10-year bar for voluntary departure overstay applies to U-1 adjustment applicants
The Matter of L-S-M- has been designated by the Administrative Appeals Office of United States Citizenship and Immigration Services as an adopted decision. Adopted decisions establish policy guidance that applies to and binds all USCIS employees.
In Matter of L-S-M-, the appeals office said on May 13 that the exception to the civil penalties for failure to comply with an order of voluntary departure, available for certain victims of domestic violence or related abuse, does not extend to U-1 nonimmigrant victims of qualifying criminal activity.
Those civil penalties include: (1) a fine of $1,000-$5,000 and (2) a 10-year bar to adjustment of status. See sections 240B(d)(1)-(2) of the Immigration and Nationality Act. U-1 nonimmigrants had been the beneficiaries of this exception to the civil penalties for many years, even though it was created and intended for adjustment of status applications under the Violence Against Women Act.
The Administrative Appeals Office also found, however, that the civil penalties only apply when the U-1’s failure to timely depart was voluntary. In so doing they followed existing Board of Immigration Appeals case law that says a failure to depart is considered voluntary when the ability to depart was “within the actor’s control …. [A] respondent who, through no fault of her own, remains unaware of the grant of voluntary departure until after the period for voluntary departure has expired cannot be said to have ‘voluntarily’ failed to depart within the period of voluntary departure.” Matter of Zmijewska, 24 I&N Dec. 87 (BIA 2007).
Based on this decision, U-1 adjustment applicants who overstayed an order of voluntary departure will be subject to the 10-year bar, unless they can show that the failure to depart was not voluntary. The factors to be considered are whether the applicant was aware of the order and whether he or she was physically able to depart. Hardship to the applicant or close family members in the U.S. and lack of funds are insufficient to define a failure to depart as involuntary.