IMMIGRATION AND NATIONALITY ACT (INA)
Section 212 [8 U.S.C. 1182] - GENERAL CLASSES OF ALIENS INELIGIBLE TO RECEIVE VISAS AND INELIGIBLE FOR ADMISSION; WAIVERS OF INADMISSIBILLITY
(a) Classes of Aliens Ineligible for Visas or Admission.-Except as otherwise provided in this Act, aliens who are inadmissible under the following paragraphs are ineligible to receive visas and ineligible to be admitted to the United States:
(i)
who is determined (in accordance with regulations prescribed by the
Secretary of Health and Human Services) to have a communicable
disease of public health significance; 1b/
(ii)
1/
except
as provided in subparagraph (C) 1a/ who seeks admission as an
immigrant, or who seeks adjustment of status to the status of an
alien lawfully admitted for permanent residence, and who has failed
to present documentation of having received vaccination against
vaccine-preventable diseases, which shall include at least the
following diseases: mumps, measles, rubella, polio, tetanus and
diphtheria toxoids, pertussis, influenza type B and hepatitis B, and
any other vaccinations against vaccine-pre ventable diseases
recommended by the Advisory Committee for Immunization Practices,
(iii)
who is determined (in accordance with regulations prescribed by the
Secretary of Health and Human Services in consultation with the
Attorney General)-
(I)
to have a physical or mental disorder and behavior associated with
the disorder that may pose, or has posed, a threat to the property,
safety, or welfare of the alien or others, or
(II)
to have had a physical or mental disorder and a history of behavior
associated with the disorder, which behavior has posed a threat to
the property, safety, or welfare of the alien or others and which
behavior is likely to recur or to lead to other harmful behavior, or
(iv)
who is determined (in accordance with regulations prescribed by the
Secretary of Health and Human Services) to be a drug abuser or
addict, is inadmissible.
(B)
Waiver authorized.-For provision authorizing waiver of certain
clauses of subparagraph (A), see subsection (g).
(C)
1/
EXCEPTION
FROM IMMUNIZATION REQUIREMENT FOR ADOPTED CHILDREN 10 YEARS OF AGE OR
YOUNGER.--Clause (ii) of subparagraph (A) shall not apply to a child
who--
(i)
is 10 years of age or younger,
(ii)
is described in section subparagraph (F) or (G) of section 101(b)(1)
,
and 1c/
(iii)
is seeking an immigrant visa as an immediate relative under section
201(b)
,
if, prior to the admission of the child, an adoptive parent or
prospective adoptive parent of the child, who has sponsored the child
for admission as an immediate relative, has executed an affidavit
stating that the parent is aware of the provisions of subparagraph
(A)(ii) and will ensure that, within 30 days of the child's
admission, or at the earliest time that is medically appropriate, the
child will receive the vaccinations identified in such subparagraph.
(2)
Criminal and related grounds.-
(A)
Conviction of certain crimes.-
(i)
In general.-Except as provided in clause (ii), any alien convicted
of, or who admits having committed, or who admits committing acts
which constitute the essential elements of-
(I)
a crime involving moral turpitude (other than a purely political
offense) or an attempt or conspiracy to commit such a crime, or
(II)
a violation of (or a conspiracy or attempt to violate) any law or
regulation of a State, the United States, or a foreign country
relating to a controlled substance (as defined in section 102 of the
Controlled Substances Act (21 U.S.C. 802)), is inadmissible.
(ii)
Exception.-Clause (i)(I) shall not apply to an alien who committed
only one crime if-
(I)
the crime was committed when the alien was under 18 years of age, and
the crime was committed (and the alien released from any confinement
to a prison or correctional institution imposed for the crime) more
than 5 years before the date of application for a visa or other
documentation and the date of application for admission to the United
States, or
(II)
the maximum penalty possible for the crime of which the alien was
convicted (or which the alien admits having committed or of which the
acts that the alien admits having committed constituted the essential
elements) did not exceed imprisonment for one year and, if the alien
was convicted of such crime, the alien was not sentenced to a term of
imprisonment in excess of 6 months (regardless of the extent to which
the sentence was ultimately executed).
(B)
Multiple criminal convictions.-Any alien convicted of 2 or more
offenses (other than purely political offenses), regardless of
whether the conviction was in a single trial or whether the offenses
arose from a single scheme of misconduct and regardless of whether
the offenses involved moral turpitude, for which the aggregate
sentences to confinement 2/
were
5 years or more is inadmissible.
(C)
2a/
CONTROLLED
SUBSTANCE TRAFFICKERS- Any alien who the consular officer or the
Attorney General knows or has reason to believe--
(i)
is or has been an illicit trafficker in any controlled substance or
in any listed chemical (as defined in section 102 of the Controlled
Substances Act (21 U.S.C. 802)), or is or has been a knowing aider,
abettor, assister, conspirator, or colluder with others in the
illicit trafficking in any such controlled or listed substance or
chemical, or endeavored to do so; or
(ii)
is the spouse, son, or daughter of an alien inadmissible under clause
(i), has, within the previous 5 years, obtained any financial or
other benefit from the illicit activity of that alien, and knew or
reasonably should have known that the financial or other benefit was
the product of such illicit activity, is inadmissaible.
(D)
Prostitution and commercialized vice.-Any alien who-
(i)
is coming to the United States solely, principally, or incidentally
to engage in prostitution, or has engaged in prostitution within 10
years of the date of application for a visa, admission, or adjustment
of status,
(ii)
directly or indirectly procures or attempts to procure, or (within 10
years of the date of application for a visa, admission, or adjustment
of status) procured or attempted to procure or to import, prostitutes
or persons for the purpose of prostitution, or receives or (within
such 10- year period) received, in whole or in part, the proceeds of
prostitution, or
(iii)
is coming to the United States to engage in any other unlawful
commercialized vice, whether or not related to prostitution, is
inadmissible.
(E)
Certain aliens involved in serious criminal activity who have
asserted immunity from prosecution.-Any alien-
(i)
who has committed in the United States at any time a serious criminal
offense (as defined in section 101(h)
),
(ii)
for whom immunity from criminal jurisdiction was exercised with
respect to that offense,
(iii)
who as a consequence of the offense and exercise of immunity has
departed from the United States, and
(iv)
who has not subsequently submitted fully to the jurisdiction of the
court in the United States having jurisdiction with respect to that
offense, is inadmissible.
(F)
Waiver authorized.-For provision authorizing waiver of certain
subparagraphs of this paragraph, see subsection (h).
(G)
2b/
2c/
FOREIGN
GOVERNMENT OFFICIALS WHO HAVE COMMITTED PARTICULARLY SEVERE
VIOLATIONS OF RELIGIOUS FREEDOM- Any alien who, while serving as a
foreign government official, was responsible for or directly carried
out, at any time, particularly severe violations of religious
freedom, as defined in section 3 of the International Religious
Freedom Act of 1998 (22 U.S.C. 6402), is inadmissible.
(H)
2bb/
SIGNIFICANT
TRAFFICKERS IN PERSONS-
(i)
IN GENERAL- Any alien who commits or conspires to commit human
trafficking offenses in the United States or outside the United
States, 42/
or
who the consular officer, the Secretary of Homeland Security, the
Secretary of State, 42/
or
the Attorney General knows or has reason to believe is or has been a
knowing aider, abettor, assister, conspirator, or colluder with such
a trafficker in severe forms of trafficking in persons, as defined in
the section 103 of such Act, is inadmissible.
(ii)
BENEFICIARIES OF TRAFFICKING- Except as provided in clause (iii), any
alien who the consular officer or the Attorney General knows or has
reason to believe is the spouse, or daughter of an alien inadmissible
under clause (i), has, within the previous 5 years, obtained any
financial or other benefit from the illicit activity of that alien,
and knew or reasonably should have known that the financial or other
benefit was the product of such illicit activity, is inadmissible.
(iii)
EXCEPTION FOR CERTAIN SONS AND DAUGHTERS- Clause (ii) shall not apply
to a son or daughter who was a child at the time he or she received
the benefit described in such clause.
(I)
2bbb/
MONEY
LAUNDERING- Any alien--
(i)
who a consular officer or the Attorney General knows, or has reason
to believe, has engaged, is engaging, or seeks to enter the United
States to engage, in an offense which is described in section 1956 or
1957 of title 18, United States Code (relating to laundering of
monetary instruments); or
(ii)
who a consular officer or the Attorney General knows is, or has been,
a knowing aider, abettor, assister, conspirator, or colluder with
others in an offense which is described in such section; is
inadmissible.
(3)
Security and related grounds.-
(A)
In general.-Any alien who a consular officer or the Attorney General
knows, or has reasonable ground to believe, seeks to enter the United
States to engage solely, principally, or incidentally in-
(i)
any activity (I) to violate any law of the United States relating to
espionage or sabotage or (II) to violate or evade any law prohibiting
the export from the United States of goods, technology, or sensitive
information,
(ii)
any other unlawful activity, or
(iii)
any activity a purpose of which is the opposition to, or the control
or overthrow of, the Government of the United States by force,
violence, or other unlawful means, is inadmissible.
(i)
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4/
4a/
IN
GENERAL.-Any alien who-
(I)
has engaged in a terrorist activity,
(II)
a consular officer, the Attorney General, or the Secretary of
Homeland Security knows, or has reasonable ground to believe, is
engaged in or is likely to engage after entry in any terrorist
activity (as defined in clause (iv));
(III)
has, under circumstances indicating an intention to cause death or
serious bodily harm, incited terrorist activity;
(IV)
is a representative (as defined in clause (v)) of--
(aa)
a terrorist organization (as defined in clause (vi)); or
(bb)
a political, social, or other group that endorses or espouses
terrorist activity;
(V)
is a member of a terrorist organization described in subclause (I) or
(II) of clause (vi);
(VI)
is a member of a terrorist organization described in clause
(vi)(III), unless the alien can demonstrate by clear and convincing
evidence that the alien did not know, and should not reasonably have
known, that the organization was a terrorist organization;
(VII)
endorses or espouses terrorist activity or persuades others to
endorse or espouse terrorist activity or support a terrorist
organization;
(VIII) has received military-type training
(as defined in section 2339D(c)(1) of title 18, United States Code)
from or on behalf of any organization that, at the time the training
was received, was a terrorist organization (as defined in clause
(vi)); or
(IX)
is the spouse or child of an alien who is inadmissible under this
subparagraph, if the activity causing the alien to be found
inadmissible occurred within the last 5 years, is inadmissible.
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(ii)
EXCEPTION- Subclause (IX) 4d/
of
clause(i) does not apply to a spouse or child--
(I)
who did not know or should not reasonably have known of the activity
causing the alien to be found inadmissible under this section; or
(II)
whom the consular officer or Attorney General has reasonable grounds
to believe has renounced the activity causing the alien to be found
inadmissible under this section.
4/
(iii)
TERRORIST ACTIVITY DEFINED.-As used in this Act, the term "terrorist
activity" means any activity which is unlawful under the laws of
the place where it is committed (or which, if 4/
it
had been committed in the United States, would be unlawful under the
laws of the United States or any State) and which involves any of the
following:
(I)
The highjacking or sabotage of any conveyance (including an aircraft,
vessel, or vehicle).
(II)
The seizing or detaining, and threatening to kill, injure, or
continue to detain, another individual in order to compel a third
person (including a governmental organization) to do or abstain from
doing any act as an explicit or implicit condition for the release of
the individual seized or detained.
(III)
A violent attack upon an internationally protected person (as defined
in section 1116(b)(4) of title 18, United States Code) or upon the
liberty of such a person.
(IV)
An assassination.
(V)
The use of any-
(aa)
biological agent, chemical agent, or nuclear weapon or device, or
(bb)
explosive, 4/
firearm,
or other weapon or dangerous device (other than for mere personal
monetary gain), with intent to endanger, directly or indirectly, the
safety of one or more individuals or to cause substantial damage to
property.
(VI)
A threat, attempt, or conspiracy to do any of the foregoing.
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,
4b/
ENGAGE
IN TERRORIST ACTIVITY DEFINED- As used in this chapter, the term
"engage in terrorist activity" means, in an individual
capacity or as a member of an organization-
(I)
to commit or to incite to commit, under circumstances indicating an
intention to cause death or serious bodily injury, a terrorist
activity;
(II)
to prepare or plan a terrorist activity;
(III)
to gather information on potential targets for terrorist activity;
(IV)
to solicit funds or other things of value for--
(aa)
a terrorist activity;
(bb)
a terrorist organization described in clause (vi)(I) or (vi)(II); or
(cc)
a terrorist organization described in clause (vi)(III), unless the
solicitor can demonstrate by clear and convincing evidence that he
did not know, and should not reasonably have known, that the
organization was a terrorist organization;
(V)
to solicit any individual--
(aa)
to engage in conduct otherwise described in this subsection;
(bb)
for membership in a terrorist organization described in clause
(vi)(I) or (vi)(II); or
(cc)
for membership in a terrorist organization described in clause
(vi)(III) unless the solicitor can demonstrate by clear and
convincing evidence that he did not know, and should not reasonably
have known, that the organization was a terrorist organization; or
(VI)
to commit an act that the actor knows, or reasonably should know,
affords material support, including a safe house, transportation,
communications, funds, transfer of funds or other material financial
benefit, false documentation or identification, weapons (including
chemical, biological, or radiological weapons), explosives, or
training--
(aa)
for the commission of a terrorist activity;
(bb)
to any individual who the actor knows, or reasonably should know, has
committed or plans to commit a terrorist activity;
(cc)
to a terrorist organization described in subclause (I) or (II) of
clause (vi) or to any member of such an organization; or
(dd)
to a terrorist organization described in clause (vi)(III), or to any
member of such an organization, unless the actor can demonstrate by
clear and convincing evidence that the actor did not know, and should
not reasonably have known, that the organization was a terrorist
organization.
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(v)
REPRESENTATIVE DEFINED.-As used in this paragraph, the term
"representative" includes an officer, official, or
spokesman of an organization, and any person who directs, counsels,
commands, or induces an organization or its members to engage in
terrorist activity.
(vi)
5a/
4c
TERRORIST
ORGANIZATION DEFINED- As used in this section, the term 'terrorist
organization' means an organization—
(I)
designated under section 219
;
(II)
otherwise designated, upon publication in the Federal Register, by
the Secretary of State in consultation with or upon the request of
the Attorney General or the Secretary of Homeland Security, as a
terrorist organization, after finding that the organization engages
in the activities described in subclauses (I) through (VI) of clause
(iv); or
(III)
that is a group of two or more individuals, whether organized or not,
which engages in, or has a subgroup which engages in, the activities
described in subclauses (I) through (VI) of clause (iv).
(i)
In general.-An alien whose entry or proposed activities in the United
States the Secretary of State has reasonable ground to believe would
have potentially serious adverse foreign policy consequences for the
United States is inadmissible.
(ii)
Exception for officials.-An alien who is an official of a foreign
government or a purported government, or who is a candidate for
election to a foreign government office during the period immediately
preceding the election for that office, shall not be excludable or
subject to restrictions or conditions on entry into the United States
under clause (i) solely because of the alien's past, current, or
expected beliefs, statements, or associations, if such beliefs,
statements, or associations wo uld be lawful within the United
States.
(iii)
Exception for other aliens.-An alien, not described in clause (ii),
shall not be excludable or subject to restrictions or conditions on
entry into the United States under clause (i) because of the alien's
past, current, or expected beliefs, statements, or associations, if
such beliefs, statements, or associations would be lawful within the
United States, unless the Secretary of State personally determines
that the alien's admission would compromise a compelling United
States foreign policy interest.
(iv)
Notification of determinations.-If a determination is made under
clause (iii) with respect to an alien, the Secretary of State must
notify on a timely basis the chairmen of the Committees on the
Judiciary and Foreign Affairs of the House of Representatives and of
the Committees on the Judiciary and Foreign Relations of the Senate
of the identity of the alien and the reasons for the determination.
(D)
Immigrant membership in totalitarian party.-
(i)
In general.-Any immigrant who is or has been a member of or
affiliated with the Communist or any other totalitarian party (or
subdivision or affiliate thereof), domestic or foreign, is
inadmissible.
(ii)
Exception for involuntary membership.-Clause (i) shall not apply to
an alien because of membership or affiliation if the alien
establishes to the satisfaction of the consular officer when applying
for a visa (or to the satisfaction of the Attorney General when
applying for admission) that the membership or affiliation is or was
involuntary, or is or was solely when under 16 years of age, by
operation of law, or for purposes of obtaining employment, food
rations, or other essentials of living and whethe r necessary for
such purposes.
(iii)
Exception for past membership.-Clause (i) shall not apply to an alien
because of membership or affiliation if the alien establishes to the
satisfaction of the consular officer when applying for a visa (or to
the satisfaction of the Attorney General when applying for admission)
that-
(I)
the membership or affiliation terminated at least-
(aa)
2 years before the date of such application, or
(bb)
5 years before the date of such application, in the case of an alien
whose membership or affiliation was with the party controlling the
government of a foreign state that is a totalitarian dictatorship as
of such date, and
(II)
the alien is not a threat to the security of the United States.
(iv)
Exception for close family members.-The Attorney General may, in the
Attorney General's discretion, waive the application of clause (i) in
the case of an immigrant who is the parent, spouse, son, daughter,
brother, or sister of a citizen of the United States or a spouse,
son, or daughter of an alien lawfully admitted for permanent
residence for humanitarian purposes, to assure family unity, or when
it is otherwise in the public interest if the immigrant is not a
threat to the security of the United States.
(E)
5aaa/
PARTICIPANTS
IN NAZI PERSECUTION, GENOCIDE, OR THE COMMISSION OF ANY ACT OF
TORTURE OR EXTRAJUDICIAL KILLING
(i)
Participation in nazi persecutions.-Any alien who, during the period
beginning on March 23, 1933, and ending on May 8, 1945, under the
direction of, or in association with-
(I)
the Nazi government of Germany,
(II)
any government in any area occupied by the military forces of the
Nazi government of Germany,
(III)
any government established with the assistance or cooperation of the
Nazi government of Germany, or
(IV)
any government which was an ally of the Nazi government of Germany,
ordered, incited, assisted, or otherwise participated in the
persecution of any person because of race, religion, national origin,
or political opinion is inadmissible.
(ii)
Participation in genocide.-Any alien who 5aaa/
ordered,
incited, assisted, or otherwise participated 5ab/
in
genocide, as defined in section 1091(a) of title 18, United States
Code, is inadmissible.
(iii)
5aaa/
COMMISSION
OF ACTS OF TORTURE OR EXTRAJUDICIAL KILLINGS- Any alien who, outside
the United States, has committed, ordered, incited, assisted, or
otherwise participated in the commission of--
(I)
any act of torture, as defined in section 2340 of title 18, United
States Code; or
(II)
under color of law of any foreign nation, any extrajudicial killing,
as defined in section 3(a) of the Torture Victim Protection Act of
1991 (28 U.S.C. 1350 note), is inadmissible.
5aa/
(F)
ASSOCIATION WITH TERRORIST ORGANIZATIONS- Any alien who the Secretary
of State, after consultation with the Attorney General, or the
Attorney General, after consultation with the Secretary of State,
determines has been associated with a terrorist organization and
intends while in the United States to engage solely, principally, or
incidentally in activities that could endanger the welfare, safety,
or security of the United States is inadmissible.
(G)
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RECRUITMENT
OR USE OF CHILD SOLDIERS- Any alien who has engaged in the
recruitment or use of child soldiers in violation of section 2442 of
title 18, United States Code, is inadmissible.
(A)
In general.-Any alien who, in the opinion of the consular officer at
the time of application for a visa, or in the opinion of the Attorney
General at the time of application for admission or adjustment of
status, is likely at any time to become a public charge is
inadmissible. 6/
(B)
Factors to be taken into account.- (i) In determining whether an
alien is excludable under this paragraph, the consular officer or the
Attorney General shall at a minimum consider the alien's-
(I)
age;
(II)
health;
(III)
family status;
(IV)
assets, resources, and financial status; and
(V)
education and skills
(ii)
In addition to the factors under clause (i), the consular officer or
the Attorney General may also consider any affidavit of support under
section 213A
for
purposes of exclusion under this paragraph.
(C)
Family-Sponsored immigrants.-Any alien who seeks admission or
adjustment of status under a visa issued under section 201(b)(2)
or
203(a)
is
excludable under this paragraph unless-
(I)
status as a spouse or a child of a United States citizen pursuant to
clause (ii), (iii), or (iv) or section 204(a)(1)(A)
,
or
(II)
classification pursuant to clause (ii) or (iii) of section
204(a)(1)(B)
;
6aa/
(III)
6aa/
classification
or status as a VAWA self-petitioner; or
(ii)
the person petitioning for the alien's admission 6a/
(and
any additional sponsor required under section 213A(f)
or
any alternative sponsor permitted under paragraph (5)(B) of such
section) has executed an affidavit of support described in section
213A
with
respect to such alien.
(D)
Certain employment-based immigrants.-Any alien who seeks admission or
adjustment of status under a visa number issued under section 203(b)
by
virtue of a classification petition filed by a relative of the alien
(or by an entity in which such relative has a significant ownership
interest) is excludable under this paragraph unless such relative has
executed an affidavit of support described in section 213A
with
respect to such alien.
(5)
Labor certification and qualifications for certain immigrants.-
(i)
In general.-Any alien who seeks to enter the United States for the
purpose of performing skilled or unskilled labor is inadmissible,
unless the Secretary of Labor has determined and certified to the
Secretary of State and the Attorney General that-
(I)
there are not sufficient workers who are able, willing, qualified (or
equally qualified in the case of an alien described in clause (ii))
and available at the time of application for a visa and admission to
the United States and at the place where the alien is to perform such
skilled or unskilled labor, and
(II)
the employment of such alien will not adversely affect the wages and
working conditions of workers in the United States similarly
employed.
(ii)
Certain aliens subject to special rule.-For purposes of clause
(i)(I), an alien described in this clause is an alien who-
(I)
is a member of the teaching profession, or
(II)
has exceptional ability in the sciences or the arts.
(iii)
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PROFESSIONAL
ATHLETES-
(I)
In general.-A certification made under clause (i) with respect to a
professional athlete shall remain valid with respect to the athlete
after the athlete changes employer, if the new employer is a team in
the same sport as the team which employed the athlete when the
athlete first applied for certification.
(II)
Definition.-For purposes of subclause (I), the term "professional
athlete" means an individual who is employed as an athlete by-
(aa)
a team that is a member of an association of 6 or more professional
sports teams whose total combined revenues exceed $10,000,000 per
year, if the association governs the conduct of its members and
regulates the contests and exhibitions in which its member teams
regularly engage; or
(bb)
any minor league team that is affiliated with such an association.
(iv)
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LONG
DELAYED ADJUSTMENT APPLICANTS- A certification made under clause (i)
with respect to an individual whose petition is covered by section
204(j)
shall
remain valid with respect to a new job accepted by the individual
after the individual changes jobs or employers if the new job is in
the same or a similar occupational classification as the job for
which the certification was issued.
(B)
Unqualified physicians.-An alien who is a graduate of a medical
school not accredited by a body or bodies approved for the purpose by
the Secretary of Education (regardless of whether such school of
medicine is in the United States) and who is coming to the United
States principally to perform services as a member of the medical
profession is inadmissible, unless the alien (i) has passed parts I
and II of the National Board of Medical Examiners Examination (or an
equivalent examination as dete rmined by the Secretary of Health and
Human Services) and (ii) is competent in oral and written English.
For purposes of the previous sentence, an alien who is a graduate of
a medical school shall be considered to have passed parts I and II of
the National Board of Medical Examiners if the alien was fully and
permanently licensed to practice medicine in a State on January 9,
1978, and was practicing medicine in a State on that date.
(C)
Uncertified foreign health-care workers 7a/
Subject
to subsection (r), any alien who seeks to enter the United States for
the purpose of performing labor as a health-care worker, other than a
physician, is excludable unless the alien presents to the consular
officer, or, in the case of an adjustment of status, the Attorney
General, a certificate from the Commission on Graduates of Foreign
Nursing Schools, or a certificate from an equivalent independent
credentialing organization approved by the Attorney General in
consultation with the Secretary of Health and Human Services,
verifying that-
(i)
the alien's education, training, license, and experience-
(I)
meet all applicable statutory and regulatory requirements for entry
into the United States under the classification specified in the
application;
(II)
are comparable with that required for an American health-care worker
of the same type; and
(III)
are authentic and, in the case of a license, unencumbered;
(ii)
the alien has the level of competence in oral and written English
considered by the Secretary of Health and Human Services, in
consultation with the Secretary of Education, to be appropriate for
health care work of the kind in which the alien will be engaged, as
shown by an appropriate score on one or more nationally recognized,
commercially available, standardized assessments of the applicant's
ability to speak and write; and
(iii)
if a majority of States licensing the profession in which the alien
intends to work recognize a test predicting the success on the
profession's licensing or certification examination, the alien has
passed such a test, or has passed such an examination.
For
purposes of clause (ii), determination of the standardized tests
required and of the minimum scores that are appropriate are within
the sole discretion of the Secretary of Health and Human Services and
are not subject to further administrative or judicial review.
(D)
Application of grounds.-The grounds of inadmissibility of aliens
under subparagraphs (A) and (B) shall apply to immigrants seeking
admission or adjustment of status under paragraph (2) or (3) of
section 203(b)
.
(6)
Illegal entrants and immigration violators.-
(A)
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ALIENS
PRESENT WITHOUT admission or parole.-
(i)
In general.-An alien present in the United States without being
admitted or paroled, or who arrives in the United States at any time
or place other than as designated by the Attorney General, is
inadmissible.
(ii)
Exception for certain battered women and children.-Clause (i) shall
not apply to an alien who demonstrates that-
(I)
the alien is a VAWA self-petitioner; 6aa/
(II)(a)
the alien has been battered or subjected to extreme cruelty by a
spouse or parent, or by a member of the spouse's or parent's family
residing in the same household as the alien and the spouse or parent
consented or acquiesced to such battery or cruelty, or (b) the
alien's child has been battered or subjected to extreme cruelty by a
spouse or parent of the alien (without the active participation of
the alien in the battery or cruelty) or by a member of the spouse's
or parent's family resi ding in the same household as the alien when
the spouse or parent consented to or acquiesced in such battery or
cruelty and the alien did not actively participate in such battery or
cruelty, and
(III)
there was a substantial connection between the battery or cruelty
described in subclause (I) or (II) and the alien's unlawful entry
into the United States.
(B)
Failure to attend removal proceeding.-Any alien who without
reasonable cause fails or refuses to attend or remain in attendance
at a proceeding to determine the alien's inadmissibility or
deportability and who seeks admission to the United States within 5
years of such alien's subsequent departure or removal is
inadmissible.
(i)
In general.-Any alien who, by fraud or willfully misrepresenting a
material fact, seeks to procure (or has sought to procure or has
procured) a visa, other documentation, or admission into the United
States or other benefit provided under this Act is inadmissible.
(ii)
9/
FALSELY
CLAIMING CITIZENSHIP-
(I)
IN GENERAL- Any alien who falsely represents, or has falsely
represented, himself or herself to be a citizen of the United States
for any purpose or benefit under this Act (including section 274A
)
or any other Federal or State law is inadmissible.
(II)
EXCEPTION- In the case of an alien making a representation described
in subclause (I), if each natural parent of the alien (or, in the
case of an adopted alien, each adoptive parent of the alien) is or
was a citizen (whether by birth or naturalization), the alien
permanently resided in the United States prior to attaining the age
of 16, and the alien reasonably believed at the time of making such
representation that he or she was a citizen, the alien shall not be
considered to be inadmissible under any provision of this subsection
based on such representation.
(iii)
Waiver authorized.-For provision authorizing waiver of clause (i),
see subsection (I).
(D)
Stowaways.-Any alien who is a stowaway is inadmissible.
(i)
In general.-Any alien who at any time knowingly has encouraged,
induced, assisted, abetted, or aided any other alien to enter or to
try to enter the United States in violation of law is inadmissible.
(ii)
Special rule in the case of family reunification.-Clause (i) shall
not apply in the case of alien who is an eligible immigrant (as
defined in section 301(b)(1)
of
the Immigration Act of 1990), was physically present in the United
States on May 5, 1988, and is seeking admission as an immediate
relative or under section 203(a)(2)
(including
under section 112 of the Immigration Act of 1990) or benefits under
section 301(a)
of
the Immigration Act of 1990 if the alien, before May 5, 1988, has
encouraged, induced, assisted, abetted, or aided only the alien's
spouse, parent, son, or daughter (and no other individual) to enter
the United States in violation of law.
(iii)
Waiver authorized.-For provision authorizing waiver of clause (i),
see subsection (d)(11).
(F)
Subject of civil penalty.-
(i)
In general.-An alien who is the subject of a final order for
violation of section 274C
is
inadmissible.
(ii)
Waiver authorized.-For provision authorizing waiver of clause (i),
see subsection (d)(12). 10/
(G)
Student visa abusers.-An alien who obtains the status of a
nonimmigrant under section 101(a)(15)(F)(i)
and
who violates a term or condition of such status under section 214(l)
is
excludable until the alien has been outside the United States for a
continuous period of 5 years after the date of the violation. 11/
(7)
Documentation requirements.-
(i)
In general.-Except as otherwise specifically provided in this Act,
any immigrant at the time of application for admission-
(I)
who is not in possession of a valid unexpired immigrant visa, reentry
permit, border crossing identification card, or other valid entry
document required by this Act, and a valid unexpired passport, or
other suitable travel document, or document of identity and
nationality if such document is required under the regulations issued
by the Attorney General under section 211(a)
,
or
(II)
whose visa has been issued without compliance with the provisions of
section 203, is inadmissible.
(ii)
Waiver authorized.-For provision authorizing waiver of clause (i),
see subsection (k).
(i)
In general.-Any nonimmigrant who-
(I)
is not in possession of a passport valid for a minimum of six months
from the date of the expiration of the initial period of the alien's
admission or contemplated initial period of stay authorizing the
alien to return to the country from which the alien came or to
proceed to and enter some other country during such period, or
(II)
is not in possession of a valid nonimmigrant visa or border crossing
identification card at the time of application for admission, is
inadmissible.
(ii)
General waiver authorized.-For provision authorizing waiver of clause
(i), see subsection (d)(4).
(iii)
GUAM AND NORTHERN MARIANA ISLANDS VISA WAIVER- For provision
authorizing waiver of clause (i) in the case of visitors to Guam or
the Commonwealth of the Northern Mariana Islands, see subsection (l).
38/
(iv)
VISA WAIVER 11a/
PROGRAM.-For
authority to waive the requirement of clause (i) under a 11a/
program,
see section 217
.
(8)
Ineligible for citizenship.-
(A)
In general.-Any immigrant who is permanently ineligible to
citizenship is inadmissible.
(B)
Draft evaders.-Any person who has departed from or who has remained
outside the United States to avoid or evade training or service in
the armed forces in time of war or a period declared by the President
to be a national emergency is inadmissible, except that this
subparagraph shall not apply to an alien who at the time of such
departure was a nonimmigrant and who is seeking to reenter the United
States as a nonimmigrant.
(9)
12/
ALIENS
PREVIOUSLY REMOVED.-
(A)
Certain aliens previously removed.-
(i)
Arriving aliens.-Any alien who has been ordered removed under section
235(b)(1)
or
at the end of proceedings under section 240 initiated upon the
alien's arrival in the United States and who again seeks admission
within 5 years of the date of such removal (or within 20 years in the
case of a second or subsequent removal or at any time in the case of
an alien convicted of an aggravated felony) is inadmissible.
(ii)
Other aliens.-Any alien not described in clause (i) who-
(I)
has been ordered removed under section 240
or
any other provision of law, or
(II)
departed the United States while an order of removal was outstanding,
and who seeks admission within 10 years of the date of such alien's
departure or removal (or within 20 years of such date in the case of
a second or subsequent removal or at any time in the case of an alien
convicted of an aggravated felony) is inadmissible.
(iii)
Exception.-Clauses (i) and (ii) shall not apply to an alien seeking
admission within a period if, prior to the date of the alien's
reembarkation at a place outside the United States or attempt to be
admitted from foreign contiguous territory, the Attorney General has
consented to the alien's reapplying for admission.
(B)
13/
ALIENS
UNLAWFULLY PRESENT.-
(i)
In general.-Any alien (other than an alien lawfully admitted for
permanent residence) who-
(I)
was unlawfully present in the United States for a period of more than
180 days but less than 1 year, voluntarily departed the United States
(whether or not pursuant to section 244(e)
)
prior to the commencement of proceedings under section 235(b)(1)
or
section 240
,
and again seeks admission within 3 years of the date of such alien's
departure or removal, or
(II)
has been unlawfully present in the United States for one year or
more, and who again seeks admission within 10 years of the date of
such alien's departure or removal from the United States,is
inadmissible.
(ii)
Construction of unlawful presence.-For purposes of this paragraph, an
alien is deemed to be unlawfully present in the United States if the
alien is present in the United States after the expiration of the
period of stay authorized by the Attorney General or is present in
the United States without being admitted or paroled.
(I)
Minors.-No period of time in which an alien is under 18 years of age
shall be taken into account in determining the period of unlawful
presence in the United States under clause (I).
(II)
Asylees.-No period of time in which an alien has a bona fide
application for asylum pending under section 208
shall
be taken into account in determining the period of unlawful presence
in the United States under clause (i) unless the alien during such
period was employed without authorization in the United States.
(III)
Family unity.-No period of time in which the alien is a beneficiary
of family unity protection pursuant to section 301
of
the Immigration Act of 1990 14/
shall
be taken into account in determining the period of unlawful presence
in the United States under clause (I).
(IV)
Battered women and children.-Clause (i) shall not apply to an alien
who would be described in paragraph (6)(A)(ii) if "violation of
the terms of the alien's nonimmigrant visa" were substituted for
"unlawful entry into the United States" in subclause (III)
of that paragraph.
(V)
13a/
VICTIMS
OF A SEVERE FORM OF TRAFFICKING IN PERSONS- Clause (i) shall not
apply to an alien who demonstrates that the severe form of
trafficking (as that term is defined in section 103 of the
Trafficking Victims Protection Act of 2000 (22 U.S.C. 7102)) was at
least one central reason for the alien's unlawful presence in the
United States.
(iv)
Tolling for good cause.-In the case of an alien who-
(I)
has been lawfully admitted or paroled into the United States,
(II)
has filed a nonfrivolous application for a change or extension of
status before the date of expiration of the period of stay authorized
by the Attorney General, and
(III)
has not been employed without authorization in the United States
before or during the pendency of such application,the calculation of
the period of time specified in clause (i)(I) shall be tolled during
the pendency of such application, but not to exceed 120 days.
(v)
Waiver.-The Attorney General has sole discretion to waive clause (i)
in the case of an immigrant who is the spouse or son or daughter of a
United States citizen or of an alien lawfully admitted for permanent
residence, if it is established to the satisfaction of the Attorney
General that the refusal of admission to such immigrant alien would
result in extreme hardship to the citizen or lawfully resident spouse
or parent of such alien. No court shall have jurisdiction to review a
decision or action by the Attorney General regarding a waiver under
this clause.
(C)
Aliens unlawfully present after previous immigration violations.-
(i)
In general.-Any alien who-
(I)
has been unlawfully present in the United States for an aggregate
period of more than 1 year, or
(II)
has been ordered removed under section 235(b)(1)
,
section 240
,
or any other provision of law, and who enters or attempts to reenter
the United States without being admitted is inadmissible.
(ii)
Exception.-Clause (i) shall not apply to an alien seeking admission
more than 10 years after the date of the alien's last departure from
the United States if, prior to the alien's reembarkation at a place
outside the United States or attempt to be readmitted from a foreign
contiguous territory, 14a/
6aa/
the
Secretary of Homeland Security has consented to the alien's
reapplying for admission.
(iii)
6aa/
WAIVER-
The Secretary of Homeland Security may waive the application of
clause (i) in the case of an alien who is a VAWA self-petitioner if
there is a connection between--
(I)
the alien's battering or subjection to extreme cruelty; and
(II)
the alien's removal, departure from the United States, reentry or
reentries into the United States; or attempted reentry into the
United States.
(10)
15/
MISCELLANEOUS.-
(A)
Practicing polygamists.-Any immigrant who is coming to the United
States to practice polygamy is inadmissible.
(B)
Guardian required to accompany helpless alien.-Any alien-
(i)
who is accompanying another alien who is inadmissible and who is
certified to be helpless from sickness, mental or physical
disability, or infancy pursuant to section 232(c)
,
and
(ii)
whose protection or guardianship is determined to be required by the
alien described in clause (I), is inadmissible. 16/
(C)
International child abduction.-
(i)
In general.-Except as provided in clause (ii), any alien who, after
entry of an order by a court in the United States granting custody to
a person of a United States citizen child who detains or retains the
child, or withholds custody of the child, outside the United States
from the person granted custody by that order, is inadmissible until
the child is surrendered to the person granted custody by that order.
16a
/
(ii)
ALIENS SUPPORTING ABDUCTORS AND RELATIVES OF ABDUCTORS. -- Any alien
who--
(I)
is known by the Secretary of State to have intentionally assisted an
alien in the conduct described in clause (i),
(II)
is known by the Secretary of State to be intentionally providing
material support or safe haven to an alien described in clause (i),
or
(III)
is a spouse (other than the spouse who is the parent of the abducted
child), child (other than the abducted child), parent, sibling, or
agent of an alien described in clause (i), if such person has been
designated by the Secretary of State at the Secretary's sole and
unreviewable discretion, is inadmissible until the child described in
clause (i) is surrendered to the person granted custody by the order
described in that clause, and such person and child are permitted to
return to the United States or such person's place of residence.
(iii)
EXCEPTIONS. -- Clauses (i) and (ii) shall not apply--
(I)
to a government official of the United States who is acting within
the scope of his or her official duties;
(II)
to a government official of any foreign government if the official
has been designated by the Secretary of State at the Secretary's sole
and unreviewable discretion; or
(III)
so long as the child is located in a foreign state that is a party to
the Convention on the Civil Aspects of International Child Abduction,
done at The Hague on October 25, 1980.
(D)
17/
UNLAWFUL
VOTERS-
(i)
IN GENERAL- Any alien who has voted in violation of any Federal,
State, or local constitutional provision, statute, ordinance, or
regulation is inadmissible.
(ii)
EXCEPTION- In the case of an alien who voted in a Federal, State, or
local election (including an initiative, recall, or referendum) in
violation of a lawful restriction of voting to citizens, if each
natural parent of the alien (or, in the case of an adopted alien,
each adoptive parent of the alien) is or was a citizen (whether by
birth or naturalization), the alien permanently resided in the United
States prior to attaining the age of 16, and the alien reasonably
believed at the time of such violatio n that he or she was a citizen,
the alien shall not be considered to be inadmissible under any
provision of this subsection based on such violation.
(E)
Former citizens who renounced citizenship to avoid taxation.-Any
alien who is a former citizen of the United States who officially
renounces United States citizenship and who is determined by the
Attorney General to have renounced United States citizenship for the
purpose of avoiding taxation by the United States is excludable. 18/
* * * * *
(d) (1) The Attorney General shall determine whether a ground for exclusion exists with respect to a nonimmigrant described in section 101(a)(15)(S) . The Attorney General, in the Attorney General's discretion, may waive the application of subsection (a) (other than paragraph (3)(E)) in the case of a nonimmigrant described in section 101(a)(15)(S), if the Attorney General considers it to be in the national interest to do so. Nothing in this section shall be regarded as prohibiting the Immigration Service from instituting removal proceedings against an alien admitted as a nonimmigrant under section 101(a)(15)(S) for conduct committed after th e alien's admission into the United States, or for conduct or a condition that was not disclosed to the Attorney General prior to the alien's admission as a nonimmigrant under section 101(a)(15)(S) .
(3)
(A) 20b/
Except
as provided in this subsection, an alien (i) 20b/
who
is applying for a nonimmigrant visa and is known or believed by the
consular officer to be ineligible for such visa under subsection (a)
(other than paragraphs (3)(A)(i)(I), (3)(A)(ii), (3)(A)(iii), (3)(C),
20a/
and
clauses (i) and (ii) of paragraph (3)(E) of such subsection), may,
after approval by the Attorney General of a recommendation by the
Secretary of State or by the consular officer that the alien be
admitted temporarily despite his inadmissibility, be granted such a
visa and may be admitted into the United States temporarily as a
nonimmigrant in the discretion of the Attorney General, or (ii) 20b/
who
is inadmissible under subsection (a) (other than paragraphs
(3)(A)(i)(I), (3)(A)(ii), (3)(A)(iii), (3)(C), 20a/
and
clauses (i) and (ii) of paragraph (3)(E) of such subsection), but who
is in possession of appropriate documents or is granted a waiver
thereof and is seeking admission, may be admitted into the United
States temporarily as a nonimmigrant in the discretion of the
Attorney General. The Attorney General shall prescribe conditions,
including exaction of such bonds as may be necessary, to control and
regulate the admission and return of inadmissible aliens applying for
temporary admission under this paragra ph.
(B)
(i) 20b/
20c/
The
Secretary of State, after consultation with the Attorney General and
the Secretary of Homeland Security, or the Secretary of Homeland
Security, after consultation with the Secretary of State and the
Attorney General, may determine in such Secretary's sole unreviewable
discretion that subsection (a)(3)(B) shall not apply with respect to
an alien within the scope of that subsection or that subsection
(a)(3)(B)(vi)(III) shall not apply to a group within the scope of
that subsection, except that no such wa iver may be extended to an
alien who is within the scope of subsection (a)(3)(B)(i)(II), no such
waiver may be extended to an alien who is a member or representative
of, has voluntarily and knowingly engaged in or endorsed or espoused
or persuaded others to endorse or espouse or support terrorist
activity on behalf of, or has voluntarily and knowingly received
military-type training from a terrorist organization that is
described in subclause (I) or (II) of subsection (a)(3)(B)(vi), and
no such waiver may be extended to a group that has engaged terrorist
activity against the United States or another democratic country or
that has purposefully engaged in a pattern or practice of terrorist
activity that is directed at civilians. Such a determination shall
neither prejudice the ability of the United States Government to
commence criminal or civil proceedings involving a beneficiary of
such a determination or any other person, nor create any substantive
or procedural right or benefit for a beneficiary of such a d
etermination or any other person. Notwithstanding any other provision
of law (statutory or nonstatutory), including section 2241 of title
28, or any other habeas corpus provision, and sections 1361 and 1651
of such title, no court shall have jurisdiction to review such a
determination or revocation except in a proceeding for review of a
final order of removal pursuant to section 1252 of this title, and
review shall be limited to the extent provided in section
1252(a)(2)(D). The Secretary of State may not ex ercise the
discretion provided in this clause with respect to an alien at any
time during which the alien is the subject of pending removal
proceedings under section 1229a of this title.
(ii)
Not later than 90 days after the end of each fiscal year, the
Secretary of State and the Secretary of Homeland Security shall each
provide to the Committees on the Judiciary of the House of
Representatives and of the Senate, the Committee on International
Relations of the House of Representatives, the Committee on Foreign
Relations of the Senate, and the Committee on Homeland Security of
the House of Representatives a report on the aliens to whom such
Secretary has applied clause (i). Within one week o f applying clause
(i) to a group, the Secretary of State or the Secretary of Homeland
Security shall provide a report to such Committees.
(4)
Either or both of the requirements of paragraph (7)(B)(i) of
subsection (a) may be waived by the Attorney General and the
Secretary of State acting jointly
(A)
on the basis of unforeseen emergency in individual cases, or
(B)
on the basis of reciprocity with respect to nationals of foreign
contiguous territory or of adjacent islands and residents thereof
having a common nationality with such nationals, or
(C)
in the case of aliens proceeding in immediate and continuous transit
through the United States under contracts authorized in section
238(c)
.
(5)
(A) The Attorney General may, except as provided in subparagraph (B)
or in section 214(f)
,
in his discretion parole into the United States temporarily under
such conditions as he may prescribe only on a case-by-case basis for
urgent humanitarian reasons or significant public benefit any alien
applying for admission to the United States, but such parole of such
alien shall not be regarded as an admission of the alien and when the
purposes of such parole shall, in the opinion of the Attorney
General, have been served the alien shall forthwith return or be
returned to the custody from wh ich he was paroled and thereafter his
case shall continue to be dealt with in the same manner as that of
any other applicant for admission to the United States.
(B)
The Attorney General may not parole into the United States an alien
who is a refugee unless the Attorney General determines that
compelling reasons in the public interest with respect to that
particular alien require that the alien be paroled into the United
States rather than be admitted as a refugee under section 207
.
(7)
The provisions of subsection (a) (other than paragraph (7)) shall be
applicable to any alien who shall leave Guam, 40/
the
Commonwealth of the Northern Mariana Islands, Puerto Rico, or the
Virgin Islands of the United States, and who seeks to enter the
continental United States or any other place under the jurisdiction
of the United States. Any alien described in this paragraph, who is
denied admission to the United States, shall be immediately removed
in the manner provided by section 241(c)
of
this Act.
(8)
Upon a basis of reciprocity accredited officials of foreign
governments, their immediate families, attendants, servants, and
personal employees may be admitted in immediate and continuous
transit through the United States without regard to the provisions of
this section except paragraphs (3)(A), (3)(B), (3)(C), and (7)(B) of
subsection (a) of this section.
(11)
The Attorney General may, in his discretion for humanitarian
purposes, to assure family unity, or when it is otherwise in the
public interest, waive application of clause (i) of subsection
(a)(6)(E) in the case of any alien lawfully admitted for permanent
residence who temporarily proceeded abroad voluntarily and not under
an order of removal, and who is otherwise admissible to the United
States as a returning resident under section 211(b) and in the case
of an alien seeking admission or adjus tment of status as an
immediate relative or immigrant under section 203(a) (other than
paragraph (4) thereof), 21/
if
the alien has encouraged, induced, assisted, abetted, or aided only
an individual who at the time of the offense was 22/
the
alien's spouse, parent, son, or daughter (and no other individual) to
enter the United States in violation of law.
(12)
The Attorney General may, in the discretion of the Attorney General
for humanitarian purposes or to assure family unity, waive
application of clause (i) of subsection (a)(6)(F)-
(A)
in the case of an alien lawfully admitted for permanent residence who
temporarily proceeded abroad voluntarily and not under an order of
deportation or removal and who is otherwise admissible to the United
States as a returning resident under section 211(b),
and
(B)
in the case of an alien seeking admission or adjustment of status
under section 201(b)(2)(A) or under section 203(a)
,
if no previous civil money penalty was imposed against the alien
under section 274C
and
the offense was committed solely to assist, aid, or support the
alien's spouse or child (and not another individual). No court shall
have jurisdiction to review a decision of the Attorney General to
grant or deny a waiver under this paragraph.
(13)
22a/
(A)
The 22ab/
Secretary
of Homeland Security shall determine whether a ground for
inadmissibility exists with respect to a nonimmigrant described in
section 101(a)(15)(T)
,
except that the ground for inadmissibility described in subsection
(a)(4) shall not apply with respect to such a nonimmigrant. 22a/
(B)
In addition to any other waiver that may be available under this
section, in the case of a nonimmigrant described in section
101(a)(15)(T)
,
if the 22ab/
Secretary
of Homeland Security considers it to be in the national interest to
do so, the 22ab/
Secretary
of Homeland Security, in the 22ab/
Secretary
of Homeland Security’s discretion, may waive the application
of--
(i)
subsection (a)(1); and 22a/
(ii)
any other provision of subsection (a) 22a/
(excluding
paragraphs (3), (4), 22a/
(10)(C),
and (10(E)) if the activities rendering the alien inadmissible under
the provision were caused by, or were incident to, the victimization
described in section 101(a)(15)(T)(i)(I)
.
(14)
22aa/
22b/
The
22ab/
Secretary
of Homeland Security shall determine whether a ground of
inadmissibility exists with respect to a nonimmigrant described in
section 101(a)(15)(U)
.
The 22ab/
Secretary
of Homeland Security, in the 22ab/
Secretary
of Homeland Security‘s discretion, may waive the application of
subsection (a) (other than paragraph (3)(E)) in the case of a
nonimmigrant described in section 101(a)(15)(U)
,
if the 22ab/
Secretary
of Homeland Security considers it to be in the public or national
interest to do so.
8 CFR 212.16 Applications for exercise of discretion relating to T nonimmigrant status.
(a) Filing the waiver application. An alien applying for the exercise of discretion under section 212(d)(13) or (d)(3)(B) of the Act (waivers of inadmissibility) in connection with an application for T nonimmigrant status shall submit the request on the form designated by USCIS, with the appropriate fee in accordance with § 103.7(b)(1) of this chapter or an application for a fee waiver, to USCIS with the application for status under section 101(a)(15)(T)(i) of the Act.
(b) Treatment of waiver application. (1) USCIS shall determine whether a ground of inadmissibility exists with respect to the alien applying for T nonimmigrant status. If a ground of inadmissibility is found, USCIS shall determine if it is in the national interest to exercise discretion to waive the ground of inadmissibility, except for grounds of inadmissibility based upon sections 212(a)(3), 212(a)(10)(C) and 212(a)(10)(E) of the Act, which USCIS may not waive. Special consideration will be given to the granting of a waiver of a ground of inadmissibility where the activities rendering the alien inadmissible were caused by or incident to the victimization described under section 101(a)(15)(T)(i) of the Act.
(2) In the case of applicants inadmissible on criminal and related grounds under section 212(a)(2) of the Act, USCIS will only exercise its discretion in exceptional cases unless the criminal activities rendering the alien inadmissible were caused by or were incident to the victimization described under section 101(a)(15)(T)(i) of the Act.
(3) An application for waiver of a ground of inadmissibility for T nonimmigrant status (other than under section 212(a)(6) of the Act) will be granted only in exceptional cases when the ground of inadmissibility would prevent or limit the ability of the applicant to adjust to permanent resident status after the conclusion of 3 years.
(4) USCIS shall have sole discretion to grant or deny a waiver, and there shall be no appeal of a decision to deny a waiver. However, nothing in this paragraph (b) is intended to prevent an applicant from re-filing a request for a waiver of a ground of inadmissibility in appropriate cases.
(c) Incident to victimization. When an applicant for status under section 101(a)(15)(T) of the Act seeks a waiver of a ground of inadmissibility under section 212(d)(13) of the Act on grounds other than those described in sections 212(a)(1) and (a)(4) of the Act, the applicant must establish that the activities rendering him or her inadmissible were caused by, or were incident to, the victimization described in section 101(a)(15)(T)(i)(I) of the Act.
(d) Revocation. The Service may at any time revoke a waiver previously authorized under section 212(d) of the Act. Under no circumstances shall the alien or any party acting on his or her behalf have a right to appeal from a decision to revoke a waiver.
[67 FR 4795, Jan. 31, 2002, as amended at 76 FR 53788, Aug. 29, 2011]
(a) Filing the waiver application. An alien applying for a waiver of inadmissibility under section 212(d)(3)(B) or (d)(14) of the Act (waivers of inadmissibility), 8 U.S.C. 1182(d)(3)(B) or (d)(14), in connection with a petition for U nonimmigrant status being filed pursuant to 8 CFR 214.14, must submit the waiver request and the petition for U nonimmigrant status on the forms designated by USCIS in accordance with the form instructions. An alien in U nonimmigrant status who is seeking a waiver of section 212(a)(9)(B) of the Act, 8 U.S.C. 1182(a)(9)(B) (unlawful presence ground of inadmissibility triggered by departure from the United States), must file the waiver request prior to his or her application for reentry to the United States in accordance with the form instructions.
(b) Treatment of waiver application. (1) USCIS, in its discretion, may grant the waiver based on section 212(d)(14) of the Act, 8 U.S.C. 1182(d)(14), if it determines that it is in the public or national interest to exercise discretion to waive the applicable ground(s) of inadmissibility. USCIS may not waive a ground of inadmissibility based upon section 212(a)(3)(E) of the Act, 8 U.S.C. 1182(a)(3)(E). USCIS, in its discretion, may grant the waiver based on section 212(d)(3) of the Act, 8 U.S.C. 1182(d)(3), except where the ground of inadmissibility arises under sections 212(a)(3)(A)(i)(I), (3)(A)(ii), (3)(A)(iii), (3)(C), or (3)(E) of the Act, 8 U.S.C. 1182(a)(3)(A)(i)(I), (3)(A)(ii), (3)(A)(iii), (3)(C), or (3)(E).
(2) In the case of applicants inadmissible on criminal or related grounds, in exercising its discretion USCIS will consider the number and severity of the offenses of which the applicant has been convicted. In cases involving violent or dangerous crimes or inadmissibility based on the security and related grounds in section 212(a)(3) of the Act, USCIS will only exercise favorable discretion in extraordinary circumstances.
(3) There is no appeal of a decision to deny a waiver. However, nothing in this paragraph is intended to prevent an applicant from re-filing a request for a waiver of ground of inadmissibility in appropriate cases.
(c) Revocation. The Secretary of Homeland Security, at any time, may revoke a waiver previously authorized under section 212(d) of the Act, 8 U.S.C. 118(d). Under no circumstances will the alien or any party acting on his or her behalf have a right to appeal from a decision to revoke a waiver.
[72 FR 53035, Sept. 17, 2007, as amended at 76 FR 53788, Aug. 29, 2011]
(a) Definitions. As used in this section, the term:
(1) BIWPA means Battered Immigrant Women Protection Act of 2000 of the Victims of Trafficking and Violence Protection Act of 2000, div. B, Violence Against Women Act of 2000, tit. V, Pub. L. 106-386, 114 Stat. 1464, (2000), amended by Violence Against Women and Department of Justice Reauthorization Act of 2005, tit. VIII, Pub. L. 109-162, 119 Stat. 2960 (2006), amended by Violence Against Women and Department of Justice Reauthorization Act—Technical Corrections, Pub. L. 109-271, 120 Stat. 750 (2006).
(2) Certifying agency means a Federal, State, or local law enforcement agency, prosecutor, judge, or other authority, that has responsibility for the investigation or prosecution of a qualifying crime or criminal activity. This definition includes agencies that have criminal investigative jurisdiction in their respective areas of expertise, including, but not limited to, child protective services, the Equal Employment Opportunity Commission, and the Department of Labor.
(3) Certifying official means:
(i) The head of the certifying agency, or any person(s) in a supervisory role who has been specifically designated by the head of the certifying agency to issue U nonimmigrant status certifications on behalf of that agency; or
(ii) A Federal, State, or local judge.
(4) Indian Country is defined as:
(i) All land within the limits of any Indian reservation under the jurisdiction of the United States Government, notwithstanding the issuance of any patent, and including rights-of-way running through the reservation;
(ii) All dependent Indian communities within the borders of the United States whether within the original or subsequently acquired territory thereof, and whether within or without the limits of a state; and
(iii) All Indian allotments, the Indian titles to which have not been extinguished, including rights-of-way running through such allotments.
(5) Investigation or prosecution refers to the detection or investigation of a qualifying crime or criminal activity, as well as to the prosecution, conviction, or sentencing of the perpetrator of the qualifying crime or criminal activity.
(6) Military Installation means any facility, base, camp, post, encampment, station, yard, center, port, aircraft, vehicle, or vessel under the jurisdiction of the Department of Defense, including any leased facility, or any other location under military control.
(7) Next friend means a person who appears in a lawsuit to act for the benefit of an alien under the age of 16 or incapacitated or incompetent, who has suffered substantial physical or mental abuse as a result of being a victim of qualifying criminal activity. The next friend is not a party to the legal proceeding and is not appointed as a guardian.
(8) Physical or mental abuse means injury or harm to the victim's physical person, or harm to or impairment of the emotional or psychological soundness of the victim.
(9) Qualifying crime or qualifying criminal activity includes one or more of the following or any similar activities in violation of Federal, State or local criminal law of the United States: Rape; torture; trafficking; incest; domestic violence; sexual assault; abusive sexual contact; prostitution; sexual exploitation; female genital mutilation; being held hostage; peonage; involuntary servitude; slave trade; kidnapping; abduction; unlawful criminal restraint; false imprisonment; blackmail; extortion; manslaughter; murder; felonious assault; witness tampering; obstruction of justice; perjury; or attempt, conspiracy, or solicitation to commit any of the above mentioned crimes. The term “any similar activity” refers to criminal offenses in which the nature and elements of the offenses are substantially similar to the statutorily enumerated list of criminal activities.
(10) Qualifying family member means, in the case of an alien victim 21 years of age or older who is eligible for U nonimmigrant status as described in section 101(a)(15)(U) of the Act, 8 U.S.C. 1101(a)(15)(U), the spouse or child(ren) of such alien; and, in the case of an alien victim under the age of 21 who is eligible for U nonimmigrant status as described in section 101(a)(15)(U) of the Act, qualifying family member means the spouse, child(ren), parents, or unmarried siblings under the age of 18 of such an alien.
(11) Territories and Possessions of the United States means American Samoa, Swains Island, Bajo Nuevo (the Petrel Islands), Baker Island, Howland Island, Jarvis Island, Johnston Atoll, Kingman Reef, Midway Atoll, Navassa Island, Palmyra Atoll, Serranilla Bank, and Wake Atoll.
(12) U nonimmigrant status certification means Form I-918, Supplement B, “U Nonimmigrant Status Certification,” which confirms that the petitioner has been helpful, is being helpful, or is likely to be helpful in the investigation or prosecution of the qualifying criminal activity of which he or she is a victim.
(13) U interim relief refers to the interim benefits that were provided by USCIS to petitioners for U nonimmigrant status, who requested such benefits and who were deemed prima facie eligible for U nonimmigrant status prior to the publication of the implementing regulations.
(14) Victim of qualifying criminal activity generally means an alien who has suffered direct and proximate harm as a result of the commission of qualifying criminal activity.
(i) The alien spouse, children under 21 years of age and, if the direct victim is under 21 years of age, parents and unmarried siblings under 18 years of age, will be considered victims of qualifying criminal activity where the direct victim is deceased due to murder or manslaughter, or is incompetent or incapacitated, and therefore unable to provide information concerning the criminal activity or be helpful in the investigation or prosecution of the criminal activity. For purposes of determining eligibility under this definition, USCIS will consider the age of the victim at the time the qualifying criminal activity occurred.
(ii) A petitioner may be considered a victim of witness tampering, obstruction of justice, or perjury, including any attempt, solicitation, or conspiracy to commit one or more of those offenses, if:
(A) The petitioner has been directly and proximately harmed by the perpetrator of the witness tampering, obstruction of justice, or perjury; and
(B) There are reasonable grounds to conclude that the perpetrator committed the witness tampering, obstruction of justice, or perjury offense, at least in principal part, as a means:
( 1 ) To avoid or frustrate efforts to investigate, arrest, prosecute, or otherwise bring to justice the perpetrator for other criminal activity; or
( 2 ) To further the perpetrator's abuse or exploitation of or undue control over the petitioner through manipulation of the legal system.
(iii) A person who is culpable for the qualifying criminal activity being investigated or prosecuted is excluded from being recognized as a victim of qualifying criminal activity.
(b) Eligibility. An alien is eligible for U-1 nonimmigrant status if he or she demonstrates all of the following in accordance with paragraph (c) of this section:
(1) The alien has suffered substantial physical or mental abuse as a result of having been a victim of qualifying criminal activity. Whether abuse is substantial is based on a number of factors, including but not limited to: The nature of the injury inflicted or suffered; the severity of the perpetrator's conduct; the severity of the harm suffered; the duration of the infliction of the harm; and the extent to which there is permanent or serious harm to the appearance, health, or physical or mental soundness of the victim, including aggravation of pre-existing conditions. No single factor is a prerequisite to establish that the abuse suffered was substantial. Also, the existence of one or more of the factors automatically does not create a presumption that the abuse suffered was substantial. A series of acts taken together may be considered to constitute substantial physical or mental abuse even where no single act alone rises to that level;
(2) The alien possesses credible and reliable information establishing that he or she has knowledge of the details concerning the qualifying criminal activity upon which his or her petition is based. The alien must possess specific facts regarding the criminal activity leading a certifying official to determine that the petitioner has, is, or is likely to provide assistance to the investigation or prosecution of the qualifying criminal activity. In the event that the alien has not yet reached 16 years of age on the date on which an act constituting an element of the qualifying criminal activity first occurred, a parent, guardian or next friend of the alien may possess the information regarding a qualifying crime. In addition, if the alien is incapacitated or incompetent, a parent, guardian, or next friend may possess the information regarding the qualifying crime;
(3) The alien has been helpful, is being helpful, or is likely to be helpful to a certifying agency in the investigation or prosecution of the qualifying criminal activity upon which his or her petition is based, and since the initiation of cooperation, has not refused or failed to provide information and assistance reasonably requested. In the event that the alien has not yet reached 16 years of age on the date on which an act constituting an element of the qualifying criminal activity first occurred, a parent, guardian or next friend of the alien may provide the required assistance. In addition, if the petitioner is incapacitated or incompetent and, therefore, unable to be helpful in the investigation or prosecution of the qualifying criminal activity, a parent, guardian, or next friend may provide the required assistance; and
(4) The qualifying criminal activity occurred in the United States (including Indian country and U.S. military installations) or in the territories or possessions of the United States, or violated a U.S. federal law that provides for extraterritorial jurisdiction to prosecute the offense in a U.S. federal court.
(c) Application procedures for U nonimmigrant status —(1) Filing a petition. USCIS has sole jurisdiction over all petitions for U nonimmigrant status. An alien seeking U-1 nonimmigrant status must submit, by mail, Form I-918, “Petition for U Nonimmigrant Status,” applicable biometric fee (or request for a fee waiver as provided in 8 CFR 103.7(c)), and initial evidence to USCIS in accordance with this paragraph and the instructions to Form I-918. A petitioner who received interim relief is not required to submit initial evidence with Form I-918 if he or she wishes to rely on the law enforcement certification and other evidence that was submitted with the request for interim relief.
(i) Petitioners in pending immigration proceedings. An alien who is in removal proceedings under section 240 of the Act, 8 U.S.C. 1229a, or in exclusion or deportation proceedings initiated under former sections 236 or 242 of the Act, 8 U.S.C. 1226 and 1252 (as in effect prior to April 1, 1997), and who would like to apply for U nonimmigrant status must file a Form I-918 directly with USCIS. U.S. Immigration and Customs Enforcement (ICE) counsel may agree, as a matter of discretion, to file, at the request of the alien petitioner, a joint motion to terminate proceedings without prejudice with the immigration judge or Board of Immigration Appeals, whichever is appropriate, while a petition for U nonimmigrant status is being adjudicated by USCIS.
(ii) Petitioners with final orders of removal, deportation, or exclusion. An alien who is the subject of a final order of removal, deportation, or exclusion is not precluded from filing a petition for U-1 nonimmigrant status directly with USCIS. The filing of a petition for U-1 nonimmigrant status has no effect on ICE's authority to execute a final order, although the alien may file a request for a stay of removal pursuant to 8 CFR 241.6(a) and 8 CFR 1241.6(a). If the alien is in detention pending execution of the final order, the time during which a stay is in effect will extend the period of detention (under the standards of 8 CFR 241.4) reasonably necessary to bring about the petitioner's removal.
(2) Initial evidence. Form I-918 must include the following initial evidence:
(i) Form I-918, Supplement B, “U Nonimmigrant Status Certification,” signed by a certifying official within the six months immediately preceding the filing of Form I-918. The certification must state that: the person signing the certificate is the head of the certifying agency, or any person(s) in a supervisory role who has been specifically designated by the head of the certifying agency to issue U nonimmigrant status certifications on behalf of that agency, or is a Federal, State, or local judge; the agency is a Federal, State, or local law enforcement agency, or prosecutor, judge or other authority, that has responsibility for the detection, investigation, prosecution, conviction, or sentencing of qualifying criminal activity; the applicant has been a victim of qualifying criminal activity that the certifying official's agency is investigating or prosecuting; the petitioner possesses information concerning the qualifying criminal activity of which he or she has been a victim; the petitioner has been, is being, or is likely to be helpful to an investigation or prosecution of that qualifying criminal activity; and the qualifying criminal activity violated U.S. law, or occurred in the United States, its territories, its possessions, Indian country, or at military installations abroad.
(ii) Any additional evidence that the petitioner wants USCIS to consider to establish that: the petitioner is a victim of qualifying criminal activity; the petitioner has suffered substantial physical or mental abuse as a result of being a victim of qualifying criminal activity; the petitioner (or, in the case of a child under the age of 16 or petitioner who is incompetent or incapacitated, a parent, guardian or next friend of the petitioner) possesses information establishing that he or she has knowledge of the details concerning the qualifying criminal activity of which he or she was a victim and upon which his or her application is based; the petitioner (or, in the case of a child under the age of 16 or petitioner who is incompetent or incapacitated, a parent, guardian or next friend of the petitioner) has been helpful, is being helpful, or is likely to be helpful to a Federal, State, or local law enforcement agency, prosecutor, or authority, or Federal or State judge, investigating or prosecuting the criminal activity of which the petitioner is a victim; or the criminal activity is qualifying and occurred in the United States (including Indian country and U.S. military installations) or in the territories or possessions of the United States, or violates a U.S. federal law that provides for extraterritorial jurisdiction to prosecute the offense in a U.S. federal court;
(iii) A signed statement by the petitioner describing the facts of the victimization. The statement also may include information supporting any of the eligibility requirements set out in paragraph (b) of this section. When the petitioner is under the age of 16, incapacitated, or incompetent, a parent, guardian, or next friend may submit a statement on behalf of the petitioner; and
(iv) If the petitioner is inadmissible, Form I-192, “Application for Advance Permission to Enter as Non-Immigrant,” in accordance with 8 CFR 212.17.
(3) Biometric capture. All petitioners for U-1 nonimmigrant status must submit to biometric capture and pay a biometric capture fee. USCIS will notify the petitioner of the proper time and location to appear for biometric capture after the petitioner files Form I-918.
(4) Evidentiary standards and burden of proof. The burden shall be on the petitioner to demonstrate eligibility for U-1 nonimmigrant status. The petitioner may submit any credible evidence relating to his or her Form I-918 for consideration by USCIS. USCIS shall conduct a de novo review of all evidence submitted in connection with Form I-918 and may investigate any aspect of the petition. Evidence previously submitted for this or other immigration benefit or relief may be used by USCIS in evaluating the eligibility of a petitioner for U-1 nonimmigrant status. However, USCIS will not be bound by its previous factual determinations. USCIS will determine, in its sole discretion, the evidentiary value of previously or concurrently submitted evidence, including Form I-918, Supplement B, “U Nonimmigrant Status Certification.”
(5) Decision. After completing its de novo review of the petition and evidence, USCIS will issue a written decision approving or denying Form I-918 and notify the petitioner of this decision. USCIS will include in a decision approving Form I-918 a list of nongovernmental organizations to which the petitioner can refer regarding his or her options while in the United States and available resources.
(i) Approval of Form I-918, generally. If USCIS determines that the petitioner has met the requirements for U-1 nonimmigrant status, USCIS will approve Form I-918. For a petitioner who is within the United States, USCIS also will concurrently grant U-1 nonimmigrant status, subject to the annual limitation as provided in paragraph (d) of this section. For a petitioner who is subject to an order of exclusion, deportation, or removal issued by the Secretary, the order will be deemed canceled by operation of law as of the date of USCIS' approval of Form I-918. A petitioner who is subject to an order of exclusion, deportation, or removal issued by an immigration judge or the Board may seek cancellation of such order by filing, with the immigration judge or the Board, a motion to reopen and terminate removal proceedings. ICE counsel may agree, as a matter of discretion, to join such a motion to overcome any applicable time and numerical limitations of 8 CFR 1003.2 and 1003.23.
(A) Notice of Approval of Form I-918 for U-1 petitioners within the United States. After USCIS approves Form I-918 for an alien who filed his or her petition from within the United States, USCIS will notify the alien of such approval on Form I-797, “Notice of Action,” and include Form I-94, “Arrival-Departure Record,” indicating U-1 nonimmigrant status.
(B) Notice of Approval of Form I-918 for U-1 petitioners outside the United States. After USCIS approves Form I-918 for an alien who filed his or her petition from outside the United States, USCIS will notify the alien of such approval on Form I-797, “Notice of Action,” and will forward notice to the Department of State for delivery to the U.S. Embassy or Consulate having jurisdiction over the area in which the alien is located, or, for a visa exempt alien, to the appropriate port of entry.
(ii) Denial of Form I-918. USCIS will provide written notification to the petitioner of the reasons for the denial. The petitioner may appeal a denial of Form I-918 to the Administrative Appeals Office (AAO) in accordance with the provisions of 8 CFR 103.3. For petitioners who appeal a denial of their Form I-918 to the AAO, the denial will not be deemed administratively final until the AAO issues a decision affirming the denial. Upon USCIS' final denial of a petition for a petitioner who was in removal proceedings that were terminated pursuant to 8 CFR 214.14(c)(1)(i), DHS may file a new Notice to Appear (see section 239 of the Act, 8 U.S.C. 1229) to place the individual in proceedings again. For petitioners who are subject to an order of removal, deportation, or exclusion and whose order has been stayed, USCIS' denial of the petition will result in the stay being lifted automatically as of the date the denial becomes administratively final.
(6) Petitioners granted U interim relief. Petitioners who were granted U interim relief as defined in paragraph (a)(13) of this section and whose Form I-918 is approved will be accorded U-1 nonimmigrant status as of the date that a request for U interim relief was initially approved.
(7) Employment authorization. An alien granted U-1 nonimmigrant status is employment authorized incident to status. USCIS automatically will issue an initial Employment Authorization Document (EAD) to such aliens who are in the United States. For principal aliens who applied from outside the United States, the initial EAD will not be issued until the petitioner has been admitted to the United States in U nonimmigrant status. After admission, the alien may receive an initial EAD, upon request and submission of a copy of his or her Form I-94, “Arrival-Departure Record,” to the USCIS office having jurisdiction over the adjudication of petitions for U nonimmigrant status. No additional fee is required. An alien granted U-1 nonimmigrant status seeking to renew his or her expiring EAD or replace an EAD that was lost, stolen, or destroyed, must file Form I-765 in accordance with the instructions to the form.
(d) Annual cap on U-1 nonimmigrant status —(1) General. In accordance with section 214(p)(2) of the Act, 8 U.S.C. 1184(p)(2), the total number of aliens who may be issued a U-1 nonimmigrant visa or granted U-1 nonimmigrant status may not exceed 10,000 in any fiscal year.
(2) Waiting list. All eligible petitioners who, due solely to the cap, are not granted U-1 nonimmigrant status must be placed on a waiting list and receive written notice of such placement. Priority on the waiting list will be determined by the date the petition was filed with the oldest petitions receiving the highest priority. In the next fiscal year, USCIS will issue a number to each petition on the waiting list, in the order of highest priority, providing the petitioner remains admissible and eligible for U nonimmigrant status. After U-1 nonimmigrant status has been issued to qualifying petitioners on the waiting list, any remaining U-1 nonimmigrant numbers for that fiscal year will be issued to new qualifying petitioners in the order that the petitions were properly filed. USCIS will grant deferred action or parole to U-1 petitioners and qualifying family members while the U-1 petitioners are on the waiting list. USCIS, in its discretion, may authorize employment for such petitioners and qualifying family members.
(3) Unlawful presence. During the time a petitioner for U nonimmigrant status who was granted deferred action or parole is on the waiting list, no accrual of unlawful presence under section 212(a)(9)(B) of the INA, 8 U.S.C. 1182(a)(9)(B), will result. However, a petitioner may be removed from the waiting list, and the deferred action or parole may be terminated at the discretion of USCIS.
(e) Restrictions on use and disclosure of information relating to petitioners for U nonimmigrant classification —(1) General. The use or disclosure (other than to a sworn officer or employee of DHS, the Department of Justice, the Department of State, or a bureau or agency of any of those departments, for legitimate department, bureau, or agency purposes) of any information relating to the beneficiary of a pending or approved petition for U nonimmigrant status is prohibited unless the disclosure is made:
(i) By the Secretary of Homeland Security, at his discretion, in the same manner and circumstances as census information may be disclosed by the Secretary of Commerce under 13 U.S.C. 8;
(ii) By the Secretary of Homeland Security, at his discretion, to law enforcement officials to be used solely for a legitimate law enforcement purpose;
(iii) In conjunction with judicial review of a determination in a manner that protects the confidentiality of such information;
(iv) After adult petitioners for U nonimmigrant status or U nonimmigrant status holders have provided written consent to waive the restrictions prohibiting the release of information;
(v) To Federal, State, and local public and private agencies providing benefits, to be used solely in making determinations of eligibility for benefits pursuant to 8 U.S.C. 1641(c);
(vi) After a petition for U nonimmigrant status has been denied in a final decision;
(vii) To the chairmen and ranking members of the Committee on the Judiciary of the Senate or the Committee on the Judiciary of the House of Representatives, for the exercise of congressional oversight authority, provided the disclosure relates to information about a closed case and is made in a manner that protects the confidentiality of the information and omits personally identifying information (including locational information about individuals);
(viii) With prior written consent from the petitioner or derivative family members, to nonprofit, nongovernmental victims' service providers for the sole purpose of assisting the victim in obtaining victim services from programs with expertise working with immigrant victims; or
(ix) To federal prosecutors to comply with constitutional obligations to provide statements by witnesses and certain other documents to defendants in pending federal criminal proceedings.
(2) Agencies receiving information under this section, whether governmental or non-governmental, are bound by the confidentiality provisions and other restrictions set out in 8 U.S.C. 1367.
(3) Officials of the Department of Homeland Security are prohibited from making adverse determinations of admissibility or deportability based on information obtained solely from the perpetrator of substantial physical or mental abuse and the criminal activity.
(f) Admission of qualifying family members —(1) Eligibility. An alien who has petitioned for or has been granted U-1 nonimmigrant status ( i.e. , principal alien) may petition for the admission of a qualifying family member in a U-2 (spouse), U-3 (child), U-4 (parent of a U-1 alien who is a child under 21 years of age), or U-5 (unmarried sibling under the age of 18) derivative status, if accompanying or following to join such principal alien. A qualifying family member who committed the qualifying criminal activity in a family violence or trafficking context which established the principal alien's eligibility for U nonimmigrant status shall not be granted U-2, U-3, U-4, or U-5 nonimmigrant status. To be eligible for U-2, U-3, U-4, or U-5 nonimmigrant status, it must be demonstrated that:
(i) The alien for whom U-2, U-3, U-4, or U-5 status is being sought is a qualifying family member, as defined in paragraph (a)(10) of this section; and
(ii) The qualifying family member is admissible to the United States.
(2) Filing procedures. A petitioner for U-1 nonimmigrant status may apply for derivative U nonimmigrant status on behalf of qualifying family members by submitting a Form I-918, Supplement A, “Petition for Qualifying Family Member of U-1 Recipient,” for each family member either at the same time the petition for U-1 nonimmigrant status is filed, or at a later date. An alien who has been granted U-1 nonimmigrant status may apply for derivative U nonimmigrant status on behalf of qualifying family members by submitting Form I-918, Supplement A for each family member. All Forms I-918, Supplement A must be accompanied by initial evidence and the required fees specified in the instructions to the form. Forms I-918, Supplement A that are not filed at the same time as Form I-918 but are filed at a later date must be accompanied by a copy of the Form I-918 that was filed by the principal petitioner or a copy of his or her Form I-94 demonstrating proof of U-1 nonimmigrant status, as applicable.
(i) Qualifying family members in pending immigration proceedings. The principal alien of a qualifying family member who is in removal proceedings under section 240 of the Act, 8 U.S.C. 1229a, or in exclusion or deportation proceedings initiated under former sections 236 or 242 of the Act, 8 U.S.C. 1226 and 1252 (as in effect prior to April 1, 1997), and who is seeking U nonimmigrant status, must file a Form I-918, Supplement A directly with USCIS. ICE counsel may agree to file, at the request of the qualifying family member, a joint motion to terminate proceedings without prejudice with the immigration judge or Board of Immigration Appeals, whichever is appropriate, while the petition for U nonimmigrant status is being adjudicated by USCIS.
(ii) Qualifying family members with final orders of removal, deportation, or exclusion. An alien who is the subject of a final order of removal, deportation, or exclusion is not precluded from filing a petition for U-2, U-3, U-4, or U-5 nonimmigrant status directly with USCIS. The filing of a petition for U-2, U-3, U-4, or U-5 nonimmigrant status has no effect on ICE's authority to execute a final order, although the alien may file a request for a stay of removal pursuant to 8 CFR 241.6(a) and 8 CFR 1241.6(a). If the alien is in detention pending execution of the final order, the time during which a stay is in effect will extend the period of detention (under the standards of 8 CFR 241.4) reasonably necessary to bring about the alien's removal.
(3) Initial evidence. Form I-918, Supplement A, must include the following initial evidence:
(i) Evidence demonstrating the relationship of a qualifying family member, as provided in paragraph (f)(4) of this section;
(ii) If the qualifying family member is inadmissible, Form I-192, “Application for Advance Permission to Enter as a Non-Immigrant,” in accordance with 8 CFR 212.17.
(4) Relationship. Except as set forth in paragraphs (f)(4)(i) and (ii) of this section, the relationship between the U-1 principal alien and the qualifying family member must exist at the time Form I-918 was filed, and the relationship must continue to exist at the time Form I-918, Supplement A is adjudicated, and at the time of the qualifying family member's subsequent admission to the United States.
(i) If the U-1 principal alien proves that he or she has become the parent of a child after Form I-918 was filed, the child shall be eligible to accompany or follow to join the U-1 principal alien.
(ii) If the principal alien was under 21 years of age at the time he or she filed Form I-918, and filed Form I-918, Supplement A for an unmarried sibling under the age of 18, USCIS will continue to consider such sibling as a qualifying family member for purposes of U nonimmigrant status even if the principal alien is no longer under 21 years of age at the time of adjudication, and even if the sibling is no longer under 18 years of age at the time of adjudication.
(5) Biometric capture and evidentiary standards. The provisions for biometric capture and evidentiary standards in paragraphs (c)(3) and (c)(4) of this section also are applicable to petitions for qualifying family members.
(6) Decision. USCIS will issue a written decision approving or denying Form I-918, Supplement A and send notice of this decision to the U-1 principal petitioner. USCIS will include in a decision approving Form I-918 a list of nongovernmental organizations to which the qualifying family member can refer regarding his or her options while in the United States and available resources. For a qualifying family member who is subject to an order of exclusion, deportation, or removal issued by the Secretary, the order will be deemed canceled by operation of law as of the date of USCIS' approval of Form I-918, Supplement A. A qualifying family member who is subject to an order of exclusion, deportation, or removal issued by an immigration judge or the Board may seek cancellation of such order by filing, with the immigration judge or the Board, a motion to reopen and terminate removal proceedings. ICE counsel may agree, as a matter of discretion, to join such a motion to overcome any applicable time and numerical limitations of 8 CFR 1003.2 and 1003.23.
(i) Approvals for qualifying family members within the United States. When USCIS approves a Form I-918, Supplement A for a qualifying family member who is within the United States, it will concurrently grant that alien U-2, U-3, U-4, or U-5 nonimmigrant status. USCIS will notify the principal of such approval on Form I-797, “Notice of Action,” with Form I-94, “Arrival-Departure Record,” indicating U-2, U-3, U-4, or U-5 nonimmigrant status. Aliens who were previously granted U interim relief as defined in paragraph (a)(13) of this section will be accorded U nonimmigrant status as of the date that the request for U interim relief was approved. Aliens who are granted U-2, U-3, U-4, or U-5 nonimmigrant status are not subject to an annual numerical limit. USCIS may not approve Form I-918, Supplement A unless it has approved the principal alien's Form I-918.
(ii) Approvals for qualifying family members outside the United States. When USCIS approves Form I-918, Supplement A for a qualifying family member who is outside the United States, USCIS will notify the principal alien of such approval on Form I-797. USCIS will forward the approved Form I-918, Supplement A to the Department of State for delivery to the U.S. Embassy or Consulate having jurisdiction over the area in which the qualifying family member is located, or, for a visa exempt alien, to the appropriate port of entry.
(iii) Denial of the Form I-918, Supplement A. In accordance with 8 CFR 103.3(a)(1), USCIS will provide written notification of the reasons for the denial. The principal alien may appeal the denial of Form I-918, Supplement A to the Administrative Appeals Office in accordance with the provisions of 8 CFR 103.3. Upon USCIS' final denial of Form I-918, Supplement A for a qualifying family member who was in removal proceedings that were terminated pursuant to 8 CFR 214.14(f)(2)(i), DHS may file a new Notice to Appear (see section 239 of the INA, 8 U.S.C. 1229) to place the individual in proceedings again. For qualifying family members who are subject to an order of removal, deportation, or exclusion and whose order has been stayed, USCIS' denial of the petition will result in the stay being lifted automatically as of the date the denial becomes administratively final.
(7) Employment authorization. An alien granted U-2, U-3, U-4, or U-5 nonimmigrant status is employment authorized incident to status. To obtain an Employment Authorization Document (EAD), such alien must file Form I-765, “Application for Employment Authorization,” with the appropriate fee or a request for a fee waiver, in accordance with the instructions to the form. For qualifying family members within the United States, the Form I-765 may be filed concurrently with Form I-918, Supplement A, or at any time thereafter. For qualifying family members who are outside the United States, Form I-765 only may be filed after admission to the United States in U nonimmigrant status.
(g) Duration of U nonimmigrant status —(1) In general. U nonimmigrant status may be approved for a period not to exceed 4 years in the aggregate. A qualifying family member granted U-2, U-3, U-4, and U-5 nonimmigrant status will be approved for an initial period that does not exceed the expiration date of the initial period approved for the principal alien.
(2) Extension of status. (i) Where a U nonimmigrant's approved period of stay on Form I-94 is less than 4 years, he or she may file Form I-539, “Application to Extend/Change Nonimmigrant Status,” to request an extension of U nonimmigrant status for an aggregate period not to exceed 4 years. USCIS may approve an extension of status for a qualifying family member beyond the date when the U-1 nonimmigrant's status expires when the qualifying family member is unable to enter the United States timely due to delays in consular processing, and an extension of status is necessary to ensure that the qualifying family member is able to attain at least 3 years in nonimmigrant status for purposes of adjusting status under section 245(m) of the Act, 8 U.S.C. 1255.
(ii) Extensions of U nonimmigrant status beyond the 4-year period are available upon attestation by the certifying official that the alien's presence in the United States continues to be necessary to assist in the investigation or prosecution of qualifying criminal activity. In order to obtain an extension of U nonimmigrant status based upon such an attestation, the alien must file Form I-539 and a newly executed Form I-918, Supplement B in accordance with the instructions to Form I-539.
(h) Revocation of approved petitions for U nonimmigrant status —(1) Automatic revocation. An approved petition for U-1 nonimmigrant status will be revoked automatically if, pursuant to 8 CFR 214.14(d)(1), the beneficiary of the approved petition notifies the USCIS office that approved the petition that he or she will not apply for admission to the United States and, therefore, the petition will not be used.
(2) Revocation on notice. (i) USCIS may revoke an approved petition for U nonimmigrant status following a notice of intent to revoke. USCIS may revoke an approved petition for U nonimmigrant status based on one or more of the following reasons:
(A) The certifying official withdraws the U nonimmigrant status certification referred to in 8 CFR 214.14(c)(2)(i) or disavows the contents in writing;
(B) Approval of the petition was in error;
(C) Where there was fraud in the petition;
(D) In the case of a U-2, U-3, U-4, or U-5 nonimmigrant, the relationship to the principal petitioner has terminated; or
(E) In the case of a U-2, U-3, U-4, or U-5 nonimmigrant, the principal U-1's nonimmigrant status is revoked.
(ii) The notice of intent to revoke must be in writing and contain a statement of the grounds for the revocation and the time period allowed for the U nonimmigrant's rebuttal. The alien may submit evidence in rebuttal within 30 days of the date of the notice. USCIS shall consider all relevant evidence presented in deciding whether to revoke the approved petition for U nonimmigrant status. The determination of what is relevant evidence and the weight to be given to that evidence will be within the sole discretion of USCIS. If USCIS revokes approval of a petition and thereby terminates U nonimmigrant status, USCIS will provide the alien with a written notice of revocation that explains the specific reasons for the revocation.
(3) Appeal of a revocation of approval. A revocation on notice may be appealed to the Administrative Appeals Office in accordance with 8 CFR 103.3 within 30 days after the date of the notice of revocation. Automatic revocations may not be appealed.
(4) Effects of revocation of approval. Revocation of a principal alien's approved Form I-918 will result in termination of status for the principal alien, as well as in the denial of any pending Form I-918, Supplement A filed for qualifying family members seeking U-2, U-3, U-4, or U-5 nonimmigrant status. Revocation of a qualifying family member's approved Form I-918, Supplement A will result in termination of status for the qualifying family member. Revocation of an approved Form I-918 or Form I-918, Supplement A also revokes any waiver of inadmissibility granted in conjunction with such petition.
(i) Removal proceedings. Nothing in this section prohibits USCIS from instituting removal proceedings under section 240 of the Act, 8 U.S.C. 1229(a), for conduct committed after admission, for conduct or a condition that was not disclosed to USCIS prior to the granting of U nonimmigrant status, for misrepresentations of material facts in Form I-918 or Form I-918, Supplement A and supporting documentation, or after revocation of U nonimmigrant status.
[72 FR 53036, Sept. 17, 2007, as amended at 72 FR 54813, Sept. 27, 2007; 74 FR 55738, Oct. 28, 2009]
| File Type | application/msword |
| File Title | INA: ACT 212 - GENERAL CLASSES OF ALIENS INELIGIBLE TO RECEIVE VISAS AND INELIGIBLE FOR ADMISSION; WAIVERS OF INADMISSIBILLITY |
| Author | S. Tarragon |
| Last Modified By | Mayer, Bosong K |
| File Modified | 2012-12-04 |
| File Created | 2009-11-17 |