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APPLICATION FOR INADMISSIBILITY WAIVER

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 . Present without permission. 212(a)(6)(A)

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APPLICATION FOR INADMISSIBILITY WAIVER

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  1. APPLICATION FOR INADMISSIBILITY WAIVER • U Visa is NonImmigrant Visa, so Need Waivers of Each Nonimmigrant Ground of Inadmissibility • Derivatives need their own inadmissibility waivers

  2. COMMON INADMISSIBILITY GROUNDS • 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)

  3. POSSIBLE BARS TO ADMISSION • Failure to Comply with Voluntary Departure Order • Marriage Fraud (CWS)

  4. DIFFICULT INADMISSIBILITY FACTORS • Prior Removals • Multiple removals • Crimes involving moral turpitude • Drug crimes • Multiple crimes • Violent crimes • Gang related crimes

  5. Do Grounds Apply? • Inadmissibility ground not triggered if… • Not in 212(a) • 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

  6. 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

  7. Removal or Not? At the Border • Expedited Removal Process by CBP • 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

  8. 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?

  9. 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

  10. 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. • 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?

  11. 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

  12. 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

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