APPLICATION FOR
INADMISSIBILITY WAIVER
• U Visa is NonImmigrant Visa, so Need
Waivers of Each Nonimmigrant Ground
of Inadmissibility
• Derivatives need their own
inadmissibility waivers
COMMON INADMISSIBILITY
GROUNDS
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Present without permission. 212(a)(6)(A)
Failure to attend removal hearing 212(a)(6)(B)
Visa Fraud. 212(a)(6)(C)(i)
False Claim of US Citizenship. 212(a)(6)(C)(ii)
Alien Smuggling. 212(a)(6)(E)
Previously removed or removal order. 212(a)(9)(A )
Entry after unlawful presence. 212(a)(9)(B)
EWI after unlawful presence/removal 212(a)(9)(C)
Crimes 212(a)(2) et seq
Health condition that creates danger to self or others
212(a)(1)(A)
• Drug Abuser 212(a)(1)(A)
• No Passport 212(a)(7)(B)(I)(I)
• Public Charge 212(a)(4)
POSSIBLE BARS TO
ADMISSION
• Failure to Comply with Voluntary
Departure Order
• Marriage Fraud (CWS)
DIFFICULT INADMISSIBILITY
FACTORS
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Prior Removals
Multiple removals
Crimes involving moral turpitude
Drug crimes
Multiple crimes
Violent crimes
Gang related crimes
Do Grounds Apply?
• Inadmissibility ground not triggered if…
– Not in 212(a)
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Work without permission or false SSN
Driving w/o license and other traffic stops
Disturbing the peace, drunk in public
DUI
– Not in use: fraudulent documents (274(c))
– Not a conviction
• Juvenile court findings
• Watch out for admissions
– Exceptions to CIMT ground
• Petty offense
• Committed when juvenile
• May still need to be addressed
Identifying Inadmissibility Factors
• FBI or State DOJ check for
– Most arrests, charges, convictions
– Most immigration violations
• Screening Forms can check for
detentions, arrests, immigration
proceedings, alien smuggling, multiple
EWIs, etc.
– It is essential that clients tell the truth.
Can include in contract.
• “Yes” answers on I-918
- False claim not specifically asked
Removal or Not? At the Border
– Expedited Removal Process by CBP
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2 interviews
3 fingerprint cards
Sworn Statement (Qs about credible fear)
I-860
“And don’t come back!”
– Paroled in for hearing before IJ
– Voluntary Return
Removal or Not? Elsewhere
– Ordered removed by IJ
– Got VD from IJ, but didn’t leave
– After an immigration hold
• Voluntary Departure vs.
• Stipulated Removal
– Possibly filed immigration papers before?
– Received a notice from ICE or Immigration
Court – may have “in absentia” order
• Asylum
• Adjustment through family member
• Ever had an immigration attorney?
WAIVER ADJUDICATION
FACTORS
• From INA 212(d)(14):
– PUBLIC AND NATIONAL POLICY
• Foster cooperation
• Need for protection of criminal justice system
– AG’s DISCRETION:
• HARDSHIP (Include being crime victim)
• BALANCE OF EQUITIES
– POSITIVE (Include helpfulness in investig/prosecution)
– NEGATIVE (Inadmissibility, other factors)
• From Interim Regulations: “Humanitarian Considerations”
• From USCIS:
– Applicant should take responsibility
– Rehabilitation important
ADDRESSING INADMISSIBILITY
ON THE I-918
• Dealing with Yes answers
– Make sure applicant knows that USCIS will do background check
– Explain them on attachment(s). USCIS will assess credibility.
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What was the incident?
What were the consequences (e.g. arrest, paid fine)
Admit responsibility
Express remorse
Show rehabilitation
– Not sure if it’s yes or no?
• U Inadmissibility waivers are generous, but will a “yes” answer come back to
bite the applicant later?
• Address it how you wish on the form, and include explanation in
– attachment and/or
– applicant’s declaration and/or
– cover letter.
– Attach police/prosecution records?
• Pro: USCIS is a reasonable partner – why not provide?
• Con: USCIS may not be such a reasonable partner – why provide?
ADDRESSING INADMISSIBILITY
ON THE I-192
• No longer benefit in waiting for RFE if
inadmissibility is clear.
– Unless fee waiver becomes much harder with I-912
• Change heading from 212(d)(3) to (d)(14)?
• Only need to complete 1-7 and 12.
• Question 12
– Pros and Cons of blanket waiver
• Easier
• Less clarity what was waived
– No more pre-waiving 10 year bar
– Describe violations or list INA sections
WAIVER DOCUMENTATION
• Simple “Present w/o Permission” only requires form and fee
(waiver)
• More Serious Violations May Require More Significant
Evidence
• Include Brief Declarations With:
– Without Waiver, No U status, and I’m otherwise eligible for
U status because…
– Account of crime(s) and cooperation
– Hardship factors if no U status
– Positive equities outweigh violation
• Public/National Interest: Oakland, SF policy statements