Section 212(h) Waiver Only Available In Conjunction with an Adjustment Application

The Board of Immigration Appeals (BIA) held that a waiver of inadmissibility under Section 212(h) of the Immigration and Nationality Act can not be filed by itself in removal proceedings without a concurrently filed application for adjustment of status, and a waiver may not be granted nunc pro tunc (after the fact) to avoid the requirement that the alien must establish eligibility for adjustment. Matter of Giovanny RIVAS, 26 I&N Dec. 130 (BIA 2013).

Section 212(h) Waiver

Section 212(h) of the Immigration and Nationality Act (INA) may waive certain criminal convictions when a person is applying for admission into the United States or when a person is applying for adjustment of status in the United States.  (For a discussion of when a lawful permanent resident is considered seeking admission to the United States, follow this link.)

For example, Section 212(h)(1)(A) waives certain criminal activities (e.g., crimes involving moral turpitude, or "CIMT") which are 15 year old before the date of a foreigner application for a visa, admission, or adjustment of status, if the admission would not be contrary to the national welfare, safety, or security of the U.S. and if the foreigner has been rehabilitated. Section 212(h)(1)(B) waives crimes involving moral turpitude in the case of foreigner or lawful resident who demonstrates that his removal from the United States would result in extreme hardship to his United States citizen or lawful resident parent, spouse, son, or daughter.

Background of RIVAS

The respondent in RIVAS is a native and citizen of Colombia who was admitted to the United States as a lawful permanent resident on August 11, 1998. In 2001, he was convicted of two petite larcenies in Florida and was found deportable by virtue of his having been convicted of two CIMTs not arising out of a single scheme of criminal misconduct.  He applied for a waiver of inadmissibility under section 212(h). The respondent left the United States on several occasions after his 2001 convictions, reentered the country, and applied for 212(h) waiver in removal proceedings.  The immigration judge found the respondent inadmissible for reentry, but granted him 212(h) waiver nunc pro tunc pursuant to Matter of Sanchez, 17 I&N Dec. 218 (BIA 1980).

The DHS argues that the respondent can only qualify for a section 212(h) waiver if he also applies for adjustment of status, and since he is not eligible to adjust status, he is ineligible for the waiver. The issue is whether the immigration judge erred in granting the respondent a nunc pro tunc section 212(h) waiver on a “stand alone” basis  without a concurrently filed I-485 adjustment application.

BIA Decision

BIA held that the respondent is statutorily ineligible for the waiver because he is neither an arriving alien seeking to waive a ground of inadmissibility nor one seeking to waive inadmissibility in conjunction with an application for adjustment of status. The respondent’s situation is different from that of the alien in Sanchez because he does not have a pending application for adjustment of status. 

The Immigration Act of 1990 amended Section 212(h) by restricting the waiver to foreign nationals who are applying or reapplying “for a visa, for admission to the United States, or adjustment of status.”

On appeal, the respondent also cites Matter of Abosi, 24 I&N Dec. 204 (BIA 2007) to support his eligibility for a 212(h) waiver.  However, BIA noted that since the respondent in Abosi was an arriving alien seeking readmission, he did not have to establish eligibility for adjustment of status. The respondent in RIVAS, however, is in the country in removal proceedings and therefore must file a concurrent adjustment application in order to seek a waiver of the grounds of removal.

Other Federal Circuits including the Fifth Circuit, the Seventh Circuit and the Eleventh Circuit also support the BIA position as a reasonable statutory interpretation of the law.  These federal courts reason that, because of the rights and privileges lawful permanent residents enjoy, it is proper to hold them to a higher standard and level of responsibility than unlawful foreigners. Therefore a waiver is not available to them unless they are also otherwise eligible to apply for adjustment.

Analysis of the Proposed Rule on Unlawful Presence Provisional Waiver

On April 2, 2012, the Department of Homeland Security (DHS) published a proposed rule to change the current application process for unlawful presence waivers in connection with an immediate relative immigrant petition.   An immediate relative petition is one filed by a U.S. citizen on behalf of his parent, spouse or children under the age of 21.  A waiver is required if the foreign relative departs the U.S. after having been unlawfully present in the U.S. for more than 180 days.  Without an approved waiver, the foreign relative will be barred from returning for 3 years (or 10 years for unlawful presence of 365 days or longer).

The current application process requires these foreign relatives of U.S. citizens to apply for a waiver of inadmissibility at an overseas U.S. consulate office.   Further, the processing times for these waivers are usually very long, thus forcing U.S. citizens to be separated from their close family members for extensive periods of time. The new proposal attempts to address these issues by allowing foreign nationals who are already in the U.S. to file a provisional waiver application with the USCIS without leaving the United States.  Although the proposed rule is not yet been made final, it is important to understand exactly what it entails.

Who are covered by the provisional waiver proposal?

Only immediate relatives of U.S. citizens are covered.  Immediate relatives are parents, spouses and children who are under the age 21.

What grounds of inadmissibility are covered?    

The proposal only covers the unlawful presence waivers of the 3-year bar or 10-year-bar.  A person subject to other grounds of inadmissibility would not be eligible to file a provisional waiver under the proposal.

What are grounds of inadmissibility?

They are legal bars which make intending immigrants ineligible to apply for permanent resident status.  Examples include prior unlawful presence, criminal convictions and contagious deceases.

How does the proposed rule change the application and processing of unlawful presence waivers?

The current process requires an applicant first depart the U.S., thus triggering the unlawful presence bar, and then apply for a waiver at a U.S. consulate office in overseas countries.  The proposal allows the foreigner to first request for provisional waivers from the USCIS prior to their departure for overseas consular visa processing.  If approved, the applicant will be granted a provisional waiver which would become fully effective upon her departure from the United States and upon approval of an immigrant visa by U.S. consular officer. 

When can an applicant apply for a provisional wavier?

An applicant may only apply for a provisional waiver if he is the beneficiary of an approved Form I-130 relative visa petition or Form I-360 special immigrant petition (Amerasian, Widow, etc.)  They must also have paid the visa fees to the Department of State. 

Who are not covered by the proposal?

Individuals who are outside the United States, who are in deportation proceedings, who have a final order of removal, who are subject to other grounds of inadmissibility, who already have an immigrant visa interview scheduled, who have a pending adjustment of status application, who do not have an approved I-130 or I-360 petition, or who are under the age of 17 are not eligible for provisional waivers.

If my removal proceedings were administratively closed, would I still be eligible to file a provisional waiver?

If your case was administratively closed but was subsequently reopened for the issuance of a final voluntary departure order, then you would still be eligible.

How does an applicant qualify for a provisional waiver?

In addition to having an approved visa petition, an applicant must demonstrate that her U.S. citizen spouse or parent will suffer extreme hardship if the waiver is not granted.  To prove that one’s citizen spouse or parent will suffer extreme hardship, documentary evidence and witness testimonies may be used.  Factors such as health conditions, financial conditions, social problems, etc., are considered by the USCIS.

Will hardship to other relatives be considered?

No, the proposal only covers hardship to one’s USC spouse or parent.  The DHS so far has decided that it will not extend the provisional waiver’s coverage to other relatives including USC children or LPR spouses or parents.  Waivers based on hardship to other relatives must continue to be filed in overseas U.S. consulate offices.

If my immigrant visa petition is not filed by my USC spouse or parent, can I still use their hardship to support the waiver?

Yes, the petitioner and the qualifying relative can be different persons.

What rights would a pending or approved provisional unlawful presence waiver confer upon the applicant?

A pending or approved provisional unlawful presence waiver does not confer any rights to the applicant until an immigrant visa is issued by a U.S. consulate officer after an interview.  It does not give the right for the applicant to apply for advance parole travel document, to enter the U.S., to work legally in the U.S., or to apply for other immigration benefits.

How does one lose the rights to an approved provisional waiver?

Generally, after one is granted a provisional waiver, it is valid indefinitely.  However, if the applicant becomes a conditional legal resident through the waiver (e.g., based on a short-term marriage to a USC), but subsequently his conditional status is terminated, then the waiver will no longer be valid.  If the person later on successfully reverses the termination of his conditional status in removal proceedings, then the provisional will become valid again.  Similarly, a fiancé visa holder’s approved provisional waiver is only effective upon her marriage to the USC petitioner within 90 days of her arrival in the U.S.

When will the proposal rule become effective?

There is no effective date set for the new unlawful presence provisional waiver rule.  Before it becomes effective, a final rule must be published by the government first. 

If the provisional waiver is not approved, will the applicant be placed in removal proceedings?

If the provisional waiver is granted, the applicant will not be placed in removal proceedings unless the government “discovers acts, omissions, or post-approval activity” that would meet the criteria to start removal proceedings.  The proposal is silent about treatment of unapproved waiver applications, but it is unlikely to be a case-by-case decision.

Would there be any changes to the proposal to make its terms more favorable?

The DHS has received many comments and feedbacks from the public including the American Immigration Lawyers Association (AILA) to further expand the coverage of the provisional waiver.  For examples, adding other relatives for consideration of hardship such as a LPR spouse and parent; preference relatives (e.g., spouses and children of LPRs) should be allowed to file provisional waivers; individuals in removal proceedings should be allowed to file; individuals subject to other grounds of inadmissibility should be allowed to file; etc.  It is possible that DHS may incorporate some of these suggestions in the final rule.  

BIA held Advance Parole Absence does not trigger Unlawful Presence Bar

In a recent BIA decision, the Board surprisingly held that a foreigner who left the United States after securing an “advance parole” travel document from the DHS is not considered a departure for the purposes of determining whether the person is subject to the 10-year unlawful presence bar.  The Board held that the foreigner is therefore allowed to apply for adjustment of status to become permanent resident under section 245(i) of the Immigration and Nationality Act. 

In Matter of Arrabally and Yerrabelly, 25 I&N Dec. 771 (BIA 2012), the respondents, husband and wife, legally entered the U.S. in 1999 and 2000 respectively.  After overstaying their nonimmigrant visas, they were present in the U.S. without legal status for more than five years.  Subsequently, the male respondent sought to apply for legal status based on an approved employment based immigrant visa petition filed on his behalf by an employer pursuant to section 245(i) of the Act.  However, the couple made a trip to India to attend totheir aging parents after securing advance parole travel documents from the DHS.  Upon their return to the United States with advance parole, DHS argued that they were barred from applying for adjustment of status because they were inadmissible to reenter the United States for ten years pursuant to section 212(a)(9)(B)(i)(II) of the Act.  This section of the law bars foreigners from admission for ten years if they departed the United States after having been unlawfully present for more than one year.

The BIA previously held in Matter of Lemus that section 245(i) does not overcome the unlawful presence bars, absent a waiver.  In Lemus, the respondent did not have an advance parole document when he left the United States.  Here, the BIA carved out an exception for the respondents in Matter of Arrabally and Yerrabelly, explaining that their absence from the U.S. after a grant of advance parole did not constitute a departure that would trigger the unlawful presence bars.  The BIA noted the advance parole (1) was approved in advance by the United States Government on the basis of a merits application; (2) presupposed the alien’s authorized return thereafter, and (3) was requested solely for the purpose of preserving the alien’s eligibility for adjustment of status.  The BIA seemed to be saying that the respondents merely took a brief trip outside the United States with no intention to depart.

Hence, the BIA concluded that the respondents are not inadmissible for adjustment of status pursuant to section 212(a)(9)(B)(i)(II).  Therefore, they are eligible to apply for adjustment of status based on section 245(i).  The decision no doubt is good news for applicants who must travel for emergency reasons.  However, this decision could still be challenged by the government in federal court.  For example, as the dissenting opinion noted, a recent Third Circuit decision also involved advance parole travel but reached a different conclusion.  Therefore, it is very important for applicants to fully understand the legal ramifications before travelling on advance parole.  

New hope for foreigners who are subject to the three/ten year bar

A new proposal by the Department of Homeland Security (DHS) brings new hope to foreigners who are subject to the three and ten year bars because of their unlawful presence in the United States. Rather than leaving the United States to apply for a waiver at an overseas consulate office, these foreigners would be allowed to have their waiver pre-adjudicated by the USCIS in the United States according to the proposal. If their waiver applications are approved, they would still be required to depart the U.S. to apply for immigrant visas to return to the United States.

The 3/10 Year Bar
Section 212(a)(9) of the Immigration and Nationality Act provides that any noncitizen who after having been unlawfully present in the United States for 180-364 days and then voluntarily departs the country before they are placed in removal proceedings is not allowed to return to the United States for three (3) years. Similarly, a noncitizen who has been unlawfully present in the United States for one year or longer and then departs or is deported is not allowed to return to the United States for ten (10) years. These are known as the 3-year-bar and the 10-year-bar. There are some exceptions for asylum applicants, battered spouses, certain family unity beneficiaries and minor children. Furthermore, the unlawful period can be tolled for good cause and non-frivolous requests for extensions. Otherwise, if these noncitizens wish to return to the United States, they must first obtain a waiver from the U.S. government. The Department of Homeland Security has discretion to waive the 3/10-year-bars if the noncitizen can show that his U.S. citizen or legal resident spouse or parent will suffer extreme hardship if he is not allowed to return to the U.S.

Catch 22
For many foreigners who have accrued unlawful presence in the United States but are otherwise eligible for an immigrant visa, they are caught in a “Catch 22” situation. On the one hand, they are not allowed to apply for a green card within the United States because of their unlawful status. On the other, they do not want to leave the country for fear that they would not be able to return to the U.S. because of the 3/10-year-bars. Even if they are eligible to apply for a waiver based on hardship of their spouses and/or parents, they are afraid that the waiver might not be approved. The current policy is that the wavier must be filed with an overseas DHS office. In short, they are stuck between two equally undesirable options.

The New Proposal
The DHS recently announced that it intends to publish in the Federal Register a proposal to revise the procedures for determining the unlawful presence (family unity) waivers for spouses and children of U.S. citizens. The new proposal creates an “in-country processing” mechanism for noncitizens who are spouses and children of U.S. citizens to file the unlawful presence waiver. A noncitizen who has accrued unlawful presence would be able to apply for the waiver from within the United States. This “in-country processing” proposal would permit USCIS to grant a provisional waiver. Applicants would still be required to depart from the U.S. before receiving a final approval on their application. By pre-processing the family unity waiver, the applicant’s waiting time will be shortened. Currently applicants face a long wait when seeking a waiver outside the U.S. The goal of this new proposal is to encourage more noncitizens to come forward to file their immigrant and waiver petitions in the United States.

This process, however, does not change the legal requirements for immigrant visa petition or the family unity waiver application. The “law” regarding immigrant visas and waiver adjudication has not been changed. The change is only procedural in nature. Further, it is important to note that the proposal will not cover spouses and children of legal permanent residents. They must still follow the existing procedure and apply for a waiver at an overseas U.S. consulate office. Finally, applicants must not rely on this proposal yet until it is finalized. Thus far, the DHS has only published a statement of intent to propose the change. It is expected that the change will not be finalized until the end of 2012. Interested foreigners may start gathering documentary evidence to establish their eligibility for a waiver but should not act hastily before they have discussed their case with a qualified immigration attorney.

More than 6,000 Waivers Granted to J-1Visa Holders in FY2010

The U.S. State Department reports recently that it has granted more than 6,000 waivers to J-1 visa holders who are subject to the foreign residence requirement in Fiscal Year 2010.  Only 227 waiver applications were denied during FY2010.  A majority of the waiver applications were based on the “No Objection Statement” issued by the country of origin.

The United States established the J-1 visa classification to allow foreigners who intend to participate in a cultural exchange program to enter the U.S. as exchange visitors.   Some common purposes for the J-1 visa include teaching, studying, observing, conducting research, consulting, demonstrating special skills, receiving training, or to receive graduate medical education or training.  The U.S. Department of State designates certain public and private entities to act as exchange sponsors to implement the Exchange Visitor Program.  Examples of exchange visitors include: professors or scholars, research assistants, students, trainees, teachers, specialists, nannies/au pairs, camp counselors, etc.  The application process is started by obtaining a Form DS-2019, Certificate of Eligibility for Exchange Visitor Status (formerly known as an IAP-66) from the sponsoring agency.   

There are many advantages of participating in the Exchange Visitor Program including cultural and knowledge exchange. There is also no cap imposed on the number of J visas, unlike the H-1B Program.  However, for certain J-1 visitors, they are subject to the Section 212(e) foreign residence requirement of the Immigration Act.  Generally speaking, there are three categories of J-1 visa holders who are subject to the residence requirement:

• Applicants who have obtained their J-1 status through programs financed either in whole or in part, directly or indirectly, by the U.S. government or their home country government.
• Applicants whose specialized knowledge or skill is in short supply in their home country
• Applicants who have received graduate medical education or training in the U.S.

If a foreigner is subject to this requirement, before she is allowed to change their immigration status in the U.S. to another classification or apply for a visa to return to the U.S., she must first return to their country of origin or last residence and live there for two years.  The only exception to this requirement is to apply for a waiver under Section 212(e).  There are six bases for applying for such a waiver.  For Fiscal Year 2010, the numbers of waivers granted and denied for each basis are as follows.  The numbers show that the “No Objection Statement” was the most popular type of waiver while the “Interested Government Agency” waiver applications enjoyed the highest rates of grant. 

TYPES OF WAIVER	Granted	Denied	Total
No Objection Statement	4,786	155	4,941
Exceptional Hardship	213	65	278
Persecution	24	1	25
Interested Government Agency- Physician	70	0	70
Interested Government Agency- Other	165	6	171
State Department of Health	829	0	829
TOTAL	6,087	227	6,314