Complex Issues with AOS: Creative Strategies to Maintain the Family Unit Magali S. Candler FosterQuan, LLP, Houston, TX Jacqueline L. Watson Law Office of Thomas Esparza, Austin, TX 2014 AILA TX/OK/NM Chapter Spring Conference, Dallas, TX

Other paths to LPR NACARA (Nicaraguan Adjustment and Central American Relief Act Cuban Adjustment Act HRIFA (Haitian Refugee Immigration Fairness Act) Registry SIJS (Special Immigrant Juvenile Status) VAWA (Violence Against Women Act) S, T, and U visa adjustments 2014 AILA TX/OK/NM Chapter Spring Conference, Dallas, TX

AOS: Uncovering Eligibility Start with INA §245, not §212 §245(a): who can adjust? (See also Matter of Areguillin, 17 I&N Dec. 308 (BIA 1980); Matter of Quilantan, 25 I&N Dec. 285 (BIA 2010) §245(c): who cannot adjust? §245(i): who can pay a fine and adjust? (See also Matter of Legaspi, 25 I&N Dec. 328 (BIA 2010) §245(k): can your EB client adjust? 2014 AILA TX/OK/NM Chapter Spring Conference, Dallas, TX

§245 Red Flags and Possible Solutions §245(c): Crewmen (But see Matter of Loo, 15 I&N Dec. 601 (BIA 1976); Matter of G-D-, 25 I&N Dec. 82 (BIA 2009)) §245(d): Fiancé(e)s (But see Matter of Sesay, 25 I&N Dec. 431 (BIA 2011); Matter of Le, 25 I&N Dec. 541 (BIA 2011)) §245(e): Marriages entered while in proceedings (But see bona fide marriage exception) §245(f): Conditional residents (But see Matter of Stowers, 22 I&N Dec. 605 (BIA 1999)) 2014 AILA TX/OK/NM Chapter Spring Conference, Dallas, TX

ULP/Failure to Maintain Status ULP: §§212(a)(6) and 212(a)(9) –Triggered by departure from the U.S. (But see Matter of Arrabelly and Yarrabelly, 28 I&N Dec. 771 (BIA 2012)) –Sometimes, but not always, waivable Failure to Maintain Status: §245(c) and (k) –Not waivable, but read §245(c) carefully and argue for exception (no fault or technical reasons for failure to maintain status; see also Matter of L-K-, 23 I&N Dec. 677 (BIA 2004) and unpub. BIA decision Matter of Norra, A (Mar. 21, 2014) –Other exceptions in §245 (i.e. immediate relatives, VAWA, SIJ) –May be excused by paying $1000 fine 2014 AILA TX/OK/NM Chapter Spring Conference, Dallas, TX

Note about Departures In Arrabelly and Yarrabelly, above, the BIA found that a departure on advance parole under INA §212(d)(5)(A) does not trigger the ULP bar under INA Please note that TPS advance parole is under a different statutory scheme: INA §244(f) authorizes TPS advance parole, and Pub.L (Dec. 12, 1991) states that TPS entrants are “inspected and admitted” in the same status which was held prior to departure. TPS travelers are therefore NOT arriving aliens upon arrival 2014 AILA TX/OK/NM Chapter Spring Conference, Dallas, TX

Parole in Place See USCIS Memo, “Parole of Spouses, Children, and Parents of Active Duty Members of the U.S. Armed Forces, the Selected Reserve of the Ready Reserve, and Former Members of the U.S. Armed Forces…,” AILA Doc. No (posted 11/15/2013) Allows for discretionary grant of parole in place under INA §212(d)(5)(A) (without departing the U.S.) for immediate relatives of active duty military, National Guard, active military reserves, and veterans Only takes care of inadmissibility under INA §212(a)(6)(A)(i), and thus makes the PIP recipient eligible to adjust as per INA §245(a) To be “granted sparingly;” “a criminal conviction or other serious adverse factors” will knock out of eligibility for PIP; must still be otherwise admissible 2014 AILA TX/OK/NM Chapter Spring Conference, Dallas, TX

Eligibility for PIP Immediate relatives only: Spouses (included same-sex spouses), children (unmarried and under 21 years old), and parents Of active duty member of the U.S. Armed Forces; or Of an individual in the Selected Reserve of the Ready Reserve (includes members of the Army and Air National Guard; the Army, Navy, Air Force, Marine Corps, and Coast Guard Reserve); or Of an individual who formerly served in the U.S. Armed Forces or the Selected Reserve of the Ready Reserve 2014 AILA TX/OK/NM Chapter Spring Conference, Dallas, TX

Applying for Parole in Place File form I-131 with no fee, evidence of qualifying relationship; evidence of family member’s military service; two passport-style photos; and evidence of discretionary factors Filed with the District Director of the USCIS office with jurisdiction over the non-citizen applicant’s place of residence by mail or by InfoPass DO NOT file the I-130/I-485/I-765 with the PIP request An I-94 will be issued if PIP decision is favorable for one year; re-parole possible “as appropriate” 2014 AILA TX/OK/NM Chapter Spring Conference, Dallas, TX

Applying for AOS after PIP Once the I-94 is filed, then the I-485 package (and I- 130 if needed) may be filed with the USCIS Chicago Lockbox The I-94 issued with PIP is evidence of §245(a) eligibility; the applicant must still demonstrate that s/he is otherwise eligible for admission PIP parolee is also eligible for “stand-alone” EAD under 8 CFR §274a.12(c)(11) 2014 AILA TX/OK/NM Chapter Spring Conference, Dallas, TX

Waivers of Inadmissibility Immigrant Visas Waivers of Inadmissibility may be included with applications for Adjustment of Status (AOS) filed with the CIS Waivers of Inadmissibility may be a form of relief in defending removal proceedings (sometimes filed with AOS) 2014 AILA TX/OK/NM Chapter Spring Conference, Dallas, TX

Waivers of Inadmissibility 212(c) Section 212(c) Relief, under St. Cyr may be available in limited circumstances Generally for pre-AEDPA and/or pre-IIRAIRA convictions of lawful permanent residents (guilty or nolo pleas in MOST circuits) Leading case, still, is Matter of Marin (BIA, 1978) Must have been a Lawful Permanent Resident or Temporary Resident at the time plea made Requirements listed in Section of the 8 C.F.R AILA TX/OK/NM Chapter Spring Conference, Dallas, TX

Waivers of Inadmissability 212(c), cont’d INA Section 212(c), generally: "Aliens lawfully admitted for permanent residence who temporarily proceeded abroad voluntarily and not under an order of deportation, and who are returning to a lawful unrelinquished domicile of seven consecutive years, may be admitted in the discretion of the A.G., etc….” (Caveat re: aggravated felony or felonies, date of convictions/pleas and terms of imprisonment) 2014 AILA TX/OK/NM Chapter Spring Conference, Dallas, TX

Waivers of Inadmissibility 212(h) Immigrant Visa Waiver for Criminal Grounds of Inadmissibility Caveat for controlled substance offenses (waiver available only for one simple possession of 30 grams or less of marijuana) Some aggravated felonies may be waived for those who have not previously been admitted as LPRs (in the 5th, 4th and 11th Circuit, LPRs may be eligible for waiver of an aggravated felony if they adjusted status rather than consular processed). Extreme hardship to a qualifying relative (USC or LPR spouse, parent or child) required unless the crime occurred more than 15 years before the alien is applying for admission or adjustment of status 2014 AILA TX/OK/NM Chapter Spring Conference, Dallas, TX

Waivers of Inadmissibility 212(h), cont’d May be “stand alone” relief from removal for a returning LPR found to be an “arriving alien” and inadmissible to the United States under 101(a)(13) of the INA May be relief from removal along with an adjustment of status (AOS) application, which will be discussed later as an application for relief if an immigrant visa is available 2014 AILA TX/OK/NM Chapter Spring Conference, Dallas, TX

Waivers of Inadmissibility 212(i) “Fraud Waiver” under INA Section 212(i), immigrant visa waiver Must prove extreme hardship to a qualifying relative (USC or LPR spouse or parent, NOT child) VAWA exception: alien may prove hardship to himself or herself False claim to citizenship may not be waived Generally filed along with an adjustment of status application or when consular processing 2014 AILA TX/OK/NM Chapter Spring Conference, Dallas, TX

Waivers of Inadmissibility 212(g) “Health Ground Waiver” under INA Section 212(g), immigrant visa waiver Required more often at the consulates, although it may come up during AOS with CIS or when adjusting status in court Caveat for individuals with DUIs or DWIs in the last year (certain consulates) Need USC or LPR spouse, parent or child or to be a VAWA applicant HIV no longer considered a significant health threat 2014 AILA TX/OK/NM Chapter Spring Conference, Dallas, TX

Waivers of Inadmissibility 212(a)(9)(B) “Unlawful Presence Waiver” under Section 212(a)(9)(B) of the INA For aliens subject to the 3 or 10 year bar when departing the United States after being “unlawfully present” for over 180 days or 1 year Generally for consular processing (also, “stateside” waivers for immediate relatives) Requires showing extreme hardship to a qualifying relative (USC or LPR spouse or parent…NOT child) Caveat regarding the “permanent” bar, under 212(a)(9)(C) (But see exception and VAWA waiver) 2014 AILA TX/OK/NM Chapter Spring Conference, Dallas, TX

AOS and Arriving Aliens Definition of “admission,” generally: INA §101(a)(13) Definition: 8 CFR §1.2: “…an applicant for admission coming or attempting to come into the United States at a port-of-entry, or an alien seeking transit through the United States at a port-of-entry, or an alien interdicted in international or United States waters and brought into the United States by any means, whether or not to a designated port-of-entry, and regardless of the means of transport. An arriving alien remains an arriving alien even if paroled pursuant to section 212(d)(5) of the Act, and even after any such parole is terminated or revoked.” 2014 AILA TX/OK/NM Chapter Spring Conference, Dallas, TX

AOS and Arriving Aliens Jurisdictional Issues: USCIS generally has jurisdiction over AOS for any “arriving alien,” including those in removal proceedings Immigration court has jurisdiction over AOS for arriving aliens if they: applied for advance parole while AOS pending; traveled; returned on AP; then seeks review by the IJ of the denied AOS for which AP had been granted 2014 AILA TX/OK/NM Chapter Spring Conference, Dallas, TX

AOS for Arriving Aliens with Final Orders Arriving aliens with a final unexecuted order of exclusion: Eligible to adjust before USCIS. Matter of C-H-, 9 I&N Dec. 265, 266 (Regional Comm’r 1961). Arriving aliens with final orders of removal: Eligible to adjust before USCIS. Id., but see Matter of Yauri, 25 I&N Dec. 103 (BIA 2009) (an arriving alien may adjust, but the underlying removal order may not necessarily be reopened) AILA TX/OK/NM Chapter Spring Conference, Dallas, TX

FIN 2014 AILA TX/OK/NM Chapter Spring Conference, Dallas, TX