Inadmissibility Waivers Associated With U Visa Petitions

 

Introduction

The U nonimmigrant visa category is for alien victims of certain crimes who assist the Government in the investigation or prosecution of the criminal activity. In order to be eligible for U nonimmigrant status, the alien must be admissible to the United States. There is a special waiver provision for inadmissible U visa petitioners found in section 212(d)(14) of the Immigration and Nationality Act (INA). This waiver, which may be granted at the discretion of the Department of Homeland Security's (DHS's) United States Citizenship and Immigration Services (USCIS), applies to any ground of inadmissibility except for Nazi crimes, genocide, torture, or extrajudicial killings as found in section 212(a)(3)(E) of the INA. Additionally, the USCIS may also use the generally applicable waiver provision in section 212(d)(3) of the INA to grant a discretionary waiver of most grounds of inadmissibility for a U visa petitioner. In this article, we will examine the U nonimmigrant waiver provision and related issues through the relevant statute, regulations, agency guidance.

U Visa Petition

Please see the U visa category on our website to read our growing selection of articles on U visa issues [see category]. Please see our “Victims of Violence” category to learn about other immigration benefits available to victims of crimes and other abuse [see category].

Inadmissibility in the U Nonimmigrant Context

In order to be admitted into the United States as a U nonimmigrant, the petitioner must be admissible to the United States. Because the U nonimmigrant visa category is for aliens who are victims of serious crimes and who then cooperate with law enforcement in the investigation and/or prosecution of those crimes, the immigration laws include a rather generous inadmissibility provision allowing for the discretionary waiver for otherwise inadmissible U visa petitioners. This is in recognition of the fact that U nonimmigrants often have admissibility issues stemming from their victimization and that it may be in the public interest to grant a waiver for most grounds of inadmissibility for an otherwise qualified U visa petitioner.

Inadmissibility for Public Charge Does Not Apply

Before we examine the U nonimmigrant waiver, it is important to note that, under section 212(a)(4)(E)(ii) of the INA, the public charge ground of inadmissibility does not apply to an applicant for U nonimmigrant status. Accordingly, a U nonimmigrant who would be otherwise inadmissible as a public charge does not need to apply for a waiver of inadmissibility under section 212(a)(4).

Please read our full article to learn more about the public charge ground of inadmissibility and when it does apply [see article].

The U Visa Waiver Provision

The U nonimmigrant waiver provision is found in section 212(d)(14) of the INA. As you read, please note that section 101(a)(15)(U) defines a U nonimmigrant. Section 212(d)(14) reads as follows:

The Secretary of Homeland Security shall determine whether a ground of inadmissibility exists with respect to a nonimmigrant described in section 101(a)(15)(U) of this Act [8 U.S.C. 1101(a)(15)(U)]. The Secretary of Homeland Security, in the Attorney General's discretion, may waive the application of subsection (a) of this section (other than paragraph (3)(E)) in the case of an nonimmigrant described in section 101(a)(15)(U) of this Act [8 U.S.C. 1101(a)(15)(U)], if the Secretary of Homeland Security considers it to be in the public or national interest to do so.

There are a few basic points to examine about the section 212(d)(14) waiver provision.

First, section 212(d)(14) waivers can only be granted by “[t]he Secretary of Homeland Security, in the Attorney General's discretion…” This means that, ultimately, only the USCIS can consider and ultimately grant a waiver under section 212(d)(14). Immigration judges and the Board of Immigration Appeals (BIA) have no jurisdiction over section 212(d)(14) waiver applications by U nonimmigrants. However, as we will examine later in the article, there is a question as to whether immigration judges have jurisdiction to grant section 212(d)(3)(A)(ii) waivers for U visa petitioners [see section].

Second, section 212(d)(14) can waive almost any ground of inadmissibility found in section 212(a) of the INA. The only exceptions are the inadmissibility grounds listed in section 212(a)(3)(E). Section 212(a)(3)(E) contains inadmissibility provisions for: (i) Participation in Nazi persecutions; (ii) Participation in genocide; and (iii) Commission of acts of torture or extrajudicial killings. Inadmissibility under section 212(a)(3)(E) renders an individual categorically ineligible for U nonimmigrant status.

Third, the standard for granting a waiver is “if the Secretary of Homeland Security considers it to be in the public or national interest to do so.” This discretionary standard is beneficial for U visa petitioners in light of the fact that the primary purpose of the U nonimmigrant category is to encourage victims of serious crimes to assist U.S. authorities in the investigation and/or prosecution of those crimes, which is “in the public or national interest.” However, it is important to note that the waiver is, nevertheless, discretionary. The USCIS may weigh all relevant factors in determining whether a waiver is warranted given all the facts of a specific case. We will develop the rules further in our discussion of the implementing regulations.

The section 212(d)(14) waiver is available to principal U visa petitioners and derivatives.

Developing the U Visa Waiver Through Regulations

The implementing regulations for section 212(d)(14) of the INA are found in the Code of Federal Regulations (C.F.R.) at 8 C.F.R. 212.17 [PDF version]. The regulations develop policies and procedures for adjudicating waivers for U visa petitioners. In the following subsections, we will examine the regulatory rules for waivers for U visa petitioners.

Regular Waiver In Lieu of U Visa Waiver

Under 8 C.F.R. 212.17(a) and (b), the USCIS also has discretion to waive inadmissibility for a U visa petitioner under section 212(d)(3) in lieu of section 212(d)(14). Section 212(d)(3) is a general waiver available to all nonimmigrants, unlike section 212(d)(14) which is available only in the U visa context. It is important to note that when applying for a waiver from the USCIS under either section 212(d)(3) or section 212(d)(14)in connection with a U visa application, the applicant must comply with all of the requirements discussed below [see section].

The following is section 212(d)(3):

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First, we have highlighted section 212(d)(3)(A)(ii) as having special significance because there is a question as to whether immigration judges and the BIA have jurisdiction over applications for waivers under section 212(d)(3)(A)(ii) by U visa petitioners. Please see the relevant section of our article for an explanation of the current legal landscape on this subject [see section].

Petitioners for U visas who are inadmissible under section 212(a)(3)(E) are ineligible for section 212(d)(3) waivers as well as for section 212(d)(14) waivers. In addition, petitioners for U visas who are inadmissible under section 212(a)(3)(A)(i)(I) [seeking entry to engage in espionage or sabotage], 212(a)(3)(A)(ii) [seeking entry to engage principally or solely in unlawful activity], 212(a)(3)(A)(iii) [seeking entry in opposition to the U.S. government or to overthrow the U.S. government], or 212(a)(3)(C) [alien from whom there is a reasonable ground to believe that his or her entry would have potentially serious adverse foreign policy consequences for the United States] are barred from procuring a section 212(d)(3) waiver. While an alien who is inadmissible under section 212(a)(3)(A) or (C) is in theory still eligible for a waiver under section 212(d)(14) in the context of a U visa application, such a waiver will only be granted in “Extraordinary Circumstances” (see next subsection).

A section 212(d)(3) waiver ultimately allows for the temporary admission of an alien despite his or her inadmissibility. Section 212(d)(3)(A)(ii) allows for conditions to be placed on an alien while he or she is admitted with a temporary section 212(d)(3) waiver.

General Standard

At 72 FR 53014, 53021 (Sep. 17, 2007), the DHS cited to Matter of Mendez-Moralez, 21 I&N Dec. 296 (BIA 1996) [PDF version] to explain that, “in assessing whether an applicant has met the burden that a waiver is warranted in the exercise of discretion, the adjudicator must balance adverse factors evidencing inadmissibility as a lawful permanent resident with the social and humane considerations presented to determine if the grant of the waiver appears to be in the best interests of the United States.”

In short, the USCIS will consider the evidence and determine whether the factors in favor of granting the waiver outweigh those factors against granting the waiver. The USCIS may consider any factors it deems relevant in considering whether granting a waiver of inadmissibility for a U visa petitioner is in the public or national interest. This will likely always include factors such as the nature of the alien's victimization, the nature of his or her inadmissibility, and the alien's level of cooperation in the investigation and/or prosecution of the underlying crimes. An experienced immigration attorney will be able to assist a petitioner in compiling the best evidence to establish equities in his or her favor.

Please see our separate article on the three factors considered by the USCIS in adjudicating requests for relief under section 212(d)(3).

“Extraordinary Circumstances” Standard In Certain Cases

In considering whether an inadmissible U visa petitioner merits the USCIS's favorable exercise of discretion for a waiver, the USCIS “will consider the number and severity of the offenses of which the applicant has been convicted.” This provision is found in 8 C.F.R. 212.17(b)(2). The regulation states that, “[i]n cases involving violent or dangerous crimes or inadmissibility based on security and related grounds in section 212(a)(3) of the Act, USCIS will only exercise favorable discretion in extraordinary circumstances.”

In the 209(c) asylum waiver context, the Attorney General set out the standard for “extraordinary circumstances” in the Matter of Jean, 23 I&N Dec. 373, 383 (A.G. 2002) [PDF version]. In Matter of Jean, the Attorney General suggested that such “extraordinary circumstances” may be those “involving national security or foreign policy considerations, or cases in which an alien clearly demonstrates that the denial of status adjustment would result in exceptional and extremely unusual hardship.” It is important to note that, even if extraordinary circumstances adhere, the USCIS may still determine that the alien does not warrant the favorable exercise of discretion. Id. at 385.

No Appeal from Waiver Denial

Under section 212.17(b)(3), an applicant may not appeal the denial of a waiver request made in conjunction with a U visa application. However, the applicant may re-file his request for a waiver of inadmissibility along with a U visa application.

Revocation of Waiver

Under section 212.17(c), the Secretary of Homeland Security may revoke any waiver issued under section 212(d) for a U visa petitioner at any time in his or her discretion. There are no grounds for appealing the revocation of a waiver. It is important to note that a waiver connected with a U visa petition is attached to the petition and is not a waiver for other purposes.

Aliens Subject to Unlawful Presence Bar

Under 8 C.F.R. 212.17(a), an alien who is subject to inadmissibility under section 212(a)(9)(B) of the INA for unlawful presence triggered by his or her departure from the United States must file his or her waiver request prior to applying for reentry into the United States. Please see our full article to learn about the unlawful presence bars [see article].

Applying for a Waiver

Under 8 C.F.R. 214.14(c)(2)(iv), a U visa petitioner must file his or her waiver application on the Form I-192, Application for Advance Permission to Enter as a Nonimmigrant in accordance with the form instructions. The USCIS may consider granting a waiver under either section 212(d)(3) or section 212(d)(14) of the INA.

Because the USCIS has sole discretion over U visa petitions, the applicant must file the Form I-192 with USCIS even if he or she is in removal or deportation proceedings. At 72 FR 53021, the DHS explained that an applicant for a waiver in conjunction with a U visa petition may seek an agreement with the DHS to file a joint motion to terminate proceedings without prejudice while a petition for U nonimmigrant status is pending under 8 C.F.R. 214.14(c)(1)(i). Under 8 C.F.R. 214.14(c)(1)(ii), an alien who is subject to a final order of removal, deportation, or exclusion and who is seeking a waiver in the course of his or her U visa petition, may request a stay of removal from the USCIS.

Question of Immigration Judge Jurisdiction

There is a question as to whether immigration judges have jurisdiction over waiver requests made by U visa petitioners under section 212(d)(3)(A)(ii) of the INA. The Board of Immigration Appeals held that immigration judges have no jurisdiction in its published decision in Matter of Khan, 26 I&N Dec. 797 (BIA 2016) [see article]. The United States Court of Appeals for the Third Circuit reached the same result in Sunday v. Att'y. Gen. of the U.S., (3d Cir. 2016) [PDF version].

However, the United States Court of Appeals for the Seventh Circuit declined to follow Matter of Khan in its precedent decision in Baez-Sanchez v. Sessions, —- F.3d ——, (7th Cir. 2017) [see article]. Accordingly, immigration judges have jurisdiction to consider requests for a section 212(d)(3)(A)(ii) waiver in cases arising in the Seventh Circuit, which encompasses Illinois, Indiana, and Wisconsin.

It remains to be seen whether the Board will issue a new decision in response to the Seventh Circuit's invitation in Baez-Sanchez to address new arguments on the issue. Furthermore, it will be worth watching to see if any other circuits join the Seventh in declining to follow Matter of Khan. We will update the website with more information on this issue as it becomes available. A U visa petitioner should always consult with an experienced immigration attorney who understands the current laws and controlling precedents applicable to his or her specific case.

There is no dispute that immigration judges lack jurisdiction over adjudicating requests for waivers under section 212(d)(14)

Conclusion

An alien who was the victim of a serious crime in the United States should consult with an experienced immigration attorney for case-specific guidance. Although relief is not available in every case, certain factors could result in the alien having a case for relief under one of the INA's provisions for victims of violence and certain crimes. In applying for a U visa specifically, an alien should work closely with an experienced immigration attorney throughout the entire petitioning process. If the alien is subject to any grounds of inadmissibility, an immigration attorney will be able to assess the case and help the alien make a case for relief based on the specific circumstances involved.