DACA Renewals

Posted on June 8, 2014 by Mike Baker

Consideration of Deferred Action for Childhood Arrivals Process

Update for DACA Renewals June 8, 2014

Because USCIS anticipates adjudicating renewal requests within 120 days, it recommends DACA recipients file for renewal approximately 120 days before the expiration date of their initial DACA grant, but no earlier than 150 days (five months) prior to expiration. In fact, USCIS states that it will not accept DACA applications filed more than 150 days in advance of a DACA expiration date. In the event of an unexpected delay in processing a renewal, USCIS states that it “may” provide an automatic extension of the original DACA grant, but appears to limit the automatic extension to individuals who file between 150 and 120 days before their DACA expiration date.

I-821D, Consideration of Deferred Action for Childhood Arrivals

06/04/14. No previous editions accepted.

What happens if my DACA and EAD expire before my DACA renewal application has been approved?

If you submitted your renewal application at least 120 days before your DACA and EAD expiration date, USCIS may provide you with temporary DACA and an EAD while it processes your application, if your DACA and EAD expire before your application is approved.

However, if you submitted your renewal application fewer than 120 days before the DACA and EAD expiration date, and they expire while USCIS is still processing the application, then you will likely lose your DACA status and employment authorization until USCIS makes a decision about the renewal application. If this happens, you will no longer be lawfully present in the U.S. and will begin accruing unlawful presence, unless you were under age 18 at the time you submitted the renewal application. You will also be at risk of losing your employment, since you will no longer have legal authorization to work. Therefore, it is very important that you apply for renewal no later than 120 days before the expiration of your DACA and EAD.

How do I apply to renew my DACA?

Both the initial application for DACA and the renewal application are made by filling out and submitting the same forms: Form I-821D, Form I-765 Application for Employment Authorization, and Form I-765WS Worksheet. Note that you must use the latest version of Form I-821D. In the bottom left corner of each page of the latest version of Form I-821D, the following is printed:

Form I-821D 06/04/14 N

If you don’t use the latest version of Form I-821D, your application will be rejected.

When you’re submitting a renewal application, you must fill out all sections of the forms and answer all the questions except those designated “For Initial Requests Only.” You must also submit any new documents relevant to your removal proceedings or criminal history that you have not submitted previously (see USCIS’s Instructions for Consideration of Deferred Action for Childhood Arrivals, page 10, items 11 and 12, and also the section on pages 10–11 of the instructions titled “Evidence for Renewal Requests Only”). The completed forms must be submitted to USCIS (see p. 12 of the instructions under “Where to File?”).

USCIS asks that no additional documents be sent, not even proof that you have resided continuously in the U.S. since you first received DACA. USCIS advises that you keep all documents that provide evidence that you meet all the guidelines. USCIS reserves the right to ask you for additional information, documents, and statements to verify information on your DACA renewal application. USCIS also reserves the right to contact government agencies and others to verify the information provided in the application.

NOTE: If your DACA was granted initially by U.S. Immigration and Customs Enforcement (ICE) and not USCIS, you must fill out all the sections and answer all the questions on the forms and submit all supporting documentation as if you were filing an initial request. The completed forms and supporting documentation must then be submitted to USCIS.

What are the fees for the DACA renewal application?

The renewal request costs the same as the initial request: $465. The cost includes a $380 application fee for Form I-765 (Application for Employment Authorization) and an $85 fee for biometrics (fingerprints and photo). DACA renewal applicants are required to submit new biometrics. In very limited circumstances, applicants may be exempted from having to pay the fees.

Where should I send my DACA renewal application?

Regardless of whether your initial DACA was adjudicated by ICE or by USCIS, you must submit your application for renewal to USCIS. Where, specifically, you must send your application depends on where you live. Check USCIS’s “Filing Addresses for Consideration of Deferred Action for Childhood Arrivals” for the correct mailing address.

What should I do to prepare for renewal?

To prepare to apply for DACA renewal:

  • It’s important that the information in the renewal request be consistent with the information provided in the initial request. Therefore, we recommend that you make sure to have a copy of your initial application for DACA. If you don’t already have a copy and you initially applied for DACA with the help of an attorney, the attorney’s office is likely to have a copy of your application. Another option is to file a Freedom of Information Act (FOIA) request with USCIS to get a copy of the initial application.
  • You must have put aside $465 to pay the renewal application fees.
  • If you have received citations, been arrested, or been criminally charged or convicted since initially receiving DACA, you must gather evidence of these contacts with law enforcement or the courts.
  • If you are currently in exclusion, deportation, or removal proceedings, you must submit any new documents related to your case, unless you already submitted them to USCIS when you first applied for DACA or unless your case was administratively closed.

What if I no longer meet the DACA guidelines (for example, I dropped out of high school with no intent to get a GED or state equivalent certification). Can I still apply and not disclose that information, since the renewal application does not ask for it?

Yes. Neither the DACA application form nor the instructions ask for information about continued school enrollment or graduation. The instructions for renewal applications specify that a person may be considered for DACA renewal if he or she met the guidelines for consideration of initial DACA and

1. did not depart the U.S. on or after August 15, 2012, without advance parole;
2. has continuously resided in the United States since submitting the prior DACA application; and
3. has not been convicted of a felony, a significant misdemeanor or three or more misdemeanors, and is not a threat to national security or public safety.

However, as mentioned above, USCIS may ask you for additional information as well as for documents to verify the information on your DACA renewal application.

If I initially received DACA and was under age 31 on June 15, 2012, but have since become older than age 31, can I still apply to renew?

Yes. Eligibility for DACA renewal is not limited to people who currently are under age 31. You cannot “age out” of eligibility for DACA if you were born after June 15, 1981.

Do I have to submit updated information and evidence about how I meet the educational guideline?

No. You do not need to include evidence or information related to the educational requirement with your renewal application. Note, though, that USCIS may ask you for additional documents, including school records, that show how you meet the DACA guidelines.

Do I have to be in college in order to be eligible for DACA renewal?

No. You do not have to be enrolled in college to be eligible for DACA renewal. As a reminder, DACA is not the same as the proposed federal “DREAM Act,” whose eligibility criteria would include college enrollment or military service.

Do I have to be currently working in order to be eligible for DACA renewal?

No. You do not need to have a job in order to be eligible for DACA renewal. Therefore, you do not need to submit evidence of employment as part of your renewal application.

If I have been arrested or convicted of an offense, or have had other interactions with law enforcement since receiving DACA, what should I do?

Here are some suggestions for what you can do before applying for renewal if you have had interactions with law enforcement since first receiving DACA:

  • Get a background check. USCIS requires that applicants for DACA renewal submit proof of the disposition of (what has happened with respect to) any criminal arrests, charges or convictions.
  • Complete a “live scan” (electronic fingerprinting), if it’s available in your state. For example, if you have lived only in California and are sure that you have not had any arrests or contact with law enforcement in any state other than California, you can complete the California “live scan.” Visit http://oag.ca.gov/fingerprints to find locations and information about the California process. Other states may have similar processes.
  • Request an FBI criminal background check. The instructions for requesting an FBI criminal background check are at www.fbi.gov/about-us/cjis/criminal-history-summary-checks.
  • Request your file from the court, if you have had to appear in criminal court. WARNING: If you have an outstanding warrant, you may be arrested if you go to court in person to request your file.
  • Speak to an attorney or a BIA accredited representative about your case.

Keep in mind that the guidelines regarding a criminal record have not changed, so crimes that would disqualify you from obtaining DACA initially will also disqualify you from renewing your DACA.

If my DACA renewal request is denied, what will happen? Will I be placed in deportation proceedings?

USCIS says that if your DACA renewal request is denied, generally they will not refer your case to ICE (the immigration enforcement authorities), unless your case involves a criminal offense, fraud, or a threat to national security or public safety.

If I have or had DACA and am in the process of adjusting to legal immigration status through another process (for example, through my U.S. citizen spouse), should I still apply to renew DACA?

You may apply for DACA renewal while simultaneously applying for another type of immigration relief. Whether it is worth applying for both is a determination you should make, preferably with the help of an experienced attorney or accredited representative.

To request that USCIS consider granting or renewing deferred action, on a case-by-case basis, based on guidelines described in the Secretary of Homeland Security’s memorandum issued June 15, 2012. Deferred action is a discretionary determination to defer removal action of an individual as an act of prosecutorial discretion. Individuals who receive deferred action will not be placed into removal proceedings or removed from the United States for a specified period of time. Individuals filing Form I-821D must also file Form I-765, Application for Employment Authorization, and Form I-765WS, Form I-765 Worksheet.

In September 2012, USCIS started deferring action for certain childhood arrivals and issuing employment authorization for a period of two years. Beginning in September 2014, the initial two-year grants of deferred action for early recipients of DACA from USCIS are due to expire under their own terms, and USCIS is actively preparing for the DACA renewal process so that eligible individuals can request and receive an extension of their deferred action without experiencing any lapse in their lawful presence or work authorization.

In late May 2014, USCIS anticipates publishing a new dual-use Form I-821D, Consideration of Deferred Action for Childhood Arrivals, to allow for both initial and renewal requests, and updating Frequently Asked Questions with additional information. If you received DACA from USCIS and will seek to renew, you must wait until USCIS publishes the new form before filing your renewal request. If you are filing for initial DACA, you may continue to file using the current form until the new version is available (See below for additional information).

To help prepare the public for the anticipated process to request a renewal of DACA from USCIS, USCIS created an outline found below. This outline is subject to change until USCIS announces the details of the final process in late May 2014.

Outline to request renewal of DACA from USCIS:

  • File the revised version of Form I-821D, Consideration of Deferred Action for Childhood Arrivals, together with Form I-765, Application for Employment Authorization and I-765WS, Worksheet, as in the initial filing. The forthcoming version of Form I-821D will be dual-use for both initial and renewal filers and will contain modified questions pertaining to each situation. The draft form is currently going through the Federal Register public comment process and is not yet available for use.
  • Do not file the current version of Form I-821D to renew. USCIS will not accept renewal filings until the new version of the form is published. However, if you received DACA from ICE instead of USCIS, please read the ICE-Granted DACA Renewal Guidance.
  • Submit your DACA renewal request package approximately 120 days (or 4 months) before your current period of DACA expires. This is also the date that your Employment Authorization Document (EAD) expires. While USCIS will continue to accept filings after this date, it will not accept requests made earlier than 150 days (or 5 months) before that expiration date. The expiration date is printed on the front of the EAD, Form I-766 . Complete renewal requests include signed Forms I-821D, I-765, and I-765WS with fee and evidence, if applicable.
  • If you file your renewal request package approximately 120 days before the expiration date of your current period of DACA, USCIS anticipates making a decision on your deferred action request and adjudicating your employment authorization application well before your current period of DACA and employment authorization expires. If you have filed at least 120 days before your deferred action and EAD expire and USCIS is unexpectedly delayed in processing your renewal request, USCIS may provide deferred action and employment authorization for a short period of time until your renewal is adjudicated.
  • You only need to submit new documents pertaining to removal proceedings or criminal history that you have not already submitted to USCIS. You do not need to re-submit documents you already submitted with your previous DACA request that was approved. However, you should keep copies of all documents that support how you meet the DACA guidelines so you can provide them if they are requested by USCIS.

NOTE: If you received DACA from USCIS, do not file the current version (edition date 6/25/13) of Form I-821D to renew. USCIS will not accept renewal filings until the new version of the form is published in late May 2014. However, if you are among those few individuals who received deferred action for childhood arrivals from Immigration and Customs Enforcement (ICE) between June 15, 2012 and August 15, 2012, please read the ICE-Granted DACA Renewal Guidance.

Guidelines

You may request consideration of deferred action for childhood arrivals if you:

  • Were under the age of 31 as of June 15, 2012;
  • Came to the United States before reaching your 16th birthday;
  • Have continuously resided in the United States since June 15, 2007, up to the present time;
  • Were physically present in the United States on June 15, 2012, and at the time of making your request for consideration of deferred action with USCIS;
  • Entered without inspection before June 15, 2012, or your lawful immigration status expired as of June 15, 2012;
  • Are currently in school, have graduated or obtained a certificate of completion from high school, have obtained a general education development (GED) certificate, or are an honorably discharged veteran of the Coast Guard or Armed Forces of the United States; and
  • Have not been convicted of a felony, significant misdemeanor, three or more other misdemeanors, and do not otherwise pose a threat to national security or public safety.

http://www.uscis.gov/humanitarian/consideration-deferred-action-childhood-arrivals-process

Posted in DACA, Deferred Action Eligibility Screening Tool, Deferred Action for Childhood Arrivals, Deferred Action Process for Young People Who Are Low Enforcement, Deferred Action Process for Young People Who Are Low Enforcement Priorities, Deferred Action Status, Update for DACA Renewals | Tagged | Leave a comment

CA7 denies collateral attack of removal order in criminal proceedings for failure to exhaust administrative remedies

Posted on May 30, 2014 by Mike Baker

United States v. Alegria-Saldana, 2014 U.S. App. LEXIS 7263: The Seventh Circuit affirmed the district court’s denial of Alegria-Saldana’s motion to dismiss his indictment for illegal reentry after removal. Alegria-Saldana alleged that his due process rights were violated in his underlying removal order as the Immigration Judge (IJ), in ruling that his conviction for possession of cocaine was an aggravated felony and thus rendered Alegria-Saldana ineligible for cancellation of removal, based his decision on Board of Immigration Appeals (BIA) precedent which was overturned by the Supreme Court three years later.

[1]-The alien challenged the district court’s finding that he had not met any of the 8 U.S.C.S. § 1326(d) requirements to challenge the underlying removal order; [2]-As to the first requirement, despite being informed of his right to appeal, he did not file an appeal or ask his lawyer to do so, and thus he failed to exhaust his available remedies; [3]-As to the second requirement, the alien did not meet his burden of proving that he was unable to petition for judicial relief; [4]-Finally, failure to consider an alien for discretionary relief did not violate due process and thus was not fundamentally unfair; [5]-Though he was unable to seek cancellation of removal, the United States Supreme Court’s Lopez decision did reduce the potential punishment for his illegal reentry from 20 years to 10 years.

Saldana entered the U.S. at age 7, became a lawful permanent resident at 20, but was charged with removability at 34, in 2003, for committing an aggravated felony, 8 U.S.C. 1227(a)(2)(A)(ii), and a controlled-substance offense. He argued that mere possession of cocaine was not a drug-trafficking crime, and thus not an aggravated felony under 8 U.S.C. 1101(a)(43)(B) that would render him ineligible for discretionary relief. The IJ denied his application for cancellation of removal. Saldana did not appeal and was removed to Mexico. The agency precedent on which the IJ relied was overturned three years later by the Supreme Court. By then Saldana had reentered illegally and was again convicted of possessing cocaine. After his 2011 release Saldana was charged with illegal presence in the U.S. after removal, 8 U.S.C. 1326(a), (b)(1), but sought dismissal based on deficiencies in the underlying removal order. The district court denied the motion, finding that he had failed to exhaust administrative remedies; that his lawyer never promised to appeal; that Saldana did not take advantage of remedies available at the time (habeas corpus) and did not justify these failures other than asserting lack of legal knowledge; and that he could not show that removal was fundamentally unfair because he had no due-process right to apply for discretionary relief. The Seventh Circuit affirmed. Despite being informed of his rightsl, he did not file an appeal or ask his lawyer to do so, nor did he exhaust available remedies by a motion to reopen.

Under 8 U.S.C.S. § 1326(d), a defendant may collaterally attack the removal order in a criminal proceeding by showing (1) exhaustion of administrative remedies, (2) unavailability of judicial review during the removal process, and (3) fundamental unfairness of the removal order. 8 U.S.C.S. § 1326(d)(1)-(3).

The United States Court of Appeals for the Seventh Circuit has not decided whether all three requirements under 8 U.S.C.S. § 1326(d)(1)-(3) must be met before a collateral attack can proceed, though the Seventh Circuit has implied that is the case.

An alien may not collaterally attack removal order when he and his lawyer were informed of his right to pursue such an administrative appeal and his lawyer reserved right to appeal.

In the context of a due process claim, in immigration law, as in tax law and criminal law, too, where knowledge of the law is presumed, the Constitution permits the government to leave people to their own research.

Failure to consider an alien for discretionary relief does not violate due process and thus is not fundamentally unfair.

United States v. Alegria-Saldana

__________________________________________________________

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. NICOLAS ALEGRIA-SALDANA, Defendant-Appellant.

No. 13-1607

UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT

Rovner Click for Enhanced Coverage Linking Searches, Circuit Judge. Nicolas Alegria-Saldana, a citizen of Mexico, challenges the district court’s denial of his motion to dismiss his indictment for illegal reentry after removal. See 8 U.S.C. § 1326(a), (b)(1). He entered a conditional guilty plea but maintains that the charges should be dismissed based on alleged due-process violations in the underlying removal order. Because Alegria-Saldana has not met the statutory requirements to collaterally attack his removal order, 8 U.S.C. § 1326(d), we affirm the district court’s judgment.

Alegria-Saldana entered the United States at the age of 7, became a lawful permanent resident at 20, but was charged with removability at 34—in 2003—by immigration authorities for committing an aggravated felony, see 8 U.S.C. § 1227(a)(2)(A)(ii), and a controlled-substance offense, see id. § 1227(a)(2)(B)(i). During removal proceedings, he conceded that his two convictions for possessing cocaine involved a controlled substance. But his lawyer argued that mere possession was not a drug-trafficking crime, and thus not an aggravated felony. See 8 U.S.C. § 1101(a)(43)(B) (defining “aggravated felony” as “illicit trafficking in a controlled substance”). The distinction mattered because an aggravated felony determination would render him statutorily ineligible for discretionary relief. See 8 U.S.C. § 1229b(a)(3). Based on precedent from the Board of Immigration Appeals, the immigration judge ruled that Alegria-Saldana’s conviction for cocaine possession was an aggravated felony, and denied his application for cancellation of removal. See 720 ILCS 570/402(c) (defining cocaine possession as felony under state law); In re Yanez-Garcia, 23 I & N Dec. 390, 398 (BIA 2002) (characterizing state felony convictions for drug possession as aggravated felonies). Alegria-Saldana did not appeal that decision, and he was removed to Mexico two months later.

The agency precedent on which the immigration judge relied was overturned three years later when the Supreme Court ruled that mere possession was not an aggravated felony under immigration law. Lopez v. Gonzales, 549 U.S. 47, 60, 127 S. Ct. 625, 166 L. Ed. 2d 462 (2006); see also Gonzales-Gomez v. Achim, 441 F.3d 532, 535 (7th Cir. 2006) (Illinois felony conviction for possessing cocaine did not bar lawful permanent resident from seeking discretionary relief). By then Alegria-Saldana had reentered the United States illegally, and he was again convicted in Illinois of possessing cocaine. State authorities turned him over to immigration officials after his release in 2011.

Alegria-Saldana was charged with illegal presence in the United States after removal, see 8 U.S.C. § 1326(a), (b)(1), but he sought to dismiss the indictment based on alleged deficiencies in the underlying removal order, see id. § 1326(d). HN1Go to the description of this Headnote.Under § 1326(d), a defendant may collaterally attack the removal order in a criminal proceeding by showing (1) exhaustion of administrative remedies, (2) unavailability of judicial review during the removal process, and (3) fundamental unfairness of the removal order. See id. § 1326(d)(1)-(3).

Alegria-Saldana maintained that he satisfied these three requirements. He pointed first to his lawyer’s alleged deficiencies, and explained in an affidavit that he believed his lawyer would file an appeal. He noted that his lawyer reserved his right to appeal and pointed out that the immigration judge discussed his lawyer’s role in the appeal process, stating that “[y]our lawyer has 30 days to decide if an appeal will be perfected or not, and you could decide that any time between the next 30 days.” Second, Alegria-Saldana argued that he lacked “any understanding or particular knowledge of the law” and did not have the ability to file an appeal on his own. Finally, he challenged the fairness of the removal order in light of the Supreme Court’s later decision in Lopez, 549 U.S. at 60.

The district court denied Alegria-Saldana’s motion to dismiss the indictment, finding that he had not met any of the § 1326(d) requirements to challenge the underlying removal order. First, Alegria-Saldana failed to exhaust his administrative remedies because he neither appealed the decision nor asked his attorney to do so. To the extent that he suggested that his immigration lawyer provided ineffective assistance, the court noted that his lawyer never promised to file an appeal. Second, Alegria-Saldana did not take advantage of the form of judicial review available at the time of his removal proceedings—habeas corpus relief—and he did not justify why he failed to file a petition other than asserting his general lack of legal knowledge. And third, he could not show that the removal order was fundamentally unfair because he had no due-process right to apply for discretionary relief.

On appeal Alegria-Saldana challenges the district court’s decision with respect to all three requirements of § 1326(d). HN2Go to the description of this Headnote.We have not decided whether all three must be met before a collateral attack can proceed, though we have implied that is the case. See United States v. Lara-Unzueta, 735 F.3d 954, 961 (7th Cir. 2013) (declining to decide issue).

As to the first requirement, Alegria-Saldana argues that the district court erred in ruling that he failed to exhaust his administrative remedies, given his belief that his immigration lawyer would file an appeal. He maintains that he was “entitled to interpret that reservation [of the right to appeal] by counsel as meaning that his attorney would either follow through on the perfection of the appeal or advise [Alegria-Saldana] of his decision not to follow through.”

But the district court’s finding regarding exhaustion is correct. Despite being informed of his right to appeal, he did not file an appeal or ask his lawyer to do so, and thus he failed to exhaust his available remedies. See United States v. Roque-Espinoza, 338 F.3d 724, 728-29 (7th Cir. 2003) (HN3Go to the description of this Headnote.alien may not collaterally attack removal order when “he and his lawyer were informed of his right to pursue such an [administrative] appeal” and his lawyer reserved right to appeal); United States v. Villavicencio-Burruel, 608 F.3d 556, 559-60 (9th Cir. 2010) (same). Nor did Alegria-Saldana exhaust his available remedies in the form of a motion to reopen, see 8 U.S.C. § 1229a(c)(7); United States v. Arita-Campos, 607 F.3d 487, 491-92 (7th Cir. 2010), which would have allowed the Board to consider whether his lawyer was ineffective for not communicating with him after the removal hearing, see In re Lozada, 19 I & N Dec. 637, 639 (BIA 1988) (setting out requirements to bring ineffective-assistance claim in immigration proceedings); see also United States v. Cerna, 603 F.3d 32, 42 (2d Cir. 2010) (excusing lack of exhaustion when lawyer promised to file an appeal during removal hearing and failed to do so).

Second Alegria-Saldana argues generally that the district court erred in concluding that judicial review was available in the form of a petition for habeas corpus. He concedes that judicial review existed “in theory” but asserts that it was unavailable “as a practical matter” because, between the entry of his removal order and his actual removal, he had only two months to research the law or find a new lawyer.

The district court correctly determined that Alegria-Saldana did not meet his burden of proving that he was unable to petition for judicial relief. See Arita-Campos, 607 F.3d at 493; United States v. Santiago-Ochoa, 447 F.3d 1015, 1019 (7th Cir. 2006). The court here concluded that he failed to meet this burden because he offered no explanation other than that he lacked “any understanding or particular knowledge of the law.” As the court noted, aliens are presumed capable of researching generally available remedies, see Bayo v. Napolitano, 593 F.3d 495, 505 (7th Cir. 2010); Dimenski v. INS, 275 F.3d 574, 578 (7th Cir. 2001) (HN4Go to the description of this Headnote.”In immigration law, as in tax law—and criminal law, too, where knowledge of the law is presumed—the Constitution permits the government to leave people to their own research.”) (internal citation omitted), and Alegria-Saldana offers no other reason to think that two months was not enough time to file a petition for habeas corpus, see Arita-Campos, 607 F.3d at 492 (39 days between arrest and removal was sufficient time for alien to file motion to reopen).

Finally Alegria-Saldana argues that the district court should have ruled that his removal order was fundamentally unfair because the incorrect aggravated-felony determination deprived him of the opportunity to apply for discretionary relief. But, as the court noted, HN5Go to the description of this Headnote.failure to consider an alien for discretionary relief does not violate due process and thus is not fundamentally unfair. See Arita-Campos, 607 F.3d at 493; United States v. De Horta Garcia, 519 F.3d 658, 661 (7th Cir. 2008); Santiago-Ochoa, 447 F.3d at 1020 (collecting cases from other circuits). A minority of circuits do recognize a procedural due-process right to seek discretionary relief, but even these courts consider whether the immigration judge erred “under the governing case law at the time of [removal],” United States v. Gomez, 732 F.3d 971, 987 (9th Cir. 2013), and require aliens to [*9] show prejudice in the form of a “reasonable probability” that they would have received relief, see United States v. Daley, 702 F.3d 96, 101 (2d Cir. 2012). Alegria-Saldana’s removal order relied on agency precedent, see In re Yanez-Garcia, 23 I & N Dec. at 398, and he has not attempted to show any likelihood that the Board of Immigration Appeals—after considering his two convictions for drunk driving, two convictions for cocaine possession, and a conviction for domestic battery—would have exercised its discretion in his favor. See In re Sotelo-Sotelo, 23 I&N Dec. 201, 205-06 (BIA 2001) (discretionary relief not warranted for lawful permanent resident with U.S.-citizen child who had smuggled aliens into United States). Though Alegria-Saldana was unable to seek cancellation of removal, the Supreme Court’s decision in Lopez did reduce the potential punishment for his illegal reentry: because his convictions are no longer aggravated felonies, the statutory maximum was 10 years instead of 20. See 8 U.S.C. § 1326(b)(1)-(2).

Posted in 7th Circuit, 7th Circuit Cases- Aliens, collateral attack of removal order in criminal proceedings | Leave a comment

USCIS Issues New Policy on Form I-693, Report of Medical Examination and Vaccination Record

Posted on May 30, 2014 by Mike Baker

Starting June 1, 2014, USCIS will limit the validity period for all Forms I-693, Report of Medical Examination and Vaccination Record, to one year from the date of submission to USCIS. Applicants must also submit Form I-693 to USCIS within one year of the immigration medical examination. USCIS will also provide additional ways to submit Form I-693. As outlined in policy alert PA-2014-005, this updated policy applies to any Form I-693 supporting a benefit application that USCIS adjudicates on or after June 1, 2014.

USCIS will hold an engagement on June 12, 2014 to address questions about the new policy and provide guidance on filing Form I-693. Updated Form I-693

USCIS Civil Surgeons Locator

Civil Surgeon

Most applicants for adjustment of status are required to have a medical examination. The medical examination must be conducted by a civil surgeon who has been designated by the United States Citizenship and Immigration Services. ed to have a medical examination. The medical examination must be conducted by a civil surgeon who has been designated by the United States Citizenship and Immigration Services.

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Guidelines for Requesting Consideration of Deferred Action For Childhood Arrivals: Filing Process and Evidence

Posted on May 12, 2014 by Mike Baker

Do you qualify? Click here to see the Brochure; and here to see the Flowchart posted by USCIS on its website.

USCIS provides a number of humanitarian programs and protection to assist individuals in need of shelter or aid from disasters, oppression, emergency medical issues and other urgent circumstances.  Deferred Action Process for Young People Who Are Low Enforcement Priorities is for certain young people who were brought to the United States through no fault of their own as young children and meet several key criteria. They will be considered for relief from removal from the country or entered into removal proceedings.   Over the past three years, the Obama Administration has undertaken an unprecedented effort to transform the immigration enforcement system into one that focuses on public safety, border security and the integrity of the immigration system. As the Department of Homeland Security (DHS) continues to focus its enforcement resources on the removal of individuals who pose a danger to national security or a risk to public safety, including individuals convicted of crimes with particular emphasis on violent criminals, felons, and repeat offenders, DHS will exercise prosecutorial discretion as appropriate to ensure that enforcement resources are not expended on low priority cases, such as individuals who came to the United States as children and meet other key guidelines.  Individuals who demonstrate that they meet the guidelines below may request consideration of deferred action for childhood arrivals for a period of two years, subject to renewal, and may be eligible for employment authorization.

You may request consideration of deferred action for childhood arrivals if you:

  1. Were under the age of 31 as of June 15, 2012;
  2. Came to the United States before reaching your 16th birthday;
  3. Have continuously resided in the United States since June 15, 2007, up to the present time;
  4. Were physically present in the United States on June 15, 2012, and at the time of making your request for consideration of deferred action with USCIS;
  5. Entered without inspection before June 15, 2012, or your lawful immigration status expired as of June 15, 2012;
  6. Are currently in school, have graduated or obtained a certificate of completion from high school, have obtained a general education development (GED) certificate, or are an honorably discharged veteran of the Coast Guard or Armed Forces of the United States; and
  7. Have not been convicted of a felony, significant misdemeanor, three or more other misdemeanors, and do not otherwise pose a threat to national security or public safety.

Individuals may begin to request consideration of deferred action for childhood arrivals on August 15, 2012.  Please do not file before August 15.  If you file early, your request will be rejected.

Frequently Asked Questions

  • About Deferred Action for Childhood Arrivals
  • Guidelines for Requesting Consideration of Deferred Action For Childhood Arrivals
  • Filing Process
  • Evidence
  • Cases in Other Immigration Processes
  • Avoiding Scams and Preventing Fraud

About Deferred Action for Childhood Arrivals

What is deferred action?
Deferred action is a discretionary determination to defer removal action of an individual as an act of prosecutorial discretion. Deferred action does not confer lawful status upon an individual. In addition, although an individual whose case is deferred will not be considered to be accruing unlawful presence in the United States during the period deferred action is in effect, deferred action does not excuse individuals of any previous or subsequent periods of unlawful presence.

Under existing regulations, an individual whose case has been deferred is eligible to receive employment authorization for the period of deferred action, provided he or she can demonstrate “an economic necessity for employment.” DHS can terminate or renew deferred action at any time at the agency’s discretion.

What is deferred action for childhood arrivals?
On June 15, 2012, the Secretary of Homeland Security announced that certain people who came to the United States as children and meet several key guidelines may request consideration of deferred action for a period of two years, subject to renewal, and would then be eligible for work authorization.

Individuals who can demonstrate through verifiable documentation that they meet these guidelines will be considered for deferred action. Determinations will be made on a case-by-case basis under the guidelines set forth in the Secretary of Homeland Security’s memorandum.

If my removal is deferred pursuant to the consideration of deferred action for childhood arrivals process, am I eligible for employment authorization?
Yes. Pursuant to existing regulations, if your case is deferred, you may obtain employment authorization from USCIS provided you can demonstrate an economic necessity for employment.

Does this process apply to me if I am currently in removal proceedings, have a final removal order, or have a voluntary departure order?
This process is open to any individual who can demonstrate he or she meets the guidelines for consideration, including those who have never been in removal proceedings as well as those in removal proceedings, with a final order, or with a voluntary departure order (as long as they are not in immigration detention). If you are not in immigration detention and want to affirmatively request consideration of deferred action for childhood arrivals, you must submit your request to USCIS – not ICE – pursuant to the procedures outlined below. If you are currently in immigration detention and believe you meet the guidelines you should not request consideration of deferred action from USCIS but should identify yourself to your detention officer or contact the ICE Office of the Public Advocate through the Office’s hotline at 1-888-351-4024 (staffed 9 a.m. – 5 p.m., Monday – Friday) or by email at EROPublicAdvocate@ice.dhs.gov.

Do I accrue unlawful presence if I have a pending request for consideration of deferred action for childhood arrivals?
You will continue to accrue unlawful presence while the request for consideration of deferred action for childhood arrivals is pending, unless you are under 18 years old at the time of the request. If you are under 18 years old at the time you submit your request but turn 18 while your request is pending with USCIS, you will not accrue unlawful presence while the request pending. If your case is deferred, you will not accrue unlawful presence during the period of deferred action. Having action deferred on your case will not excuse previously accrued unlawful presence.

If my case is deferred, am I in lawful status for the period of deferral?
No. Although action on your case has been deferred and you do not accrue unlawful presence during the period of deferred action, deferred action does not confer any lawful status.

There is a significant difference between “unlawful presence” and “unlawful status.” Unlawful presence refers to a period an individual is present in the United States (1) without being admitted or paroled or (2) after the expiration of a period of stay authorized by the Department of Homeland Security (such as after the period of stay authorized by a visa has expired). Unlawful presence is relevant only with respect to determining whether the inadmissibility bars for unlawful presence, set forth in the Immigration and Nationality Act at Section 212(a)(9), apply to an individual if he or she departs the United States and subsequently seeks to re-enter. (These unlawful presence bars are commonly known as the 3- and 10-Year Bars.)

The fact that you are not accruing unlawful presence does not change whether you are in lawful status while you remain in the United States.  Because you lack lawful status at the time DHS defers action in your case you remain subject to all legal restrictions and prohibitions on individuals in unlawful status.

Does deferred action provide me with a path to permanent residence status or citizenship?
No. Deferred action is a form of prosecutorial discretion that does not confer lawful permanent resident status or a path to citizenship. Only the Congress, acting through its legislative authority, can confer these rights.

Will my immediate relatives or dependents be considered for deferred action for childhood arrivals?
No. The new process is open only to those who satisfy the guidelines. As such, immediate relatives, including dependents of individuals whose cases are deferred pursuant to the consideration of deferred action for childhood arrivals process, may not be considered for deferred action as part of this process unless they independently satisfy the guidelines.

Can I be considered for deferred action even if I do not meet the guidelines to be considered for deferred action for childhood arrivals?
This process is only for individuals who meet the specific guidelines announced by the Secretary. Other individuals may, on a case-by-case basis, request deferred action from USCIS or ICE in certain circumstances, consistent with longstanding practice.

Will the information I share in my request for consideration of deferred action for childhood arrivals be used for immigration enforcement purposes?
Information provided in this request is protected from disclosure to U.S. Immigration and Customs Enforcement (ICE) and U.S. Customs and Border Protection (CBP) for the purpose of immigration enforcement proceedings unless the requestor meets the criteria for the issuance of a Notice To Appear or a referral to U.S. Immigration and Customs Enforcement under the criteria set forth in USCIS’s Notice to Appear guidance (www.uscis.gov/NTA).  Individuals whose cases are deferred pursuant to the consideration of deferred action for childhood arrivals process will not be referred to ICE. The information may be shared with national security and law enforcement agencies, including ICE and CBP, for purposes other than removal, including for assistance in the consideration of deferred action for childhood arrivals, to identify or prevent fraudulent claims, for national security purposes, or for the investigation or prosecution of a criminal offense. The above information sharing policy covers family members and guardians, in addition to the requestor.

This policy, which may be modified, superseded, or rescinded at any time without notice, is not intended to, does not, and may not be relied upon to create any right or benefit, substantive or procedural, enforceable at law by any party in any administrative, civil, or criminal matter.

Does this Administration remain committed to comprehensive immigration reform?
Yes. The Administration has consistently pressed for passage of comprehensive immigration reform, including the DREAM Act, because the President believes these steps are critical to building a 21st century immigration system that meets our nation’s economic and security needs.

Is passage of the DREAM Act still necessary in light of the new process?
Yes.The Secretary’s June 15th memorandum allowing certain people to request consideration for deferred action is the most recent in a series of steps that DHS has taken to focus its enforcement resources on the removal of individuals who pose a danger to national security or a risk to public safety. Deferred action does not provide lawful status or a pathway to citizenship. As the President has stated, individuals who would qualify for the DREAM Act deserve certainty about their status. Only the Congress, acting through its legislative authority, can confer the certainty that comes with a pathway to permanent lawful status.

Guidelines for Requesting Consideration of Deferred Action For Childhood Arrivals

What guidelines must I meet to be considered for deferred action for childhood arrivals?
Pursuant to the Secretary’s June 15, 2012 memorandum, in order to be considered for deferred action for childhood arrivals, you must submit evidence, including support documents, showing that you:

  1. Were under the age of 31 as of June 15, 2012;
  2. Came to the United States before reaching your 16th birthday;
  3. Have continuously resided in the United States since June 15, 2007, up to the present time;
  4. Were physically present in the United States on June 15, 2012, and at the time of making your request for consideration of deferred action with USCIS;
  5. Entered without inspection before June 15, 2012, or your lawful immigration status expired as of June 15, 2012;
  6. Are currently in school, have graduated or obtained a certificate of completion from high school, have obtained a general education development (GED) certificate, or are an honorably discharged veteran of the Coast Guard or Armed Forces of the United States; and;
  7. Have not been convicted of a felony, significant misdemeanor, three or more other misdemeanors, and do not otherwise pose a threat to national security or public safety.

These guidelines must be met for consideration of deferred action for childhood arrivals. USCIS retains the ultimate discretion on whether deferred action is appropriate in any given case.

How old must I be in order to be considered for deferred action under this process?

  • If you have never been in removal proceedings, or your proceedings have been terminated before your request for consideration of deferred action for childhood arrivals, you must be at least 15 years of age or older at the time of filing and meet the other guidelines.
  • If you are in removal proceedings, have a final removal order, or have a voluntary departure order, and are not in immigration detention, you can request consideration of deferred action for childhood arrivals even if you are under the age of 15 at the time of filing and meet the other guidelines.
  • In all instances, you cannot be the age of 31 or older as of June 15, 2012 to be considered for deferred action for childhood arrivals.

Does “currently in school” refer to the date on which the request for consideration of deferred action is filed?
To be considered “currently in school” under the guidelines, you must be enrolled in school on the date you submit a request for consideration of deferred action under this process.

Do brief departures from the United States interrupt the continuous residence requirement?
A brief, casual, and innocent absence from the United States will not interrupt your continuous residence. If you were absent from the United States for any period of time, your absence will be considered brief, casual, and innocent, if it was before August 15, 2012, and:

  1. The absence was short and reasonably calculated to accomplish the purpose for the absence;
  2. The absence was not because of an order of exclusion, deportation, or removal;
  3. The absence was not because of an order of voluntary departure, or an administrative grant of voluntary departure before you were placed in exclusion, deportation, or removal proceedings; and
  4. The purpose of the absence and/or your actions while outside the United States were not contrary to law.

May I travel outside of the United States before USCIS has determined whether to defer action in my case?
No. After August 15, 2012, if you travel outside of the United States, you will not be considered for deferred action under this process. If USCIS defers action in your case, you will be permitted to travel outside of the United States only if you apply for and receive advance parole from USCIS.

Any travel outside of the United States that occurred before August 15, 2012, will be assessed by USCIS to determine whether the travel qualifies as brief, casual and innocent (see above).

Note:  If you are in unlawful status and/or are currently in removal proceedings, and you leave the United States without a grant of advance parole, you will be deemed to have removed yourself and will be subject to any applicable grounds of inadmissibility if you seek to return.

Travel Guidelines

Travel Dates Type of Travel Does it Affect Continuous Residence
Before August 15, 2012
  • brief
  • casual
  • innocent
 No
  • For an extended time
  • Because of an order of exclusion, deportation, or removal
  • To participate in criminal activity
 Yes
After August 15, 2012 and before you have requested deferred action
  • Any
 Yes.Yes. You cannot travel while your request is under review.
You cannot apply for advance parole unless and until DHS has determined whether to defer action in your case.
After August 15, 2012 and after you have requested deferred action
  • Any

If my case is deferred pursuant to the consideration of deferred action for childhood arrivals process, will I be able to travel outside of the United States?
Not automatically. If USCIS has decided to defer action in your case and you want to travel outside the United States, you must apply for advance parole by filing a Form I-131, Application for Travel Document and paying the applicable fee ($360). USCIS will determine whether your purpose for international travel is justifiable based on the circumstances you describe in your request. Generally, USCIS will only grant advance parole if you are traveling for humanitarian purposes, educational purposes, or employment purposes. You may not apply for advance parole unless and until USCIS defers action in your case pursuant to the consideration of deferred action for childhood arrivals process. You cannot apply for advance parole at the same time as you submit your request for consideration of deferred action for childhood arrivals. All advance parole requests will be considered on a case-by-case basis.

If I have a conviction for a felony offense, a significant misdemeanor offense, or multiple misdemeanors, can I receive an exercise of prosecutorial discretion under this new process?
No. If you have been convicted of a felony offense, a significant misdemeanor offense, or three or more other misdemeanor offenses not occurring on the same date and not arising out of the same act, omission, or scheme of misconduct, you will not be considered for deferred action under the new process except where DHS determines there are exceptional circumstances.

What offenses qualify as a felony?
A felony is a federal, state, or local criminal offense punishable by imprisonment for a term exceeding one year.

What offenses constitute a significant misdemeanor?
For the purposes of this process, a significant misdemeanor is a misdemeanor as defined by federal law (specifically, one for which the maximum term of imprisonment authorized is one year or less but greater than five days) and that meets the following criteria:

  1. Regardless of the sentence imposed, is an offense of domestic violence; sexual abuse or exploitation; burglary; unlawful possession or use of a firearm; drug distribution or trafficking; or, driving under the influence; or,
  2. If not an offense listed above, is one for which the individual was sentenced to time in custody of more than 90 days. The sentence must involve time to be served in custody, and therefore does not include a suspended sentence.

The time in custody does not include any time served beyond the sentence for the criminal offense based on a state or local law enforcement agency honoring a detainer issued by U.S. Immigration and Customs Enforcement (ICE). Notwithstanding the above, the decision whether to defer action in a particular case is an individualized, discretionary one that is made taking into account the totality of the circumstances. Therefore, the absence of the criminal history outlined above, or its presence, is not necessarily determinative, but is a factor to be considered in the unreviewable exercise of discretion. DHS retains the discretion to determine that an individual does not warrant deferred action on the basis of a single criminal offense for which the individual was sentenced to time in custody of 90 days or less.

What offenses constitute a non-significant misdemeanor?
For purposes of this process, a non-significant misdemeanor is any misdemeanor as defined by federal law (specifically, one for which the maximum term of imprisonment authorized is one year or less but greater than five days) and that meets the following criteria:

  1. Is not an offense of domestic violence; sexual abuse or exploitation; burglary; unlawful possession or use of a firearm; drug distribution or trafficking; or, driving under the influence; and
  2. Is one for which the individual was sentenced to time in custody of 90 days or less.

The time in custody does not include any time served beyond the sentence for the criminal offense based on a state or local law enforcement agency honoring a detainer issued by ICE.  Notwithstanding the above, the decision whether to defer action in a particular case is an individualized, discretionary one that is made taking into account the totality of the circumstances.  Therefore, the absence of the criminal history outlined above, or its presence, is not necessarily determinative, but is a factor to be considered in the unreviewable exercise of discretion.

If I have a minor traffic offense, such as driving without a license, will it be considered a non-significant misdemeanor that counts towards the “three or more non-significant misdemeanors” making me unable to receive consideration for an exercise of prosecutorial discretion under this new process?
A minor traffic offense will not be considered a misdemeanor for purposes of this process. However, your entire offense history can be considered along with other facts to determine whether, under the totality of the circumstances, you warrant an exercise of prosecutorial discretion.

It is important to emphasize that driving under the influence is a significant misdemeanor regardless of the sentence imposed.

Will offenses criminalized as felonies or misdemeanors by state immigration laws be considered felonies or misdemeanors for purpose of this process?
No.  Immigration-related offenses characterized as felonies or misdemeanors by state immigration laws will not be treated as disqualifying felonies or misdemeanors for the purpose of considering a request for consideration of deferred action pursuant to this process.

Will DHS consider my expunged or juvenile conviction as an offense making me unable to receive an exercise of prosecutorial discretion?
Expunged convictions and juvenile convictions will not automatically disqualify you. Your request will be assessed on a case-by-case basis to determine whether, under the particular circumstances, a favorable exercise of prosecutorial discretion is warranted. If you were a juvenile, but tried and convicted as an adult, you will be treated as an adult for purposes of the deferred action for childhood arrivals process.

What qualifies as a national security or public safety threat?
If the background check or other information uncovered during the review of your request for deferred action indicates that your presence in the United States threatens public safety or national security, you will not be able to receive consideration for an exercise of prosecutorial discretion except where DHS determines there are exceptional circumstances. Indicators that you pose such a threat include, but are not limited to, gang membership, participation in criminal activities, or participation in activities that threaten the United States.

Can I request consideration of deferred action for childhood arrivals under this process if I am currently in a nonimmigrant status (e.g. F-1, E-2, H-4) or have Temporary Protected Status (TPS)?
No. You can only request consideration of deferred action for childhood arrivals under this process if you currently have no immigration status and were not in any lawful status on June 15, 2012.

If I am not in removal proceedings but believe I meet the guidelines for an exercise of deferred action under this process, should I seek to place myself into removal proceedings through encounters with CBP or ICE?
No. If you are not in removal proceedings but believe that you meet the guidelines you should submit your request for consideration of deferred action for childhood arrivals to USCIS under the process outlined below.

Filing Process

How do I request consideration of deferred action for childhood arrivals?
Beginning August 15, 2012, you will be required to submit your request for consideration of deferred action to USCIS through a form, along with a form requesting an employment authorization document. The total fees will be $465. USCIS is still developing the forms and will be submitting them to the Office of Management and Budget (OMB) for review.  Pending OMB clearance, the forms and instructions will be available on the USCIS website on August 15, 2012.  Do not submit any request to USCIS before these forms are available. All requests received before August 15, 2012, will be rejected.

Note: All individuals meeting the guidelines, including those in removal proceedings, with a final removal order, or with a voluntary departure order (and not in immigration detention), will affirmatively request consideration of deferred action for childhood arrivals from USCIS through this process. Individuals who are currently detained and believe they meet the guidelines should not request deferred action from USCIS but should identify themselves to their detention officer.

Will USCIS conduct a background check when reviewing my request for consideration of deferred action for childhood arrivals?
Yes. You must undergo biographic and biometric background checks before USCIS will consider whether to exercise prosecutorial discretion under the consideration of deferred action for childhood arrivals process. If you have been convicted of any felony, a significant misdemeanor offense, three or more misdemeanor offenses not occurring on the same date and not arising out of the same act, omission, or scheme of misconduct, or otherwise pose a threat to national security or public safety, you will not be considered for deferred action for childhood arrivals except where DHS determines there are exceptional circumstances.

What do background checks involve?
Background checks involve checking biographic and biometric information provided by the individuals against a variety of databases maintained by DHS and other federal government agencies.

If USCIS does not exercise deferred action in my case, will I be placed in removal proceedings?
If you have submitted a request for consideration of deferred action for childhood arrivals and USCIS decides not to defer action in your case, USCIS will apply its policy guidance governing the referral of cases to U.S. Immigration and Customs Enforcement (ICE) and the issuance of Notices to Appear (NTA). If your case does not involve a criminal offense, fraud, or a threat to national security or public safety, your case will not be referred to ICE for purposes of removal proceedings except where DHS determines there are exceptional circumstances. For more detailed information on the applicable NTA policy visit www.uscis.gov/NTA. If after a review of the totality of circumstances USCIS determines to defer action in your case, USCIS will likewise exercise its discretion and will not issue you a Notice to Appear.

Can I obtain a fee waiver or fee exemption for this process?
There are no fee waivers available for employment authorization applications connected to the deferred action for childhood arrivals process. There are very limited fee exemptions available. Requests for fee exemptions must be filed and favorably adjudicated before an individual files his/her request for consideration of deferred action for childhood arrivals without a fee. In order to be considered for a fee exemption, you must submit a letter and supporting documentation to USCIS demonstrating that you meet one of the following conditions:

  • You are under 18 years of age, homeless, in foster care or otherwise lacking any parental or other familial support, and your income is less than 150% of the U.S. poverty level.
  • You cannot care for yourself because you suffer from a serious, chronic disability and your income is less than 150% of the U.S. poverty level.
  • You have, at the time of the request, accumulated $25,000 or more in debt in the past 12 months as a result of unreimbursed medical expenses for yourself or an immediate family member, and your income is less than 150% of the U.S. poverty level.

Beginning August 15, 2012 additional information on how to make your request for a fee exemption will be available on www.uscis.gov/childhoodarrivals. Your request must be submitted and decided before you submit a request for consideration of deferred action for childhood arrivals without a fee. In order to be considered for a fee exemption, you must provide documentary evidence to demonstrate that you meet any of the above conditions at the time that you make the request. For evidence USCIS will:

  • Accept affidavits from community-based or religious organizations to establish a requestor’s homelessness or lack of parental or other familial financial support.
  • Accept copies of tax returns, banks statement, pay stubs, or other reliable evidence of income level. Evidence can also include an affidavit from the applicant or a responsible third party attesting that the applicant does not file tax returns, has no bank accounts, and/or has no income to prove income level.
  • Accept copies of medical records, insurance records, bank statements, or other reliable evidence of unreimbursed medical expenses of at least $25,000.
  • Address factual questions through requests for evidence (RFEs).

Will there be supervisory review of decisions by USCIS under this process?
Yes. USCIS will implement a supervisory review process in all four Service Centers to ensure a consistent process for considering requests for deferred action for childhood arrivals. USCIS will require officers to elevate for supervisory review those cases that involve certain factors.

Can I appeal USCIS’s determination?
No. You cannot file a motion to reopen or reconsider, and cannot appeal the decision if USCIS denies your request for consideration of deferred action for childhood arrivals. USCIS will not review its discretionary determinations. You may request a review using the Service Request Management Tool (SRMT) process if you met all of the process guidelines and you believe that your request was denied due to one of the following errors:

  • USCIS denied the request for consideration of deferred action for childhood arrivals based on abandonment and you claim that you did respond to a Request for Evidence within the prescribed time; or
  • USCIS mailed the Request for Evidence to the wrong address, even though you had submitted a Form AR-11, Change of Address, or changed your address online at www.uscis.gov before the issuance of the Request for Evidence.

Can I extend the period of deferred action in my case?
Yes. Unless terminated, individuals whose case is deferred pursuant to the consideration of deferred action for childhood arrivals process will not be placed into removal proceedings or removed from the United States for a period of two years. You may request consideration for an extension of that period of deferred action. As long as you were not above the age of 30 on June 15, 2012, you may request a renewal after turning 31. Your request for an extension will be considered on a case-by-case basis.

If my period of deferred action is extended, will I need to re-apply for an extension of my employment authorization?
Yes. If USCIS decides to defer action for additional periods beyond the initial two years, you must also have requested an extension of your employment authorization.

Will USCIS personnel responsible for reviewing requests for an exercise of prosecutorial discretion under this process receive special training?
Yes. USCIS personnel responsible for considering requests for consideration of deferred action for childhood arrivals will receive special training.

Evidence

What documentation may be sufficient to demonstrate that I came to the United States before the age of 16?
Documentation sufficient for you to demonstrate that you came to the United States before the age of 16 may include, but is not limited to: financial records, medical records, school records, employment records, and military records. Additional information about what documentation you can submit will be provided on the USCIS website on August 15, 2012.

What documentation may be sufficient to demonstrate that I have resided in the United States for a least five years preceding June 15, 2012?
Documentation sufficient for you to demonstrate that you have resided in the United States for at five years immediately preceding June 15, 2012, may include, but is not limited to: financial records, medical records, school records, employment records, and military records. Additional information about what documentation you can submit will be provided on the USCIS website on August 15, 2012.

What documentation may be sufficient to demonstrate that I was physically present in the United States as of June 15, 2012?
Documentation sufficient for you to demonstrate that you were physically present on June 15, 2012, the date the memorandum was issued, may include, but is not limited to: financial records, medical records, school records, employment records, and military records.  Additional information about what documentation you can submit will be provided on the USCIS website on August 15, 2012.

What documentation may be sufficient to demonstrate that I am currently in school, have graduated from high school, or have obtained a general education development certificate (GED)?
Documentation sufficient for you to demonstrate that you are currently in school, have graduated from high school, or have obtained a GED certificate may include, but is not limited to: diplomas, GED certificates, report cards, and school transcripts. Additional information about what documentation you can submit will be provided on the USCIS website on August 15, 2012.

What documentation may be sufficient to demonstrate that I am an honorably discharged veteran of the Coast Guard or Armed Forces of the United States?
Documentation sufficient for you to demonstrate that you are an honorably discharged veteran of the Coast Guard or Armed Forces of the United States may include, but is not limited to: report of separation forms, military personnel records, and military health records. Additional information about what documentation you can submit will be provided on the USCIS website on August 15, 2012.

May I file affidavits as proof that I meet the guidelines for consideration of deferred action for childhood arrivals?
Affidavits generally will not be sufficient on their own to demonstrate that you meet the guidelines for USCIS to consider you for deferred action for childhood arrivals.
However, affidavits may be used to support meeting the following guidelines only if the documentary evidence available to you is insufficient or lacking:

  • A gap in the documentation demonstrating that you meet the five year continuous residence requirement; and
  • A shortcoming in documentation with respect to the brief, casual and innocent departures during the five years of required continuous presence.

If you submit affidavits related to the above criteria, you must submit two or more affidavits, sworn to or affirmed by people other than yourself, who have direct personal knowledge of the events and circumstances. Should USCIS determine that the affidavits are insufficient to overcome the unavailability or the lack of documentary evidence with respect to either of these guidelines, it will issue a Request for Evidence, indicating that further evidence must be submitted to demonstrate that you meet these guidelines.

USCIS will not accept affidavits as proof of satisfying the following guidelines:

  • You are currently in school, have graduated or obtained a certificate of completion from high school, have obtained a general education development certificate, or are an honorably discharged veteran from the Coast Guard or Armed Forces of the United States;
  • You were physically present in the United States on June 15, 2012;
  • You came to the United States before reaching your 16th birthday;
  • You were under the age of 31 on June 15, 2012; and
  • Your criminal history, if applicable.

If the only evidence you submit to demonstrate you meet any of the above guidelines is an affidavit, USCIS will issue a Request for Evidence, indicating that you have not demonstrated that you meet these guidelines and that you must do so in order to demonstrate that you meet that guideline.

Will USCIS consider circumstantial evidence that I have met certain guidelines?
Circumstantial evidence may be used to establish the following guidelines and factual showings if available documentary evidence is insufficient or lacking and shows that:

  • You were physically  present in the United States on June 15, 2012;
  • You came to the United States before reaching your 16th birthday;
  • You satisfy the five year continuous residence requirement, as long as you present direct evidence of your continued residence in the United States for a portion of the required five-year period and the circumstantial evidence is used only to fill in gaps in the length of continuous residence demonstrated by the direct evidence; and
  • Any travel outside the United States during the five years of required continuous presence was brief, casual, and innocent.

However, USCIS will not accept circumstantial evidence as proof of any of the following guidelines to demonstrate that you:

  • Were under the age of 31 on June 15, 2012; and
  • Are currently in school, have graduated or obtained a certificate of completion from high school, have obtained a general education development certificate, or are an honorably discharged veteran of the Coast Guard or Armed Forces of the United States.

For example, if you do not have documentary proof of your presence in the United States on June 15, 2012, you may nevertheless be able to satisfy the guideline circumstantially by submitting credible documentary evidence that you were present in the United States shortly before and shortly after June 15, 2012, which under the facts presented may give rise to an inference of your presence on June 15, 2012 as well. However, circumstantial evidence will not be accepted to establish that you have graduated high school. You must submit direct documentary evidence to satisfy that you meet this guideline.

Cases in Other Immigration Processes

Will I be considered to be in unlawful status if I had an application for asylum or cancellation of removal pending before either USCIS or the Executive Office for Immigration Review (EOIR) on June 15, 2012?
Yes.  If you had an application for asylum or cancellation of removal, or similar relief, pending before either USCIS or EOIR as of June 15, 2012, but had no lawful status, you may request consideration of deferred action for childhood arrivals.

Can I request consideration of deferred action for childhood arrivals from USCIS if I am in immigration detention under the custody of ICE?
No.  If you are currently in immigration detention, you may not request consideration of deferred action for childhood arrivals from USCIS. If you think you may meet the guidelines of this process, you should identify yourself to your detention officer or contact the ICE Office of the Public Advocate so that ICE may review your case.  The ICE Office of the Public Advocate can be reached through the Office’s hotline at 1-888-351-4024 (staffed 9 a.mm – 5 p.m., Monday – Friday) or by email at EROPublicAdvocate@ice.dhs.gov

If I am about to be removed by ICE and believe that I meet the guidelines for consideration of deferred action for childhood arrivals, what steps should I take to seek review of your case before removal?
If you believe you can demonstrate that you meet the guidelines and are about to be removed, you should immediately contact either the Law Enforcement Support Center’s hotline at 1-855-448-6903 (staffed 24 hours a day, 7 days a week) or the ICE Office of the Public Advocate through the Office’s hotline at 1-888-351-4024 (staffed 9 a.m. – 5 p.m., Monday – Friday) or by email at EROPublicAdvocate@ice.dhs.gov.

If individuals meet the guidelines for consideration of deferred action for childhood arrivals and are encountered by Customs and Border Protection (CBP) or ICE, will they be placed into removal proceedings?
This policy is intended to allow CBP and ICE to focus on priority cases. Pursuant to the direction of the Secretary of Homeland Security, if an individual meets the guidelines of this process, CBP or ICE should exercise their discretion on a case-by-case basis to prevent qualifying individuals from being apprehended, placed into removal proceedings, or removed. If individuals believe that, in light of this policy, they should not have been placed into removal proceedings, contact either the Law Enforcement Support Center’s hotline at 1-855-448-6903 (staffed 24 hours a day, 7 days a week) or the ICE Office of the Public Advocate through the Office’s hotline at 1-888-351-4024 (staffed 9 a.m. – 5 p.m., Monday – Friday) or by email at EROPublicAdvocate@ice.dhs.gov.

If I accepted an offer of administrative closure under the case-by-case review process or my case was terminated as part of the case-by-case review process, can I be considered for deferred action under this process?
Yes. If you can demonstrate that you meet the guidelines, you will be able to request consideration of deferred action for childhood arrivals even if you have accepted an offer of administrative closure or termination under the case-by-case review process. If you are in removal proceedings and have already been identified as meeting the guidelines and warranting discretion as part of ICE’s case-by-case review, ICE already has offered you deferred action for a period of two years, subject to renewal.

If I declined an offer of administrative closure under the case-by-case review process, can I be considered for deferred action under this process?
Yes. If you can demonstrate that you meet the guidelines, you will be able to request consideration of deferred action for childhood arrivals from USCIS even if you declined an offer of administrative closure under the case-by-case review process.

If my case was reviewed as part of the case-by-case review process but I was not offered administrative closure, can I be considered for deferred action under this process?
Yes. If you can demonstrate that you meet the guidelines, you will be able to request consideration of deferred action for childhood arrivals from USCIS even if you were not offered administrative closure following review of you case as part of the case-by-case review process.

How will ICE and USCIS handle cases involving individuals who do not satisfy the guidelines of this process but believe they may warrant an exercise of prosecutorial discretion under the June 2011 Prosecutorial Discretion Memoranda?
If USCIS determines that you do not satisfy the guidelines or otherwise determines you do not warrant an exercise of prosecutorial discretion, then it will decline to defer action in your case. If you are currently in removal proceedings, have a final order, or have a voluntary departure order, you may then request ICE consider whether to exercise prosecutorial discretion under the ICE June 2011 Prosecutorial Discretion Memoranda through any of the established channels at ICE, including through a request to the ICE Office of the Public Advocate or to the local Field Office Director. USCIS will not consider requests for review under the ICE June 2011 Prosecutorial Discretion Memoranda.

What should I do if I meet the guidelines of this process and have been issued an ICE detainer following an arrest by a state or local law enforcement officer?
If you meet the guidelines and have been served a detainer, you should immediately contact either the Law Enforcement Support Center’s hotline at 1-855-448-6903 (staffed 24 hours a day, 7 days a week) or the ICE Office of the Public Advocate either through the Office’s hotline at 1-888-351-4024 (staffed 9 a.m. – 5 p.m., Monday – Friday) or by email at EROPublicAdvocate@ice.dhs.gov.

Avoiding Scams and Preventing Fraud

Someone told me if I pay them a fee, they can expedite my deferred action for childhood arrivals request, is this true?
No. There is no expedited processing for deferred action. Dishonest practitioners may promise to provide you with faster services if you pay them a fee. These people are trying to scam you and take your money. Visit our Avoid Scams page to learn how you can protect yourself from immigration scams.

Make sure you seek information about requests for consideration of deferred action for childhood arrivals from official government sources such as USCIS or the Department of Homeland Security. If you are seeking legal advice, visit our Find Legal Services page to learn how to choose a licensed attorney or accredited representative.

What steps will USCIS and ICE take if I engage in fraud through the new process?
If you knowingly make a misrepresentation, or knowingly fail to disclose facts, in an effort to have your case deferred or obtain work authorization through this new process, you will be treated as an immigration enforcement priority to the fullest extent permitted by law, and be subject to criminal prosecution and/or removal from the United States.

Last updated: 08/03/2012

Posted in Deferred Action for Childhood Arrivals, Deferred Action Process for Young People Who Are Low Enforcement Priorities, Deferred Action Status, Illinois DREAM Act, Prosecutorial discretion, significant misdemeanors | Leave a comment

Inadmissibility and Waivers

Posted on April 23, 2014 by Mike Baker

Comprehensive chart listing of the grounds of inadmissibility and corresponding immigration waivers available for applicants applying to be admitted to the United States. Inadmissibility and Waivers

The “NIV Waivers” describes whether non-immigrant waivers, usually the 212(d)(3)(A) non-immigrant waiver, is available for those who wish to enter the U.S. temporarily as a non-immigrant (e.g. as a B-1/B-2 visitor, a F-1 student, a H-1B or TN professional worker, a E-2 Treaty Investor, etc).

The “IV Waivers” describes whether an immigrant waiver is available for those who wish to permanently reside in the U.S. Immigrant Waivers are typically applied for through the I-601 / I-601a “Extreme Hardship” or I-212 Waiver Process.

ALIENS PREVIOUSLY REMOVED AND UNLAWFULLY PRESENT

Class of Inadmissibility
NIV Waivers
IV Waivers
Aliens Previously
Removed
(INA 212(a)(9)(A));
(9 FAM 40.91) 		INA 212(d)(3)(A) waiver is available. Factors to be considered in deciding whether to recommend the waiver include the nature and date of the offense, possible rehabilitation of the alien’s character, and the necessity for, or urgency of, the alien’s proposed trip to the United States. Additionally, an approved Form I-212, (Permission to Reapply for Admission into the United States after Deportation or Removal) removes this ground, but not the circumstances which led to it. No waiver, but DHS may grant permission to reapply for admission to the United States to an alien otherwise inadmissible under this section. (Form I-212, Permission to Reapply). However, such permission to reapply does not remove the grounds which led to the alien’s denial of admission to or removal from the United States. The reason for such denial of admission or removal may lead to another ground of inadmissibility.
Aliens Unlawfully Present
(INA 212(a)(9)(B));
(9 FAM 40.92 Notes) 		INA 212(d)(3)(A) Factors to be considered in deciding whether to recommend the waiver include the nature and date of the offense, possible rehabilitation of the alien’s character, and the necessity for, or urgency of, the alien’s proposed trip to the United States. Additionally, an approved Form I-212 (Permission to Reapply) for Admission into the United States after Deportation or Removal) removes this ground, but not the circumstances which led to it. DHS has sole discretion to grant a 212(a)(9)(B)(v) waiver in the case of an immigrant who is the spouse, son, or daughter of a U.S. citizen or LPR, if refusal of admission to such immigrant alien would result in extreme hardship to the citizen or lawful resident spouse or parent of such alien.
Aliens Unlawfully Present After Previous Immigration Violations
(INA 212(a)(9)(C));
(9 FAM 40.93 Notes)		 INA 212(d)(3)(A) waiver is available. Factors to be considered in deciding whether to recommend the waiver include the nature and date of the offense, possible rehabilitation of the alien’s character, and the necessity for, or urgency of, the alien’s proposed trip to the United States. No waiver, but DHS may grant permission to reapply for admission to the United States to an alien otherwise inadmissible under this section provided at least ten years have passed following the alien’s last departure from the United States. (Form I-212, Application for Permission to Reapply)

ILLEGAL ENTRANTS, IMMIGRATION VIOLATORS, AND MISREPRESENTATION

Class of Inadmissibility
NIV Waivers
IV Waivers
Aliens Present Without Admission or Parole
(INA 212(a)(6)(A));
(9 FAM 40.61)		 This ground does not apply at time of visa application. This ground does not apply to visa applicants.
Failure to Attend a Removal Proceeding
(INA 212(a)(6)(B));
(9 FAM 40.62) 		INA 212(d)(3)(A) waiver is available. Inadmissibility applies for 5 years following departure or removal subsequent to removal hearing. No waivers available. Inadmissibility apples for 5 years following departure or removal subsequent to removal hearing.
Fraud and Misrepresentation
(INA 212(a)(6)(C)(i));
(9 FAM 40.63) 		INA 212(d)(3)(A) waiver is available. Factors to be considered in deciding whether to recommend the waiver include the nature and date of the offense, possible rehabilitation of the alien’s character, and the necessity for, or urgency of, the alien’s proposed trip to the United States. INA 212(i) waivers are available if she or he is the spouse, son, or daughter of a U.S. citizen or of an LPR, but only if the petitioner would suffer extreme hardship if the waiver were not granted; or, if a VAWA self-petitioner, the alien demonstrates extreme hardship to the alien, or the alien’s U.S. Citizen or LPR relative.
False Claim of Citizenship
(INA 212(a)(6)(C)(ii)); (9 FAM 40.63) 		INA 212(d)(3)(A) waiver is available. Factors to be considered in deciding whether to recommend the waiver include the nature and date of the offense, possible rehabilitation of the alien’s character, and the necessity for, or urgency of, the alien’s proposed trip to the United States. No waiver available.
Stowaways
(INA 212(a)(6)(D));
(9 FAM 40.64)
Applies only to aliens seeking admission at a port of entry. You are not to refuse visas under this provision. 		This ground does not apply at time of visa application. This ground does not apply at time of visa application.
Smugglers (Knowingly Assisted)
(INA 212(a)(6)(E));
(9 FAM 40.65) 		INA 212(d)(3)(A) waiver is available. Factors to be considered in deciding whether to recommend the waiver include the nature and date of the offense, possible rehabilitation of the alien’s character, and the necessity for, or urgency of, the alien’s proposed trip to the United States. 1. INA 212(d)(11) waiver available. DHS may grant a waiver to an applicant for family-based immigration if the alien applicant had aided an individual who at the time of such action was the alien’s spouse, parent, son, or daughter entering or attempting to enter the United States in violation of the law. The brother or sister of a U.S. citizen is not eligible for this waiver.
2. DHS may grant an INA 212 (c) waiver to a LPR who is returning to the United States after a temporary absence abroad; had illegally assisted only his or her spouse, son, or daughter, or parent, and no others; and is otherwise eligible for admission. In this way, DHS avoids penalizing too heavily aliens already admitted to the United States who were not ineligible prior to the 1990 amendments to the law, who would now be inadmissible because of the 1990 amendments, and who had assisted only a close family member’s entry into the United States.
Subject of Civil Penalty or Final Order Under Section 274C (Document Counterfeiting)
(INA 212(a)(6)(F));
(9 FAM 40.66 Notes) 		INA 212(d)(3)(A)waiver available. Factors to be considered in deciding whether to recommend the waiver include the nature and date of the offense, possible rehabilitation of the alien’s character, and the necessity for, or urgency of, the alien’s proposed trip to the United States. INA 212(d)(12) waiver is available.
DHS may grant a waiver to:
1. Certain permanent resident aliens who have been abroad temporarily and are not under order of deportation; or
2. To aliens seeking admission or adjustment of status as immediate relatives or family-based beneficiaries (but for aliens seeking adjustment it must have been committed solely to assist, aid, or support the alien’s spouse or child).
Student Visa Abusers
(INA 212(a)(6)(G));
(9 FAM 40.67) 		INA 212(d)(3)(A) waiver is available. Factors to be considered in deciding whether to recommend the waiver include the nature and date of the offense, possible rehabilitation of the alien’s character, and the necessity for, or urgency of, the alien’s proposed trip to the United States. No waiver is available.

CRIMINAL AND RELATED GROUNDS

Class of Inadmissibility
NIV Waivers
IV Waivers
Crimes Involving Moral Turpitude
(INA 212(a)(2)(A)(i)(I);
9 FAM 40.21(a)) 		For those who do not fall under the exceptions to inadmissibility listed in 9 FAM 40.21, INA 212(d)(3)(A) waivers are available. Factors in considering whether to recommend a waiver include the nature and date of the offense, possible rehabilitation of the alien’s character, and the necessity for, or urgency of, the alien’s proposed trip to the United States. 1. INA 212(h) waiver is available in cases where the alien’s admission to the United States would not be contrary to the national welfare, safety and security of the United States and the applicant has been rehabilitated, and the activities for which the applicant is inadmissible occurred more than 15 years before the date of visa application; or
2. For the spouse, parent, son, or daughter of a U.S. citizen or legal permanent resident (LPR) if, in the opinion of DHS, not granting the waiver would result in extreme hardship to the U.S. citizen or LPR; or
3. The alien is a VAWA self-petitioner.

No waiver is available if the applicant has been convicted of (or has admitted committing acts that constitute) murder, criminal acts involving torture, or conspiracy to commit either murder or criminal acts involving torture.

Controlled Substance Violators
(INA 212(a)(2)(A)(i)(II));
(9 FAM 40.21(b)) 		INA 212(d)(3)(A) waiver is available.
Factors to consider in deciding whether to recommend the waiver include the nature and date of the offense, possible rehabilitation of the alien’s character, and the necessity for, or urgency of, the alien’s proposed trip to the United States. 		1. INA 212(h) waiver is available if the alien’s admission to the United States would not be contrary to the national welfare, safety, or security of the United States; and the alien has been rehabilitated and the inadmissible act occurred more than 15 years before the visa application; or
2. For the spouse, parent, son, or daughter to the U.S. citizen or LPR if, in the opinion of the Secretary of Homeland Security, refusing the waiver would result in extreme hardship to the U.S. citizen or LPR; or
3. The alien is a VAWA
self-petitioner.

INA 212(h) is only available if the violation relates to a single offense of simple possession of 30 grams or less of marijuana.

Multiple Criminal Convictions
(INA 212(a)(2)(B));
(9 FAM 40.22 Notes) 		INA 212(d)(3)(A) waiver is available.
Factors to consider in deciding whether to recommend the waiver include the nature and date of the offense, possible rehabilitation of the alien’s character, and the necessity for, or urgency of, the alien’s proposed trip to the United States. 		1. INA 212(h) waiver is available if: activities for which the alien is inadmissible occurred more than 15 years before the date of the alien’s application; the alien’s admission to the United States would not be contrary to the national welfare, safety, or security; and the applicant has been rehabilitated; or
2. For the spouse, parent, son, or daughter to the U.S. citizen or LPR if, in the opinion of the Secretary of Homeland Security, refusing the waiver would result in extreme hardship to the U.S. citizen or LPR; or
3. If the alien is a VAWA self-petitioner.

No waiver is available if the applicant has committed murder, criminal acts involving torture, or conspiracy to commit either murder or criminal acts involving torture.

Controlled Substance Traffickers and the Spouse, Son, or Daughter of Substance Traffickers Who Obtained Financial or other Benefit and Knew or have Known that the Financial Benefit was the Product of Illicit Activity within the Past Five Years
(INA 212(a)(2)(C));
(9 FAM 40.23 Notes) 		INA 212(d)(3)(A) waiver is available.
Factors to consider in deciding whether to recommend the waiver include the nature and date of the offense, possible rehabilitation of the alien’s character, and the necessity for, or urgency of, the alien’s proposed trip to the United States. 		No waiver is available.
Prostitution and Commercialized Vice Within the Past 10 Years of the Date of Application for a Visa, Admission, or Adjustment of Status
(INA 212(a)(2)(D); and INA 212(a)(2)(A)(i)(I))
(9 FAM 40.24) 		INA 212(d)(3)(A) waiver is available.
Factors to be considered in deciding whether to recommend the waiver include the nature and date of the offense, possible rehabilitation of the alien’s character, and the necessity for, or urgency of, the alien’s proposed trip to the United States. 		1. INA 212(h) waiver is available in cases of prostitution (D)(i)or procuring (D)(ii) if the alien’s admission to the United States would not be contrary to the national welfare, safety, or security, and the alien has been rehabilitated. In cases of other commercialized vice (D)(iii), 212(h) is available if the two conditions above are met, and all relevant criminal acts took place more than 15 years before the date of application; or
2. Available to IV applicants with a close family relationship (spouse, parent, son, or daughter) to a U.S. citizen or LPR, if, in the opinion of DHS, not granting the waiver would result in extreme hardship to the petitioning U.S. citizen or LPR and the alien has been rehabilitated; or
3. The alien is a VAWA self-petitioner.
Certain Aliens Involved in Serious Criminal Activity Who Have Asserted Immunity from Prosecution
(INA 212(a)(2)(E))
(9 FAM 40.25) 		INA 212(d)(3)(A) waiver is available. Factors to be considered in deciding whether to recommend the waiver include the nature and date of the offense, possible rehabilitation of the alien’s character, and the necessity for, or urgency of, the alien’s proposed trip to the United States. 1. INA 212(h) waiver is available if the activities for which the alien is inadmissible occurred more than 15 years before the date of the alien’s application, the alien’s admission to the United States would not be contrary to the national welfare, safety, or security, and the alien has been rehabilitated; or
2. For applicants with a close family relationship (spouse, parent, son, or daughter) to a U.S. citizen or LPR, if, in the opinion of DHS, refusing the waiver would result
in extreme hardship to the U.S. citizen or LPR; or
3. The alien is a VAWA self-petitioner.

Neither waiver is available if the alien has committed murder or criminal acts involving torture, or conspiracy to commit either murder or criminal acts involving torture.

Foreign Government Officials Who Have Committed Particularly Severe Violations of Religious Freedom
(INA 212(a)(2)(G));
(9 FAM 40.26) 		INA 212(d)(3)(A) waiver is available. Advisory Opinion from VO/L/A is mandatory. No waiver is available.
Significant Traffickers in Persons and Beneficiaries, Certain Family Members of Trafficker Who Obtained Financial or Other Benefit and Knew or Have Known that the Financial Benefit was the Product of Illicit Activity in Past 5 Years
(INA 212(a)(2)(H));
(9 FAM 40.27 Notes) 		INA 212(d)(3)(A) waiver is available. Advisory Opinion from VO/L/A is mandatory. No waiver is available.

DOCUMENTATION REQUIREMENTS

Class of Inadmissibility
NIV Waivers
IV Waivers
No Entry Documents – Immigrants
(INA 212(a)(7)(A));
(9 FAM 40.71) 		Not applicable. No waiver is available at time of visa application. However, under INA 212(k), DHS may waive this inadmissibility for an IV holder at the port of entry.
Nonimmigrants Not in Possession of Passport Valid for Six Months of Nonimmigrant Visa or Border Crossing Card
(INA 212(a)(7)(B));
(9 FAM 40.72 Notes) 		INA 212(d)(4) waiver is available:
1. On the basis of unforeseen emergency in individual cases; or
2. On the basis of reciprocity to nationals of a foreign contiguous territory or of adjacent islands (and residents of those territories or islands having a common nationality with such nationals). 		Not applicable.

HEALTH RELATED GROUNDS

Class of Inadmissibility
NIV Waivers
IV Waivers
Communicable Disease of Public Health Significance
(INA 212(a)(1)(A)(i);
(9 FAM 40.11)		 INA 212(d)(3)(A) waiver is available. INA 212(g) waiver is available for:
1. The spouse, unmarried son or daughter, or minor unmarried lawfully adopted child of: a U.S. citizen, an alien who has been issued an immigrant visa, or an alien who has been lawfully admitted for permanent residence; or
2. The parent of a son or daughter who is: a U.S. citizen, a lawfully admitted permanent resident alien, or an alien who has been issued an immigrant visa; or
3. A Violence Against Women Act (VAWA) self-petitioner.
Failure to Submit Proof of Vaccination
INA 212(a)(1)(A)(ii)
(INA 212(a)(1)(A)(iii); (9 FAM 40.11) 		Not Applicable. 1. If alien receives vaccines that are initially missing, a waiver may be approved by the consular officer under a blanket delegation of authority by USCIS. (9 FAM 40.11 N12.5-1; INA 212(g)(2)(A))
2. If the panel physician determines required vaccinations would be medically inappropriate, a waiver may be approved by the consular officer under a blanket delegation of authority by USCIS. (9 FAM 40.11 N12.5-2; INA 212(g)(2)(B))
3. If there is a religious or moral objection to vaccination, a waiver may be approved by Department of Homeland Security (DHS). (9 FAM 40.11 N12.5-3 and INA 212(g)(2)(C))
Physical or Mental Disorder and Behavior Associated with the Disorder Which May Pose, or Has Posed a Threat, to Property or Safety, of the Applicant or Others and Which is Likely to Recur
(INA 212(a)(1)(A)(iii);
9 FAM 40.11) 		212(d)(3)(A) waiver is available, subject to conditions proposed by the Department of Health and Human Services (HHS), such as a requirement that a family member or medical escort accompany the applicant.
(9 FAM 40.11 N13) 		INA 212(g)(3) waivers are granted at the discretion of DHS in consultation with HHS. Waivers may be subject to conditions proposed by the Department of Health and Human Services, such as the giving of bond or requirement
that a family member or medical escort accompany the applicant.
Drug Abuser or Addict, one who has engaged in “non-medical use of a controlled substance.”
(INA 212(a)(1)(A)(iv);
(9 FAM 40.11 N12) 		212(d)(3)(A) waiver available upon recommendation of the consular officer to DHS/USCIS. (9 FAM 40.11 N13.2 and N14) No waiver is available. However, a “CLASS A” inadmissibility finding by the panel physician may be overcome in the future according to CDC guidelines. (9 FAM 40.11 N13.2)

SECURITY AND RELATED GROUNDS

Class of Inadmissibility
NIV Waivers
IV Waivers
General Prejudicial Activities: Espionage, Sabotage, or Prohibited Export of Sensitive Technology, or Sensitive Information
(INA 212(a)(3)(A));
(9 FAM 40.31) 		No waiver is available but the inadmissibility applies only to current circumstances.
Mandatory Security Advisory Opinion (SAO)
required for inadmissibility finding. 		No waiver is available but inadmissibility applies only to current circumstances.
Terrorist Activities
(INA 212(a)(3)(B)); (9 FAM 40.32)		 INA 212(d)(3)(A) waiver is available. SAO to VO/L/C is mandatory. No waiver is available.
Entry Would Have Potentially Serious Adverse Foreign Policy Consequences
(INA 212(a)(3)(C));
(9 FAM 40.33) 		No waiver is available but inadmissibility applies to current circumstances. SAO is mandatory for inadmissibility finding. No waiver is available but inadmissibility applies to current circumstances. SAO mandatory.
Membership or Affiliation with Communist or Other Totalitarian Party, Domestic or Foreign (applies only to immigrants)
(INA 212(a)(3)(D));
(9 FAM 40.34) 		INA 212(a)(3)(D) waiver available. Also, there are exceptions contained in INA 212(a)(3)(D) relating to past membership and/or involuntary membership.
Participation in Nazi Persecutions or Genocide and Commission of Acts of Torture or Extrajudicial Killings
(INA 212(a)(3)(E));
(9 FAM 40.35(a) and 9 FAM 40.35(b)) 		INA 212(d)(3)(A) waiver is available for acts of torture or extrajudicial killing.
SAO mandatory for finding. 		No waiver is available.
Associations with Terrorist Organizations
(INA 212(a)(3)(F));
(9 FAM 40.36) 		INA 212(d)(3)(A) waiver is available.
SAO mandatory 		No waiver is available.
Recruitment or Use of Child Soldiers
(INA 212(a)(3)(G));
(9 FAM 40.38) 		INA 212(d)(3)(A) waiver is available.
SAO mandatory 		No waiver is available.

PUBLIC CHARGE

Class of Inadmissibility
NIV Waivers
IV Waivers
Public Charge
(INA 212(a)(4)(A));
(9 FAM 40.41) 		The refusal on this ground may be overcome.
Typically, refusals are overcome if an applicant presents evidence that convinces the consular officer that the inadmissibility no longer applies. 		No waiver is available. Applicants may overcome the finding by presenting evidence to convince you that the inadmissibility no longer applies. While there are provisions for overcoming the inadmissibility by posting a bond with DHS, the applicant is still subject to Affidavit of Support (AOS) and income requirements. Consequently, there are few circumstances in which a bond would be offered as an alternative to the AOS.

LABOR AND QUALIFICATIONS FOR CERTAIN IMMIGRANTS

Class of Inadmissibility
NIV Waivers
IV Waivers
Aliens Entering the United States to Perform Skilled or Unskilled Labor Whose Intended Employment Has Not Been Certified by the Department of Labor or Who is Unqualified for His/Her Certified Employment.
(INA 212(a)(5)(A));
(9 FAM 40.51) 		Not applicable to NIV. No waiver is available at time of visa application. However, under INA 212(k), DHS may waive this inadmissibility for an IV holder at the port of entry.
Unqualified Physicians
(INA 212(a)(5)(B));
(9 FAM 40.52) 		Not applicable to NIV. No waiver is available.
Uncertified Foreign Health Care Workers
(INA 212(a)(5)(C));
(9 FAM 40.53 Notes) 		Discretion must be applied on a case-by-case basis; reference 9 FAM 40.53 N3. No waiver is available, but this can be overcome. See 9 FAM 40.53 N1.

INELIGIBLE FOR CITIZENSHIP

Class of Inadmissibility
NIV Waivers
IV Waivers
Permanently Ineligible for Citizenship (Immigrant Visas)
(INA 212(a)(8)(A));
(9 FAM 40.81 Notes) 		Not applicable. No waiver is available. INA 212(c) relief is available for certain returning residents. Advisory Opinion required.
Any Alien Who Departed from or Remained Outside the United States to Avoid Service in the Armed Forces in Time of War or National Emergency
(INA 212(A)(8)(B));
(9 FAM 40.82 Notes) 		INA 212(d)(3)(A) waiver is available. Factors to be considered in deciding whether to recommend the waiver include the nature and date of the offense, possible rehabilitation of the alien’s character, and the necessity for, or urgency of, the alien’s proposed trip to the United States. No waiver is available. INA 212(c) relief is available for certain returning residents.

MISCELLANEOUS

Class of Inadmissibility
NIV Waivers
IV Waivers
Practicing Polygamists
(INA 212(a)(10)(A));
(9 FAM 40.101) 		Not applicable. No waiver is available.
INA 212(c) relief is available for certain returning residents.
Guardian Required to Accompany Helpless Alien (INA 212(a)(10)(B));
(9 FAM 40.102) 		Not applicable at time of visa application. This is applied only at the port of entry (POE) by DHS. Not applicable at time of visa application.
International Child Abduction
(INA 212(a)(10)(C));
(9 FAM 40.103 Notes) 		212(d)(3)(A) waiver is available.
Factors to be considered in deciding whether to recommend the waiver include the nature and date of the offense, possible rehabilitation of the alien’s character, and the necessity for, or urgency of, the alien’s proposed trip to the United States. 		No waiver is available.
Unlawful Voters
(INA 212(a)(10)(D));
(9 FAM 40.104 Notes) 		212(d)(3)(A) waiver is available.
Factors to be considered in deciding whether to recommend the waiver include the nature and date of the offense, possible rehabilitation of the alien’s character, and the necessity for, or urgency of, the alien’s proposed trip to the United States. 		No waiver is available.
Former Citizens Who Renounced Citizenship to Avoid Taxation
(INA 212(a)(10)(E));
(9 FAM 40.105 Notes) 		212(d)(3)(A) waiver is available.
Factors to be considered in deciding whether to recommend the waiver include the nature and date of the offense, possible rehabilitation of the alien’s character, and the necessity for, or urgency of, the alien’s proposed trip to the United States. 		No waiver is available.

OTHER INADMISSIBILITIES

Class of Inadmissibility
NIV Waivers
IV Waivers
Educational Visitor Status: Foreign Residence Requirement; Waivers
(INA 212(e));
(9 FAM 40.202) 		The foreign residence requirement of INA 212(e) may be waived by the Department of Homeland Security (DHS) upon recommendation from CA/VO/L/W. The foreign residence requirement of INA 212(e) may be waived by the DHS upon recommendation from CA/VO/L/W.
Presumption of Immigrant Status
(INA 214(b));
(9 FAM 40.203 Notes) 		No waiver is available. Not Applicable.
Alien Who Knowingly Made a Frivolous Application for Asylum
(INA 208(d)(6));
(9 FAM 40.206) 		No waiver is available. No waiver is available.
Aliens Involved in Confiscation of Property of U.S. Nationals
(Section 401 of Public Law 104-114);
(9 FAM 40.207 Notes) 		Where the Secretary of State finds, on a case by case basis, that the entry into the United States of the person who would otherwise be inadmissible under this section is necessary for medical reasons or for purposes of litigation of an action under Title III. No waiver is available.
Aliens Involved in Confiscation of Property of U.S. Nationals
(Section 401 of Public Law 104-114);
(9 FAM 40.207 Notes) 		Where the Secretary of State finds, on a case by case basis, that the entry into the United States of the person who would otherwise be inadmissible under this section is necessary for medical reasons or for purposes of litigation of an action under Title III. No waiver is available.
Aliens Involved in Political Killings
(Section 616 of Public Law 105-277);
(9 FAM 40.208) 		No waiver is available. No waiver is available.
Suspension of Entry or Imposition of Restrictions by President
(INA 212(f)) 		No waiver is available. No waiver is available.
Visa Overstay
(INA 222(g));
(9 FAM 40.68 and 9 FAM 41.101) 		No waiver except where extraordinary circumstances are found by the Secretary of State to exist. Not applicable.
Persons Engaged in Forced Abortions or Sterilization
(8 U.S.C. 1182(e)) 		If the Secretary of State determines that it is important to the national interest of the United States to do so and provides written notification to the appropriate congressional committees containing a justification for the waiver. Not applicable.
Chinese and Other Nationals Engaged in Coerced Organ or Bodily Tissue Transplantation
(8 U.S.C. 1182(f)) 		If the Secretary of State determines that it is important to the national interest of the United States to do so, and no later than 30 days after the issuance of a visa, the Secretary provides written notification to the appropriate Congressional committee containing a justification for the waiver. Not applicable.
Persons Credibly Alleged to Have Aided and Abetted Colombian Insurgent and Paramilitary Groups
(Section 3205 of Public Law 106-246) 		1. If the Secretary of State finds, on a case by case basis, that the entry into the United States of a person who would otherwise be inadmissible under this section is necessary for medical reasons.
2. To permit the prosecution of such person in the United States or when the person has cooperated fully with the investigation of crimes committed by individuals associated with the Revolutionary Armed Forces of Columbia (FARC), the National Liberation Army (ELN), or the United Columbian Self Defense Organization (AUC).
3. The President may waive the limitation if he determines that the waiver is in the national interest.		 No waiver is available.
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