Waivers of Inadmissibility Requirements and their Impact on Applicants for Adjustment of Status

By Federica Dell’Orto and Judith Wood

Adjustment of status is the process of applying for lawful permanent residency in the United States, a process which allows transition from being a non-immigrant visa holder or a foreign national without status to lawful permanent residency. Adjusting status is an option available to only a few categories of people, amongst those: certain relatives of current permanent residents or U.S. citizens, applicants who filed a successful Violence Against Women Act (VAWA) petition, asylees and certain employees of U.S. businesses who proved to possess extraordinary ability in their field of endeavor, and those whose work is in the national interest of the United States.

The focus of this article is the adjustment of status of those foreign citizens who have a U.S. citizen as an immediate relative.

Federica Dell’Orto is a New York based attorney, with extensive experience in immigration, international and human rights law, and complex litigation matters. She has represented clients during removal proceedings, as well as in asylum, bond, cancellation of removal, and adjustment hearings. She is experienced with the Board of Immigration Appeals and the Ninth Circuit Court of Appeals. Judith Wood attended Pepperdine University School of Law and served as a public defender in New Mexico. She has been in private practice as an Immigration Attorney since 1984. She was supervising attorney for CARECEN and was attorney for El Rescate, as well as for One Stop Immigration. She is a member of the Federal Bar Association, where she is chair of the Human Rights Section of International Law.

The Immigration and Nationality Act under § 245(a)1 allows certain foreign nationals, who are physically present in the United States, to adjust their status to that of a lawful permanent resident if they are an immediate relative of a U.S. citizen. Specifically, § 245(a) establishes that “The status of an alien who was inspected and admitted or paroled into the United States or the status of any other alien having an approved petition for classification as a VAWA self-petitioner may be adjusted by the Attorney General, in his discretion and under such regulations as he may prescribe, to that of an alien lawfully admitted for permanent residence if (1) the alien makes an application for such adjustment, (2) the alien is eligible to receive an immigrant visa and is admissible to the United States for permanent residence, and (3) an immigrant visa is immediately available to him at the time his application is filed.” The essential requirement for a person to be able to adjust under 245(a) is to have been lawfully admitted or paroled into the United States.

An admission occurs when an immigration officer allows a noncitizen to enter the United States pursuant to a visa or another entry document, while parole occurs when a person is allowed into the United States while lacking a visa or other valid admission document or status, usually for an emergency or for humanitarian reason. People who enter the United States without being “admitted” or “paroled” are generally not able to adjust status while in the United States, instead, they must leave the United States and complete the processing of their permanent residency applications at a U.S. consulate abroad. The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRAIRA) toughened U.S. immigration laws, adding penalties for undocumented immigrants who stay in the United States for statutorily defined periods of time. The act established that foreign citizens who are unlawfully present in the United States for 180 days to 365 days must remain outside the United States for at least three years unless pardoned2. The act also established that foreign citizens who remained in the United States for more than 365 days must remain outside the United States for at least 10 years unless they obtain a waiver3

As such, if the foreign national entered or remained in the United States without any lawful status after April 30, 1997—the day IIRIRA’s changes became effective—he or she would begin to accrue days of ‘unlawful presence.’ Said individual who has accrued sufficient unlawful presence to trigger a 3- or 10- year bar only triggers that bar by departing the United States. As discussed though, in order to adjust status absent admission or parole, the foreign national must depart the United States—at which point the 3- or 10year bar is triggered.

An immigrant waiver of these bars is available to those applicants who can establish “extreme hardship” to a qualifying relative. A qualifying relative is defined as a U.S. citizen or lawful permanent resident spouse or parent4. The Secretary of Homeland Security’s discretionary authority to waive the ground of inadmissibility for unlawful presence is established in Immigration and Nationality Act (INA) § 212(a)(9)(B)(v)5, 8 U.S.C. 1182(a)(9)(B)(v) and the regulation governing the relevant inadmissibility waivers is 8 CFR 212.76.

Before 2013, the so-called immediate relatives could not apply for the waiver until after they had completed their immigrant visa interviews in their home countries, yet the departure from the United States was the very action that triggered the unlawful presence inadmissibility under § 212(a)(9) (B)(i) of the INA. As a result, under the original provisions, the foreign nationals were forced to remain outside of the United States, and away from their U.S. citizen spouses, parents, or children, while USCIS adjudicated their waiver applications—a process that could last longer than one year. The lengthy processing times, coupled with the uncertainty about the outcome of the waiver adjudication, made it such that many possibly eligible foreign nationals were reluctant to proceed with this avenue.

On Jan. 3, 2013, USCIS published a final rule7 which allowed certain immediate relatives of U.S. citizens to apply for a provisional waiver of the unlawful presence grounds of inadmissibility under § 212(a)(9)(B)(i)(I) or § 212(a)(9)(B)(i)(II) of the INA before leaving the United States for their immigrant visa appointments.

Both forms I-601 Application for Waiver of Grounds of Inadmissibility and I-601A Application for Provisional Unlawful Presence Waiver are requests for waivers for grounds of inadmissibility. The similarity amongst the two forms is that both must show that a U.S. citizen or permanent resident spouse or parent will suffer “extreme hardship” if the waiver is not granted. Form I-601 can be used to waive any grounds of inadmissibility, whereas form I-601A can solely be used to waive inadmissibility based on unlawful presence. Form I-601 must be filed after a finding of inadmissibility has been entered and the timing is relevant because the grounds for inadmissibility are established after the consular determination is made. Form I-601A can instead be filed while waiting for a consular interview and before the determination as to the inadmissibility has been made; this is because the purpose of the I-601A is to reduce the family separation time. The criteria for judging “extreme hardship” in determining whether an alien has established extreme hardship pursuant to the act is laid out in Matter of Cervantes-Gonzalez8. The factors to be used include, but are not limited to, the following: the presence of lawful permanent resident or U.S. citizen family ties to this country, the qualifying relative’s family ties outside the United States, the conditions in the country or countries to which the qualifying relative would relocate and the extent of the qualifying relative’s ties to such countries, the financial impact of departure from this country, and, finally, significant conditions of health, particularly when tied to the unavailability of suitable medical care in the country to which the qualifying relative would relocate9. These relevant factors are considered in the aggregate and are evaluated to determine whether the combination of all factors makes a particular case harsher than what is ordinarily expected from leaving a country. For the INA § 212(a) (9)(B)(v) waiver to overcome the 3- and 10-year unlawful presence bar, the qualifying relative must be a U.S. citizen or lawful permanent resident spouse or parent; children cannot be qualifying relatives under the requirements for waivers for unlawful presence. So often immigrants have been beneficiaries of family petitions filed by their adult children, and yet they cannot immigrate because the waivers are not available to them; as such an expansion of the qualifying relatives so as to include adult children who are U.S. citizens is auspicial.

It is heartbreaking and tragic for so many immigrants, many of whom have spent years toiling in the fields, planting and harvesting our food, to not be able to avail themselves of the waivers for their unlawful presence.

Particular hardship is endured by Mexican nationals who are often low-priority immigrants. Other nationalities are eligible for various forms of relief, such as TPS (temporary protected status), NACARA (suspension of removal for nationals from Guatemala, El Salvador, and Nicaragua), asylum, and withholding of removal and relief under the Convention Against Torture. However, Mexican citizens do not qualify for any of these forms of relief. With regards to asylum, and no matter how horrible the country conditions in Mexico may be, the immigration judges rarely find that the respondent has suffered persecution, or if they have, it is not on account of one of the five grounds—race, religion, nationality, political opinion, or membership in a particular social group. Hence, they are left out of the various avenues of relief.

To rectify this situation, Congress could pass legislation allowing such immigrants, who have U.S. citizen children who have filed petitions for their parents, to file for the waivers such as I-601 and I-601A. This generous and humanitarian act of Congress would ameliorate the suffering of thousands of individuals who would then be able to apply for either adjustment of status or have access to consular process of applications for lawful immigration to the United States.

Endnotes

1INA §245(a)

2INA §212(a)(9)(B)(i)(I)

3INA §212(a)(9)(B)(i)(II)

4INA §212(a)(9)(B)(v)

5INA §212(a)(9)(B)(v)

68 CFR §212.7

778 FR 536 (Jan. 3, 2013)

8Matter of Cervantes-Gonzalez, 22 I&N Dec. 560 (BIA 1999)

9Id.