must involve: (1) certain routine commercial or social transactions; (2) certain humanitarian assistance; or (3) substantial pressure that does not rise to duress.  See Federal Register Notice, 79 FR 6914, available here.

The reviewing agency has discretion to grant exemptions.  Individuals seeking immigration benefits must meet other requirements, including passing background and security checks.  They must fully disclose information about the circumstances of any material support.  In addition, the given agency must be satisfied that such individuals merit an exemption under the totality of circumstances.  

Implementation directives have followed after announcements of other TRIG exemptions, so stay tuned for further developments on this matter. 

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CLINIC Newsletter - December 2013 - VOL. XVII No. 12

In this issue…                        


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Adjustment for Visa Waiver Entrants

By Kristina Karpinski

On November 14, 2013, USCIS issued a policy memorandum on adjudication of Form I-485, Application to Register or Adjust Status, filed by immediate relatives of U.S. citizens admitted to the United States under the Visa Waiver Program (VWP).  This long awaited guidance clarifies USCIS's position on adjudication of adjustment cases filed after the applicant's 90-day period of admission has expired and outlines when a case should be referred to ICE.

Under INA § 217, nationals of designated countries are allowed to enter the United States as visitors for a maximum period of 90 days without having first obtained a visa.  To enter under the VWP, the visitor must meet certain requirements and waive his or her right to contest removal from the United States, except when requesting asylum.  Those admitted under the program are ineligible to extend or change their nonimmigrant status. Further, under INA § 245(c), VWP visitors are not eligible for adjustment unless they are immediate relatives.

The policy memo instructs field offices to adjudicate adjustment of status cases filed by immediate relatives who were last admitted to the United States under the VWP, including I-485 applications filed after the 90-day period of admission. The memo acknowledges that ICE has authority to order the removal of a VWP overstay, including immediate relatives, but points out that USCIS can exercise its discretion and not seek removal but grant adjustment of status. The guidance instructs that adjudication shall occur before referral to ICE unless:

  • ICE has previously issued a removal order
  • The adjustment applicant is under investigation for, been arrested for, or been convicted of an egregious public safety offense as described in USCIS Policy Memo, "Revised Guidance for the Referral of Cases and Issuance of Notices to Appear (NTAs) in Cases Involving Inadmissibility and Removable Aliens" (November 7, 2011), or
  • There are fraud or national security issues to resolve.

The memo explains that if ICE has issued a removal order for violation of the VWP rules, USCIS should deny the I-485 as a matter of discretion.  However, if a removal order is withdrawn or rescinded by ICE, USCIS can approve the adjustment if the applicant is otherwise eligible.

The policy guidance goes on to explain that a VWP overstay whose I-485 is denied by USCIS, cannot appeal the decision and may not be placed in section 240 removal proceedings before an immigration judge.  However, there is an exception for some cases filed in the Ninth Circuit. A VWP overstay who is an immediate relative and who files the I-485 within the 90-day period of admission in the Ninth Circuit is entitled to be placed in section 240 removal proceedings if the case is denied.  Freeman v. Gonzales, 444 F.3d 1031 (9th Cir. 2006).  This includes applicants who lived in the Ninth Circuit when the application was filed but move to another jurisdiction before the I-485 is adjudicated.   For cases outside of the Ninth Circuit, USCIS will refer denied I-485 applications of VWP overstays to the local ICE office for consideration of a section 217 removal order.

The policy memorandum can be found on the USCIS website by following the link under "Laws" for "Policy Memoranda," and will be incorporated into the USCIS Adjudicator's Field Manual (AFM) at Chapter 10.3, section (j).

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Webinar: Waiving Crimes Away: All About 212(h) Waivers

Price: $25.00

Your client wants to be become a lawful permanent resident but he has a criminal record.  You're not sure if his record will bar him from eligibility.  Your lawful permanent resident client was placed in removal proceedings upon returning from a trip abroad.  You need to determine if she can retain her residency through a waiver. Who qualifies for a waiver of crime-based inadmissibility?  What kinds of crimes are covered and what do you need to show to qualify for a waiver?  When can a lawful permanent resident use a 212(h) waiver to overcome losing his or her status based on a criminal conviction?  To learn all about 212(h) waivers, join CLINIC attorneys Sarah Bronstein and Susan Schreiber for a webinar on this topic.


Susan Schreiber

Sarah Bronstein

Held On: 11/20/13

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New Policy on Minors and False Claims to U.S. Citizenship

New Policy on Minors and False Claims to U.S. Citizenship

By Sarah Bronstein

In two separate letters to Senator Harry Reid of Nevada, the Departments of State (DOS) and Homeland Security (DHS) indicated that both federal agencies are adopting a new policy on regarding minors who make false claims to citizenship.   The letters, dated August 29, 2013 and September 12, 2013, state that the agencies have conducted a review of the false claim to citizenship ground of inadmissibility and have concluded that there are circumstances in which this ground of inadmissibility should not be applied to individuals who are under the age of 18. 

The false claim to citizenship ground of inadmissibility, INA § 212(a)(6)(C)(ii), applies to any foreign national who, on or after September 30, 1996, falsely represents himself or herself to be a citizen of the United States for any purpose or benefit under the INA or any other federal or state law.  The issue of how this ground should be applied to minors has long been a contentious one.  The State Department issued guidance on this issue in April 2013 indicating that this ground of inadmissibility would not be applied in certain circumstances to claims made when the non-citizen was under the age of 18.  However, this guidance was quickly retracted.

In this latest guidance, DHS and DOS clarify that in order for a false claim to trigger this ground of inadmissibility, it must be made knowingly.  In addition, the agencies set an affirmative defense to this ground where: 1) the individual was under the age of 18 when the false claim was made, and 2) at that time he or she lacked the capacity to understand the nature and consequences of the false claim.  The burden is on the non-citizen to establish these elements clearly and beyond doubt.

Both agencies indicate in their letters that this guidance has been provided to the field and that the Adjudicator’s Field Manual (AFM) and the Foreign Affairs Manual (FAM) will be updated to reflect these changes.  The letters further state that the agencies are discussing procedures for individuals who were previously found inadmissible due to a false claim to citizenship made as a minor.  We will update you as developments continue.

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BIA Affirms Effect of Entry with False Claim of Citizenship

BIA Affirms Effect of Entry with False Claim of Citizenship

By Charles Wheeler

The BIA held that a woman who procured a U.S. passport by fraud and used it to gain entry to the United States was not considered “inspected and admitted,” and therefore is subject to the grounds of inadmissibility when placed in removal proceedings.  The Board had held more than 30 years ago that where an alien gained admission to the United States through a false claim of citizenship, it was considered entry without inspection.  Matter of Arequillin, 17 I&N Dec. 308 (BIA 1980).  The basis of that ruling came from a Supreme Court decision that found that U.S. citizens are not subject to the same level of scrutiny by border inspectors as non-citizens.  Reid v. INS, 420 U.S. 619 (1975).  The Court treated a person who enters through a false claim of citizenship as “comparable to that of a person who slips over the border and who has, therefore, clearly not been inspected.”  In this case the BIA found the woman to have entered without inspection, to have been convicted of a crime of moral turpitude (procuring a passport by fraud), and in its discretion to not merit a grant of voluntary departure.  Matter of Pinzon, 26 I&N Dec. 189 (BIA 2013).

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Update from the NBC on Provisional Waivers

By Susan Schreiber and Charles Wheeler

On September 26-27, 2013, CLINIC conducted a two-day training in Kansas City on provisional adjudication of unlawful presence waivers.  The training included a presentation by Robert Blackwood, Assistant Section Director for Adjudications at the National Benefits Center (NBC), who gave an update on the waiver adjudication process at the NBC and answered questions from training participants.  A summary of the information he provided appears below.

NBC Background

The NBC serves mainly as a pre-processing center for applications adjudicated at USCIS field offices, including I-485 adjustment applications and N-400 naturalization applications. In addition, the NBC adjudicates certain applications and petitions to completion, including I-90s, immediate relative I-130 petitions, interview-waivable adjustment applications and, since March 4, 2013, I-601A applications for provisional waivers.  In addition to its facility at Lee Summit, MO, the NBC has expanded to include a new facility in Overland Park, KS.   Approximately 500 government employees and 800 contract workers staff the Lee Summit site. Currently, the NBC facility in Lee Summit employs approximately 550 government workers, and 800 contract workers.  A new NBC facility in Overland Park, KS is expected to employ 400-500 government workers and a similar number of contract workers.

I-601A Adjudication

The NBC is divided into eight divisions.  Division 1 is responsible for I-601A adjudications and   is staffed with between 45-50 adjudicators and 5 supervisors.  When fully staffed, the division will have 6 supervisors, who in turn report to 2 section chiefs.

All I-601As are filed at the Chicago Lockbox, which reviews submissions under its own business rules that address document sufficiency.  If rejected, an application should be accompanied by an explanation of deficiency.  If accepted, the Lockbox creates a case receipt file and forwards it to the NBC, where it goes through its own initial processing checklist.  NBC contract staff goes through their checklist to determine if the application is complete.  If staff determines there are missing documents, it issues a Request for Evidence (RFE); otherwise, it will schedule the applicant for a biometrics appointment. When the biometrics and the name check results come back, the application is transferred to the “JIT" ("Just in Time”) shelves and is considered ready to be adjudicated.

Supervisors assign cases to adjudicators when they are ready to be adjudicated. When they receive a file, the adjudicator first looks for basic eligibility – name check and biometrics response, national security issues – and if there is a “hit,” the file is forwarded to a security clearance team for resolution.  For cases that pass security clearance or do not have “hits,” the adjudicators follow a “processing checklist” sheet, which guides them through the process of determining statutory eligibility (e.g., USC qualifying relative) and whether the applicant has satisfied the extreme hardship standard.  The adjudicator makes notes on the processing checklist, which is helpful in making the decision and for later supervisor review. If the case is denied, the file is sent to the National Records Center, where it will be stored.  If it is approved, the file will be sent to the Texas Service Center.  The TSC holds on to the case files so they can be matched up later after the applicant immigrates.  The NBC sends the applicant and the representative the written approval or denial decision.

The NBC sends the National Visa Center (NVC) an electronic data report on I-601A receipts on a daily basis, so that the NVC can stop processing the immigrant visa application until there is a decision on the waiver application. A "decisions" report is then sent to the NVC every week, to inform the NVC of waiver application outcomes so that the NVC can then proceed with IV processing. The NBC does not send the actual I-601A decision to the NVC; it only sends notification of whether the I-601A was approved or denied. If the NBC denies the application because it has a “reason to believe” the applicant might be inadmissible under another ground, it only informs the NVC that the waiver application was denied.

For the first two months of provisional waiver adjudication, all applications were reviewed by division supervisors to ensure that the appropriate decisions were being made. Now, all denials are reviewed by the supervisor and approvals only spot-checked.  If a supervisor has questions or concerns about a particular decision, the supervisor is not supposed to tell the adjudicator how to rule in a particular case.  Instead, the supervisor should encourage a dialogue with the adjudicator to find out more about the decision recommendation.  If there is still disagreement as to whether the application should have been approved or denied, the supervisor may go to one of the section chiefs for further guidance.

Every week a report is generated indicating how many applications were adjudicated.  Based on those reports, the process is becoming more efficient.  The NBC is in communication and is sharing data with the State Department to determine whether I-601A applicants who were denied were later approved by the consulate through an I-601 waiver.  It is looking specifically to see if applicants denied based on the “reason to believe” standard were found by the consulate to be inadmissible only for unlawful presence and later approved through an I-601. It is also seeking the opposite type of statistics: whether applicants whose I-601As were approved were later denied by the consulate due to a finding of inadmissibility on a ground other than unlawful presence.  After only six months of provisional waiver adjudication, the statistical evidence is not yet meaningful to draw any conclusions on these issues.

If an I-601A applicant who is denied elects to re-file, the NBC will pull the original application and check it against the new application.

Both ICE and EOIR seem supportive of the provisional waiver process because it allows them to clear cases off their active docket where the respondent is likely to receive an immigrant visa.


The NBC has provided the following numbers based on I-601A applications received or adjudicated from March 4 – September 14, 2013:

23, 949 applications sent to Lockbox

17,996 applications accepted by Lockbox

5,953 application rejected by the Lockbox

The reasons for rejection could include no applicant signature, no proof of I-130 approval, no proof of NIV fee paid, or applicant is under 17.  The number of applications received may include re-filings by applicants whose cases were initially rejected at the Lockbox.  

The NBC has 12,098 applications in the pipeline, with approximately 2,300 ready for processing. It is averaging approximately 600 applications/week, so it has about four weeks of applications to adjudicate.  With 45 adjudicators currently working these cases, this averages out to each adjudicator handling about 13 applications per week, or about 2.6 per day.  Mr. Blackwood noted that adjudicators have other work responsibilities, including time spent in trainings and at meetings.

The NBC has issued the following decisions:

3,497 approvals (59%)

2,292 denials (39%)

103 admin closures (application returned for various reasons, e.g., filed I-601 instead of I-601A) (2%)

Although applications have been denied for various reasons, the highest number of denials – 1,093, or 48% of all denials – is for "reason to believe."  The second highest number – 937, or 41% of all denials – is for failure to establish extreme hardship.  Other reasons for denial include abandonment, applicant in proceedings, pending adjustment of status application, lack of qualifying relative, pre-2013 consular interview scheduled, and applicant subject to existing or final order of removal.

At present, the average time between receipt of an application at the Lockbox and decision issuance is 103 days.  The goal is to reduce the adjudication time to 90 days. The NBC adjudicators were working at that pace initially until the “reason to believe” denials became a controversial issue.

Reason to Believe

Mr. Blackwood explained that the provisional waivers working group developing the I-601A regulations and procedures for processing wanted to keep inadmissibility determinations a function of the Department of State, so that USCIS officers would limit their consideration to waiver adjudication. This is because the USCIS has no authority to determine admissibility in a case to be decided by the consulate after the applicant has left the United States and appeared for the interview. In other words, the USCIS did not want its adjudicators analyzing whether the applicant was inadmissible on grounds other than unlawful presence. At the same time, the USCIS did not want to approve I-601As and have the applicant be denied at the consulate for another ground of inadmissibility.

That was the rationale for developing the “reason to believe” standard, where the adjudicators would make a very quick assessment based on the name check and biometrics results as to whether the applicant might be inadmissible on another ground. Under this standard, adjudicators are instructed to deny all applications involving a criminal conviction, regardless of what the conviction is for, when it occurred, or whether it falls within a recognized exception to inadmissibility, like a petty offense.  If  the fingerprint check resulted in a “hit” during an IDENT database search, and it revealed a conviction, then the application was denied under the “reason to believe” standard.  Similarly, if there was an inconsistency in the name or date of birth of the applicant and that provided during CBP processing for voluntary departure after an arrest at the border, the applicant was denied for “reason to believe.”

As the NBC staff soon realized, this broad application of the "reason to believe" standard has led to a high denial rate.  Given this development, Mr. Blackwood announced that, as of six weeks ago, NBC stopped issuing any "reason to believe" denials and is suspending adjudication of cases where this issue is present while USCIS and DOS reconsider the current policy and decide how to proceed in the future.  During this time, cases that involve a potential "reason to believe" issue are being held in abeyance, with no action taken on the case; currently about 1,300 pending applications are affected by this issue and will not be adjudicated until there is further guidance on the reason to believe policy.

Mr. Blackwood noted that if the reason to believe standard is changed so that not all of the denied cases would warrant denial under revised interpretation, the NBC will also consider whether to apply any new policy retroactively and reopen denied cases sua sponte.

While there is no mechanism to appeal a denial or seek reconsideration, the NBC can reopen a case on its own if it believes a denial was made incorrectly. Mr. Blackwood indicated during his presentation that denials under the reason to believe standard that seem clearly wrong could be brought to his attention and he would pull the file to see if the agency made a mistake.  The examples he gave where the standard might have been misapplied include cases where the applicant’s name and date of birth appear inconsistently in DHS data files, but the inconsistency appears to be a clerical error or insignificant.  It would not include cases containing criminal convictions, since the agency is waiting for further instruction before reviewing those.  To bring those cases to his attention, send an e-mail to the authors at or  Include the name of the applicant, the waiver receipt number, and the “A” number, as well as a brief description of the issue (e.g., month and day of applicant’s date of birth were transposed; applicant’s name recorded incorrectly).

Adjudication of Extreme Hardship and RFEs

Current policy does not mandate that the agency issue an Request for Evidence (RFE) before issuing a denial.  NBC adjudicators will typically issue an RFE if they believe additional documentation will help them reach a decision in a case.  For example, if an applicant claims a health-related hardship, but only submits financial evidence, the adjudicator will issue an RFE.  Or if the applicant claims multiple hardships but submits only evidence supporting one claimed hardship, or weak evidence of hardship, the adjudicator will issue an RFE for the additional evidence.  But if the applicant claims hardship and the officer believes sufficient evidence was presented but that the extreme hardship standard was not met, then the adjudicator can simply issue a denial without issuing an RFE.  In other words, if additional documentation would not add any value to the hardship claim, the NBC will forego issuance of an RFE.  Mr. Blackwood noted that quality control measures are in place because all denials are reviewed by a supervisor. 

Mr. Blackwood explained that RFE response times are set at 30 days so that consular processing is not delayed.  A request for an extension may be considered if there are compelling reasons warranting additional time to respond to the RFE

Comparison with NSC Adjudications of I-601

NBC staff made adjustments to their standards for evaluating extreme hardship that has resulted in more provisional waiver approvals. These adjustments came in the wake of exchanging information and statistical data with the NSC regarding its adjudication of I-601 waivers, as well as reviewing AAO waiver denial reversals.  Mr. Blackwood explained that adjudicators are now assessing extreme hardship to the qualifying relative as impacted by hardships to other family members. As a result, the denial rate has come down and the NBC is approving more applications.  Mr. Blackwood anticipates that the denial rate will continue to go down as adjudicators gain more experience.

Mr. Blackwood also noted that the provisional waiver is more challenging for the applicant, because the hardship to the qualifying relative is prospective, as opposed to the I-601 applicant who has left the United States and whose qualifying relative is already experiencing the hardship.  For this reason, the denial rates will not necessarily be comparable. 

Waiver Submission Format 

Mr. Blackwood encourages applicants to submit a cover letter or brief that summarizes the hardships and helps the adjudicator understand the theory of the case. Submit all supporting evidence that is pertinent, such as a doctor’s letter summarizing medical conditions.  Since the Lockbox removes all tabs and bindings, use some kind of pagination system to help identify and segregate supporting documentation.  Even though the application is scanned at the Lockbox, the original submission is still sent to the NBC; any highlighting of important documentation or color dividers separating exhibits will be retained.  If submitting supplemental information after the application has already been submitted, make sure to include the receipt number and the A#.   Avoid sending multiple pages from the Internet on a specific medical condition (e.g., definition of diabetes) or DOS country conditions reports.


Stay tuned for a formal decision from the USCIS on whether the NBC will modify the way it adjudicates I-601As with respect to the reason to believe standard.  Expect the NBC’s current approval rate (approximately 60%, including reason to believe denials) to increase.

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Board Rejects Stand-Alone 212(h) Waiver

Board Rejects Stand-Alone 212(h) Waiver

By Susan Schreiber

Imagine two brothers who immigrate together in 1998.  In 2001, both brothers are convicted of petit larceny offenses in Florida on two separate occasions.   Some years later, both brothers travel abroad and return separately.  Brother A is stopped at the border and, because of his convictions, is treated as an LPR seeking admission.  He is paroled back into the United States, charged with crime-based inadmissibility in removal proceedings, and is eligible to apply for a  "stand-alone" 212(h) waiver, i.e. a waiver filed without a concurrent application for adjustment of status.  Meanwhile, Brother B is readmitted back into the United States and his crimes do not come to the attention of DHS until later. At that point, since he is already in the United States, his removal proceedings are based on a charge of crime-based deportability.  Is Brother B eligible to apply for a stand-alone 212(h) waiver too?

According to a recent BIA decision, Matter of Rivas, 26 I&N Dec. 130 (BIA 2013), the answer is no.  In the Board's view, a stand-alone waiver is only available to arriving aliens seeking re-admission; all others are eligible for a 212(h) waiver only if also applying for adjustment of status. Since the LPR in Rivas was not eligible to seek adjustment, the Board concluded he did not qualify for a 212(h) waiver.

In the underlying case before the immigration judge, Rivas had successfully argued that he qualified for a "nunc pro tunc" waiver, pointing out that, due to his travel, he had been admitted when he was not in fact admissible.  Relying on Matter of Sanchez, 17 I&N Dec. 218 (BIA 1980), which held that a 212(h) waiver may be granted nunc pro tunc to a returning LPR charged with deportability, Rivas argued that because he had traveled abroad after being convicted, nunc pro tunc waiver approval would resolve the issue of his inadmissibility at the time he was erroneously readmitted.  The Board rejected this argument, noting that (a) unlike with Rivas, the LPR in the Sanchez case had also applied for adjustment of status, and (b) the statutory language of 212(h) has been modified since the Sanchez decision, limiting waiver availability to situations where the noncitizen is applying or reapplying "for a visa, for admission to the U.S. or adjustment of status." INA § 212(h)(2).  The Board also reasoned that allowing for stand -alone nunc pro tunc waivers would provide a mechanism to avoid the requirement that an adjustment application be filed concurrently with the waiver request.

The Rivas decision is in accord with three circuit court decisions that similarly construe 212(h) as not allowing for stand-alone waiver submissions unless the non-citizen is an arriving alien.   Poveda v U.S. Att'y Gen., 692 F.3d 1168 (11th Cir. 2012); Cabral v Holder, 632 F.3d 886 (5th Cir. 2011); and Klementanovsky v Gonzales, 501 F.3d 788 (7th Cir. 2007).  In effect, these court and BIA decisions allow for the disparate treatment of noncitizens based on whether they departed the United States and are put in proceedings upon return.

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Supreme Court Revives the Categorical Approach

 Supreme Court Revives the Categorical Approach

By Sarah Bronstein

In Descamps v. United States, No. 11-9540, 570 U.S. ___ (2013), the U.S. Supreme Court reviewed the approach that should be used when determining whether a state criminal offense triggers consequences under federal law.  While the issue in this decision was not an issue under the Immigration and Nationality Act, advocates will argue that this decision should be applied in the immigration context to determining whether a ground of inadmissibility or deportability has been implicated by a particular conviction.  In its decision dated June 20, 2013, the Supreme Court found that unless a statute is divisible, the fact finder must use the categorical approach and cannot go beyond the language in the statute to determine whether it meets the required definition under federal law. This decision rolls back the erosion of the categorical approach we have seen in recent years and settles a split in the U.S. Courts of Appeals.

The issue in this case was the application of a sentence enhancement under the Armed Career Criminal Act (ACCA) in the criminal trial of the defendant, Mr. Descamps.  Under the ACCA, a federal defendant’s sentence can be enhanced if he or she has three prior convictions for “violent felonies” including burglary, arson and extortion.  Mr. Descamps had been convicted of burglary under the California Penal Code.  Mr. Descamps argued that the categorical approach should be used to determine whether his California burglary conviction constituted a “violent felony” for purposes of the ACCA.  The categorical approach mandates that the adjudicator look only to the statute of conviction to determine whether the minimum conduct required under the statute meets the generic definition of the offense.  Under the categorical approach, the underlying facts of the case – the conduct that the defendant actually engaged in – are irrelevant to this determination.  Mr. Descamps argued that the California statute is broader than the generic definition because it does not include unlawful entry as an element of the offense.  His position was that under the categorical approach, the adjudicator’s inquiry should end there with the language of the statute.  The lower courts disagreed, and used the modified categorical approach to determine whether the facts in the case met the generic definition of burglary.

When the modified categorical approach can be used has been the subject of a great deal of litigation.  Traditionally, the modified categorical approach was reserved for “divisible statutes” – statutes that list several different types of conduct or offenses in the alternative or have multiple subsections.  See Shepard v. United States, 544 U.S. 13 (2005).  In the case of a divisible statute, the modified categorical approach can be used to determine under which section of the statute the defendant had been convicted by looking at the record of conviction.  The record of conviction includes the charging document, the plea agreement, plea colloquy, and jury instructions.  In subsequent years, both the Board of Immigration Appeals and certain U.S. courts of appeal have broadened the circumstances in which the modified categorical approach may be used to situations without a divisible statute but where the statute is broader than the generic definition of the offense.  See e.g. Matter of Lanferman, 25 I&N Dec. 721 (BIA 2012); United States v. Aguila-Montes de Oca, 655 F.3d 915 (9th Cir. 2011) (en banc).

In Descamps, the Supreme Court rejected the expansion of the modified categorical approach and held that the modified categorical approach does not apply to statutes that contain a single, indivisible set of elements.  Applying the categorical approach and looking only at the statute of conviction, the Court found that Mr. Descamps’ California burglary conviction did not meet the generic definition of burglary and therefore could not form the basis of a sentence enhancement under ACCA. 

What remains to be seen is how this case will be applied in the immigration context.  We will keep you updated as this area of the law continues to develop.

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All About Fee Waivers

This webinar training focuses on how to obtain a fee waiver for a naturalization applicant who is unable to pay the USCIS application fee. We discuss the fee waiver eligibility criteria, the application process with the Form I-912, and the documentation requirements. We also discuss problems or pitfalls that may arise and how to avoid these, as well as special considerations for completing fee waiver applications at naturalization group processing workshops.

Click here for the presentation slides.

Held on March 7, 2013.

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CIR Planning & Preparation: Budgeting and Resource Development

Early planning and preparation for CIR implementation includes budgeting and resource development.  This webinar introduces resources to help CLINIC affiliates in these processes.  Included in the webinar is a newly-released CIR Preparation Checklist for program directors to guide their planning, webinar slides on budgeting decisions and several resource development tools including a proposal template, budget narrative and work plan to seek external funding.


Back to CLINIC's CIR Resource Page

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The New Unlawful Presence Waiver Adjudication Process: Uniting Families Safely and Boosting Naturalization

Held February 25, 2013.

The USCIS will start accepting provisional waivers for unlawful presence on March 4, 2013.  This new procedure can help your program promote naturalization as well as family-based immigration.  More clients will want to file I-130 petitions and initiate consular processing if they can file the unlawful presence in the United States and wait here for a decision. Clients will be turning to your program to help them file the waiver.  More clients will be motivated to naturalize if it will convert their spouse to an immediate relative.  In this webinar we will cover eligibility for the provisional waiver as well as how your program can gain the maximum advantage for your clients. Join CLINIC staff members  Jack Holmgren and Charles Wheeler as they discuss both the substance of the law and how to prepare for an increase in demand for services.

Click here for the presentation slides.

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USCIS Finalizes Regulation on Provisional Waivers for Unlawful Presence

On January 3, 2013, the USCIS finalized its regulation regarding the adjudication of waivers for those who are consular processing and would be triggering the unlawful presence ground of inadmissibility.  The rule provides a process by which the agency will adjudicate these waivers before the applicants leave for their immigrant visa interview.  The procedure would be available only to immediate relatives who are inadmissible based on unlawful presence – and no other grounds – and who can establish extreme hardship to a qualifying U.S. citizen spouse or parent.  To be eligible, the applicant would need to have an approved I-130 or I-360 petition and have paid the immigrant visa fee bill.

Read the entire memo here.

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Comments on Provisional Unlawful Presence Waivers of Inadmissibility for Certain Immediate Relatives

On January 9, 2012, U.S. Citizenship and Immigration Services (USCIS) announced its intention to change its current process for filing and adjudicating certain applications for waivers of inadmissibility filed in connection with an immediate relative immigrant petition.  On April 2, 2012, the agency issued proposed regulations to allow certain applicants to apply for and receive a provisional unlawful presence waiver prior to departing the U.S. for the Immigrant Visa (IV) interview.   Click here to see CLINIC’s comments on the proposal.


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Update and Next Steps on Pre-Adjudication of Waivers

The USCIS has published its proposed regulation on stateside pre-adjudication of unlawful presence waivers. CLINIC staff conducted a free webinar to affiliates that covers all aspects of this proposed change.  The webinar includes a summary of the proposed regulation, the potential impact on your caseload, and the steps you might take to prepare for it.  CLINIC will be developing community education handouts and other materials, as well as model comments to the proposed regulation.  Presenters include Maria Odom, CLINIC's Executive Director, and staff from the Capacity Building, Advocacy, and Training and Legal Support sections.

Held on May 3, 2012.

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