COIL Manual Reduced

Introduction to Immigration Law
Training Manual
Spring 2020
ABOUT THIS MANUAL
CLINIC’s Introduction to Immigration Law manual is designed to accompany our introductory

immigration law in-person and e-learning courses. The purpose of the training is to expose the new
immigration law practitioner to core concepts in immigration law and the principal eligibility
requirements for various forms of immigration benefits. The topics of the training curriculum are
sequenced to provide opportunities to show the connection between different immigration law issues
as well as to reinforce various concepts through repeated exposure. This training is also formulated to
satisfy the Department of Justice (DOJ) requirement that applicants for initial accreditation participate
in at least one recent formal overview of immigration law training.
All of the issues covered in this manual are addressed from the perspective of providing an overview
of the topic, not a detailed review. Practitioners are encouraged to continue to develop their
knowledge of immigration law through additional trainings providing more in-depth coverage of
specific issues of interest.
Contents
Chapter 1 WHAT IS IMMIGRATION LAW ABOUT? .................................................................................................... 9
1.1 INTRODUCTION ............................................................................................................................................... 9
1.2 THE U.S. IMMIGRATION LAW SYSTEM IN ACTION .......................................................................................... 9
1.3 WHO’S WHO IN THE IMMIGRATION LAW UNIVERSE .................................................................................... 10
A. CATEGORIES OF NONCITIZENS .................................................................................................................... 10
1.4 SOURCES OF IMMIGRATION LAWS ............................................................................................................... 15
A. THE IMMIGRATION AND NATIONALITY ACT ............................................................................................... 15
B. REGULATIONS .............................................................................................................................................. 15
C. AGENCY POLICY GUIDANCE ......................................................................................................................... 15
D. CASE LAW .................................................................................................................................................... 16
E. EXECUTIVE ORDERS ..................................................................................................................................... 16
1.5 FEDERAL AGENCIES THAT CARRY OUT IMMIGRATION LAWS ....................................................................... 16
A. DEPARTMENT OF HOMELAND SECURITY .................................................................................................... 16
B. DEPARTMENT OF JUSTICE ........................................................................................................................... 17
C. DEPARTMENT OF STATE .............................................................................................................................. 18
D. DEPARTMENT OF LABOR ............................................................................................................................. 18
E. DEPARTMENT OF HEALTH AND HUMAN SERVICES ..................................................................................... 18
Chapter 2 NON-ATTORNEY CREDENTIALS TO PRACTICE IMMIGRATION LAW: DOJ AGENCY RECOGNITION AND
STAFF ACCREDITATION ............................................................................................................................................ 19
2.1 THE RECOGNITION AND ACCREDITATION PROGRAM OVERVIEW ................................................................ 19
2.2 RECOGNITION AND ACCREDITATION IN ACTION .......................................................................................... 20
2.3 ORGANIZATIONAL RECOGNITION BY DOJ UNDER 8 CFR § 1292.11 .............................................................. 20
A. REQUIREMENTS........................................................................................................................................... 20
B. REPORTING, RECORDKEEPING, AND POSTING REQUIREMENTS ................................................................. 21
C. PREPARING THE RECOGNITION APPLICATION FOR THE AGENCY OFFICE ................................................... 22
D. EXTENSION OF RECOGNITION AND ACCREDITATION TO MULTIPLE LOCATIONS ....................................... 24
2.4 INDIVIDUAL STAFF ACCREDITATION TO REPRESENT UNDER 8 CFR § 1292.12 ............................................. 24
A. APPLYING FOR ACCREDITATION .................................................................................................................. 24
B. ELIGIBILITY ................................................................................................................................................... 25
C. APPLICATIONS FOR ACCREDITED REPRESENTATIVE STATUS ...................................................................... 25
Updated March 2020 | Produced by the Catholic Legal Immigration Network, Inc. 1
D. PRACTICING AS AN ACCREDITED REPRESENTATIVE .................................................................................... 26
2.5 FURTHER INFORMATION ............................................................................................................................... 26
Chapter 3 PRACTICE SKILLS: CASE MANAGEMENT, INTERVIEWING, AND USING LEGAL AUTHORITY ................... 28
3.1 INTRODUCTION ............................................................................................................................................. 28
3.2 CASE MANAGEMENT ..................................................................................................................................... 28
A. INTAKE AND INTAKE FORMS ....................................................................................................................... 28
B. CASE SELECTION .......................................................................................................................................... 29
C. RETAINER AGREEMENTS ............................................................................................................................. 30
D. CASE FILE NOTES AND ORGANIZATION....................................................................................................... 31
E. COMMUNICATING WITH CLIENTS ............................................................................................................... 31
F. TRACKING DEADLINES ................................................................................................................................. 32
G. CLOSING CASES ........................................................................................................................................... 32
3.3 INTERVIEWING............................................................................................................................................... 33
A. BEST PRACTICES IN INTERVIEWS ................................................................................................................. 33
3.4 LEGAL AUTHORITY ......................................................................................................................................... 37
A. PRIMARY SOURCES OF LEGAL AUTHORITY ................................................................................................. 37
B. SECONDARY SOURCES OF LEGAL AUTHORITY ............................................................................................. 40
C. ADMINISTRATIVE APPEALS OF IMMIGRATION CASES................................................................................. 41
D. CASE CITATIONS .......................................................................................................................................... 42
E. YOU CAN DO IT! FINDING LEGAL AUTHORITY IN ACTION ........................................................................... 43
Chapter 4 OVERVIEW OF COMMON GROUNDS OF INADMISSIBILITY AND DEPORTABILITY .................................. 46
4.1 INTRODUCTION ............................................................................................................................................. 46
4.2 INADMISSIBILITY AND DEPORTABILITY IN ACTION........................................................................................ 46
4.3 CONCEPTS OF INADMISSIBILITY AND DEPORTABILITY .................................................................................. 46
4.4 SUMMARY OF INADMISSIBILITY AND DEPORTABILITY GROUNDS ................................................................ 47
A. INA § 212(a): CATEGORIES OF INADMISSIBILITY ......................................................................................... 48
B. INA § 237 (a): CATEGORIES OF DEPORTABILITY .......................................................................................... 48
4.5 REVIEW OF SELECTED GROUNDS OF INADMISSIBILITY AND DEPORTABILITY ............................................... 49
A. HEALTH GROUNDS, INA § 212(a)(1) ............................................................................................................ 49
B. CRIME-BASED GROUNDS, INA §§ 212(a)(2), 237(a)(2)................................................................................ 50
C. PUBLIC CHARGE INADMISSIBILITY AND DEPORTABILITY, INA §§ 212(a)(4), 237(a)(5) ............................... 53
D. ILLEGAL ENTRANTS AND IMMIGRATION VIOLATORS, INA § 212(a)(6) ....................................................... 55
E. DOCUMENTATION REQUIREMENTS, INA § 212(a)(7).................................................................................. 60
F. ALIENS PREVIOUSLY REMOVED, INA § 212(a)(9) ......................................................................................... 60
4.6 REINSTATEMENT OF REMOVAL, INA § 241(a)(5) .......................................................................................... 65
4.7 WAIVERS OF INADMISSIBILITY....................................................................................................................... 65
Chapter 5 FAMILY-BASED IMMIGRATION: IMMEDIATE RELATIVES AND THE PREFERENCE SYSTEM ..................... 68
5.1 INTRODUCTION ............................................................................................................................................. 68
5.2 FAMILY-BASED IMMIGRATION IN ACTION .................................................................................................... 68
5.3 FAMILY-BASED IMMIGRATION: WHO CAN IMMIGRATE? ............................................................................. 69
A. OVERVIEW ................................................................................................................................................... 69
B. FAMILY RELATIONSHIPS .............................................................................................................................. 69
C. IMMEDIATE RELATIVES AND PREFERENCE IMMIGRANTS ........................................................................... 71
D. DERIVATIVE BENEFICIARIES......................................................................................................................... 72
5.4 PREFERENCE CATEGORY IMMIGRANTS AND PRIORITY DATES ..................................................................... 73
A. OVERVIEW ................................................................................................................................................... 73
B. DEPARTMENT OF STATE VISA BULLETIN ..................................................................................................... 74
5.5 PETITION REVOCATION AND CATEGORY CONVERSION ................................................................................ 78
5.6 FILING THE I-130 ALIEN RELATIVE PETITION ................................................................................................. 79
Chapter 6 CHILD STATUS PROTECTION ACT AND REMEDIES FOR SURVIVING RELATIVES ..................................... 82
6.1 INTRODUCTION ............................................................................................................................................. 82
6.2 CSPA AND RELIEF FOR SURVIVING RELATIVES IN ACTION ............................................................................ 82
6.3 CSPA OVERVIEW ............................................................................................................................................ 83
6.4 OVERVIEW OF BENEFITS FOR SURVIVING RELATIVES ................................................................................... 85
A. WIDOW/WIDOWER SELF-PETITIONS .......................................................................................................... 85
B. RELIEF UNDER INA § 204(l) .......................................................................................................................... 86
C. HUMANITARIAN REINSTATEMENT .............................................................................................................. 87
Chapter 7 IMMIGRATING THROUGH MARRIAGE .................................................................................................... 90
7.1 INTRODUCTION ............................................................................................................................................. 90
CONDITIONAL RESIDENCE ................................................................................................................................... 90
A. OVERVIEW ................................................................................................................................................... 90
B. CONDITIONAL RESIDENT STATUS IN ACTION .............................................................................................. 91
C. REMOVING THE CONDITIONS ON RESIDENCE ............................................................................................ 91
D. TERMINATION OF CONDITIONAL RESIDENCE, AND REIVEW IN REMOVAL PROCEEDINGS ........................ 93
7.2 OTHER PROVISIONS RELATED TO PREVENTING MARRIAGE FRAUD ............................................................. 93
A. OVERVIEW ................................................................................................................................................... 93
B. MARRIAGE IN REMOVAL PROCEEDINGS ..................................................................................................... 93
C. HIGHER BURDEN OF PROOF FOR CERTAIN LPR PETITIONERS ..................................................................... 94
D. MARRIAGE FRAUD PENALTY ....................................................................................................................... 94
E. DEPORTABILITY FOR MARRIAGE FRAUD ..................................................................................................... 95
7.3 FIANCÉ/E PETITIONS ...................................................................................................................................... 95
A. OVERVIEW ................................................................................................................................................... 95
B. FIANCÉ(E) VISA IN ACTION .......................................................................................................................... 96
C. PREVIOUS MEETING REQUIREMENT ........................................................................................................... 96
D. ADDITIONAL REQUIREMENTS FOR FIANCÉ(E) PETITIONERS ....................................................................... 97
E. CHILDREN OF FIANCÉ(E)S ............................................................................................................................ 97
F. TWO-YEAR CONDITIONAL RESIDENCE FOR FIANCÉ(E)S .............................................................................. 98
7.4 K-3 AND K-4 FOR SPOUSES OF USCs AND THEIR CHILDREN .......................................................................... 98
A. OVERVIEW ................................................................................................................................................... 98
Chapter 8 OVERVIEW OF THE APPLICATION PROCESS FOR PERMANENT RESIDENCE ......................................... 101
8.1 INTRODUCTION ........................................................................................................................................... 101
8.2 THE PERMANENT RESIDENCE APPLICATION PROCESS IN ACTION .............................................................. 102
8.3 ADJUSTMENT OF STATUS IN THE UNITED STATES ...................................................................................... 102
A. EVOLUTION OF THE LAW ON ADJUSTMENT of status .............................................................................. 102
B. SECTION 245(a): ADJUSTMENT ELIGIBILITY WITHOUT PENALTY FEE........................................................ 103
C. SECTION 245(i): ADJUSTMENT WITH PENALTY FEE................................................................................... 104
D. ADJUSTMENT AND THE GROUNDS OF INADMISSIBILITY .......................................................................... 107
E. ADJUSTMENT AND DISCRETION ................................................................................................................ 108
F. THE ADJUSTMENT APPLICATION PROCESS ................................................................................................ 108
G. OTHER BASES FOR ADJUSTMENT OF STATUS ........................................................................................... 110
8.4 CONSULAR PROCESSING OVERSEAS ............................................................................................................ 111
A. OVERVIEW OF THE PROCEDURE ............................................................................................................... 111
B. NATIONAL VISA CENTER ............................................................................................................................ 112
C. PRE-SCREENING ......................................................................................................................................... 113
D. CONSULAR APPOINTMENT ....................................................................................................................... 114
E. CONSULAR INTERVIEW .............................................................................................................................. 114
F. USCIS IMMIGRANT FEE .............................................................................................................................. 115
G. TERMINATION OF REGISTRATION ............................................................................................................. 116
8.5 ADJUSTMENT OR CONSULAR PROCESSING OF DERIVATIVES ..................................................................... 116
8.6 AFFIDAVIT OF SUPPORT............................................................................................................................... 116
A. OVERVIEW ................................................................................................................................................. 116
B. AFFIDAVIT OF SUPPORT REQUIREMENTS ................................................................................................. 117
C. EXEMPTIONS FROM THE AFFIDAVIT OF SUPPORT REQUIREMENT ........................................................... 120
Chapter 9 OVERVIEW OF REMOVAL PROCEEDINGS AND DEFENSES TO REMOVAL ............................................. 123
9.1 INTRODUCTION ........................................................................................................................................... 123
9.2 REMOVAL PROCEEDINGS IN ACTION........................................................................................................... 123
9.3 REMOVAL PROCEEDINGS IN IMMIGRATION COURT ................................................................................... 124
A. OVERVIEW ................................................................................................................................................. 124
B. IMMIGRATION COURT PROCEEDINGS IN ACTION .................................................................................... 125
C. BASICS OF REMOVAL PROCEEDINGS ......................................................................................................... 125
9.4 EXPEDITED REMOVAL UNDER INA § 235(b) ................................................................................................ 129
A. “ARRIVING ALIENS" ................................................................................................................................... 129
B. EXPANSION OF EXPEDITED REMOVAL....................................................................................................... 129
C. EXPEDITED REMOVAL IN ACTION .............................................................................................................. 130
D. CREDIBLE FEAR .......................................................................................................................................... 130
E. NEW THIRD-COUNTRY TRANSIT REGULATIONS ........................................................................................ 131
9.5 ADMINISTRATIVE REMOVAL........................................................................................................................ 131
9.6 REINSTATEMENT OF REMOVAL ................................................................................................................... 131
A. REASONABLE FEAR .................................................................................................................................... 132
9.7 DEFENSES TO REMOVAL .............................................................................................................................. 132
A. OVERVIEW ................................................................................................................................................. 132
B. CANCELLATION OF REMOVAL ................................................................................................................... 133
C. ADJUSTMENT OF STATUS .......................................................................................................................... 135
D. VOLUNTARY DEPARTURE .......................................................................................................................... 136
Chapter 10 EMPLOYMENT-BASED IMMIGRATION AND DIVERSITY IMMIGRANTS ............................................... 140
10.1 INTRODUCTION ......................................................................................................................................... 140
10.2 EMPLOYMENT-BASED IMMIGRATION IN ACTION ..................................................................................... 140
10.3 NONIMMIGRANT STATUS BASED ON EMPLOYMENT ............................................................................... 141
A. OVERVIEW ................................................................................................................................................. 141
B. NONIMMIGRANT STATUS IN ACTION........................................................................................................ 141
C. COMMON TYPES OF NONIMMIGRANT EMPLOYMENT-BASED STATUS ................................................... 142
D. HOW TO OBTAIN NONIMMIGRANT EMPLOYMENT-BASED STATUS ........................................................ 144
E. STUDENTS, EXCHANGE VISITORS, AND TEMPORARY BUSINESS VISITORS ................................................ 145
10.4 PERMANENT EMPLOYMENT-BASED IMMIGRATION ................................................................................. 146
A. OVERVIEW ................................................................................................................................................. 146
B. EMPLOYMENT-BASED IMMIGRATION IN ACTION..................................................................................... 146
C. EMPLOYMENT-BASED PREFERENCE CATEGORIES..................................................................................... 147
D. THE EMPLOYMENT-BASED IMMIGRATION PROCESS................................................................................ 149
10.5 DIVERSITY VISAS ........................................................................................................................................ 151
Chapter 11 IMMIGRATION RELIEF FOR VICTIMS OF ABUSE AND CRIME: VAWA, U AND T STATUS .................... 154
11.1 INTRODUCTION ......................................................................................................................................... 154
11.2 VAWA, U AND T RELIEF IN ACTION ............................................................................................................ 155
11.3 VAWA SELF-PETITIONING FOR ABUSED SPOUSES AND CHILDREN OF USCS AND LPRS ............................ 155
A. OVERVIEW ................................................................................................................................................. 155
B. ELIGIBILITY REQUIREMENTS ...................................................................................................................... 156
C. BATTERY OR EXTREME CRUELTY ............................................................................................................... 157
D. DOCUMENTING THE ABUSE ...................................................................................................................... 158
E. CERTAIN CHANGES IN STATUS DO NOT AFFECT THE SELF-PETITION ........................................................ 158
F. ADJUSTMENT OF STATUS AND OTHER BENEFITS FOR APPROVED VAWA SELF- PETITIONERS ................. 159
11.4 VAWA CANCELLATION OF REMOVAL ........................................................................................................ 160
B. ELIGIBILITY REQUIREMENTS ...................................................................................................................... 161
11.5 U AND T NONIMMIGRANT STATUS ........................................................................................................... 162
A. OVERVIEW ................................................................................................................................................. 162
B. REQUIREMENTS FOR U NONIMMIGRANT RELIEF FOR VICTIMS OF CRIME .............................................. 162
C. BENEFITTS OF U STATUS ............................................................................................................................ 163
D. U ADJUSTMENT OF STATUS ...................................................................................................................... 164
E. REQUIREMENTS FOR T NONIMMIGRANT RELIEF FOR VICTIMS OF HUMAN TRAFFICKING ...................... 165
F. CONTINUED PRESENCE FOR VICTIMS OF TRAFFICKING ............................................................................ 166
G. BENEFITS OF T STATUS .............................................................................................................................. 167
H. T ADJUSTMENT OF STATUS ....................................................................................................................... 167
I. COMPARING THE REMEDIES ...................................................................................................................... 167
Chapter 12 OTHER HUMANITARIAN RELIEF .......................................................................................................... 171
12.1 INTRODUCTION ......................................................................................................................................... 171
12.2 TEMPORARY PROTECTED STATUS ............................................................................................................. 171
A. OVERVIEW ................................................................................................................................................. 171
B. TPS IN ACTION ........................................................................................................................................... 172
C. ELIGIBILITY FOR TPS ................................................................................................................................... 172
D. POTENTIAL OPTIONS FOR ADJUSTMENT OF STATUS................................................................................ 173
12.3 ASYLUM, WITHHOLDING AND THE CONVENTION AGAINST TORTURE ..................................................... 174
A. OVERVIEW ................................................................................................................................................. 174
B. ASYLUM ..................................................................................................................................................... 174
C. WITHHOLDING OF REMOVAL .................................................................................................................... 177
D. PROTECTION UNDER THE CONVENTION AGAINST TORTURE ................................................................... 177
12.4 SPECIAL IMMIGRANT JUVENILE STATUS ................................................................................................... 178
A. OVERVIEW ................................................................................................................................................. 178
B. SIJS IN ACTION ........................................................................................................................................... 179
C. ELIGIBILITY FOR SIJS ................................................................................................................................... 179
12.5 DEFERRED ACTION FOR CHILDHOOD ARRIVALS ........................................................................................ 180
A. OVERVIEW ................................................................................................................................................. 180
B. DACA IN ACTION ........................................................................................................................................ 180
C. DACA TERMINATION AND RESULTING LITIGATION................................................................................... 180
D. ORIGINAL DACA GUIDELINES - ELIGIBILITY REQUIREMENTS .................................................................... 181
12.6 PAROLE IN PLACE ....................................................................................................................................... 183
A. OVERVIEW ................................................................................................................................................. 183
B. PIP ELIGIBILITY REQUIREMENTS ................................................................................................................ 183
Chapter 13 CITIZENSHIP THROUGH ACQUISITION, DERIVATION, AND NATURALIZATION ................................... 187
13.1 INTRODUCTION ......................................................................................................................................... 187
A. CITIZENSHIP IN ACTION ............................................................................................................................. 187
13.2 ACQUISITION OF CITIZENSHIP ................................................................................................................... 188
A. OVERVIEW ................................................................................................................................................. 188
B. ACQUISITION RULES .................................................................................................................................. 188
13.3 DERIVATION OF CITIZENSHIP (INA § 320).................................................................................................. 190
A. OVERVIEW ................................................................................................................................................. 190
B. DERIVATION RULES.................................................................................................................................... 190
13.4 DOCUMENTING ACQUISITION OR DERIVATION ........................................................................................ 191
13.5 NATURALIZATION ...................................................................................................................................... 192
A. OVERVIEW ................................................................................................................................................. 192
B. GENERAL REQUIREMENTS TO NATURALIZE (INA § 316) ........................................................................... 193
C. EXPOSURE TO DEPORTABILITY .................................................................................................................. 197
13.6 CITIZENSHIP FOR CERTAIN CHILDREN OF USCS RESIDING OVERSEAS....................................................... 198
GLOSSARY OF IMMIGRATION LAW TERMS ........................................................................................................... 202
COMMON ACRONYMS .......................................................................................................................................... 206
APPENDICES .......................................................................................................................................................... 208
Chapter 1
WHAT IS IMMIGRATION LAW ABOUT?
1.1 INTRODUCTION
Like all sovereign nations, the United States has the right to determine who may enter its borders and
who may be removed from its borders. Immigration law provides the rules and regulations that govern which
noncitizens may enter the United States, for how long, and for what purposes; which noncitizens may work in
the United States or qualify for other benefits; which noncitizens may become U.S. citizens and the
requirements for doing so; and which noncitizens must leave the United States.
Immigration law in the United States is complex and is governed by statutes, regulations, and policies
that continue to change over time. As legal service providers, we must understand evolving laws and policies
to help our clients accomplish different goals: obtain an immigration benefit; become a U.S. citizen; help a
family member to immigrate; or avoid losing a benefit or being removed from the United States. When applying
for an immigration benefit, noncitizens identify themselves to the government and invite scrutiny. For that
reason, legal service providers must carefully screen clients and understand not only the eligibility requirements
for certain benefits but also the potential negative consequences of applying for a particular immigration
benefit.
In this introductory chapter, we will introduce some of the key concepts in immigration law, including
the different types of immigration status in the United States, the different types of immigration laws, who creates
them and how they fit together, and the roles of the different federal agencies responsible for carrying out U.S.
immigration laws.
1.2 THE U.S. IMMIGRATION LAW SYSTEM IN ACTION
Below are some examples of how immigration laws are applied to different types of noncitizens.
Example: Caridad lives in the Philippines and hopes to immigrate to the United States. She is married
to a lawful permanent resident and her spouse may file a petition for her. Before an immigrant visa can
be issued, Caridad will be screened for eligibility according to the immigration laws of the United
States.
Example: Samuel, from Mexico, is undocumented. He has lived in the United States for ten years
without any lawful immigration status. If he is apprehended by U.S. Immigration and Customs
Enforcement (ICE), he may be placed in removal proceedings for his violation of the immigration laws.
Samuel has no relatives who are U.S. citizens or LPRs who would be able to sponsor him. However,
he was previously a victim of a serious crime and assisted law enforcement in investigating the crime.
Samuel may be eligible for U nonimmigrant status.
Example: Consuela, from Venezuela, entered the United States with a tourist visa three months ago.
Her brother was recently detained for his anti-government activism and Consuela is afraid to return
home because she was also involved in anti-government protests. Consuela has decided to apply for
asylum.
Example: Alfons, from Poland, is a lawful permanent resident. He was convicted of a controlled
substance violation that makes him deportable. If immigration authorities find out about Alfons’
conviction, he will likely be placed in removal proceedings and be at risk of losing his LPR status.
1.3 WHO’S WHO IN THE IMMIGRATION LAW UNIVERSE
When considering different types of immigration status, the first and broadest distinction to draw is
between U.S. citizens (USCs) and noncitizens. The legal term for noncitizens under U.S., immigration law is
“aliens” (which applies equally to those here in lawful status and those without lawful status) but, because of
the negative connotations of this term, we will use “noncitizen” throughout this manual.
All noncitizens who want to enter the United States, or who are present in the United States, are subject
to U.S. immigration laws. USCs are not subject to immigration laws, in the sense that they may come and go
from the United States without immigration restrictions; are not subject to immigration scrutiny or enforcement
either in the United States or at U.S. borders; and may not be deported from the United States. USCs also enjoy
a number of rights and privileges not available to noncitizens, such as voting in U.S. elections. However, even
U.S. citizenship is not necessarily permanent. USCs through naturalization may be subject to denaturalization
if they obtained their citizenship illegally or through fraud. Chapter Thirteen of this manual discusses citizenship
issues in greater detail.
A. CATEGORIES OF NONCITIZENS
There are several categories of noncitizens, each with different immigration statuses. We will examine
each category, beginning with lawful permanent residents who have the greatest array of benefits, then
consider other types of lawful immigration status, and end with the undocumented who have no lawful
immigration status.
1. Lawful Permanent Residents
Lawful permanent residents (LPRs) – often referred to as “green card holders” – have more immigration
benefits than other noncitizens. The term in immigration law for LPRs is “immigrants,” but we will refer to them
throughout the manual as LPRs. LPRs have the right to live and work indefinitely in the United States. LPRs may
sponsor certain close family members – their spouses and unmarried sons and daughters – for lawful
permanent residence. LPRs may generally travel into and out of the United States without advance permission,
and in many circumstances are not subject to immigration-related scrutiny when returning to the United States
from abroad. LPRs may also apply for U.S. citizenship – through a process called “naturalization” – after
spending a prescribed period of time in the United States as LPRs. Chapter Thirteen explains the eligibility
requirements for naturalization.
While LPRs have many benefits, they are not as protected as USCs. Despite its name, lawful permanent
residence is not necessarily permanent. LPRs are potentially subject to removal from the United States. Chapter
Four describes the kinds of conduct that could lead to removal for LPRs, including being convicted of certain
criminal offenses and smuggling. LPRs may also lose their status if they are found to have abandoned residency
based on an extended absence from the United States.
In order to become an LPR, a noncitizen must follow one of the pathways laid out in our immigration
laws. The three largest pathways are through (1) family relationships; (2) employment skills in need in the
United States; and (3) humanitarian protection, such as asylum and refugee status, U and T status for victims
of serious crimes or human trafficking, Special Immigrant Juvenile Status (SIJS) for children who have been
abused, neglected or abandoned by their parent(s) and relief under the Violence Against Women Act (VAWA)
for victims of domestic violence. Together, these three pathways account for more than 95 percent of all
noncitizens who become LPRs each year.
Example: Christina, from El Salvador, is an LPR. She immigrated several years ago through a petition
filed by her USC father. Christina’s husband Raul and their two children remained in El Salvador but
now would like to reunite in the United States. As an LPR, she may initiate the family-based immigration
process for her spouse and children to join her in the United States as LPRs.
Example: Luc, from Cameroon, has specialized skills in the fields of computing and engineering. A
start-up in the United States would like to employ him and will file an employment-based immigrant
visa petition for him.
Example: Sergio came to the United States without authorization. He is now married to William, a
USC. William filed an I-130 petition for Sergio, but soon afterwards, William became physically and
emotionally abusive to Sergio and threatened to withdraw the petition he filed. Under VAWA, Sergio
may file a self-petition and immigrate without the involvement of his abusive spouse.
The remaining pathways account for far fewer LPRs. These pathways include the Diversity Immigrant
Visa Program (known as the “green card lottery”), which each year awards LPR status to about 50,000
noncitizens from countries with low rates of immigration to the United States; Cuban adjustment for certain
natives of Cuba; and non-LPR cancellation of removal, which is available to certain noncitizens in removal
proceedings who have been in the United States for at least ten years and have close USC or LPR relatives.
Noncitizens who do not qualify to use one of the pathways to LPR status cannot become LPRs. Even
those noncitizens who do qualify for one of these pathways will not necessarily become LPRs. There are
obstacles to lawful permanent residence that prevent some noncitizens from becoming LPRs. We will examine
those obstacles – known as “grounds of inadmissibility” – in Chapter Four of this manual.
2. Asylees and Refugees
The United States grants protection to individuals who, in their home countries, have been persecuted
or fear persecution in the future, based on their race, religion, nationality, political opinion, or membership in
a particular social group. This protection is labeled either “asylum” or “refugee status,” depending on where
the determination about this persecution is made. Those granted refugee status are identified and interviewed
outside the United States by the U.S. Department of State (DOS) and U.S. Citizenship and Immigration Services
(USCIS). They then enter the United States in refugee status. In contrast, asylum is a protection that can only
be applied for once an individual is already in the United States or at a U.S. border or port of entry, regardless
of how he or she may have entered or attempted to enter the country. An individual may apply for asylum
affirmatively or as a defense in removal proceedings.
Both asylum and refugee status are granted indefinitely. Refugees and asylees may work in the United
States and may petition for their spouses and minor children to join them as derivative refugees or asylees.
Asylees and refugees also have their own special pathway to LPR status, which allows forgiveness of many of
the common obstacles to LPR status.
Example: Gabriel was targeted by a gang in Honduras because he refused to join them. His religious
beliefs led him to speak out against the gangs. Fearing for his life, he fled to the United States and filed
an application for asylum. If his application is approved, he will be an asylee. After one year, he will
be eligible to apply to become an LPR.
3. Nonimmigrants
Millions of noncitizens enter the United States every year with nonimmigrant visas obtained at a U.S.
consulate abroad. The nonimmigrant visa consists of a travel document affixed to the applicant’s passport,
which allows for travel to the United States for a particular temporary purpose. Each nonimmigrant visa
category has a corresponding letter of the alphabet, from A to V; some of the most common ones are shown
below.
A = diplomats
B = tourists
D = crewpersons
F = students
H = employment
J = exchange visitors
K = fiancé(e)s of USCs
P = artists and entertainers
R = religious workers
T = victims of severe forms of human trafficking
U = victims of certain serious crimes who have helped law enforcement
Most nonimmigrant categories have no built-in pathway to lawful permanent residence. This means
that most nonimmigrants will need to qualify for family-based, employment-based or humanitarian pathways
in order to become LPRs. Only the K, T, and U nonimmigrant categories have a built-in pathway to LPR status.
In some situations, an individual who is already in the United States may establish eligibility for a
nonimmigrant classification through an application submitted to U.S. Citizenship and Immigration Services
(USCIS). Although immigration advocates may sometimes use the terms “nonimmigrant visa” and
“nonimmigrant status” interchangeably, only those who apply for nonimmigrant classification abroad are
given a visa because that term refers to a travel document. A person who applies for and is granted
nonimmigrant status while in the United States will generally be issued an I-94 “Arrival/Departure Record”
card, which identifies the type of status and the length of authorized time the person is allowed to remain in the
United States.
Example: Trudi, from Ecuador, lives in Chicago and was the victim of a felonious assault. She qualified
for U nonimmigrant classification and, when her application was approved, she was granted U
nonimmigrant status. Trudi’s cousin Helena hopes to visit the United States next month; she will soon
seek to enter the United States with a B-2 visa issued to her at the U.S. consulate in Quito. Once Helena
arrives in the United States with her B-2 visa, a U.S. Customs and Border Protection (CBP) officer will
specify the period of her authorized stay.
a. Temporary Protected Status

In addition to asylum and refugee status, the United States also offers a temporary form of protection
to individuals who are residing in the United States and who are citizens of certain designated countries that
have suffered severe natural disasters or ongoing armed conflicts. Temporary Protected Status (TPS) offers
protection from removal and work authorization to those who qualify. DHS determines which countries are
designated for TPS at any given time and for how long. For a list of countries that are currently designated, visit
www.uscis.gov/humanitarian/temporary-protected-status. To qualify for TPS, nationals of these countries
must have been physically present in the United States on a specific date and must timely register or re-register
for TPS. TPS does not have a built-in pathway to lawful permanent residence. Chapter Twelve of this manual
discusses TPS in greater detail.
b. Deferred Action for Childhood Arrivals
Deferred Action for Childhood Arrivals (DACA) provides temporary protection from removal and work
authorization for certain individuals who were brought to the United States as children. It is not a lawful
immigration status, but rather a determination by DHS that it will not seek to remove the noncitizen for a two-
year period. The DACA program was initiated by President Obama through executive action on June 15,
2012. DACA is available to young people who came to the United States before they were 16, were under
the age of 31 as of June 15, 2012, were attending school here or had obtained a GED, were physically
present in the United States on June 15, 2012, and had been continuously residing in the United States since
June 15, 2007. DACA does not have its own pathway to lawful permanent residence. On September 5, 2017,
President Trump announced that the program will be phased out. The future of DACA is now being decided
by the U.S. Supreme Court and a decision is expected by the end of June 2020. DACA is discussed in greater
detail in Chapter Twelve.
c. Other Temporary Relief
Several other types of relief provide temporary protection for those who are in the United States without
authorization or who seek to enter the United States for a humanitarian purpose but have no avenue for
obtaining a nonimmigrant or immigrant visa. DACA is one type of deferred action, however deferred action
can be granted in other circumstances to allow someone to remain in the United States and obtain employment
authorization. Humanitarian parole may be granted to individuals who are abroad and would like to enter the
United States based on humanitarian or significant public benefit reasons, e.g., the need for medical treatment
that is unavailable in the home country. Parole in place has allowed undocumented family members of those
who are in the U.S. Armed Forces the right to reside in the United States and qualify for certain benefits. Those
benefits include eligibility for employment authorization and, for some individuals, an easier path to applying
for LPR status.
4. Undocumented Individuals
There are millions of noncitizens in the United States who have no lawful immigration status. We will
refer to these people throughout the manual as “undocumented” because they lack immigration documents.
There are two ways for a noncitizen to be undocumented. The first way is to enter the United States as a
nonimmigrant and then overstay or violate the terms of that status. The second way is to enter the United States
at a place other than at a port of entry and without being inspected by an immigration officer. We often refer
to this as “entry without inspection” (EWI). Someone who enters without inspection is undocumented as soon
as he or she enters the United States.
Among the millions of undocumented people in the United States, there are quite a few who may
qualify for a lawful immigration status now or in the future. Being undocumented is not necessarily permanent.
On the other hand, current immigration law does not offer a path to any lawful status for millions of noncitizens
present in the United States.
1.4 SOURCES OF IMMIGRATION LAWS
The sources of immigration laws and rules are numerous, and they fit together in a hierarchy. All laws
in the United States must conform to the U.S. Constitution. Even the highest point in the immigration hierarchy,
the Immigration and Nationality Act, may not violate the U.S. Constitution. Chapter Three of this manual
explains each source of immigration law in greater detail.
A. THE IMMIGRATION AND NATIONALITY ACT
Immigration and nationality issues in the United States are reserved to the federal government. The
main body of immigration law is the Immigration and Nationality Act (INA), often referred to by immigration
advocates as “the Act” or “the statute.” The INA creates the framework of U.S. immigration laws and sets out:
• which noncitizens may enter the United States and in what status;
• pathways to permanent residence;
• eligibility for naturalization;
• eligibility for automatic citizenship;
• which noncitizens may be refused entry to the United States; and
• which noncitizens may be removed from the United States.
The INA is not static; it changes every time Congress makes changes to the immigration laws. Even in
the absence of major immigration reform, there are changes almost every year to the INA. For this reason, it is
important that every practitioner who handles immigration cases has access to an up-to-date copy of the INA.
B. REGULATIONS
Several federal agencies are charged with carrying out immigration laws, and they write rules called
“regulations” that flesh out the framework of the INA and provide more detail about exactly how the
immigration laws are to be carried out. The main body of immigration regulations is found at Volume 8 of the
Code of Federal Regulations, referred to as “8 CFR.” The regulations provide far more detail than the statute
and include specific definitions of terms, filing procedures and fees, eligibility for specific benefits, and other
defining terms in the INA. The regulations, like the INA, change as the agency updates them so it is also
necessary for practitioners to have access to an up-to-date copy of the regulations.
C. AGENCY POLICY GUIDANCE
Although the immigration regulations are very detailed, and much longer than the INA, they do not
address every question in immigration law. In addition, USCIS has not issued regulations on every aspect of
immigration law and even the regulations themselves sometimes contain gaps. The agency handles this by
issuing internal policy guidance for its adjudicators in the form of policy memoranda, many of which are
consolidated into the multi-volume USCIS Policy Manual or the Adjudicator’s Field Manual (AFM). These
sources provide useful guidance to practitioners seeking to understand how the agency interprets and
implements the law, and they are all available on the USCIS website.
DOS also issues internal guidance to its consular officers in the form of a book called the Foreign Affairs
Manual (FAM). Volume 9 of the FAM deals with immigration matters. For practitioners working with noncitizens
applying for benefits at U.S. consulates overseas, this is a very important resource. The FAM is available on
the DOS website.
D. CASE LAW
When disagreements occur between the government and those affected by immigration laws over the
meaning of specific sections of the law, courts must make decisions about how the immigration laws should be
interpreted. There are two types of courts involved in interpreting immigration laws: administrative courts,
meaning the immigration court system, which is part of the U.S. Department of Justice (DOJ), and federal
judicial courts, including district and circuit courts and the U.S. Supreme Court.
Case law sets precedents that other courts and federal agencies must follow. Immigration advocates
must therefore keep abreast of court decisions and have access to resources that describe and locate important
court decisions.
E. EXECUTIVE ORDERS
An executive order is a directive from the president to federal agencies to perform a particular task or
manage operations of the federal government. Executive orders are recorded in the Federal Register, a daily
journal published to inform the public of federal regulations and actions. Executive orders have the same force
as federal law. Congressional approval is not required but Congress may pass legislation to override an
executive order. However, laws passed by Congress are subject to presidential veto. The Supreme Court also
has authority to decide that an executive order is in violation of law. DACA is an example of a type of relief
that was created through executive order.
1.5 FEDERAL AGENCIES THAT CARRY OUT IMMIGRATION LAWS
Because immigration law is federal, only federal agencies carry out U.S. immigration laws. There are
several different federal agencies involved in implementing immigration laws, and we will examine each of
them and their different functions.
A. DEPARTMENT OF HOMELAND SECURITY
The U.S. Department of Homeland Security (DHS) has the largest role in carrying out U.S. immigration
laws. DHS adjudicates immigration benefits; enforces immigration laws inside the United States; and enforces
immigration laws at U.S. borders. There are three sub-agencies within DHS that carry out these functions:
USCIS, ICE, and CBP.
U.S. Citizenship and Immigration Services (USCIS)
USCIS, www.uscis.gov, adjudicates applications for immigration benefits inside the United States.
USCIS adjudicators make decisions on a wide range of applications for many kinds of immigration benefits,
including adjustment of status to lawful permanent residence, naturalization, waivers of inadmissibility, asylum,
TPS, applications to change or extend nonimmigrant status, deferred action, and employment authorization.
USCIS has five Service Centers where officers adjudicate petitions and applications. USCIS also has field
offices in many states where adjudicators interview applicants. It has ten Asylum Offices where officers
interview applicants for asylum. When denying certain applications for benefits, USCIS may also issue a
Notice to Appear (NTA), which is later filed with an immigration court to begin removal proceedings. Before
applying for any immigration benefit, it is important to carefully screen clients for eligibility, likelihood of
approval, and the risk that that they will be subject to enforcement actions. Applying for an immigration benefit
may expose a noncitizen to enforcement if the application is denied and the individual is inadmissible or
deportable. The concepts of inadmissibility and deportability are discussed in Chapter Four.
U.S. Immigration and Customs Enforcement (ICE)
ICE, www.ice.gov, enforces immigration laws inside the United States. ICE agents are responsible for
finding removable noncitizens and instituting removal proceedings against them. ICE attorneys represent the
government in removal hearings before immigration judges. ICE is also responsible for detaining noncitizens
who are subject to immigration detention.
U.S. Customs and Border Protection (CBP)
CBP, www.cbp.gov, enforces immigration laws at the U.S. border and ports of entry. Ports of entry are
found at land borders, sea ports and inside airports. CBP officers inspect noncitizens and decide whether or
not to admit them to the United States. CBP also patrols and safeguards the U.S. borders.
B. DEPARTMENT OF JUSTICE
The U.S. Department of Justice (DOJ) houses the administrative courts that decide whether a person is
subject to removal and adjudicate any requests for relief from removal. The immigration court system is part of
the DOJ, housed in a sub-agency called the Executive Office for Immigration Review (EOIR),
www.justice.gov/eoir. EOIR has two sub-parts: the immigration courts, which are the trial level courts for
immigration cases; and the Board of Immigration Appeals (BIA), which decides appeals of many immigration
judge decisions. Immigration judges in the 60-plus immigration courts hear testimony, consider evidence, and
make decisions in cases for individual noncitizens charged with being removable from the United States.
Appeals of many of these decisions are decided by the BIA.
C. DEPARTMENT OF STATE
Many noncitizens apply for immigration benefits – both nonimmigrant (e.g., tourist, student) and
immigrant visas (lawful permanent resident) – at U.S. consulates overseas. Consular officers in the U.S.
Department of State (DOS), www.travel.state.gov, interview visa applicants and adjudicate these
applications. DOS also plays a central role in the family and employment-based immigration process,
maintaining the waiting lists (shown in the Visa Bulletin) that determine which noncitizens are eligible to apply
for permanent residence at any given time and preparing visa applications at the National Visa Center (NVC)
for sending to consulates abroad. Chapter Eight of this manual explains the system for consular processing in
greater detail.
D. DEPARTMENT OF LABOR
The U.S. Department of Labor (DOL) plays an important role in employment-based immigration cases.
Its Employment and Training Administration, www.doleta.gov/, issues labor certifications and decisions about
the unavailability of U.S. workers in many employment-based applications for lawful permanent residence and
certain nonimmigrant employment visas.
E. DEPARTMENT OF HEALTH AND HUMAN SERVICES
The U.S. Department of Health and Human Services (HHS) provides benefits and services to certain
new populations, including refugees, asylees, victims of trafficking, and unaccompanied children. Its Office of
Refugee Resettlement (ORR), www.acf.hhs.gov/orr, offers temporary cash and medical assistance, English
classes, and employment services to help newly arrived refugees attain self-sufficiency. ORR is also responsible
for the care and custody of unaccompanied noncitizen children apprehended by DHS officials, usually upon
entering or attempting to enter the United States.
Chapter 2
NON-ATTORNEY CREDENTIALS TO PRACTICE
IMMIGRATION LAW:
DOJ AGENCY RECOGNITION AND STAFF ACCREDITATION
2.1 THE RECOGNITION AND ACCREDITATION PROGRAM OVERVIEW 1
Nonprofit agencies and their non-attorney staff may be authorized to practice immigration law through
the Recognition and Accreditation Program administered by the Executive Office for Immigration Review
(EOIR) of the U.S. Department of Justice (DOJ). Within EOIR, the Office of Policy, among other duties, handles
applications for agency site recognition and agency staff/volunteer accreditation of non-lawyers to practice
immigration law. Unless an agency has an attorney on staff, each of its office locations must be recognized by
DOJ, and the agency must have at least one accredited representative on staff, in order to legally provide
immigration legal services.
Completing forms and providing immigration advice is considered practicing law. Attorney or
accredited representative staff should be the only individuals who are giving any immigration advice,
practicing immigration law, and supervising any non-accredited representatives who are assisting the office’s
immigration department.
An accredited representative is only authorized to assist clients at the recognized sites of the
organization. An accredited representative may be full-time, part-time, or a volunteer. He or she may even
become accredited for more than one agency. The organization should apply for the staff person to be
accredited at one of its recognized sites at which he or she is working or volunteering. Once accredited at one
recognized site, the representative is authorized to practice immigration law at all other recognized sites of the
same organization.
1
What was known as the Board of Immigration Appeals (BIA) Recognition and Accreditation Program went through regulatory changes
including transfer of the program’s administration from the Board of Immigration Appeals (BIA) to the Office of Legal Assistance Programs (OLAP).
All changes to the program were set forth in a final rule published by the U.S. Department of Justice (DOJ) on December 19, 2016 in the Federal
Register, Volume 81, Number 243 and were effective as of January 18, 2017. Then, on August 26, 2019, the Executive Office for Immigration
Review (EOIR) issued an interim rule that removed references to OLAP and transferred the Recognition and Accreditation Program to the EOIR
Office of Policy.
There are two types of accreditation:
Partial accreditation allows the representative to counsel immigration clients, complete immigration
forms, and represent clients before the U.S. Department of Homeland Security (DHS). The partially accredited
representative can fill out U.S. Citizenship and Immigration Services (USCIS) forms and represent clients at
USCIS interviews.
Full accreditation allows the representative to do everything that a partially accredited representative
can do, and to represent clients before EOIR. EOIR contains the immigration courts and the Board of
Immigration Appeals (BIA). A fully accredited representative can also represent clients in removal, summary
removal, rescission, and other proceedings in immigration court. He or she may handle appeals to the BIA.
However, full accreditation does not permit a representative to represent anyone before state courts, the
federal district courts or courts of appeals, or the U.S. Supreme Court.
For a current roster of recognized organizations and accredited representatives, see:

www.justice.gov/eoir/recognition-accreditation-roster-reports.
2.2 RECOGNITION AND ACCREDITATION IN ACTION
The scenario below illustrates how a non-profit agency may seek agency recognition and apply for
accredited representative status for non-attorney staff and volunteers.
Example: Community Legal Services (CLS), a non-profit legal services program, provided immigration
legal services through a staff of two attorneys and one paralegal worker. In order to expand legal
services capacity, CLS applied for recognized agency status and for partial accredited representative
status for the program paralegal. Two years later, CLS applied for partial accredited representative
status for one of its part-time volunteers. When CLS attorneys started doing removal defense work, they
provided court skills training to their partially accredited representatives and then applied for them
both to have full accreditation.
2.3 ORGANIZATIONAL RECOGNITION BY DOJ UNDER 8 CFR § 1292.11
A. REQUIREMENTS
The requirements for agency recognition are the following:
• The organization must be a non-profit religious, charitable, social service, or similar organization that
provides immigration legal services primarily to low-income and indigent clients within the United
States. If the organization charges fees, it must have a written policy for accommodating clients unable
to pay fees;
• The organization must have federal tax-exempt status;
• The organization must simultaneously be applying to have at least one employee or volunteer
approved as an accredited representative (unless the organization is applying for renewal of
recognition and already has an accredited representative) and must maintain at least one accredited
representative on staff;
• The organization must have access to adequate immigration knowledge, information, and experience
in all aspects of immigration law and procedure;
• The organization must have designated an authorized officer to act on its behalf.
An organization filing for the first time will be granted conditional recognition for a period of two years. To
retain recognition after the two years, the organization must request renewal on or before the second
anniversary of conditional approval and establish that it remains eligible. After renewal, agency recognition is
valid for six years.
Organizations that were recognized before January 18, 2017 (the effective date of the new DOJ rule)
will continue to be recognized until required to renew based on the following schedule:
• An organization that has no accredited representative on staff must apply for renewal on or
before 1/18/18 (one year after the new rule was implemented);
• An organization that was granted recognition more than ten years ago must apply for renewal
on or before 1/18/19 (two years after implementation of the new rule);
• An organization that was granted recognition ten or fewer years ago must apply for renewal on
or before 1/18/20 (three years after the new rule’s implementation).
B. REPORTING, RECORDKEEPING, AND POSTING REQUIREMENTS

Once recognized, an organization must adhere to certain reporting, recordkeeping, and posting
requirements. The agency is required to notify DOJ within 30 days of any material changes affecting eligibility
for recognition or accreditation and changes to its contact information. These changes may include the
organization’s name, address, telephone number, email address, designation of the authorized officer, the
departure of an accredited representative, or a change in non-profit or tax-exempt status.
To adhere to the recordkeeping requirement, a recognized agency must compile and retain its fee
schedule for immigration legal services (if the organization charges fees) for each office or location where
services are provided. It also must retain an annual summary of the immigration legal services provided,
including:
• the total number of clients served;

• the number of clients to which it provided services at no cost;
• a general description of the immigration legal services and other immigration-related services (non-
legal) provided;
• a statement regarding whether services were provided pro bono or whether clients were charged
in accordance with a fee schedule;
• organizational policies or guidance regarding fee waivers and reduced fees; and
• a list of the offices or locations where the immigration legal services were provided.
The records must be kept for a period of six years from the date the record is created. When an
organization files for renewal of recognition, it should include its fee schedule and the annual summaries
compiled since the last date of recognition (or since January 18, 2017 if the organization was already
recognized on that date.)
A recognized agency is required to post certain public notices issued by DOJ regarding recognition
and accreditation. Information in the public notices will be limited to the names and validity periods of a
recognized agency and its accredited staff; the requirements for recognition and accreditation; and the means
to complain about a recognized organization or accredited representative.
C. PREPARING THE RECOGNITION APPLICATION FOR THE AGENCY OFFICE

The application packet for first-time recognition should include the following:
• Brief cover letter presenting the application with a list of enclosures;

• Form EOIR-31, Request for New Recognition, Renewal of Recognition, or Extension of Recognition of
a Non-Profit Religious, Charitable, Social Service, or Similar Organization. The completed Form
EOIR-31 should be signed by the organization’s authorized officer. Check the EOIR website to make
sure you have the most current version of the form and be sure to carefully read the instructions on the
form;
• Evidence of status as non-profit, religious, charitable, social service or similar organization should
include a statement of mission or purpose; copy of organizing documents such as constitution, charter,
by-laws, articles of incorporation; and a declaration from the organization’s authorized officer
attesting that it serves primarily low-income and indigent clients. Letters of recommendation from
community members or partner organizations attesting to the organization’s involvement and
commitment are helpful, but not required;
• If the agency charges fees for legal services, include a copy of the fee schedule as well as the agency’s
written policy for reducing or waiving fees based on financial need;
• The agency must submit its current annual budget for its immigration program and the previous year’s
budget, if available. The budget should show operating expenses in addition to revenue sources such
as fees, donations, and grants. If the annual budgets for both the current and prior years are not
available, submit the projected annual budget for the coming year;
• Proof of federal tax-exempt status. Include a copy of the agency’s IRS tax exemption letter, other
documentation showing federal tax-exempt status, or proof the agency has applied for such status;
• Proof of the knowledge, information, and experience of the organization in immigration law and
procedure. The following information should be included to document the agency’s immigration
knowledge, information, and experience:
- A description of the immigration legal services offered by the agency. This information can
be included briefly in Part 7e of the Form EOIR-31 with a reference to the fee schedule for a
full list of services.
- An organizational chart showing the names, titles, and supervisors of immigration legal staff.
The chart may list the staff and volunteers in the office and the office’s connection to the other
offices, if your agency has more than one office. Of greatest importance is to show the chain
of supervision of the person(s) who will be providing legal immigration services.
- A description of the experience, qualifications, and breadth of immigration knowledge of

immigration legal staff. This should include resumes, letters of recommendation, and a list of
relevant immigration law and practice trainings attended by staff members together with copies
of training certificates and agendas.
Resumes should include the individual’s education and immigration-related work experience
and list the types of immigration forms the individual has worked on by form number and title
(for example: I-130, Petition for Alien Relative). Include in the trainings section information on
the dates, sponsoring agencies, and locations of all immigration trainings the individual has
attended. Note that an application for initial staff accreditation must show that the individual
recently completed at least one formal training course designed to give new practitioners a
solid overview of the fundamentals of immigration law and procedure. Also indicate whether
staff regularly attends immigration liaison meetings with USCIS or other government agencies.
The resume should list any languages the individual speaks, as well as mentioning the
individual’s experience working with people from different countries. It is a good idea to
include any community service the individual has performed.
Letters of recommendation most often come from local immigration law practitioners who are
familiar with the agency and/or staff-member seeking accreditation. Letter writers should
include their background and qualifications, how they know the office and/or accreditation
applicant, for how long, and why recognition or accreditation is recommended. The letters
should indicate that the office and/or accreditation applicant has broad knowledge,
information and experience in immigration law. If the letter is for an individual, the letter can
also indicate that the applicant has the character and fitness to represent clients.
For trainings attended, it is recommended to include both the agendas and certificates if
available. If neither is available, note this and include a short description of the training in the
resume.
- Proof of any formal arrangement with non-staff practitioners and recognized organizations
for consultations or technical legal assistance. Applicants that do not have an attorney on staff
should document technical legal support of staff by outside attorneys or fully accredited staff
from recognized organizations. Include the experience of non-staff practitioners (their
background and qualifications), as well as any fees charged for the support.
- A description of legal resources the agency has access to. Include a list of law library content
and/or internet resources available to your organization. This can include publications your
office has purchased including copies of statutes and regulations, secondary sources like
CLINIC’s Comprehensive Overview of Immigration Law (COIL) training manual, a list of
internet immigration law resources that the office staff is familiar with, as well as legal update
services. For examples of more resources that might be referenced, see Chapter Three of this
manual.
D. EXTENSION OF RECOGNITION AND ACCREDITATION TO MULTIPLE LOCATIONS

DOJ may extend the recognition of an agency to any office or location where the agency offers
services. A request for extension of recognition must be submitted on Form EOIR-31 and accompanied by a
declaration from the organization’s authorized officer that it periodically inspects each office/location,
exercises supervision and control over accredited representatives at each location, and provides access to
adequate legal resources at each office location. Supporting documentation should include an organizational
chart demonstrating supervision and control by the main office over the extension offices; a list of law library
resources available at main and extension offices; a current budget that includes the extension offices; and a
current fee schedule used by main and extension offices. If the office/location has distinct operations,
management structure, or funding sources from the agency’s headquarters, separate recognition may be
required.
2.4 INDIVIDUAL STAFF ACCREDITATION TO REPRESENT UNDER 8 CFR § 1292.12
A. APPLYING FOR ACCREDITATION

Only a recognized agency or an agency simultaneously applying for recognition may request
accreditation of a staff member. An office can apply to add more individual accredited representatives at any
time. If applying for accreditation of more than one staff member at the same time, the organization must submit
a separate application packet for each staff person. Accreditation is granted for a three-year period and may
be renewed every three years upon proof that the individual remains eligible. The renewal application must
be filed on or before the expiration date in order for the accreditation to remain valid pending a decision by
DOJ. It is a good idea to apply for renewal 60 days before the expiration date.
B. ELIGIBILITY
The following are the requirements for staff accreditation:
• Must be an employee or volunteer of a recognized organization or an organization applying for

recognition at the same time;
• Must show character and fitness to represent clients. This includes an examination of the applicant’s
criminal background; prior acts of dishonesty, fraud, misrepresentation or deceit; history of
neglecting professional, financial, or legal obligations; and current immigration status that presents
an actual or perceived conflict of interest;
• Must not be an attorney;
• Has not resigned pending a disciplinary investigation or proceeding and is not subject to any order
suspending, restraining, or restricting the individual in the practice of law or representation before a
court or administrative agency;
• Has not been convicted of a serious crime in the United States or a jurisdiction outside the United
States;
• Must have broad knowledge and adequate experience in immigration law and procedure.
• For full accreditation only, must possess skills essential for effective litigation. This includes formal
training, education, or experience related to trial and appellate advocacy.
C. APPLICATIONS FOR ACCREDITED REPRESENTATIVE STATUS

An application for accreditation of an individual working in an agency should include:
• A cover letter requesting accreditation with a list of all the documents submitted in support of the
application;
• Completed Form EOIR-31A, Request by Organization for Accreditation or Renewal of Accreditation
of Non-Attorney Representative. The form must be signed by both the organization’s authorized
officer and the person to be accredited;
• A resume of the applicant for accreditation with a list of immigration law trainings attended;
• Certificates and agendas of trainings attended. This should include evidence that the individual
completed at least one formal training course designed to give new practitioners a solid overview of
the fundamentals of immigration law and procedure;
• For full accreditation only, a description and documentation of formal training, education or
experience related to trial and appellate advocacy. Include in the resume a description of
experience working on court cases and observing various kinds of cases in immigration court under
a mentor who is an immigration attorney or fully accredited representative. In addition to indicating
what trainings the staff or volunteer has attended, the applicant may include samples of advocacy
and research skills, such as copies of cover letters, affidavits, briefs, legal memos, or similar work the
individual has prepared, with all identifying client information redacted. Alternatively, the applicant
might include summaries of individual cases he or she has worked on that required litigation,
advocacy and research skills;
• Two letters of recommendation from individuals familiar with applicant’s qualifications and, if known,
attesting to the person’s character and fitness. At least one of the letters should be written by an
immigration practitioner (attorney or accredited representative);
• Copies of any prior approvals of accreditation, if any.
D. PRACTICING AS AN ACCREDITED REPRESENTATIVE

An accredited representative may only practice immigration law while working at the recognized
agency that applied for his or her accreditation. If the representative leaves the agency and works for another
agency, the accreditation does not accompany the representative. The new organization would have to apply
for accreditation for the worker and may do so as long as it is a recognized agency or applying for recognition.
An organization that loses all of its accredited staff will be placed on inactive status. While in inactive
status, the agency cannot provide legal services unless it also has an attorney on staff. Inactive status can
continue for up to two years to allow the organization to get approval of one or more new accredited
representatives.
2.5 FURTHER INFORMATION

For additional information, refer to CLINIC’s DOJ recognition and accreditation toolkit and step-by-step
guide:
• Toolkit: cliniclegal.org/toolkits/recognition-accreditation
Where is the Law?
Regulations on Recognition and Accreditation

• 8 CFR §§ 292.1- 292.2
BIA Cases on Recognition and Accreditation
• Matter of Central California Legal Services, Inc., 26 I&N Dec. 105
(BIA 2013)
Practice Tips
• Build relationships with other local recognized agencies for guidance on program
management and service priorities, and for potential future coordination of legal services
• Have the program manager(s) participate in an immigration legal services case
management training to be aware of the special issues involved in running a legal services
program
• Make sure to include funding for staff training and for legal resources in your program’s
annual budget. All legal services need work time and funding to participate in training on
an ongoing basis.
• Contract with a technical assistance provider or an immigration attorney to provide
technical support to your program staff, if your program does not have an attorney or
accredited representative already on staff.
• Maintain records of all training activities to document the knowledge and experience of the
agency to be recognized, and the staff to receive initial accreditation or accreditation
renewal.
Chapter 3
PRACTICE SKILLS: CASE MANAGEMENT, INTERVIEWING,
AND USING LEGAL AUTHORITY
3.1 INTRODUCTION
Practice skills are essential to being a competent advocate. While it is essential for immigration
advocates to know substantive immigration law, it is equally critical to have the ability to effectively
communicate with your client, manage your workflow and case files, meet deadlines, and know how to find
and cite to the relevant legal authority in your client’s case. In this chapter, we will examine the principle
objectives and components of effective case management and client interviewing. We will also review the
primary sources of legal authority in immigration law and how to find them, distinguish between primary and
secondary sources, and describe the different immigration cases decided by administrative appellate bodies
and federal judicial courts.
3.2 CASE MANAGEMENT
A strong case management system is key to a healthy immigration legal services program. Program
policies and practices relating to all the steps involved in providing legal services help ensure consistency,
uniformity and a high quality of work. A strong case management system also allows a manager to more easily
direct a program, staff to work more effectively, clients to receive better services, and the agency to be
protected from malpractice. The standard components of a case management system, described in more detail
below, include polices relating to program intake procedures and forms, case opening criteria, retainer
agreements, deadline tracking, case file organization, case notes standards, a filing system, and case closing
procedures. While there is no one way to manage a program, the discussion below outlines the major
objectives to consider in any system you establish.
A. INTAKE AND INTAKE FORMS

How will new clients gain access to your services? Will you have an appointment system? See walk-
in clients? Offer community-based off-site clinics? Every program has to decide what works best for new client
intake considering a variety of factors, including location, staffing, and community needs. In addition, once
you have established an intake procedure, be sure to communicate this information to the client community,
including on your program website, in response to phone calls to your agency, and to other agencies that may
refer clients to your program. It is also worthwhile to periodically re-assess the intake system you are using to
see if a new or additional form of intake would be beneficial.
If your agency decides to handle some or all of your intakes through individual client appointments,
you will need to determine the process of setting up appointments and the resources required and available
at your agency to do so. No matter who sets up intake appointments at your agency, it is crucial that you have
policies and procedures in place including standardized questions the person setting up appointments should
ask. This may vary depending on the level of immigration expertise of the person who sets up appointments.
An agency in which experienced staff set up appointments may be able to ascertain over the phone that the
agency cannot help a particular caller, and refer her or him elsewhere. An agency in which support staff with
little immigration experience set up appointments may not be able to screen callers as well over the phone.
The less immigration knowledge the person who sets appointments has, the more important it is to develop
clear protocols for what to ask callers.
Some programs may allow walk-in intake consultations at any time or only on designated days and
times. Walk-in intake at any time is most feasible in an agency with a large pool of staff members who might
be available at any point to do intake. Agencies that use the walk-in model exclusively will also need protocols
for what to tell prospective clients when they call for immigration help. Generally, prospective clients should
be instructed to bring along as much relevant paperwork about their case as they can, including all immigration
applications previously filed, and all correspondence they have received from the U.S. Department of
Homeland Security (DHS), U.S. Department of State (DOS), and/or the Executive Office for Immigration
Review (EOIR).
Regardless of what form of intake you use, it is highly advisable to utilize an intake form in every new
client interview. Good forms help ensure that every intake worker asks each potential client all of the important
questions that will help determine what immigration benefits the potential client might be eligible for. The intake
form captures not only a potential client’s biographic information, but also his or her family and immigration
history and any crime-related issues. In addition to intake forms, many programs also find useful a set of
immigration application checklists that can be tailored to a particular client’s case, and that identify the exact
documentation and information the client needs to provide. Developing such lists based on the information
most often requested in your office can save immigration worker staff significant time.
B. CASE SELECTION
Programs should not accept more cases than they can competently handle. A good case management
system includes overall guidelines about the kinds of cases the agency will handle. Common factors to take
into account include:
• Availability of staff;
• Expertise of the office;
• Needs or special needs of the clients (e.g. children and elderly);
• Whether the office can make a difference in the case outcome; and
• Whether the case fits within the mission and core competencies of the program.
It is also important to be clear who makes the decision whether or not to accept cases. Some offices
leave it up to individual staff to determine how many cases they can handle at once; others have case
completion expectations. Either way, your case acceptance standards should be designed to ensure that staff
members do not accept more cases than they can competently handle. Aside from the possibility of staff
burnout and frustration, hurried representation under pressure can lead to legal malpractice, harming the client
and exposing the agency to liability.
C. RETAINER AGREEMENTS
Immigration legal programs should have every client sign a written agreement that spells out exactly
what the agency agrees to do for a particular client, and makes clear what the responsibilities of both the
agency and the client are with regard to the legal services. This is generally referred to as a “retainer
agreement.” A retainer agreement educates clients about their rights and responsibilities with regard to the
agency; builds trust between the client and the agency; limits the agency’s liability; and prevents future conflicts.
Having—and using —a retainer agreement is essential.
Many of your clients will never have hired a legal representative before, in the United States or
anywhere else, and may not understand how the representative/client relationship works. The retainer
agreement is an important way to inform your clients about how this relationship works and to build trust with
your clients. Clients who fully understand what they are expected to do, and what to expect from you, will be
more relaxed and better able to focus on and participate in resolving the substantive issues in their cases.
The retainer agreement should spell out exactly which services and the scope of representation the
agency is agreeing to provide. This is beneficial to both agency and client. The client is informed about exactly
what the agency will be doing in the case, and the agency has a record of which services it has agreed to
provide. Both the client and the accredited representative or attorney assigned to the case should sign each
new retainer agreement.
The retainer agreement should be written in clear, simple English, with as little “legalese” as possible.
It is a good idea to have the retainer agreement translated to the client’s native language and to go over the
agreement with the client point by point to ensure he or she understands it. The retainer should include a
complete description of the services, the scope of representation provided, and the fees associated with the
services. Consult the sample retainer agreement provided on the course website for an example of what
information to include.
D. CASE FILE NOTES AND ORGANIZATION
In many instances, your office may provide multiple services for a client. For example, you may
represent an asylee in filing a relative petition for his wife and children, and then be asked to help the asylee
file applications for adjustment of status and for a travel document. Do you open a new file for each of these
applications? Or do you keep all the applications for the same client in the same file? Your agency may do
either, but it is important to decide in advance how you are going to organize files, and to do it consistently.
This is crucial so that you can quickly locate files and applications—and so that you can make sure not to lose
files.
When opening a new case, a staff member should create a case file that will chronicle all actions the
agency takes on the client’s behalf from start to finish. Program managers should develop a standardized case
file order for all cases. This allows staff to easily locate items in the file since immigration files can quickly
become unwieldy and crowded. It also allows the agency to readily understand what has happened in a
particular case if the legal worker who opened the case is unable to complete it.
What goes into the case file? Case files should of course contain copies of all applications and
correspondence the agency submits to DHS, DOS and/or EOIR on the client’s behalf. They should also contain
a copy of the agency retainer agreement; copies of all communications received from government agencies
pertaining to the client; copies of any correspondence with the client; copies of client documents; legal and
factual research on the client’s case; and case notes. Case notes should contain a complete record of
everything that has happened on a case, including all actions the representative has taken in the case; meetings
with the client (including a brief explanation of what happened during the meeting); phone calls about the
case; research and writing done on the case; and the date when applications or letters were mailed. Note that
many immigration software programs include a case notes recording function. Recording case notes in a
software program is generally more efficient than handwriting them. It also has the advantage of being much
more legible.
E. COMMUNICATING WITH CLIENTS

All practitioners have a duty to communicate with their clients. The regulations on professional conduct
for practitioners found at 8 CFR § 1003.109 are applicable to both attorneys and accredited representatives
and specifically address the obligation of the practitioner to communicate with the client throughout the
duration of the relationship. The duty of communication includes the responsibility to:
• Communicate with the client in a language he or she understands;

• Promptly inform and consult with the client about any decision or circumstance for which his or her
consent is needed;
• Meet with the client in advance of deadlines to adequately prepare the case;
• Consult with the client about the status of his or her case; and
• Promptly reply to a client’s reasonable requests for information.
For many offices, satisfying these obligations is easier said than done. In fact, one of the most common
complaints people make about their legal representatives concerns the difficulty of contacting them. Often this
has to do with inadequate mechanisms for clients to contact their counsel and lack of structured time for
representatives to respond to messages left by their clients. On the flip side, clients may not realize the
importance of keeping in contact with the representative about new developments that may impact on their
cases, or may fail to keep you abreast of changes in address or phone.
While there is no easy fix for some of the obstacles that impair communication, every office should
have a clear system addressing how clients can contact their representatives, including who will receive and
respond to client messages if the representative is out of the office for an extended period. This system should
then be conveyed to all clients at the onset of a case, including general expectations for how long it may take
to receive a return call absent an emergency. Clients in turn should be counseled at the time of the retainer
agreement about the importance of notifying the representative of new developments including both changes
in contact information and new circumstances in their lives that may impact on their cases. Examples include
arrests, marriage, divorce or marital separation, new employment or loss of employment, illness and similar
circumstances.
F. TRACKING DEADLINES
All legal services providers must have a system to track important dates in each client’s case.
Immigration practice is filled with important deadlines. Missing a deadline can make a client ineligible for a
benefit or could result in the client being deported from the United States. A “tickler” system that tracks and
reminds the immigration worker of important dates in each case is crucial to an immigration legal program.
Note that the ticklers for each immigration worker’s cases must be accessible to other immigration staff, so that
if a worker is out, the agency can ensure that deadlines are not missed on any cases.
Paper-based tickler systems are not adequate. Notations in staff members’ personal calendars will not
ensure that deadlines are not missed. A staff member might overlook his or her own notations, and the agency
must be sure that, even if a particular staff member is not at work, the agency is aware of all deadlines. Even a
one-person office needs a better reminder than a paper-based notation. The case management software you
choose should have tickler capabilities. Make sure that your office is trained on how to use it, and that it is set
up so that all deadlines are available for all legal worker staff to view. Missing important deadlines is easy in
an agency handling multiple cases, each of which has its own deadlines. It is also a common form of
malpractice, but one that is easy to avoid with a good tickler system.
G. CLOSING CASES
What happens to the case when the agency satisfies the agreed-upon services in the retainer
agreement or the agency withdraws representation or the client leaves the agency before completion of the
case? Your agency will need a system by which completed or otherwise terminated cases may be moved from
“active” to “closed” file status. Otherwise, there will be no way to know whether or not the work on a given
case has been completed.
Before closing a case, the best practice is to clearly note the outcome in the case file. In situations in
which the agency has had to withdraw representation, the reasons should be detailed in the file. Some
programs have a formal “case closing memo” process that requires the staff to note case outcomes at the time
the case is closed.
It is also a good practice to send a standard case closeout letter to clients when services are completed.
The letter should explain that the program’s representation, as agreed to in the retainer, has ended, and include
information about the client’s current status and any next steps that may be applicable to the client’s case. For
example, a closing letter to a client who has obtained lawful permanent resident (LPR) status through the
program would explain the benefits of LPR status, the common circumstances that may put LPR status at risk,
and the timing of future eligibility to naturalize. Finally, this is the time to ensure that all original documents have
been returned to the client.
3.3 INTERVIEWING
Although all cases start with a client seeking assistance and being interviewed regarding his or her
concerns, it is quite common that attorneys and accredited representatives have received little or no training
on how to conduct interviews. While, on the face of it, a client interview may appear to be no more than a
question and answer session, many of us know from our personal experiences seeking professional advice
from others that the way in which questions are asked and advice conveyed can have a big impact on whether
the interview experience is satisfactory.
The recommendations below address how to most effectively achieve the basic two-fold purpose of
an interview: (a) to gather information about the potential client’s situation and objectives, and (b) to allow the
potential client and the advocate to determine whether they want to form a client/representative relationship.
Keeping the purpose of the interview in mind helps inform how we conduct the interview and what issues we
need to address.
A. BEST PRACTICES IN INTERVIEWS

1. Build Trust with Your Client
It is impossible to obtain the information you need for a successful interview and case assessment
without establishing a rapport with your client and securing his or her trust. You will need to ask your potential
client extensive and often deeply private questions about his or her life. You also will need your client to be
willing to answer honestly and speak freely. Without understanding every aspect of your client's current
situation, background, and activities – both good and bad – it will be very difficult to accurately assess the
possible remedies available to your client and the prospects for success. Although you often will not fully obtain
all the facts of your client’s case at an initial interview, you need to create an environment at the onset to make
your client feel comfortable disclosing personal information, including past traumas, hopes, and fears.
You will be more likely to obtain essential information if you advise your client that all information he
or she discloses to you will remain confidential. Knowing that you will not share your client's private information
with others outside your legal team without your client's knowledge and consent will encourage your client to
relate all relevant information, whether embarrassing or discomforting. Explain your commitment to
confidentiality at the onset of your first intake meeting with potential clients. Many practitioners incorporate
information about confidentiality into their retainer or client agreement.
Vital to preserving confidentiality and building and maintaining client trust is private space for client
interviews. Many immigration cases are very fact-intensive and fact-specific, and often involve questions about
intimate details of your clients’ lives. In order to assure that your client feels comfortable confiding in you and
answering your questions, it is crucial that you use a private meeting space where the interview will not be
interrupted or overheard.
2. Be Mindful of Barriers to Communication

Because immigration law practice by its nature involves representing individuals who speak many
different languages, have varying cultural backgrounds, and may have experienced trauma in their home
countries and/or on their journey to the United States, it is important to be mindful of how these circumstances
may create barriers to communication with your clients and what you can do to address these issues. While a
full discussion of these barriers is beyond the scope of this manual, some common challenges to effective
communication are noted below.
a. Language Barriers:
When you do not speak the same language as your client, you will need to work with an interpreter.
While it is common for clients to bring family members or friends to serve as interpreters, this can be problematic
if the client’s case may involve facts or circumstances that the client does not want the family member or friend
to hear. For this reason, it is preferable to have another staff member who speaks the same language as the
client serve as interpreter or use a professional interpreter, where possible.
The role of the interpreter is to translate your words to the client and to translate the client‘s words back
to you. The interpreter should not be having other conversations with the client about the questions you are
asking or trying to explain to the client what you mean. If the interpreter is a family member or friend, you will
need to explain why it is important to follow these directions. Be sure that the client is seated to face you, not
the interpreter, so that the client is aware that the conversation is with the advocate, not the interpreter.
Remember that language can also be a barrier even when you and the client both speak English.
Immigration law is complicated and involves specialized terminology. Avoid “legalese” and aim to ask and
respond to questions in terms you think your client will understand.
b. Cultural Barriers:
The different backgrounds and experiences of clients and counsel may lead to misunderstandings and
complications in all aspects of representation, from appointment times, to having a mutual understanding of
the role of the representative and the client, to the client being able to trust the representative as an advocate
for the client and not the government. There is no easy fix for these issues, but recognizing that these barriers
exist and that both the client and the representative bring preconceptions and biases to the relationship can
help the representative be more sensitive to possible miscommunications and misunderstandings and try to find
ways to bridge cultural divides.
c. Trauma:
Many clients have experienced persecution or other trauma in their home countries, and/or suffered
abuse and other harms on the journey to the United States. In addition, the client may be undergoing
tremendous stress from his or her current circumstances, which may include being the victim of domestic
violence or other crimes, fears about exposure to immigration enforcement, or being subject to pending
removal proceedings. All of these circumstances may impact on your client’s ability to focus on and participate
in his or her immigration case. As you work with your client, be mindful of your role and limits; you can be
supportive and understanding, but a client who needs mental health counseling is best served by referrals to
individuals with the professional qualifications to provide this support.
d. Special Needs:
Clients who are children, elderly, or mentally ill also present unique challenges with respect to
establishing effective communication and obtaining consent to services. An approach available in certain
circumstances is to represent the client with the appointment of a guardian to protect the client’s interests. Some
special resources for representation of children and mentally ill individuals are listed below:
CAIR Coalition Practice Tips Series: Working with Immigrant Children
ABA Practice Advisory on Representing Detained Respondents with Diminished Capacity
3. Gather Facts By Asking Questions and Listening Carefully to Your Client’s Story
Asking appropriate questions is another essential element of the interview process. At the start of an
interview, a practitioner may focus on reviewing biographic and contact information, but generally it will be
most appropriate to then ask broad questions like "Tell me about your situation" to give the client an opportunity
to explain why he or she is seeking legal advice. At a certain point in the interview when a particular remedy
or objective may be apparent, the practitioner will typically switch to more specific questions to focus on getting
information related to that issue. It is generally advisable to not limit your questions immediately to a specific
objective identified by the client without asking some background questions. There are times that a potential
client will be eligible for a form of relief that he or she was unaware of and that can be identified by an initial
broad inquiry into the client’s circumstances.
Listen carefully to your client in order to get a clear picture of the case. Good listening skills include
maintaining eye contact with your client, encouraging your client to continue speaking by nodding, being alert
for non-verbal cues, and repeating back what was said. Ask follow-up questions to be an active listener and
to have sufficient information to be able to counsel the client.
Make sure to avoid legal jargon when asking questions to avoid eliciting incorrect information from
the client. For example, rather than using legal terms such as “arrest” or “conviction,” or “deportation”, ask if
the client has ever been stopped by the police. Or seated in the back of a police car. Or placed in handcuffs.
Or stopped at the border by immigration officials. You will get more useful information about your client's
history with the criminal and immigration systems if you ask direct questions about experiences without any
technical terminology.
4. Assess the Case and Explain Next Steps

After eliciting the basic facts of the client’s situation, the advocate will, in many cases, be able to do an
assessment of the case. For example, if the client has come in to consult about applying for naturalization, the
facts and any documents provided by the client at an initial interview may have essentially resolved that the
client is eligible for this benefit. At that point, the advocate can review with the client why she qualifies, e.g.
what the requirements are for naturalization and how the facts of the client’s case establish her eligibility. In
some circumstances, an assessment cannot be completed after an initial interview because more information
is needed that is not immediately available. In that situation, be sure to be make it clear to the potential client
that your office has not yet committed to provide representation.
If the advocate has identified a remedy for the client to pursue, the advocate should review risks and
benefits with the client before moving on to a plan of action. Approval of an application or benefit is never
guaranteed, and there are many situations where a client is eligible to apply for an immigration benefit but his
or her case has some problem facts that could trigger a denial and potential exposure to removal proceedings.
A client should be advised of the risks of applying and what, if anything, would happen in the event of denial,
before deciding whether to proceed with an application.
Once the client has decided to move forward, review the next actions that both the client and the
representative will take. This includes advising the client of necessary documents, application fees, and legal
fees charged by your program, setting an additional appointment date if applicable to prepare the
application, and the timing of application submission and adjudication. It is important to advise your clients
about adjudication delays so that they have realistic expectations of how long they will have to wait for
anything to happen in their cases.
If the interview has resulted in an “advice only” consultation and your office is declining representation,
make sure that you make this clear and provide referrals to other counsel as appropriate. A best practice is to
use a “non-engagement letter” to confirm in writing that your office is not representing the potential client.
5. Formalize the Relationship with a Retainer Agreement

As noted above in the discussion on case management, the office or program should utilize a written
retainer agreement whenever legal services will be provided to a client. The agreement should clearly identify
the specific services to be provided, any fees due, and the rights and responsibilities of the client.
3.4 LEGAL AUTHORITY
If you are already involved in assisting noncitizens apply for immigration benefits you may have heard
(or said yourself) one or both of the following statements:
• “I help my clients complete immigration paperwork.”

• “I know what to do because my co-worker showed me.”
Each of these statements illustrates the same issue – the common disconnect between providing
immigration assistance and understanding that there is a specific set of rules that underlie eligibility for any
benefit or remedy your client is seeking. These rules, which come from statutes, regulations, agency internal
guidance and court decisions, constitute the body of information known as “legal authority.” And in order to
be a competent practitioner, it is critical to understand the legal requirements for any service you provide and
have the skills to know how to find the legal authority that applies to your client’s case. In this section of Chapter
Three, we will examine the sources and role of legal authority and how to approach finding the legal authority
that applies to your client’s case. We will also discuss the various administrative mechanisms to challenge a
decision denied by U.S. Citizenship and Immigration Services (USCIS) or in immigration court.
A. PRIMARY SOURCES OF LEGAL AUTHORITY

1. U.S. Constitution and Legislative and Administrative Legal Authority
The highest law in the land is the U.S. Constitution. All the laws in the United States must be consistent
with the Constitution; a law that is viewed as not complying with the Constitution may face a legal challenge
for being “unconstitutional.” Examples of immigration laws that the U.S. Supreme Court has declared
unconstitutional include state laws to prevent undocumented children from attending public school, or search
for or hold a job.
The next highest level of legal authority are statutes or laws passed by Congress. Most immigration
laws are contained in the Immigration and Nationality Act (INA). The INA contains many different sections
referred to by numbers and letters. Because statutory sections often have many subsections, a statutory
“address” may in fact be quite long. For example, the immigration statute on asylum is found at INA § 208.
Within that section of law are rules about credibility determinations in asylum cases, and that text is found at
INA § 208 (b)(1)(B)(iii). When you are referencing a particular section of a law as your legal authority, you
need to provide the specific statutory “citation”, which is essentially the location or address of the provision
within the law.
All federal laws are also compiled in the United States Code, also known as the USC. Since the USC
includes the federal laws on several different topics, it encompasses many volumes with each subject classified
by Title. Immigration law is found at Title 8 of the USC, and it contains the identical text found in the INA.
However, while the content is the same, the USC and the INA use different numbering systems, resulting in
different statutory citations for the same section of law. For example, while asylum law is found at INA § 208,
the United States Code citation for this same section of law is 8 USC § 1158. These are known as “parallel
citations” - the different citations for the identical section of the law. Generally, immigration practitioners, USCIS
adjudicators, and immigration judges use the INA citation when referring to a particular section of the law, but
court decisions frequently use the United States Code citation.
Administrative agencies, like USCIS, issue regulations and policy guidance to implement the statutes
enacted by Congress. In most cases, you will see that statutes describe the broad territory of the topic being
covered but do not get into all the details. This is where the agency that implements the law comes in by drafting
regulations and policy guidance that provide the information for the “how-to” components of the law.
Traditionally, these details have been provided through regulations, but in recent years USCIS has been relying
more on policy memos to provide guidance on law.
Regulations issued by USCIS and EOIR addressing provisions of the INA are found at Title 8 of the
Code of Federal Regulations (8 CFR). Other regulations issued by the Department of State (DOS) are found
at Title 22 of the CFR and still other regulations related to immigration and employment are issued by the
Department of Labor at 29 CFR. Regulations at 8 CFR are numbered to correspond to the statutory citation in
the INA. For example, since asylum law is found at INA § 208, the regulations on asylum are found at 8 CFR
§ 208. Regulations must be consistent with the statute which, in turn, must be consistent with the Constitution.
It is important to remember that the law is always changing; new laws are enacted and existing laws
are amended on a regular basis. This means that you must always be checking the current versions of the INA
and CFR. If you have printed volumes, make sure you buy new ones every year. In addition, you can always
find the most up-to-date version of the INA and CFR on the USCIS website using the website homepage link
to “Legal Resources”.
In addition to regulations, the agencies administering immigration law have internal policy guidance
and memoranda that also serve as primary legal authority. USCIS internal policy guidance is contained in the
USCIS Policy Manual and the Adjudicator’s Field Manual (AFM). DOS internal policy guidance is contained
in the Foreign Affairs Manual (FAM). Note that while the USCIS Policy Manual is intended to be a compilation
of all USCIS policy and procedural guidance for USCIS adjudicators, it is still a work in progress. For this
reason, advocates should consult the AFM for issues not covered in the USCIS Policy Manual.
Example: Accredited representative Maurice is researching how USCIS interprets the unlawful
presence ground of inadmissibility. He checks 8 CFR and finds that there are no regulations on this
issue. The USCIS Policy Manual does have a volume on inadmissibility grounds but it does not yet
have text addressing this issue. When Maurice consults the AFM, he finds that there is extensive
guidance on this issue.
Note that all of these resources are easily available online through the USCIS and DOS websites.
2. Case Law
Another important source of legal authority comes from decisions issued by administrative appellate
bodies and by judicial courts. Although case law in the immigration context is often the result of an appeal
being filed by a noncitizen challenging a decision made in his or her case, in some circumstances, described
below, the decision will impact on others with cases raising the same or similar issues.
a. Administrative Courts
The immigration court system, discussed in more detail in Chapter Nine, conducts the hearings in
removal proceeding that may be brought against noncitizens charged with being unlawfully present in the
United States. Once an immigration judge (IJ) makes a decision, either side - the noncitizen in proceedings or
the government – may appeal the decision to the Board of Immigration Appeals (BIA). Both the immigration
courts and the BIA are part of EOIR which is part of the U.S. Department of Justice (DOJ).
Most appeals decided by the BIA are “non-precedent” decisions, which means they only affect the
individual who filed the appeal. Some decisions, however, are designated as “precedent” which means that
other adjudicators and IJs must follow the decision in cases raising the same or similar legal issues. In these
situations, the case decisions are a source of legal authority that you must take into account when counseling
your client.
Example: Brayden, from Panama, applied for non-LPR cancellation of removal, a form of relief from
removal that may only be granted by an IJ in immigration court. The IJ denied Braydon’s application,
finding that he could not satisfy the good moral character requirement for this remedy because he had
not filed tax returns. Brayden appealed to the BIA, the appellate body that decides appeals from IJ
decisions. The BIA affirmed the IJ decision, agreeing with the analysis that Braydon’s failure to file tax
returns prevented him from establishing good moral character. Because this was not a precedent
decision, it only affects Brayden. This means that in another case involving an applicant for non-LPR
cancellation who did not file tax returns, an IJ might find that the applicant is able to establish good
moral character.
Example: LPR Hillary, from Spain, was placed in removal proceedings based on a conviction for an
aggravated assault. Hillary has appealed her conviction and argued to the IJ that her removal
proceedings must be terminated because the BIA issued a precedent decision saying that a conviction
is not final for removal proceedings if a direct appeal is pending. The IJ must follow this decision and
terminate removal proceedings against Hillary.
b. Judicial Courts
The federal judicial court system has three levels of courts. The United States District Courts are the
local trial courts in the federal system and have jurisdiction over lawsuits challenging the implementation of
different immigration laws. For example, the challenges to the expansion of Deferred Action for Childhood
Arrivals (DACA), the Trump executive order travel bans, and the family separation policy all began in federal
district court. The second level of federal courts are the United States Circuit Courts of Appeals, which hear
appeals from district court cases and some administrative agencies. The circuit courts of appeals also decide
“petitions for review”, which are appeals by individuals who have lost their administrative appeals at the BIA.
The United States Supreme Court sits at the top of the judicial hierarchy, and often hears cases that address a
conflict in legal interpretation between different circuit courts.
Decisions of the district courts and circuit courts of appeals generally only apply to those who reside
in the court’s geographic district. In some “class action” cases, the decision may impact on a larger group of
individuals including all affected individuals within the United States. Decisions of the United States Supreme
Court affect everyone in the United States.
Example: When the Trump administration issued its first travel ban executive order in January 2017,
hundreds of people attempting to enter the United States from abroad, including LPRs, were barred
from admission. Many cases were filed in federal district courts challenging the travel ban, which led
to court orders prohibiting the use of the ban to bar admission of all impacted noncitizens, including
those who did not file cases challenging the ban.
Example: Darcy and Claudia, sisters from El Salvador, entered the United States without inspection in
1988 and later obtained Temporary Protected States (TPS). Claudia, who lives in California, was
recently able to “adjust status” through her U.S. citizen (USC) spouse because of a Ninth Circuit Court
of Appeals decision that treats TPS status as an admission. Darcy, who lives in Chicago and is married
to a USC, is not able to benefit from this decision because it only affects those living in states within the
jurisdiction of the Ninth Circuit.
B. SECONDARY SOURCES OF LEGAL AUTHORITY

There are many guidebooks, articles, commentaries, practice advisories, and other materials that are
written to help interpret the law for the public or practitioners. These materials are not a source of primary legal
authority because they are not produced by a legislature, the governing agency implementing the law, or a
court. Instead, these resources are referred to as “secondary sources” which are designed to help us
understand the primary legal authority. This manual is an example of a secondary source; it is written to
summarize and explain primary legal authority. Other examples of secondary sources are the Immigration
Law Sourcebook, by Ira Kurzban; Immigration Law and Procedure, by Gordon and Mailman; The U Visa:
Obtaining Status for Immigrant Victims of Crimes, by the Immigrant Legal Resource Center; and other books
and publications. Often, practitioners start their legal research with a secondary source because it typically
has features that make it easier to find information about the issue being researched. These features include an
index of topics that makes it simpler to find information about a specific issue; a summary of the law; and
citations to the primary legal authority, including any relevant statutes, regulations, policy guidance, or case
law.
C. ADMINISTRATIVE APPEALS OF IMMIGRATION CASES
As noted above, case law is created by decisions issued by different immigration appellate authorities.
Some of these appellate authorities are administrative, i.e. housed within an administrative agency like USCIS
or DOJ, and others are judicial courts, part of the federal court system. In this section, we will describe the types
of cases decided by the two major administrative bodies addressing immigration appeals: the BIA, which is
part of DOJ, and the Administrative Appeals Office (AAO), the review body within USCIS.
1. Board of Immigration Appeals (BIA)

The BIA primarily decides appeals from immigration court decisions, and some DHS decisions as listed
below:
• IJ decisions in removal proceedings;

• Relative visa petition (I-130) denials and revocations of approval;
• DHS decisions on nonimmigrant visa waivers under INA § 212(d)(3);
• Bond, parole, or detention decisions by an IJ;
• DHS decisions on fines and penalties to transportation lines;
• IJ decisions on rescission and adjustment of status;
• IJ decisions on asylum applications by certain persons not entitled to full removal proceedings;
• Decisions by IJs relating to TPS;
• Decisions on applications from organizations or attorneys requesting to be included on a list of
free legal service providers and decisions on removals from the list;
• Decisions of IJs on applications for NACARA § 202 or HRIFA adjustment of status;
• Decisions of adjudicating officials in practitioner disciplinary proceedings; and
• IJ decisions on whether the release from detention of persons with final removal orders would
pose a special danger to the public.
While the BIA is the appellate body for appeals of I-130 relative petition denials, note that only
attorneys and fully accredited representations may represent individuals in cases before the BIA. This means
that if a partially accredited representative is counsel for a client whose I-130 petition is denied, the accredited
representative will not be able to do the appeal, and would have to refer the client to other counsel.
BIA precedent decisions are compiled and available for viewing on the EOIR website.
2. Administrative Appeals Office (AAO)

The AAO is the appellate body of USCIS that has jurisdiction over the appeal of most USCIS decisions that
can be appealed. The appellate jurisdiction of the AAO extends to the following categories of cases:
• Most employment-based immigrant and nonimmigrant visa petitions;
• EB-5 immigrant investor petitions and Regional Center applications;
• TPS applications;
• Fiancé(e) petitions;
• Applications for waivers of inadmissibility;
• Applications for permission to reapply for admission;
• Certain special immigrant visa petitions;
• Orphan petitions;
• T and U visa applications and related adjustment of status applications;
• Applications for certificates of citizenship;
• Applications to preserve residence for naturalization purposes;
• U.S. Immigration and Customs Enforcement (ICE) determinations that a surety bond has been
breached.
Partially accredited representatives can provide representation with all AAO appeals. While most
decisions of the AAO are not precedent decisions and therefore only pertain to the person who is the subject
of the appeal, advocates often find it useful to read non-precedent decisions of the AAO to get some insight
into how a particular issue is being addressed by AAO adjudicators. These non-precedent decisions may be
viewed on the USCIS website through the link to “Legal Resources”, and they are organized by categories of
appeals decided by the AAO, as listed above.
D. CASE CITATIONS
As a legal advocate for your client, you will need to know how to find, read, and reference the case
decisions that may serve as the legal authority in your case. These decisions, whether from the BIA or state or
federal court, are all issued with common features including the case name; the source and date of the decision;
and the name of the set of books where the decision is compiled, along with the volume and page number
where the case can be found. Note that, as a practical matter, it is not necessary to look for the case in an
actual physical set of books because case decisions are usually readily available online. The citation format
for BIA and federal court decisions is summarized below.
1. BIA Decisions
The physical set of books where BIA decisions are compiled is called “Immigration and Nationality
Decisions”, abbreviated as “I&N Dec.” Precedent decisions of the BIA in immigration court cases are issued in
the name of the respondent or by the respondent’s initials, followed by the “address” of the decision, i.e. the
volume number and page number within that volume where the decision may be found. A case citation
referring to Matter of Zhang, 27 I&N Dec. 569 (BIA 2019), for example, tells us that the case can be found
in Volume 27 of the Immigration and Nationality Decisions at page 569 and that the decision was issued by
the BIA in 2019. Although BIA case decisions also have an “interim decision” number, which references the
number of the decision chronologically, BIA case citations generally are referenced as shown here by volume
and page number within “I&N Dec.”
You can find most BIA precedent decision online in the “Virtual Law Library” on the EOIR website.
Decisions from Volume 8 to the present can be accessed by clicking on the link to the volume and then scrolling
through the decisions in the volume to find the page number for the case you are looking for.
2. Federal Court Decisions

Federal judicial court decisions follow a similar citation format to the one used for BIA decisions. In the
case of federal district courts, decisions are compiled in a set of books called the Federal Supplement,
abbreviated as F.Supp. In the case of U.S. circuit courts of appeals, decisions are compiled in books called
the Federal Reporter in the First, Second or Third Series, abbreviated as F, F2d or F3d. For federal district
courts, the citation names the location of the district court; for court of appeals decisions, the citation notes
which circuit issued the decision. Both district court and circuit court decisions are named with the person
bringing the appeal and the party against whom the case was brought. The case citation Chung Song Ja Corp.
v. USCIS, 96 F. Supp. 3d 1191 (W.D. Wash. 2015) tells us that the case was brought by Chung Song Ja
Corp. against USCIS, and that the case decision was issued by the federal district court in the Western District
of Washington in 2015. The decision can be found in Volume 96 of the Federal Supplement at page 1191.
From the case citation Flores v USCIS, 718 F3d 548 (6th Cir 2013), we know that the case was brought by
an individual named Flores against USCIS, that the decision was issued by the Sixth Circuit Court of Appeals
in 2013, and that it can be found on page 548 of Volume 718 of the Federal Reporter, Third Series.
Decisions of the United States Supreme Court are compiled in United States Reports, abbreviated as
“U.S.” You may also find references to the Supreme Court’s decisions in two other decision compilations,
Supreme Court Reporter (“S.Ct.”) and the Lawyer’s Edition (“L.Ed.”). The case citation Descamps v United
States, 570 U.S. 254 (2013) means that the U.S. Supreme Court decided this case brought by Descamps in
2013 and the decision may be found at page 254 of Volume 570 of the United States Reports.
It is often quite easy to find a case decision just by searching for the case name directly. The
“findlaw.com” website also has a search function for legal professionals where you can locate state and
federal court decisions as well as state and federal statutes.
E. YOU CAN DO IT! FINDING LEGAL AUTHORITY IN ACTION

Becky’s new client Clara has been a lawful permanent resident (LPR) for almost three years and wants
to naturalize. Clara became an LPR based on a self-petition as the abused spouse of a U.S. citizen (USC).
Becky thinks there is a special rule that applies to this situation but she is not sure, and she would like to try out
her legal research skills instead of just asking a colleague for the answer. Although there are any number of
ways Becky might research this question, here are two approaches she might take:
Scenario 1: Let’s assume Becky knows that the USCIS Policy Manual has a whole volume addressing
citizenship and naturalization issues. Becky connects to the volume online through the link to “Legal
Resources” on the USCIS website. She looks at the Table of Contents of Volume 12 of the USICS Policy
Manual and clicks on the link to Spouses of U.S. Citizens. She then moves on to the link to Spouses of
U.S. Citizens Residing in the United States, and there she finds out that Clara can apply to naturalize
now because she immigrated as the abused spouse of a USC. The footnotes in the text also identify the
statutory provision that specifically addresses this issue. Through her research, Becky now has identified
two sources of primary legal authority to support her client’s eligibility to naturalize: the statute and the
USCIS Policy Manual.
Scenario 2: Becky does not know about the USCIS Policy Manual but she does have the
Immigration Law Sourcebook. Becky looks in the index to find “naturalization” and then sees a listing
for “married to USC”. When she reads that section, she finds that there is a special rule for abused
spouses that will allow Clara to apply for naturalization after three years of LPR status. The secondary
source text has citations for the applicable statutory provisions and a USCIS policy memo relating to
this issue.
Practice Tips
• Being an effective advocate also requires advocating for yourself. Make sure that your
office has good program and case management policies that allow you to have a
manageable caseload. Speak up if your office is not following program management
best practices.
• Schedule sufficient time to interview new clients. Where possible, adopt an intake policy
that provides you with some information about the reason for the client consult. In an
appointment-based system, advise clients to bring any immigration-related
documentation to the initial consultation.
• Make sure that your initial consultation ends with a clear communication to the client
about whether your office is (a) accepting the client’s case for representation; (b)
declining further services; or (c) evaluating the case for further consideration based on
additional information or documents to be obtained.
• Do not open a case to provide services if your client is not ready to proceed. In such
circumstances, it is usually better to treat the client meeting as an “advice only”
consultation and advise the client to contact the office for an appointment if and when
the client is prepared to move forward to apply for a particular benefit.
• Developing your legal research skills is an essential part of being an effective advocate.
Asking experienced colleagues to answer your questions may be faster in the short term,
but it won’t help you figure out legal problems for yourself, or check on the accuracy of
the answer you were given. Set aside some time in your work week to identify the legal
authority for a case you are working on, even if you already know what to do. Find the
statute, regulation, agency guidance, or case decision that provides the foundation for
your client’s eligibility for the relief he or she is seeking. Doing this will give you a better
understanding of the law, and help you become a more skilled representative.
Chapter 4
OVERVIEW OF COMMON GROUNDS OF INADMISSIBILITY
AND DEPORTABILITY
4.1 INTRODUCTION
Even without studying immigration law, most people know that many noncitizens obtain legal status
through family relationships, employment, and some form of humanitarian relief. However, many of these
individuals who appear to be eligible for an immigration benefit may be disqualified because of laws known
as the grounds of inadmissibility and the grounds of deportability. These two sections of the Immigration and
Nationality Act (INA) describe different circumstances that may (a) prevent a noncitizen from qualifying to
gain or retain an immigration benefit, or (b) expose the noncitizen to removal. Even a noncitizen with close
family ties to U.S. citizens (USCs), long residence in the United States, or compelling reasons for remaining in
the United States is impacted by the laws concerning inadmissibility and deportability. In this course, we start
our immigration law review with this topic because the grounds of inadmissibility and deportability affect all
noncitizens and must always be taken into account when counseling a noncitizen client.
4.2 INADMISSIBILITY AND DEPORTABILITY IN ACTION
Example: Lawful permanent resident (LPR) client Hector wants to apply for naturalization. During your
interview, you learn that he was convicted of aggravated assault three years after becoming an LPR.
Even though Hector has enough years of LPR status to qualify for naturalization, and is ready to take
the required citizenship tests, he may be deportable and subject to losing his status because of his
criminal conviction.
Example: Julia came to the United States on a tourist visa and now wants to apply for LPR status through
her USC spouse. When Julia applied for her tourist visa, she lied to the consular officer about her plans
to return to Guatemala. Even though Julia is eligible to seek LPR status through her spouse, she may be
inadmissible because of her lie to the consular officer.
4.3 CONCEPTS OF INADMISSIBILITY AND DEPORTABILITY
The grounds of inadmissibility, found at INA § 212(a), constitute the reasons a noncitizen may be
denied a visa or immigration benefit, refused admission to the United States at the border, or removed after
entering the United States without inspection. These inadmissibility grounds apply both at the border and in
removal proceedings for persons seeking admission. Establishing admissibility, which means showing that one
is not inadmissible, is also a requirement for many immigration benefits, such as adjustment of status.
The grounds of deportability are contained in INA § 237(a). The grounds of deportability can form
the basis for U.S. Immigration and Customs Enforcement (ICE) or an immigration judge (IJ) to find that a person
who was inspected and admitted to the United States is removable. A noncitizen must have been lawfully
“admitted” to be subject to the grounds of deportability. Otherwise, a noncitizen is subject to the grounds of
inadmissibility. An “admission” is an entry to the United States that is lawful, after inspection. A lawful admission
is one in which a noncitizen physically presented himself or herself for inspection and did not make a false
claim to U.S. citizenship. Persons who entered the United States without inspection are not considered to have
been admitted, even if they have resided in the United States for years. Instead, they are considered to be
seeking admission, and are therefore subject to the grounds of inadmissibility.
Example: Kristina came to the United States on a tourist visa and remained longer than her authorized
stay. If Kristina is arrested by ICE, she will be charged with a ground of deportability because she is in
the United States unlawfully after an inspection and admission by a U.S. Customs and Border Protection
(CBP) officer.
Example: Lorena entered the United States without inspection in February 2007. Even though she has
lived in the United States for many years, if she is placed in removal proceedings, Lorena will be
charged with a ground of inadmissibility because she was never inspected by CBP when she entered
the United States.
Noncitizens who are “paroled” into the United States are also not considered admitted. Parole is a
legal mechanism to allow someone to enter the United States when a visa is not otherwise available. Typically,
this will be based on compelling humanitarian circumstances.
Example: Addison, from Mexico, wanted to come to the United States to be with his brother Herman,
who is in hospice care and only has a few months to live. Addison did not qualify for a tourist visa but
was granted humanitarian parole to enter the United States and be with his brother. If Addison fails to
depart within the time of his authorized parole, he is subject to being placed in removal proceedings
and charged with inadmissibility, because parole is not considered an admission.
4.4 SUMMARY OF INADMISSIBILITY AND DEPORTABILITY GROUNDS

As shown below, there are ten different categories of inadmissibility and six different categories of
deportability. Each inadmissibility and deportability category, however, typically includes multiple
components, which means that there are many more ways to be inadmissible or deportable than the list of
inadmissibility and deportability categories suggests. For example, there are four different medical conditions
that may trigger health-based inadmissibility, and 12 different types of conduct that may trigger crime-related
inadmissibility. Moreover, on the deportability front, there are 15 different circumstances in the statute that may
trigger deportability based on a criminal record.
A. INA § 212(A): CATEGORIES OF INADMISSIBILITY
• Health-related grounds
• Crime-related grounds
• Security-related grounds
• Public charge
• Labor protection grounds
• Fraud or other immigration violations
• Documentation requirements
• Grounds relating to military service in the United States
• Prior removal orders, unlawful presence
• Miscellaneous grounds
B. INA § 237 (A): CATEGORIES OF DEPORTABILITY

• Inadmissibility at the time of entry or adjustment of status or violation of status
• Crime-related grounds
• Failure to register and falsification of documents
• Public charge
• Unlawful voters
• Security-related grounds
Although crimes, security-related issues, and public charge are each listed as both grounds of
inadmissibility and grounds of deportability, the specific conduct within each category that triggers
inadmissibility or deportability is not the same. For example, there are particular crimes that only trigger
deportability but do not trigger inadmissibility and the reverse is true as well. This is one of the reasons why it
is always critical to understand in every case which set of rules pertains to your client.
Example: Magdalena, who entered the United States without inspection, was arrested with her LPR
cousin Leonel, and they were both charged with possession of 25 grams of marijuana. Because
Magdalena entered the United States without inspection, she is subject to the grounds of inadmissibility.
If she is convicted of the possession charge, she will be inadmissible under INA § 212(a)(2). Leonel,
who was admitted as an LPR, is subject to the grounds of deportability. If he is convicted of the
possession charge, he will NOT be deportable under INA § 237(a)(2) because crime-based
deportability has an exception for possession of less than 30 grams of marijuana.
Some grounds of inadmissibility and deportability can be overcome by filing a separate application
known as a “waiver”; waiver approvals are always discretionary and often require the noncitizen to have
certain LPR or USC relatives to qualify. Waivers are only mentioned briefly in this chapter and are covered in
more detail in other trainings.
4.5 REVIEW OF SELECTED GROUNDS OF INADMISSIBILITY AND DEPORTABILITY

The inadmissibility and deportability grounds discussed in this chapter represent the most common
issues you are likely to encounter in counseling noncitizens about eligibility for immigration benefits and/or
exposure to immigration enforcement. Our review primarily focuses on the grounds of inadmissibility because
many immigration benefits, including family-based immigration, require the noncitizen to establish
admissibility.
A. HEALTH GROUNDS, INA § 212(a)(1)

There are four subcategories of health-based inadmissibility, each described below. There is no
ground of deportability based on health, although being a drug abuser can trigger crime-based deportability
under INA § 237(a)(2). Only a U.S. Citizenship and Immigration Services (USCIS) civil surgeon or a panel
physician abroad can make a determination that an individual has a condition that falls within a health-based
ground of inadmissibility.
• Communicable diseases, INA § 212(a)(1)(A)(i) - The Department of Health and Human

Services (HHS) determines which diseases render a noncitizen inadmissible. This ground of
inadmissibility includes noncitizens who have active tuberculosis, syphilis, or infectious leprosy.
Note that as of October 29, 2009, HIV does not trigger health-related inadmissibility. This ground
of inadmissibility may be waived under INA § 212(g)(1) if the noncitizen is the spouse, parent,
son or daughter of a USC, LPR or person issued an immigrant visa.
• Vaccinations, INA § 212(a)(1)(A)(ii) - The required vaccinations include mumps, measles,
rubella, polio, tetanus, diphtheria toxoids, pertussis, influenza type B, hepatitis B, varicella,
haemophilus influenza type B, and pneumococcal vaccines. The requirement can be waived under
INA § 212(g)(2) if the civil surgeon certifies that it is medically inappropriate, or if the vaccination
is contrary to the applicant’s religious or moral beliefs.
• Mental or physical disorder, INA § 212(a)(1)(A)(iii) - This ground makes the applicant
inadmissible if found to have a mental or physical disorder with associated harmful behavior. Some
disorders, such as pyromania or kleptomania, pose a danger by their nature, while others, such as
depression, do not. Alcoholism is the most common disorder that can make the applicant
inadmissible if the medical examiner believes the applicant poses a danger to self, others, or
property, for example by driving while intoxicated. Alcoholism by itself, without harmful behavior,
does not trigger health-based inadmissibility. Prior DUI arrests and convictions will trigger closer
scrutiny and could lead to a finding of inadmissibility, depending on when the DUI occurred and
what steps the applicant has taken to seek counseling or rehabilitation. It is up to the medical
examiner to determine whether or not a given disorder is considered harmful, and its likelihood of
recurrence. This category of health-based inadmissibility may be overcome through a period of at
least one year of remission or by a waiver under INA § 212(g)(3).
• Drug abusers/addicts, INA § 212(a)(1)(A)(iv) - Drug abusers and addicts are inadmissible.
The diagnosis of substance abuse is made based on criteria listed in the Diagnostic and Statistical
Manual of Mental Disorders (DSM) to determine whether a person’s use of drugs causes a
clinically significant impairment, such as health problems, disability or failure to meet
responsibilities at work, school or home. In making this assessment, the civil surgeon or panel
physician will review the applicant’s medical history and determine if there are any signs that the
applicant has abused drugs in the past. Additional medical tests may be required to determine if
the applicant has a history of drug abuse. Note that an individual may be found inadmissible on
this ground for legal (recreational or medical) marijuana use. There is no waiver for this ground of
inadmissibility, but inadmissibility may be overcome by be a period of at least one year of
remission.
B. CRIME-BASED GROUNDS, INA §§ 212(a)(2), 237(A)(2)

The many consequences under immigration law for criminal offenses make this area of law particularly
complex and harsh in its impact on noncitizens. In the inadmissibility context, INA § 212(a)(2) includes several
categories of offenses, including bars to admission for a noncitizen who admits committing certain types of
crimes for which he or she has not been charged. On the deportability side of the law, INA § 237(a)(2) also
includes multiple categories of offenses, including deportability for an “aggravated felony offense,” which
includes 21 types of crimes. Frequently encountered categories of offenses triggering inadmissibility and
deportability consequences are listed below:
INA § 212(a)(2) – Crime-Based Inadmissibility includes the following circumstances:
• General crimes (crimes of moral turpitude; crimes related to controlled substance violations). This
includes noncitizens who admit acts constituting the essential elements of crimes falling within this
category;
• Multiple criminal convictions, where there is an aggregate prison sentence of five years or more;
• Controlled substance traffickers;
• Crimes related to prostitution and commercialized vice;
• Prostitution (including conduct without a charge or conviction).
INA § 237(a)(2) – Crime-Based Deportability includes the following circumstances:
• General crimes – including convictions for crimes of moral turpitude, aggravated felony, and high-
speed flight;
• Controlled substance violations;
• Firearms offenses;
• Miscellaneous crimes (relating to espionage, treason, sedition);
• Crimes related to domestic violence, stalking and violations of protection orders.
With this complexity, it is very important to not make casual judgments about the impact of a crime on
eligibility for a possible immigration benefit or on the status of a noncitizen client. All noncitizens may have
their immigration status placed at risk by criminal activity, even if they are lawfully residing here. For this reason,
personal conclusions like “It doesn’t sound too serious,” or “He only paid a fine, so it’s okay,” are not a sound
basis for counseling in this area and may compromise a client’s status. The following points illustrate the
complexity of assessing the immigration consequences of crimes:
• Immigration law has its own definition of “conviction.” This means that a person may not
have a criminal case disposition that is considered a conviction under state law but may be
considered a conviction under immigration law.
Example: Binh, from Vietnam, pled guilty to misdemeanor domestic violence in Illinois. Because it was
his first offense, Binh was sentenced to 12 months of supervision and attendance at anger-management
classes. When he completed these requirements, his case was dismissed and he was told by the state
court judge that he was not convicted and can even petition to have his arrest record expunged. Under
immigration law, however, Binh has a conviction. This is because, under INA §101(a)(48)(A), an
individual has a conviction if a formal judgment of guilty has been entered by the court OR where (a)
a judge or jury has found the noncitizen guilty, or the noncitizen has entered a plea of guilty or nolo
contendere (no contest) or has admitted sufficient facts to warrant a finding of guilt and (b) the judge
has ordered some form of punishment or penalty.
• A crime may have inadmissibility or deportability consequences even when no jail time was
imposed.
Example: Luca was convicted of possession of two pounds of marijuana but was only sentenced to
probation because it was her first offense. While we would need to know how Luca entered the United
States to determine whether she is subject to inadmissibility grounds or deportability grounds, this
offense would likely make any noncitizen either inadmissible under INA § 212(a)(2) or deportable
under INA § 237(a)(2).
• A minor crime, like shoplifting, may not have immigration consequences the first time but may
lead to inadmissibility or deportability if there is a second offense.
Example: Jonah, an LPR since 1998, was convicted in 2007 of shoplifting a sweater from Target.
Because of the small value of the sweater and the fact that this was Jonah’s first offense, Jonah was
sentenced to three months on probation and paid a fine. Six months later, Jonah was caught shoplifting
a pair of socks from the same store, and he was convicted of retail theft for a second time. Jonah’s first
conviction did not make him deportable but now Jonah faces deportability based on convictions for
two crimes of moral turpitude.
• The same crime may have different immigration consequences depending on the sentence
imposed.
Example: Ten years after they were admitted to the United States as LPRs, Jack and Jill were each
charged with theft. Judge A sentenced Jack to one year of probation, but Judge B, a stricter judge,
sentenced Jill to a one-year prison term. He then suspended the prison term and imposed a one-year
period of probation. Although Jack and Jill had the same conduct and have the same conviction, and
neither of them actually spent any time in jail, the one-year suspended sentence that Jill received makes
her deportable for an aggravated felony. In contrast, Jack is not deportable at all based on this offense.
• The same crime and the same sentence may have different immigration consequences
depending on the immigration status of the noncitizen.
Example: Susana and Francesca, noncitizens from Italy, were each convicted of possession of 30
grams of marijuana and were sentenced to probation. Susana, a longtime LPR, will not have any
immigration consequences for this offense because it does not make her deportable. Francesca,
married to a USC, is waiting for her adjustment of status interview. The conviction will make her
inadmissible and she will need to apply for a waiver of the controlled substance ground of
inadmissibility in order to adjust status.
It is possible to overcome some crime-based inadmissibility grounds through a waiver under INA §
212(h). Waivable grounds include inadmissibility due to a crime involving moral turpitude, prostitution, and
simple possession of less than 30 grams of marijuana. In most circumstances, when a § 212(h) waiver is
available, the applicant must show that his or her USC or LPR spouse, parent, son or daughter will suffer
extreme hardship if the applicant is not allowed to immigrate.
What can you do as a legal advocate if you are not equipped to analyze the immigration consequences of a
crime? You can help your client by doing the following:
• Question all clients carefully about any police contact. This is an area where many individuals are
confused by terminology. Some people may misunderstand a reference to “arrest” or “conviction”
as only referring to situations where time was spent in jail. Other people may answer that they have
never been convicted where they had a court disposition that allowed their record to be erased.
For immigration purposes, however, it is important to find out about all police contacts your client
had and the outcome of each contact.
• Help the applicant you are assisting in determining his or her criminal record by requesting an FBI
rap sheet to check on all arrests, and by obtaining court records to determine what charges were
actually brought and what outcome resulted from the charges. Information about how to request
records from the FBI can be found here: www.fbi.gov/services/cjis/identity-history-summary-
checks
• Encourage any noncitizen with a criminal record not to apply for any USCIS benefit until he or she
can obtain competent legal advice from someone knowledgeable in this field.
• Counsel any noncitizen charged with a crime to consider the immigration consequences of a
conviction before making a decision about whether to plead to the criminal charges. Criminal
defense counsel are required to advise their noncitizen clients about the potential immigration
consequences of a guilty plea.
Where you determine that a noncitizen has a disqualifying conviction, or a conviction that renders the
person inadmissible or deportable, encourage consultation with a criminal defense lawyer to see if post-
conviction relief to vacate a conviction may be available to remove the immigration law consequence.
C. PUBLIC CHARGE INADMISSIBILITY AND DEPORTABILITY, INA §§ 212(a)(4), 237(A)(5)
1. Public Charge Inadmissibility

Under INA § 212(a)(4), a noncitizen is inadmissible if he or she is likely to become a public charge
based on the “totality of circumstances.” In making this determination, a U.S.. Citizenship and Immigration
Services (USCIS) adjudicator or Department of State (DOS) consular officer must consider various statutory
factors, including the noncitizen’s age, health, family status, assets and financial resources, and education and
skills. In addition, many noncitizens seeking to immigrate, including most family-based applicants, are required
to submit a Form I-864 Affidavit of Support from the petitioner. This is a legally enforceable contract in which
the person signing the I-864 accepts financial responsibility for the intending immigrant. The affidavit of support
is discussed in Chapter Eight of this manual, following the discussion on consular processing.
New USCIS and DOS rules for assessing public charge inadmissibility went into effect on February
24, 2020, impacting noncitizens applying for adjustment of status and change or extension of status in the
United States and those seeking visas abroad. Under the new public charge regulations:
• The focus of the assessment is on the applicant’s age, health, family status,
assets/resources/financial status, and education and skills. These factors are examined in ways
that may make it very difficult for low-income, low-skilled, under-educated, elderly, or disabled
applicants to overcome a public charge finding. Adjudicators will assign weight—negative and
positive, as well as heavily negative and heavily positive—to these five factors to determine whether
the applicant passes the public charge test. All adjustment of status will need to complete a Form I-
944 Declaration of Self-Sufficiency and support it with documentary evidence. All immigrant visa
applicants will need to complete Form DS-5540 Public Charge Questionnaire and also submit the
requested supporting documentation.
• Public charge inadmissibility applies to those who are more likely than not to receive any of nine
designated public benefits for more than 12 months in the aggregate within any 36-month period.
• The list of designated programs that can be considered when applying the public charge “totality
of the circumstances” test has been expanded. Under the old rules, USCIS and DOS could only
consider receipt of three cash assistance programs — Supplemental Security Income (SSI),
Temporary Assistance to Needy Families (TANF), and state general relief or general assistance —
as well as a Medicaid program that covers institutionalization for long-term care. The new public
charge rules add five new programs: non-emergency Medicaid; Supplemental Nutrition and
Assistance Program (SNAP, formerly food stamps); Section 8 Housing Choice Voucher Program;
Section 8 Project-Based Rental Assistance; and Public Housing. Only benefits received by the
applicant are considered.
• The regulations allows for the posting of a public charge bond for applicants who, in the opinion
of USCIS or DOS, might otherwise fail the public charge test.
The new public charge regulations impact on all those subject to public charge inadmissibility who (a)
apply for adjustment of status or extension or change of status on or after February 24, 2020, or (b) seek an
immigrant or nonimmigrant visa on or after February 24, 2020. The prior public charge rules are still
applicable, however, to those who applied for adjustment of status on or before February 23, 2020. Under
those rules, in most cases where an applicant has a sufficient affidavit of support and is not receiving public
cash assistance, the applicant would not face a finding of public charge inadmissibility.
Example: Joseph married a USC and applied for adjustment of status on January 30, 2020. Joseph
works in a restaurant kitchen and makes minimum wage, although he hopes to get a better job after
he becomes an LPR. His wife Paula earns $22,000 per year as teacher’s aide. Joseph’s application
for adjustment of status included an affidavit of support from his wife, documenting her income. Because
Joseph applied for adjustment of status before February 24, 2020, his case will be not be assessed
under the new rules and it will be easier to establish that he is not likely to become a public charge. If
Joseph applied for adjustment of status on or after February 24, 2020, he would be subject to the new
rules, and would need to submit a Form I-944 with various supporting documents addressing his
income, assets, debts, credit history and health insurance if any.
Example: Louis married a USC and submitted his immigrant visa application on January 30, 2020.
Louis lives in France and is waiting to be scheduled for his immigrant visa interview at the U.S. Consulate
in Paris. Even though Louis submitted his immigrant visa application before February 24, 2020, he will
be subject to the new public charge rules because his immigrant visa interview will be conducted after
the February 24, 2020 effective date of the new DOS public charge rules.
Note that not all noncitizens are subject to the public charge inadmissibility ground. Exceptions include
asylum applicants and asylees, refugee applicants and refugees, VAWA self-petitioners, applicants for U and
T status, and those with U and T status applying for adjustment of status.
2. Public Charge Deportability

Being a public charge is also a ground of deportability at INA § 237(a)(5), but it is assessed by very
different factors than those used to determine public charge inadmissibility. Based on both the statute and case
law, a noncitizen can only be deported on public charge grounds if she or he:
• Received public cash assistance for income maintenance or long-term care at government
expense;
• Needed assistance based on circumstances that existed before entry;
• Received cash assistance or long-term care that created a legal debt or obligation to repay;
• Received a demand to repay the debt within five years of admission; and
• Refused to repay.
Based on the current requirements for establishing deportability, this ground is highly unlikely to affect any LPR
who is receiving public benefits.
Example: Jeanette, age 70, has been an LPR for 30 years and has been receiving SSI for the past five
years. Although she is receiving needs-based cash assistance, she has no reason to be concerned
about public charge deportability.
D. ILLEGAL ENTRANTS AND IMMIGRATION VIOLATORS, INA § 212(a)(6)

This ground of inadmissibility has six subcategories, A through F, describing different subcategories of
immigration violations. Each subcategory is described below.
1. Present Without Admission, INA § 212(a)(6)(A)

Persons who are unlawfully present in the United States without admission or parole are inadmissible,
i.e. this is the inadmissibility ground that applies to those noncitizens who entered without inspection. This
ground does not apply to applicants for adjustment of status under INA § 245(i) or those who left the United
States for consular processing. Adjustment of status and consular processing are discussed in Chapter Eight.
Example: Dalia entered the United States without inspection in 1998. This makes her “present in the
United States without admission.” If Dalia is arrested by ICE, she can be placed in removal proceedings
and charged with inadmissibility under INA § 212(a)(6)(A). If Dalia is eligible to adjust status under
INA § 245(i), however, this ground of inadmissibility will not apply to her.
2. Failure to Attend Removal Hearing, INA § 212(a)(6)(B)

A person who fails to attend a removal hearing without reasonable cause is inadmissible for five years
after his or her departure from the United States.
Example: Andrew did not attend his removal hearing in 2016 and was ordered removed in absentia.
One year later, in May 2017, Andrew left the United States to attend a consular interview for an
immigrant visa. Because Andrew could not show that he had reasonable cause for his failure to attend
his removal hearing, the officer denied the visa and told Andrew he will inadmissible until May 2022,
five years after his departure.
3. Fraud, Willful Misrepresentation, INA § 212(a)(6)(C)(i)

This ground of inadmissibility applies if a noncitizen sought or seeks admission to the United States, an
entry document, or any other immigration benefit by fraud or willful misrepresentation of a material fact.
Material misrepresentations are those that would have made the applicant ineligible if the truth had been
revealed. The misrepresentation must have been made to a U.S. government official, which generally means
an immigration or consular officer. Immigration benefits include visas, adjustment of status, naturalization,
asylum, Temporary Protected Status (TPS), Deferred Action for Childhood Arrivals (DACA), and employment
authorization.
Example: When Leticia applied for a tourist visa at the United States consulate in San Salvador, she
falsely told the consular officer that she was married with two children and owned a business. Leticia’s
misrepresentation may be viewed as “material” because she was attempting to show nonimmigrant
intent – that she would return to El Salvador – by lying about her family and business ties there.
Example: Jae-Hwa, from Korea, entered the United States on a student visa, but then dropped out of
school. When he later accepted employment with a cable company, he claimed to be an LPR on his I-
9 employment eligibility verification form. Since this misrepresentation was not made to a U.S.
government official, Jae-Hwa is not inadmissible under INA § 212(a)(6)(C)(i).
DOS has a special rule for considering when a person who enters the United States as a nonimmigrant
(e.g. tourist) is inadmissible for material misrepresentation based on post-admission conduct. Under this rule, a
nonimmigrant who takes actions inconsistent with his or her nonimmigrant status within 90 days of arrival in the
United States is presumed to have misrepresented his or her intentions when seeking a visa. In contrast, USCIS
considers the “90-day rule” as an “analytical tool,” but not a binding rule on determinations of inadmissibility.
Example: Solange, from Cameroon, entered the United States with a tourist visa on March 10, 2016
and started working at her cousin’s store one month later. If Solange returns to Cameroon to apply for
a visa in the future, the DOS consular officer will presume that she misrepresented her intentions when
she applied for a tourist visa because she commenced work unlawfully within 90 days of her arrival.
If, instead, her inadmissibility is assessed by USCIS, the presumption rule does not strictly apply, but an
immigration officer may utilize this test to consider whether Solange is inadmissible for making a
material misrepresentation when she applied for a tourist visa.
There is no exception in the INA for misrepresentations made by minors. Under current USCIS policy,
however, material misrepresentations made by a person under age 18 may not lead to a finding of
inadmissibility if the adjudicator concludes that the individual, due to young age or mental incompetence, was
unable to independently form the intent to make a misrepresentation. There is currently no DOS guidance on
this issue in the FAM but advocates can certainly argue to consular officials that clients who were under age
18 when they made material misrepresentations lacked the mental capacity to act willfully.
This ground of inadmissibility may be waived under INA § 212(i) for an applicant who has a USC or
LPR spouse or parent who will suffer extreme hardship if the application for an immigrant visa or adjustment of
status is denied.
Example: After Leticia entered the United States with a tourist visa obtained through misrepresentation,
her USC brother Miguel filed an I-130 petition for her. If Leticia’s only USC or LPR family member is
her brother Miguel, she will not be able to immigrate; without a qualifying relative, she will not be
eligible for a waiver of inadmissibility.
In addition, an individual who makes a timely and voluntary retraction of a material misrepresentation
is not inadmissible. Generally, a retraction will not be recognized as timely unless made at the first opportunity.
A retraction can be voluntary and timely if made in response to an officer’s question during which the officer
gives the applicant a chance to explain or correct a potential misrepresentation.
Example: Agata, from Poland, presented her tourist visa to CBP when she arrived at O’Hare Airport
in Chicago. Agata told the officer that she was coming to visit her brother, but when she took out her
wallet to find his address, the officer saw that she had an Illinois state identification card. After insisting
that she was just here to visit her brother, Agata was sent to secondary inspection. At that point, she
acknowledged that she was coming to the United States to work at a job she secured on a prior visit.
Under these circumstances, Agata’s admission would probably not be a timely retraction of her
misrepresentation.
4. False Claim to U.S. Citizenship, INA § 212(a)(6)(C)(ii)

The false claim to U.S. citizenship ground of inadmissibility is broader and harsher than inadmissibility
for misrepresentation. It applies to any noncitizen who, on or after September 30, 1996, falsely represents
himself or herself to be a citizen of the United States for any purpose or benefit under the INA (including §
274A) or any federal or state law. This could include false claims of citizenship to a CBP officer for purposes
of gaining admission, as well as false claims of citizenship upon registering to vote, or applying for a driver’s
license. For this ground of inadmissibility, it does not matter that the misrepresentation was not made to a U.S.
government official.
Example: Mary Joy from the Philippines falsely claimed to be a USC in order to obtain a state driver's
license in Illinois. Mary Joy is inadmissible based on this false claim because a driver’s license is a
benefit under state law.
Example: Jae-Hwa, from Korea, entered the United States on a student visa, but then dropped out of
school. When he later accepted employment with a cable company, he claimed to be a USC on his I-
9 employment eligibility verification form. Jae-Hwa is inadmissible based on this false claim to
citizenship because the false claim was made to comply with employment verification requirements
under INA § 274A.
For family-based immigrants, there is no waiver for inadmissibility based on false claim to citizenship.
However, a timely and voluntary retraction of the false claim may overcome inadmissibility. In addition, under
both USCIS and DOS policy, a false claim to U.S. citizenship made by a person under age 18 will not trigger
this ground of inadmissibility where the individual can establish that she or he lacked the capacity to understand
the nature and consequences of the false claim.
There is a limited exception to inadmissibility for false claim where each parent of the noncitizen is or
was a USC, the noncitizen permanently resided in the United States prior to age 16, and the noncitizen
reasonably believed at the time of making the representation that he or she was a USC.
Note that a false claim to citizenship also triggers deportability under INA § 237(a)(3)(D), and a
separate provision at INA § 237(a)(6) makes a person deportable if she or he has unlawfully voted in any
Federal, State or local election.
5. Stowaways, INA § 212(a)(6)(D)

A stowaway is a person who comes to the United States surreptitiously on an airplane or other vessel.
Stowaways are inadmissible and there is no waiver for this ground of inadmissibility.
Example: Efraim hid in a ship to travel to the United States. As a stowaway, Efraim is inadmissible.
6. Smuggling, INA §§ 212(a)(6)(E), 237(a)(1)(E)

Noncitizens are inadmissible from the United States if they have at any time knowingly encouraged,
induced, assisted, abetted or aided any other noncitizen to enter the United States illegally. Smuggling is
interpreted broadly and includes family members assisting each other to enter the United States unlawfully;
there is no requirement that the smuggling have been for financial gain. Smuggling is also a ground of
deportability under INA § 237(a)(1)(E).
Under INA § 212(d)(11), two groups of noncitizens may qualify to waive this ground of inadmissibility:
(1) LPRs who are returning from a visit abroad; and (2) noncitizens seeking permanent residence as immediate
relatives of USCs or in the first, second, or third family preference categories (not the fourth preference). Even
for these individuals, the waiver is available only if the noncitizen they encouraged or assisted to enter illegally
was, at the time of the smuggling, their “spouse, parent, son or daughter (and no other individual).” USCIS is
authorized to grant these waivers for humanitarian purposes, to assure family unity, or when it is in the public
interest.
Example: Gloria came to the United States with her six-year-old daughter, Nina. They entered
together without inspection. Even though Nina is Gloria’s child, this conduct will be viewed as
smuggling and Gloria will need to file a waiver to overcome this ground of inadmissibility.
Example: Rodrigo, from Mexico, became an LPR in 2004. The following year he paid for a coyote to
bring his son Jacob to the United States. Rodrigo now wants to naturalize but if he applies, he will have
to reveal that he assisted his son in entering the United States unlawfully. This in turn may lead to
Rodrigo being placed in removal proceedings and charged with deportability for smuggling his son.
Under INA § 237(a)(1)(E)(iii), deportability for smuggling may be waived in the case of an LPR who
smuggled his or her spouse, parent, son or daughter.
Note that there is also an exception to this ground of inadmissibility and deportability for those seeking
permanent residency as immediate relatives or spouses or children of LPRs if they qualified for Family Unity
under the IMMACT 1990, were physically present in the United States on May 5, 1988, and only assisted a
parent, spouse, son or daughter to enter the United States unlawfully. Most noncitizens who qualify for this
exception have already immigrated.
7. Document Fraud, INA §§ 212(a)(6)(F), 237(a)(3)(C)

Document fraud is both a ground of inadmissibility and deportability. As defined in INA § 274C, it
relates to the misuse of documents and applications including:
• Forging or altering any document in an effort to obtain an immigration benefit;

• Using, attempting to use, possess, obtain, accept, receive or provide any such document to satisfy
any requirement of the INA;
• Preparing or assisting another in filing an application for any immigration benefit with knowledge
or reckless disregard that the statements in it were false;
• Putting false statements on a valid application or form, such as an I-9, or attaching documents that
do not relate to the applicant.
Under the statute, inadmissibility or deportability for document fraud is only set into motion after a
separate civil hearing and penalty process resulting in a final order of document fraud. No such orders are
issued however, because at present there are no proceedings being conducted to determine civil document
fraud and then issue final orders. Without a final order of document fraud, there is no inadmissibility or
deportability under these statutory provisions. Note, however, that many of these same activities are also
subject to criminal penalties.
E. DOCUMENTATION REQUIREMENTS, INA § 212(a)(7)

Under this ground of inadmissibility, a noncitizen is inadmissible as either an immigrant or a
nonimmigrant if he or she lacks proper documents to support that status.
F. ALIENS PREVIOUSLY REMOVED, INA § 212(a)(9)

This ground of inadmissibility has three subsections, each described below. Note that the name of this
category of inadmissibility is misleading because many people are inadmissible under § 212(a)(9) based on
reasons not related to having a removal order.
1. Past Removal, INA § 212(a)(9)(A)

Individuals who have received expedited removal orders are inadmissible for five years after their
removal. INA § 212(a)(9)(A)(i). Currently, expedited removal applies to noncitizens with false documents or
no documents who are:
• arriving at ports of entry seeking admission to or transit through the United States
• interdicted at sea and brought to the United States; or
• encountered within 100 miles of an international land border who cannot establish that they have
been continuously in the United States for 14 days or longer.
An announced expansion of expedited removal in July 2019 would apply expedited removal to
noncitizens apprehended anywhere in the United States who are inadmissible under INA § 212(a)(6)(C) for
misrepresentation or INA § 212(a)(7) for lack of proper documents, have not been admitted or paroled at a
port of entry, and cannot show that have been present in the United States for at least two years. This expansion
is currently enjoined.
Other noncitizens who are ordered removed by an immigration judge (IJ) and then depart the country
are inadmissible for a ten-year period. INA § 212(a)(9)(A)(ii). This same section provides that the
inadmissibility bar increases to 20 years for a second removal, and that the bar is permanent for noncitizens
removed as aggravated felons. USCIS can waive these bars by approving a Form I-212, Application for
Consent to Reapply for Admission. INA § 212(a)(9)(A)(iii).
Example: Cornelius was removed for being deportable in March 2014 when he violated his student
visa by working without authorization. Cornelius now has an appointment at the U.S. consulate in Berlin
to apply for an immigrant visa as the unmarried son of a permanent resident. Because of his immigration
court removal order, he is inadmissible under INA§ 212(a)(9)(A)(ii) until March 2024 unless USCIS
approves an I-212 application.
Example: Emilia was issued an expedited removal order in May 2016 when she appeared at the
U.S.-Mexico border without documents. Based on this order, Emilia is inadmissible until May 2021.
2. Three/Ten-Year Unlawful Presence Bars, INA § 212(a)(9)(B)

The unlawful presence ground of inadmissibility under INA § 212(a)(9)(B) affects those noncitizens
who have been unlawfully present in the United States, depart, and then apply for admission. Thousands of
noncitizens every year are found inadmissible based on the three or ten-year unlawful presence grounds
described below:
Three-year bar - noncitizens who are unlawfully present on or after April 1, 1997 for more than 180
days but less than one year, who depart the United States voluntarily (not in removal proceedings),
and then seek admission are barred from admission to the United States for three years from the date
of departure.
Ten-year bar - noncitizens who are unlawfully present on or after April 1, 1997 for one year or more,
who depart the United States and then seek admission are barred from admission to the United States
for ten years from the date of departure.
Under this ground of inadmissibility, “unlawfully present” means that the noncitizen is present after
overstaying an authorized period of stay, or without being admitted or paroled. Unlawful presence is also
triggered when a noncitizen who entered with a nonimmigrant visa subsequently violates the terms of the visa,
such as by working without authorization. In this situation, however, unlawful presence begins only after a
determination by USCIS or an IJ that the noncitizen violated his or her status.
Example: Efriam entered the United States without inspection on June 15, 2019. He now has over
nine months of unlawful presence. If he departs the United States before June 15, 2020, he will trigger
the three-year unlawful presence bar. If he departs the United States on or after June 15, 2020, he
will trigger the ten-year unlawful presence bar. Efriam will not trigger the unlawful presence bar,
however, unless and until he departs the country.
Example: Marcelo entered the United States with a tourist visa in November 1, 2019 and was
authorized to remain in the country until February 1, 2020. On November 15, shortly after he arrived,
Marcelo started working without authorization. Although he violated the terms of his tourist visa when
he began working in November, he did not start to accrue unlawful presence since there was no official
determination from USCIS or an IJ that he had violated his status. Marcelo began to accrue unlawful
presence on February 2, 2020, once he overstayed his period of authorized stay.
On August 9, 2018, USCIS issued a new policy on unlawful presence determinations as they relate to
F (students), J (exchange visitors) and M (vocational students) nonimmigrants who are admitted for “duration
of status” without a specified expiration date. Under this policy, a J, F, or M nonimmigrant who fails to maintain
his or her nonimmigrant status will begin to accrue unlawful presence on the day after the noncompliance
occurs, which includes actions such as withdrawing from a course of study or working without authorization.
A determination from USCIS or an IJ that the nonimmigrant violated their J, F, or M status is not required. Note,
however, that no unlawful presence will accrue if the individual successfully applies for reinstatement of status.
This policy is currently not in effect because it is enjoined by a court order.
The statute at § 212(a)(9)(B)(iii) lists categories of noncitizens present in unlawful status who do not
accrue unlawful presence for purposes of this ground of inadmissibility. These include:
• Minors under 18 years of age;

• Applicants for asylum during the pendency of the application, provided the noncitizen did not work
without employment authorization;
• Noncitizens who have been granted Family Unity during the authorized period;
• Battered spouses and children, provided there is a substantial connection between the abuse and
the unlawful presence and departure;
• Victims of a severe form of trafficking, provided that the trafficking was at least one central reason
for the unlawful presence; and
• Nonimmigrants who have made a timely and non-frivolous application for an extension of stay or
change of status.
In addition, other exceptions to the accrual of unlawful presence have been established by USCIS
policy and are detailed in the Adjudicator's Field Manual at Chapter 40.9. These additional exceptions
include:
• Noncitizens with properly filed applications for adjustment of status;

• Noncitizens granted withholding of deportation/removal;
• Noncitizens granted relief under the Convention Against Torture;
• Noncitizens under a current grant of deferred enforced departure (DED) pursuant to an order
issued by the President of the United States;
• Noncitizens under a current grant of TPS;
• Cuban/Haitian entrants under Pubic Law 99-603 § 202(b);
• Noncitizens granted voluntary departure, during the period of time allowed;
• Noncitizens who have filed an application for legalization under either of the two amnesty
programs, but excluding “late amnesty” applicants;
• Applicants for relief pursuant to the Nicaraguan Adjustment and Central American Relief Act
(NACARA);
• Conditional resident noncitizens who have had their status terminated by USCIS but who have
appealed that determination administratively, through the appeals process;
• Persons granted DACA; and
• Other persons granted deferred action
Noncitizens who overstay a period of authorized stay, or enter the United States without inspection, or
are found by an immigration official to have violated their status, accrue unlawful presence unless one of the
statutory or policy exceptions described above applies. The ground of inadmissibility, however, is not triggered
without a departure from the United States.
Example: Ninetta entered the United States on a B-2 visa on December 20, 2008 and was authorized
to remain for six months, until June 20, 2009. Ninetta has been accruing unlawful presence in the
United States since June 21, 2009. Ninetta’s daughter Inez, now age 16, came to the United States
with Ninetta. Inez has not accrued any unlawful presence under § 212(a)(9)(B) because she is under
age 18. If Ninetta and Inez depart the United States now, Ninetta will trigger the ten-year unlawful
presence bar, but Inez will not be inadmissible under this ground because of the exception for minors.
Example: Alfredo, from Honduras, came to the United States without inspection on July 10, 2012. He
stayed for four months, and then returned to Honduras. In 2013, Alfredo returned to the United States
without inspection and stayed for four months again before returning to Honduras. Alfredo is now
applying for an immigrant visa through consular processing. Alfredo is not inadmissible for unlawful
presence because he never accrued more than 180 days of unlawful presence in the United States on
any single occasion.
Noncitizens inadmissible on unlawful presence grounds may seek a waiver of inadmissibility if they
can show that a USC or LPR spouse or parent would suffer extreme hardship if the noncitizen were barred from
immigrating. Noncitizens who will be seeking a visa abroad and will only be inadmissible on this ground may
apply for a “provisional waiver” prior to their departure. The provisional waiver is advantageous because it is
decided before the noncitizen leaves for his or her consular interview abroad. As a result, the visa applicant
will not have to spend much time abroad and be separated from family. In contrast, visa applicants who have
to file waivers while abroad may face waits of a year or more for an adjudication of their waiver applications.
Example: Lalo, from Mexico, is married to LPR Marie. Lalo entered the United States without inspection
in 2014 and will need to apply for an immigrant visa abroad in order to gain LPR status. When he
departs the United States to attend his consular interview, he will trigger the ten-year unlawful presence
bar. Because Lalo is only inadmissible on this ground, he can apply for a provisional waiver. If the
waiver is approved, he can expect to only be away from this family for a few weeks while he attends
his consular interview.
Example: What if Lalo did not come to the United States without inspection but instead came with a
tourist visa that he obtained by making a material misrepresentation? He has also remained beyond
his authorized stay, which expired in December 2014. With these facts, Lalo will be found inadmissible
for both misrepresentation and unlawful presence. He will not qualify for a provisional waiver and will
have to wait until he is found inadmissible at his consular interview in order to apply for a waiver for
both grounds. He can expect to be waiting in Mexico for at least one year for his waiver application
to be decided.
3. Aliens Unlawfully Present After Previous Immigration Violations, INA § 212(a)(9)(C)

This inadmissibility ground applies to two categories of noncitizens. Under INA § 212(a)(9)(C)(i)(I),
noncitizens are inadmissible if they were previously unlawfully present for an aggregate period of more than
one year, departed the United States, and then reentered or attempted to reenter without inspection and
admission. Because this provision applies only to unlawful presence accruing on or after April 1, 1997, it
applies to persons who enter or attempt to enter without inspection after April 1, 1998. INA §
212(a)(9)(C)(i)(II) applies to noncitizens who were deported or removed and who enter or attempt to reenter
without inspection and admission on or after April 1, 1997. Note that § 212(a)(9)(C) is frequently referred to
as a “permanent bar” because, unlike the three and ten-year unlawful presence bars, this ground of
inadmissibility does not end after a specified period of time.
Example: Luis entered the United States from El Salvador with a tourist visa on March 18, 2003. He
was authorized to stay for 60 days, but he stayed for six months. In January 2007, Luis returned to the
United States, this time without inspection. He returned to El Salvador nine months later. He reentered
the United States a third time, again without inspection, in October 2009. Luis is inadmissible – and
ineligible for residency through either consular processing or adjustment of status – because he is
subject to the permanent bar of 212(a)(9)(C)(i)(I). The bar applies because Luis has been unlawfully
present for an aggregate period of more than one year since April 1, 1997, departed, and then
reentered the United States without inspection.
Example: Hilario, from Brazil, was apprehended at the border by CBP and issued an expedited
removal order. He entered the United States the next day without inspection. Hilario is now subject to
the permanent bar under 212(a)(9)(C)(i)(II) because he entered the United States without inspection
after a prior removal order.
For most noncitizens, there is no waiver for the permanent bar. However, persons subject to this ground
of inadmissibility can apply for permission to reenter (Form I-212) after they have remained outside the United
States for ten years.
Example: If Hilario in the scenario above departs the United States in January 2021, and he remains
outside the United States after his departure, he will be eligible to file an I-212 application to overcome
his inadmissibility under § 212(a)(9)(C) in January 2031.
According to the current USCIS interpretation, only time spent in the United States on or after April 1,
1997 will count in calculating the unlawful presence. Additionally, the statutory exceptions to unlawful
presence listed in INA § 212(a)(9)(B) do not apply to inadmissibility under § 212(a)(9)(C). Therefore, periods
of unauthorized stay while under the age of 18 will count as unlawful presence and subject the noncitizen to
the permanent bar if he or she accrues more than a year of unlawful presence, leaves, and then enters or
attempts to reenter the United States without inspection.
Example: Sixteen-year-old Greta first entered the United States without inspection with her parents in
March 2012 when she was 8 years old and stayed for two years before returning to Venezuela. She
later reentered the United States without inspection in January 2016. Even though Greta is under age
18, she is subject to the permanent bar because she entered the United States without inspection after
having more than a year of unlawful presence in the aggregate. This ground of inadmissibility does
not have an exception for minors.
4.6 REINSTATEMENT OF REMOVAL, INA § 241(a)(5)
Although this section of the INA is not a ground of inadmissibility or deportability, we include it in this
chapter because, like INA § 212(a)(9)(C)(i)(II), it relates to the consequences of re-entering the United States
unlawfully after a prior order of removal. Under INA § 241(a)(5), DHS may reinstate a prior removal order
against someone who was removed and is now in the United States after entering illegally. Based on this
provision, if DHS finds that a noncitizen has reentered the United States illegally after having departed under
an order of removal, the prior order is “reinstated” from its original date and the noncitizen is not eligible for
most forms of relief and shall be removed under the prior order. DHS has interpreted this section to apply to
orders of deportation/removal and subsequent illegal reentries regardless of when they occurred.
Example: Lucia was removed for being inadmissible in January 2006. She later reentered the
United States without inspection and married a USC. Lucia is subject to both the permanent bar
and to reinstatement of removal. If she applies for adjustment of status, or is otherwise
encountered by ICE, she may be detained and processed for removal by reinstatement of her
prior removal order.
4.7 WAIVERS OF INADMISSIBILITY
As noted above, several grounds of inadmissibility may be overcome by a waiver, which is generally
a separate application submitted to USCIS in addition to an application for the benefit sought. For example,
if an applicant for U status, TPS, or an immigrant visa is inadmissible on a ground for which a waiver is
available, that individual will need to submit an additional application for a waiver of inadmissibility.
Some waivers, including the waiver for unlawful presence and for misrepresentation, require that the
applicant have a USC or LPR spouse or parent, known as the qualifying relative, and establish that this
qualifying relative will suffer extreme hardship if the applicant is not granted the benefit he or she is seeking.
Hardship factors generally involve an assessment of the applicant’s family ties in the United States and
abroad, length of residence in the United States, health factors and the availability of medical care in the
home country, financial impact of departure from the United States, and economic and political factors in the
home country. In addition, ALL waivers are discretionary, meaning that the applicant must establish, in
addition to any other requirements, that the positive factors in his or her case outweigh the negative factors.
In some situations, there is no waiver available for a ground of inadmissibility or the noncitizen cannot
meet the eligibility requirements for the waiver because, for example, he or she does not have a required
qualifying relative. This is yet another reason why it is important to assess a client’s potential inadmissibility or
deportability at the onset of counseling so that the client does not pursue a remedy that ultimately cannot be
obtained.
Where is the Law?
Grounds of Inadmissibility:
• INA § 212(a)
• USCIS Policy Manual Volume 8
• Adjudicator’s Field Manual, Chapter 40.6 and 40.9
• Foreign Affairs Manual, 9 FAM 300 on Eligibility and Ineligibility
to Receive a Visa
Grounds of Deportability:
• INA § 237(a)
Waivers
• USCIS Policy Manual Volume 9
Practice Tips
• Start every case considering whether the grounds of inadmissibility or the grounds of
deportability apply to the noncitizen seeking a benefit or remedy.
• Recognize that many of the “yes/no” questions you see on immigration forms relate to
grounds of inadmissibility. Try to connect the question to the related ground of
inadmissibility.
• Although the laws relating to inadmissibility and deportability are complicated, everything
starts with the facts. Do thorough client interviews that address your client’s immigration
history, any prior applications filed, and any history related to contact with law
enforcement. You will then have the facts you need to seek technical assistance to help you
analyze the facts.
• Look beyond the client interview to determine the facts of the case as they may relate to
inadmissibility or deportability. In all cases involving arrests, seek the full criminal record,
including arrest reports, any charges filed and the outcome of the case. If your client
previously filed an application with USCIS, file a Freedom of Information Act (FOIA)
request to obtain your client’s immigration file.
• Don’t file if you don’t know! Always resolve questions of exposure to inadmissibility or
deportability before you file an application. In most situations, if there is no way to
overcome the ground of inadmissibility or deportability, there will be no point in filing the
application.
Chapter 5
FAMILY-BASED IMMIGRATION: IMMEDIATE RELATIVES AND
THE PREFERENCE SYSTEM
5.1 INTRODUCTION
Family reunification has historically been the principal policy underlying United States immigration law.
Currently, family-based immigration is the route to residency for over two-thirds of new lawful permanent
residents (LPRs) each year; of the 1,127,167 new LPRs in 2017, a total of 748,746 obtained their status
through petitions filed by their U.S. citizen (USC) or LPR family members.
In this chapter, we will learn that family-based immigration is a two-part process. In part one, a USC
or LPR files a petition for a qualifying family member. This stage of family-based immigration is primarily
focused on just two issues: proof of the petitioner’s status, and proof of the relationship between the petitioner
and the person for whom the petition is filed. In part two of family-based immigration, discussed in Chapter
Eight, the qualifying family member applies for LPR status either in the United States through adjustment of
status or at a U.S. consulate abroad.
Although family-based immigration is the most traveled road to LPR status, the journey can be long and
complicated. As we have already learned, applicants for LPR status must be admissible, and the many different
grounds of inadmissibility may prevent even close family members from getting to the finish line. Second,
numerical limitations, known as quotas, create long waiting periods for some categories of family members to
immigrate, essentially delaying or even preventing the reunification that family-based immigration is intended
to achieve. These practical considerations may sometimes mean that even though your client appears to have
a route to residency because of a family connection to a USC or LPR, family-based immigration may not be a
realistic option.
5.2 FAMILY-BASED IMMIGRATION IN ACTION

The scenarios below represent different pathways and obstacles to obtaining LPR status through a family
relationship.
Example: USC Helena wants to petition for her husband Adam, a citizen of Germany who lives in
Berlin. Helena files a petition with USCIS to establish that she is a USC and that she is married to Adam.
After the petition is approved by USCIS, Adam will apply for an immigrant visa at the U.S. consulate
in Berlin. If his application is approved, he will become an LPR upon admission to the United States
with his immigrant visa.
Example: USC Helena wants to petition for her brother Jorge, who is a citizen of Venezuela. Helena
files a petition with USCIS to establish that she is a USC and that Jorge is her brother. Once the petition
is approved, Jorge will have to wait several years to be eligible to apply for an immigrant visa because
sibling petitions are subject to numerical quotas.
Example: After waiting many years to immigrate, Jorge attends his immigrant interview in Caracas. At
the interview, Jorge acknowledges that he made a false claim to U.S. citizenship to obtain employment
during a prior trip to the United States. The consular officer determines that Jorge is inadmissible on this
basis. Jorge is not eligible for an immigrant visa because this ground of inadmissibility cannot be
overcome with a waiver.
5.3 FAMILY-BASED IMMIGRATION: WHO CAN IMMIGRATE?
A. OVERVIEW
As noted above, family-based immigration starts with the filing of a petition – USCIS Form I-130 – by
a USC or LPR. USCs may petition for a spouse, child, parent, sibling, and married or unmarried adult son or
daughter. In contrast, LPRs may only petition for a spouse, child, and unmarried son or daughter. Except in the
case of petitions filed for a spouse or child, the person filing the petition – known as the “petitioner” – must be
age 21. This means, for example, that a USC cannot file a petition for his or her sibling or parent until turning
age 21.
The questions on the I-130 petition and the required supporting documents are for the purpose of
establishing that the petitioner is a USC or LPR, and that the petitioner has the claimed relationship with the
family member, known as the “beneficiary”. Once the I-130 is approved by USCIS, the beneficiary’s status is
unchanged. The beneficiary will only become an LPR after completing part two of family-based immigration.
B. FAMILY RELATIONSHIPS
Many of the terms used in defining eligibility for a family-based visa are technical and are described
in the statute and regulations. Even though a client may refer to a family member as his or her spouse, child or
sibling, you need to be mindful of the definition of these terms in immigration law, listed below, which may not
incorporate your client’s relationship.
• Spouse – In order to petition for a spouse, the marriage must be legally valid and recognized in
the place where the relationship was created. For example, in countries like Mexico, that only
recognize civil marriages, a couple who only had a religious marriage ceremony would not be
considered legally married. Qualifying marriages include same-sex marriages, and customary and
common-law marriages that are recognized as valid in the jurisdiction in which they took place. In
some cases, however, a legally valid marriage will not be recognized for immigration purposes
because it is considered to violate federal or state public policy. This includes polygamous and
incestuous marriages as well as proxy marriages (where the parties to the marriage are not both
physically present at the marriage ceremony).
In all cases, a marriage must be “bona fide,” meaning that the parties are entering into the
relationship in order to make a life together. A marriage that is undertaken purely for immigration
purposes is considered a “sham” marriage. Persons seeking an immigration benefit on the basis of
a sham marriage are subject to both civil and criminal penalties. Note, however, that a marriage
does not have to be “viable” to be the basis of immigration. As long as the marriage is ongoing
and was valid at its inception, marital difficulties including separation do not necessarily mean that
the beneficiary spouse cannot immigrate.
• Child – The statutory definition of child at INA § 101(b)(1) has eight subsections addressing when
a parent-child relationship is created depending on whether it is through a biological relationship,
in or out of wedlock, through a stepparent, or through adoption. These categories are briefly
described below.
a. Birth in Wedlock – Children are always considered the child of the birth mother, regardless
of whether born in or out of wedlock. In contrast, children who are born out of wedlock can
only establish a parent-child relationship with the birth father if: (a) the child is legitimated
before age 18 while in the father’s custody, or (b) a bona-fide parent-child relationship
between father and child is established before the child turns 21, typically by showing
cohabitation and/or provision of support. Marriage of the birth parents is the most common
form of legitimation.
b. Stepchildren – A child may immigrate through a stepparent if the child was under 18 at the
time of the marriage creating the relationship. The stepchild relationship may continue even
after the natural parent dies or divorces the stepparent, provided the stepparent has maintained
an active parental interest. It does not matter if the child was born out of wedlock.
c. Adopted Children – An adopted child is eligible to immigrate if adopted before age 16

and in the legal custody and residing with the adoptive parent for at least two years. The two
years can be counted in the aggregate. The adoption must be legally valid in the country where
it took place. Natural siblings of the adopted child are also eligible to immigrate if adopted
while under 18 by the same adoptive parent. Many children, however, may only immigrate
through adoptions that conform to the requirements of the Intercountry Adoption Act of 2000,
which the United States enacted to comply with its obligations under the Hague Convention.
USCs seeking to adopt and immigrate a child from one of the Convention member countries
are required to satisfy certain specific requirements. You can access a list of Convention
member countries here:
travel.state.gov/content/travel/en/Intercountry-Adoption/Adoption-
Process/understanding-the-hague-convention/convention-countries.html
d. Orphans – A USC can petition for an orphan under age 16 if legal requirements are met
under INA § 101(b)(1)(F). In order to be an orphan, both parents must have died,
disappeared, or abandoned the child. If there is a sole or surviving parent, he or she must be
incapable of providing for the child and irrevocably release the child for emigration or
adoption. Natural siblings of the orphan are also eligible to immigrate if adopted abroad while
under 18 by the same adoptive parent. Hague Convention rules also apply to the immigration
of orphans.
• Parent – Only adult USCs may petition for a parent. The determination of whether there is a
parent-child relationship for immigration purposes will be based on the definition of child
referenced above.
• Brother or Sister – Siblings must show they are the “child” of at least one common parent.
• Unmarried – A son or daughter beneficiary of an I-130 petition can only qualify as “unmarried”
if not married throughout the family-based immigration process, i.e. from the time the I-130 is filed
until the grant of lawful permanent residency. The marriage of the son or daughter of an LPR means
that the I-130 petition will be automatically revoked because there is no category in family-based
immigration for the married sons and daughters of LPRs.
C. IMMEDIATE RELATIVES AND PREFERENCE IMMIGRANTS

The family members eligible to immigrate through family-based immigration fall into two categories:
immediate relatives and preference immigrants. The immediate relative category includes three family
relationships: the spouse of a USC; the child of a USC; and the parent of an adult USC. These immediate
relatives can immigrate outside of the family-based immigration numerical restrictions and thus are not subject
to the waiting period that exists in many of the preference categories. Nevertheless, there are often substantial
delays in the adjudication of relative petitions, so that even immediate relatives can expect to wait several
months for a decision on the I-130 petition.
In contrast to “immediate relatives” of USCs who are not subject to numerical limitations, relatives
immigrating through an LPR, as well as some immigrating through a USC, are subject to numerical restrictions.
The following are the family preference (“F”) categories and the number of available immigrant visas per year
in each category:
• F-1 – unmarried adult sons and daughters (age 21 or over) of USCs; 23,400 visas/year, plus any
visas left over from the 4th preference
• F-2A – spouses and unmarried children (under 21) of LPRs; 87,900 visas/year, plus any visas left
over from the 1st preference
• F-2B – unmarried sons and daughters age 21 and over of LPRs; 26,300 visas/year, plus any visas
left over from the 1st preference
• F-3 – married sons and daughters (any age) of USCs; 23,400 visas/year, plus any visas left over
from the 1st and 2nd preferences
• F-4 – siblings of USCs; 65,000 visas/year, plus any visas left over from the previous preferences.
In addition to these preference category limitations, there is a per-country limitation on any single
country equal to 7 percent of the total annual limit of family-based and employment-based preference
immigrants. Because the number of foreign nationals in the preference categories exceeds the annual visa limit
under current law, there are long waiting periods to obtain LPR status in most of the family-based preference
categories, particularly for individuals from India, China, Mexico and the Philippines.
D. DERIVATIVE BENEFICIARIES
As we’ve already learned, USCs and LPRs can only apply for certain types of close relatives. While
those eligible family members do not include nieces and nephews, sister-in-laws and brother-in-laws, or
grandchildren, the category of “derivative beneficiary” does enlarge the group of family members who can
immigrate in the preference categories. The derivative beneficiary category applies to the spouse and children,
if any, of the principal beneficiary of the preference category petition, i.e. the person for whom the petition was
filed. These other family members are known as “derivative beneficiaries” and can immigrate based on the I-
130 that was filed for the principal beneficiary. The possible derivative beneficiaries of each preference
category are listed below:
• F-1 – unmarried adult sons and daughters (age 21 or over) of USCs; derivative beneficiaries =
children of principal beneficiary
• F-2A – spouses and unmarried children (under 21) of LPRs; derivative beneficiaries = children of
principal beneficiary
• F-2B – unmarried sons and daughters age 21 and over of LPRs; derivative beneficiaries =
• F-3 – married sons and daughters (any age) of USCs; derivative beneficiaries = spouse and
• F-4 – siblings of USCs; derivative beneficiaries = spouse and children of principal beneficiary.
If the principal beneficiary is the spouse of an LPR and has unmarried minor children, then the petitioner
has an option to file one petition for the spouse and separate ones for the unmarried children. Or the petitioner
may file just one petition for the spouse and the unmarried children can be included as derivative beneficiaries.
It is important to note, however, that the fate of the derivative is tied to the principal beneficiary. If the principal
beneficiary is unable to immigrate for some reason, e.g. a non-waivable ground of inadmissibility, the
derivative beneficiaries will not be eligible to gain LPR status.
Example: LPR Joseph filed an F-2A petition for his wife Alicia. He did not file a separate petition for
their ten-year-old son Martin, anticipating that he would immigrate as a derivative beneficiary. But
when Alicia went to her immigrant visa interview at the U.S. consulate in Uruguay, she was denied for
having a controlled substance conviction. Since Alicia was denied a visa, Martin cannot immigrate as
a derivative beneficiary.
In the case of immediate relatives, there are no derivative beneficiaries. If, for example, an adult USC
wants his married parents to immigrate, the USC will have to file one petition for his mother and one for his
father. Because this is an immediate relative relationship, the USC cannot file just one petition for the mother or
father, and have the other parent be a derivative beneficiary.
Finally, note that there are no “derivatives of derivatives.” If a derivative beneficiary has a child, the
derivative beneficiary will not be able to have the child classified as an additional derivative beneficiary. In
that circumstance, it may be possible to apply for permission for the derivative’s child to travel to the United
States through “humanitarian parole.” After entry, the derivative beneficiary parent, now an LPR, can file an F-
2A petition for the child.
Example: USC Alex filed an F-4 petition for his brother Alex, who is married and has a daughter,
Leonora, who is 18 years old. Last year, Leonora had a baby who is now six months old. While
Leonora qualifies to immigrate as a derivative beneficiary of the F-4 petition, her child does not.
5.4 PREFERENCE CATEGORY IMMIGRANTS AND PRIORITY DATES
A. OVERVIEW
One of the most common questions a legal advocate will be asked about any immigration application
is “How long will it take?” In the family-based context, this question really refers to how long it will be before
the intending immigrant – the beneficiary of the I-130 petition – will finally complete the journey and be
granted LPR status. As noted above, there is no numerical limitation on the number of immediate relatives who
can immigrate each year. The length of time it takes for an immediate relative to immigrate is really just based
on the time it takes for the adjudication of the applications filed in parts one and two of family-based
immigration. But for preference immigrants, the numerical limitations for each category mean there is almost
always a gap in time between part one of family-based immigration – the approval of the I-130 petition –
and eligibility to start part two of the process – the submission by the beneficiary of an application for LPR
status. The length of the wait is impacted by the beneficiary’s preference category, the country the beneficiary
is from – known as the “country of chargeability” – and the date the I-130 was properly filed by the petitioner
for the beneficiary. This date is known as the “priority date” and determines the beneficiary’s place in line to
be eligible to start part two of family-based immigration. In order to be properly filed, the I-130 petition must
be signed by the petitioner and include the required fee. Having a “current priority date,” described below,
means that the beneficiary is able to apply for LPR status either through adjustment of status in the United States
or consular processing at a U.S. consulate abroad.
Example: USC Amara filed an I-130 petition for her sister Priya on March 15, 2017. The petition was
sent by priority mail and received by USCIS on March 17, 2017. Amara signed the petition and
enclosed a money order for the petition fee and the requisite evidence to establish her U.S. citizenship
and her sibling relationship with Priya. Based on these facts, Priya’s priority date is March 17, 2017.
After the I-130 petition is approved, Priya will have to wait in the line for a current priority date in the
F-4 category for nationals of India. When the priority date is current, Priya and any derivative
beneficiaries will be able to submit their applications for LPR status.
B. DEPARTMENT OF STATE VISA BULLETIN

We know that preference category immigrants need a current priority date to proceed to step two of
family-based immigration, but how do we know when a priority date is current? This is determined by
consulting a document, known as the Visa Bulletin, which is prepared by the Department of State each month.
This bulletin includes charts for the preference categories for both family-based immigration and employment-
based immigration, that enable you to determine if your client has a current priority date (a) for being approved
for LPR status in his or her category (Chart A), or (b) for being able to start the application process for LPR status
(Chart B). You can see the information provided in these Visa Bulletin charts by looking at the sample below,
from April 2020.
Chart A: Final Action Dates for Family-Sponsored Preference Cases
All
Chargeabilit CHINA-
Family-
y Areas mainland INDIA MEXICO PHILIPPINES
Sponsored
Except Those born
Listed
F1 01JAN14 01JAN14 01JAN14 22SEP97 01MAR10
F2A C C C C C
F2B 01NOV14 01NOV14 01NOV14 01DEC98 01FEB10
F3 01FEB08 01FEB08 01FEB08 08MAY96 15MAY00
F4 01JUL06 01JUL06 22DEC04 15MAR98 01MAY00
Chart A in the Visa Bulletin, seen above, is known as the final action date chart because it shows
whether a visa is now available for a certain preference category for applicants from certain countries; if a
visa is available, the application for LPR status can be approved. Four countries – China, India, Mexico, and
Philippines – are listed separately because the wait for a current priority date in certain preference categories
for nationals of those countries is longer than for nationals of other countries. These longer waits for nationals
of “over-subscribed countries” are the result of more people applying to immigrate from those countries.
To determine if your client has a current priority date, you need to compare the beneficiary’s priority
date against the date indicated in Chart A in the most recent monthly Visa Bulletin, taking into consideration
the particular preference category and the beneficiary’s country of origin. The priority date must be before the
date listed on the chart to be considered current. For example, using the chart above, if your client is the
Guatemalan adult daughter of an LPR, you will look at the date listed under the “All Chargeability” column for
the F-2B category. In the April 2020 Visa Bulletin, the date shown for this category is November 1, 2014. This
means that your client’s priority date is current if it is before that date, i.e. October 31, 2014 or earlier. A
current priority date under Chart A means that an applicant is eligible for immigrant visa issuance or approval
of adjustment of status, if applicable. Note that the “C” listing indicates that the category is current and that
applications may be filed regardless of the priority date. Based on the chart above, for example, all F2A
beneficiaries have a current priority date.
Chart B: Filing Dates for Family-Sponsored Preference Cases
All
Chargeabilit CHINA-
Family-
y Areas mainland INDIA MEXICO PHILIPPINES
Sponsored
Except Those born
Listed
F1 01SEP14 01SEP14 01SEP14 01DEC99 01NOV10
F2A 01FEB20 01FEB20 01FEB20 01FEB20 01FEB20
F2B 01JUL15 01JUL15 01JUL15 01AUG99 01OCT10
F3 01OCT08 01OCT08 01OCT08 15JUL00 15JAN01
F4 25JUL07 25JUL07 22AUG05 15JAN99 01JAN01
Since October 2015, the DOS Visa Bulletin includes a second chart, known as Chart B, which lists a
different set of dates that indicate when a person may start the process of preparing or filing his or her
application for LPR status. In the case of a petition beneficiary who is in the United States and qualifies to apply
for adjustment of status, a current Chart B priority date means that the beneficiary can file this application with
USCIS. The application cannot be approved until the priority date is current in Chart A, but just filing for
adjustment of status is beneficial because it allows applicants to qualify for employment authorization and
permission to travel, known as advance parole. Note that USCIS does not always allow for using Chart B
dates to file for adjustment of status; you will need to check the USCIS website at
www.uscis.gov/visabulletininfo to see if the use of Chart B dates is approved for a given month. For preference
immigrants who do not qualify to adjust status in the United States and will be applying for an immigrant visa
abroad, a current Chart B priority date means that the individual will start receiving notifications from the
National Visa Center (NVC) of the Department of State to begin collecting documents for consular processing.
Example: USC Jorge filed an I-130 relative petition for his Mexican sibling Maria on January 10,
1999. At the time you consult with Jorge and Maria the most recent Visa Bulletin Chart A “final action
date” shows that immigrant visas are available to those in the F-4 category for Mexico if their priority
date is before March 15, 1998. An immigrant visa is therefore not currently available to Maria.
However, when you look at the Chart B “filing date” for Mexicans in the F-4 category, the date shown
is January 15, 1999. If USCIS has indicated that adjustment of status applicants may follow the “filing
date” chart for that month, Maria may now file for adjustment of status (if otherwise eligible) because
her priority date precedes January 15, 1999. Her adjustment application cannot be granted until her
priority date becomes current based on the “final action date” chart, but until that time her adjustment
application will remain pending. If Maria will not adjust status in the United States but will consular
process, the Department of State will use the “filing date” chart as a guide as to when to start that
process.
As noted above, a preference visa is generally chargeable against the quota for the country where the
applicant was born. Some special rules apply with spouses and children who accompany the principal
beneficiary as derivatives where the principal and derivatives are from different countries. The couple can elect
to charge their visa application to the country of birth of either spouse, depending on which country’s priority
dates are moving more quickly. This set of rules is known as “cross-chargeability.”
Example: Alfredo, from Mexico, is the beneficiary of an F-4 petition filed by his U.S. citizen sister on
June 1, 2006. The F-4 category for Mexico is backlogged to March 15, 1998, but Alfredo’s wife is
from Honduras, where the applicable priority date for the F-4 category is July 1, 2006. With cross-
chargeability, Alfredo and his wife may seek to immigrate using the more favorable country of
chargeability.
Finally, it is important to note that the wait for a current priority date cannot be calculated by just looking
at the date listed on the Visa Bulletin and then calculating the time difference between the date shown and the
current date. For example, the Chart A Visa Bulletin above shows a date of November 1, 2014 for persons
waiting to immigrate in the F2B category from all countries except Mexico and the Philippines. If you look at
that chart in April 2020, does that mean it would be accurate to tell your client his or her priority date will be
current in about five years and five months, i.e. that the November 2014 date represents about a five-year
and five-month backlog? The answer is no, because priority dates do not necessarily advance by a month
each month; they may remain the same from month to month, advance by only a week or two, or even go
backwards, known as retrogression. And, even worse, in some cases the real wait is so long, it would take
more than a lifetime to have a current priority date. This is true, for example, in the Mexico F-2B category
where the wait for a current priority date for a newly filed petition is approximately 75 years, and in the Mexico
F-4 category, where the wait for a current priority date for a petition just filed is over 150 years. Petitioners
and beneficiaries in these and other backlogged family-based categories should be counseled that, unless
there is a change in the law, the petition process will not result in LPR status for the beneficiary.
Example: USC Hector wants to file an I-130 for his undocumented sister Ginelda from Mexico. He
has proof of his U.S. citizenship status and his sibling relationship to Ginelda. When you look up the
November 2019 NVC report on preference category wait lists, you see that there are 721,208
people waiting in line ahead of Hector’s sister, and there are only 4,555 immigrant visas available to
Mexican nationals in this category every year. After you do the math, you tell Hector that, unless the
law changes, it will take over 158 years for his sister to have a current priority date.
5.5 PETITION REVOCATION AND CATEGORY CONVERSION
Many life changes can occur while waiting for family-based immigration to run its course. Even in the
case of immediate relatives or the shorter waits in the F-2A category, petitioners or beneficiaries may marry,
divorce, or die, petitioners may naturalize, and child beneficiaries may turn 21. How do all these life events
impact on a pending family-based immigration case? As you may imagine, some life changes may completely
derail eligibility to immigrate based on the family petition, as in the case of a divorce while waiting to immigrate
through a spouse, or the marriage of an F-2B beneficiary. In those situations, where the life change wipes out
eligibility to immigrate through family-based immigration, the petition, if already approved, is revoked. In other
cases, however, a change in circumstances may just change the family-based category through which the
beneficiary is eligible to immigrate. The wait may be longer or shorter, but there is still a route to residency.
These situations are known as petition conversions and some examples are described below. Note that when
the beneficiary automatically converts to a new category, no new I-130 petition is required.
• Life Change: Petitioner Naturalizes

o LPR files petition for spouse; petitioner naturalization converts petition from F-2A to IR
o LPR files petition for child; petitioner naturalization converts petition from F-2A to IR
• Life Change: Beneficiary Marries
o USC files petition for unmarried child or for adult son or daughter; beneficiary’s marriage
converts petition from IR or F-1 to F-3
o LPR files petition for unmarried child or adult son or daughter; beneficiary’s marriage revokes
petition. If beneficiary subsequently divorces, LPR can refile petition, but the old priority date is
not retained.
• Life Change: Beneficiary Divorces
o USC files petitions for married son or daughter; beneficiary’s divorce converts petition from F-
3 to IR (if beneficiary is under age 21) or to F-1 (if beneficiary is age 21 or older)
• Life Change: Child Beneficiary Turns 21
o A child beneficiary or derivative beneficiary may “age out” of child status by turning age 21.
Under the Child Status Protection Act, discussed in Chapter Six, some beneficiaries may remain
in the “child” category even after turning 21.
• Life Change: Petitioner or Principal Beneficiary Dies
o The death of a petitioner or a principal beneficiary may end the ability of the principal or
derivative beneficiary to immigrate. As discussed in Chapter Six, certain surviving relatives may
qualify to continue to immigrate even after the death of a petitioner or principal beneficiary.
5.6 FILING THE I-130 ALIEN RELATIVE PETITION
The I-130 petition and supporting documentation must establish that the petitioner is in fact an LPR or
USC and that the claimed relationship to the beneficiary is a legally qualifying one. It is the petitioner’s burden
to prove this by the “preponderance of evidence,” meaning that it is more likely than not. Acceptable evidence
of the petitioner’s USC or LPR status is listed in the regulations at 8 CFR § 204.1(g) and in the I-130 instructions.
It includes: a U.S. birth certificate; U.S. passport; naturalization or citizenship certificate; or Permanent Resident
card. Documentation required to prove the family relationship is outlined in the regulations at 8 CFR § 204.2
and in the I-130 instructions. It might include, for example, a marriage certificate (for a spouse) or a birth
certificate (for a child or parent).
An I-130 petition based on marriage must also be accompanied by an I-130A, a form that collects
background information on the beneficiary spouse. In addition, the couple should include evidence that they
have a good faith marriage, such as: documentation showing joint ownership of real property or joint tenancy
(e.g. a lease with both names); documentation showing the couple has combined financial resources (e.g.
statements from joint bank accounts or credit cards, joint tax returns); birth certificates of children born to the
couple; declarations from individuals with personal knowledge of the bona fides of the marital relationship;
photos from the wedding or other events; and any other relevant documentation to establish an ongoing marital
union.
The petitioner must indicate on the I-130 whether the beneficiary is in the United States and plans to
adjust status or will consular process abroad and, if so, through which consular post. This is important for
several reasons. If the I-130 indicates the beneficiary will consular process, USCIS will forward the approved
petition to the NVC upon approval. When Chart B of the Visa Bulletin indicates a current priority date, NVC
will contact the beneficiary to begin consular processing. If the I-130 indicates the beneficiary will adjust status,
it is up to the beneficiary to monitor the Visa Bulletin and file his or her I-485 application to adjust status once
eligible to do so. If the I-130 petition indicated adjustment but the beneficiary later decides to consular process
instead, the petitioner will need to file a Form I-824, Application for Action on an Approved Application or
Petition. This form requests that USCIS notify NVC about the approved I-130 petition in order for the
beneficiary to proceed with consular processing.
As mentioned above, I-130 adjudication is dependent on establishing the status of the petitioner and
his or her relationship to the beneficiary; approval simply means these two requirements have been established.
At this stage, USCIS is not assessing whether the beneficiary is admissible and petition approval does not mean
the beneficiary will be eligible to immigrate on the basis of that petition. As a practical matter, however, before
advising a client to proceed with an I-130, practitioners should screen the beneficiary to evaluate whether he
or she will be eligible for LPR status at the second stage.
Before filing, consult the USCIS website for the current version of the I-130 and other forms, required
supporting evidence, and relevant filing and biometrics fees. The USCIS website also has instructions about
the appropriate USCIS lockbox where the I-130 should be filed. Typically, USCIS does not conduct interviews
prior to adjudicating an I-130, but an interview may be required in marriage-based petitions where fraud is
suspected or the beneficiary is in removal proceedings.
After I-130 approval, beneficiaries in a preference category often have long waits for a current priority
date to proceed with the application for permanent residence. Having an approved I-130 does not result in
any lawful immigration status for a beneficiary in the United States, or permission to work legally or travel. Nor
does it result in a way for a beneficiary abroad to enter the United States during the wait. Having an approved
I-130 will not protect an undocumented beneficiary from being arrested by DHS or placed into removal
proceedings. In addition, make sure clients understand that filing an I-130 on behalf of an undocumented
beneficiary includes some risk since the beneficiary’s personal information is being provided to DHS. While
DHS has not typically taken enforcement action against undocumented I-130 beneficiaries, this is a possibility,
especially for beneficiaries with an outstanding removal order or certain criminal convictions.
Where’s the Law?
• INA§ 201: the immigrant visa selection system

• INA § 202: numerical limitations and distribution of 2nd preference
visas
• INA § 203: family-based preferences and order of consideration
• 8 CFR § 204.1: substantive basis for immediate relative and
family preference petitions; evidentiary and documentary
requirements
• 8 CFR § 204.2: elements to be proven and the documentation to
be submitted to establish each type of family relationship
• 8 CFR § 205.1: petition revocation and humanitarian
reinstatement
• Adjudicator Field Manual Chapter 21
Practice Tips
• Applications will be denied if they are not properly completed and documented. Avoid
mistakes by reviewing the regulations and Form I-130 instructions. Check with more
experienced practitioners when you are uncertain about how to proceed.
• Given the high volume of I-130 petitions filed each year, USCIS has generally not used
the information provided about undocumented beneficiaries present in the United States
to pursue enforcement. However, if the beneficiary was ordered removed from the
United States and did not leave, or has a serious criminal conviction, USCIS may decide
to take action against the beneficiary. Similarly, the filing of an I-130 petition may
expose an LPR petitioner with a criminal conviction or an extended absence abroad to
potential deportability. You should screen cases for these issues before filing and always
counsel clients about possible exposure to enforcement.
• What service are you providing when you represent a client in filing an I-130? As the
advocate, you may think you are being retained to file an I-130 petition for your LPR
client’s adult son, while your client thinks she is also retaining you to help her son
immigrate several years from now when he has a current priority date! Make sure you
and your client have a common understanding of the scope of your service.
• Family–based immigration involves long delays at several intervals in the process, from
waiting for the adjudication of the I-130 petition to waiting for a current priority date.
During these intervals, many major life events can happen that impact the route to
residency for the petition’s beneficiary. Maybe the petitioner naturalized and the
preference category changed to immediate relative or another preference category.
Maybe the beneficiary married and triggered petition revocation or a change to another
preference category. Maybe a new derivative beneficiary child was born. Marriage,
death, divorce, and naturalization are all events that may impact on how or whether the
beneficiary can immigrate. Make sure your clients know that they should contact you
whenever there is a change in personal circumstances so that you can provide timely
counseling on the impact of any new developments.
Chapter 6
CHILD STATUS PROTECTION ACT AND REMEDIES FOR
SURVIVING RELATIVES
6.1 INTRODUCTION
In Chapter Five, we learned that a son or daughter must be under age 21 and unmarried to qualify
as a child. We also learned that different life events, including death of the petitioner or a principal
beneficiary, can cut off eligibility to immigrate. In this chapter we will learn about statutory and regulatory
ameliorative provisions that help noncitizens who are “aging-out” of child status or who are the surviving
relatives of a U.S. citizen spouse, a deceased petitioner or a deceased principal beneficiary. For aging-out
children, the Child Status Protection Act (CSPA) allows certain sons and daughter who turn age 21 while
waiting to immigrate to nevertheless continue to qualify as a child and immigrate as immediate relatives, F-
2A beneficiaries or derivative child beneficiaries. For surviving relatives, self-petitions for the widows and
widowers of U.S. citizens (USCs), statutory protections under INA § 204(l) and humanitarian reinstatement
regulations also provide options for continuing to immigrate after the death of a USC spouse or a petitioner
or principal beneficiary. The CSPA and each remedy for surviving relatives are discussed in more detail
below.
6.2 CSPA AND RELIEF FOR SURVIVING RELATIVES IN ACTION
Example: USC Casey filed an I-130 petition for her daughter Megan last week, but Megan will turn
21 next month. Because of the CSPA, Megan will be considered an immediate relative child, even
though she will turn 21 before she is able to immigrate.
Example: Lamai from Thailand married USC George two months ago. Before George could file a
petition for Lamai, he had a heart attack and died. As the widow of a USC, Lamai can file a self-
petition to immigrate.
Example: Guillermo, from Mexico, has been waiting to immigrate through a petition filed by his USC
father Raul. Guillermo’s priority date is now current, but his father died last month. Under INA §
204(l), Guillermo, who lives in the United States, can continue to immigrate based on the petition
filed by his father.
Example: Alejandra, from Ecuador, has been waiting to immigrate in the F-4 category for many
years to reunite with the rest of her family who lives in the United States. The priority date is now
current, but Alejandra’s sister, the petitioner, recently died. Alejandra can request humanitarian
reinstatement of the petition to allow her to immigrate even though the petitioner has died.
6.3 CSPA OVERVIEW
Until the enactment of the CSPA on August 6, 2002, children who turned 21 before immigrating as an
immediate relative, as an F2A child beneficiary, or as a derivative beneficiary child “aged out” of their
categories and faced longer waits for visas. For example, a child of a USC who turned 21 while waiting to
immigrate converted to the F-1 category, and the child of an LPR converted from the F-2A to the F2B category.
In both of these situations, the wait for a visa would be much longer.
The CSPA, which went into effect on August 6, 2002, helps many children avoid these “age-out”
problems. In the case of immediate relatives, once a child has immediate relative status, he or she retains it until
immigrating, regardless of age, as long as the child does not marry. The scenarios below illustrate how the
CSPA impacts on immediate relative beneficiaries:
• Children of USCs who were under 21 on the date the I-130 was filed will retain immediate relative
status even if they turn 21 before becoming LPRs.
Example: Lucy is 20 years old when her USC father files a petition for her. While waiting to immigrate,
Lucy turns 21. Lucy can still immigrate as an immediate relative.
• Children of LPR parents who naturalize convert to the immediate relative category if they are
unmarried and under age 21 on the day of the petitioning parent’s naturalization. They preserve
that status, even if they turn 21 before immigrating.
Example: Micah is an LPR who filed an I-130 under the F-2A category for his son Tomas on September
5, 2019. Micah naturalized on March 10, 2020, when Tomas was 20 years old. Tomas is now an
immediate relative because he is the unmarried child of a USC and under age 21. Even if Tomas turns
21 before he immigrates, he will remain in the immediate relative category.
• Married children of USCs who are under 21 and then divorce before turning 21 convert from the
F3 category to the immediate relative category. They will also preserve that status even if they turn
age 21 before immigrating.
Example: USC Greta filed an I-130 petition for her 19-year-old married daughter Micaela. Even
though Micaela is under 21, this petition falls within the F-3 category because Micaela is married. If
Micaela divorces before she turns age 21, her petition will automatically convert to the immediate
relative category. She will then be protected from aging out, even if she turns 21 before becoming an
LPR.
CSPA protection for children in the F-2A category and derivative beneficiaries is not as extensive as
the protection afforded to immediate relative children. In the case of these two categories, F2A and derivative
beneficiary children may retain their status as children if their “adjusted age” is under 21 when the priority
date becomes current. To calculate the adjusted age of your F-2A or derivative beneficiary client, you need to
determine your client’s chronological age on the first date of the month the priority date became current, and
then subtract from that age the amount of time the I-130 was pending between the date of filing and the date
of approval. If the resulting “adjusted age” is under 21, the beneficiary may remain in child or derivative
beneficiary status, as long as she or he takes action to pursue LPR status within one year. The examples below
illustrate how this calculation works.
Example: Hyelom, an LPR, filed petitions for his sons Abdul and Ali. USCIS approved the petitions ten
months after they were filed. On the date the F-2A priority date became current, Abdul was 21 years
and eight months old and Ali was 23. Abdul will still qualify to immigrate in the F-2A category because
he is under age 21 if you subtract the 10-month period the petition was pending before approval. His
brother Ali will not qualify to remain in the F-2A category, however, because he is still over age 21
when you subtract the 10-month period. Ali converted to the F-2B category.
Example: Fernando is the beneficiary of an F-4 petition filed by his USC brother. Fernando’s spouse,
Lorena, and their son, Domenico, are derivative beneficiaries. The priority date became current this
month. Domenico turned 21 three months ago. Fortunately, the I-130 petition was pending for seven
months. Therefore, Domenico’s adjusted age was under 21 on the date the priority date became
current. Domenico remains a derivative provided he seeks LPR status within one year.
As noted above, even if the adjusted age calculation results in an age under 21, CSPA protection
will only apply if the child seeks residency status within one year of the priority date becoming current. This
has been defined as doing one of the following: (1) filing for adjustment of status; (2) paying the immigrant
visa fee bill to the National Visa Center (NVC); (3) paying the affidavit of support fee to the NVC; (4) filing
the DS-260, immigrant visa application; or (5) filing a Form I-824, which is often used to start the
immigration process of a derivative child after the principal beneficiary has become an LPR. We will discuss
these forms in Chapter Eight.
Because of the CSPA, delays in petition adjudication can have positive implications for F-2A
beneficiaries and derivative child beneficiaries. This is because all of the time that it takes to adjudicate the
petition will be subtracted from the beneficiary’s age, thus tolling their age from the filing date until the approval
date. Hence, the longer it takes to adjudicate the petition, the greater the chances that the beneficiary will still
be under 21 (according to their adjusted CSPA age) on the date the priority date becomes current.
Finally, another provision of the CSPA allows for an F-2B beneficiary to “opt out” of conversion to the
F-1 category when the petitioner naturalizes. Although we often think of the petitioner’s naturalization as
creating a faster route to residency for the beneficiary, in the case of F-2B beneficiaries, this if often not the
case. Currently, for example, the F-1 category is more backlogged than the F-2B category in every country,
leading to a longer wait to immigrate for F-2B beneficiaries who automatically convert to the F-1 category
when the petitioner naturalizes. The CSPA opt out provision allows the beneficiary to notify USCIS that he or
she wishes to remain in the F-2B category even though the petitioner has naturalized.
Example: Nyala, from Ethiopia, is the beneficiary of an F-2B petition filed by her LPR father Kofi.
Nyala’s priority date is almost current, but she just learned that her father naturalized, converting her
to the F-1 category, which means a longer wait to immigrate. Nyala will contact USCIS to “opt out” of
conversion so that she can remain in the F-2B category.
6.4 OVERVIEW OF BENEFITS FOR SURVIVING RELATIVES

The INA includes three separate remedies that provide the possibility of continuing with family–based
immigration even after the death of the petitioner or principal beneficiary. And in the case of widows and
widowers of USCs, it is even possible to file a self-petition if the deceased spouse had not filed an I-130 petition
before death. Each of these remedies is described below.
A. WIDOW/WIDOWER SELF-PETITIONS
Spouses of USCs are eligible for special relief in the event the citizen dies before the noncitizen spouse
has immigrated. Death of the USC allows the widow or widower to file a self-petition on Form I-360, provided
the petition is filed within two years of the citizen spouse’s death and the widow/widower has not remarried.
If the USC spouse had already filed an I-130 petition for the noncitizen spouse, no new petition needs to be
filed; the I-130, whether pending or approved, automatically converts to an I-360 petition. Widows and
widowers are considered immediate relatives because they are immigrating based on marriage to a USC.
Unlike other immediate relative spouses, the children of widows/widowers of USCs are eligible to immigrate
as derivative beneficiaries of the petition.
In part two of family-based immigration, discussed in Chapter Eight, we will review the affidavit of
support requirement applicable to most noncitizens immigrating through family-based immigration. This
requirement is not applicable to widows/widowers of USCs. For those widows and widowers who will need
a waiver of inadmissibility to immigrate that requires showing extreme hardship to a USC or LPR spouse or
parent, a special rule assumes the hardship requirement is met where:
• the widow resided in the United States at the time of the citizen’s death; and
• the citizen spouse filed an I-130 for his/her spouse prior to death
This waiver rule means that some widows and widowers of USC will not be able to benefit from the self-petition
remedy. If the deceased spouse did not file an I-130 before death, the widow/widower will not be eligible to
apply for a hardship waiver of inadmissibility unless he or she has a USC or LPR parent who can be the
qualifying relative.
Example: Addison, from Panama, entered the United States without inspection on May 19, 2013.
On October 22, 2018, he married USC Wilma, who died in a car accident two months later. Wilma
was planning to file an I-130 petition for Addison but she died before she was able to do so. As a
widower of a USC, Addison can file an approvable I-360 self-petition as part one of the immigration
process. But because he entered the United States without inspection, he will then need to depart the
United States to apply for an immigrant visa through consular processing. Once he departs, he will
trigger the ten-year unlawful presence bar and he will need a waiver to overcome his inadmissibility.
If Wilma had filed an I-130 for Addison prior to her death, she would still be considered his
qualifying relative for waiver purposes. But since no I-130 was filed, Addison will not qualify for a
waiver unless he has a USC or LPR parent. This scenario illustrates a major limitation of widow self-
petitioning; the self-petition may be approvable, but there may be no workable route to lawful
permanent residency.
B. RELIEF UNDER INA § 204(l)

In addition to the self-petition remedy for widows and widowers of USCs, INA §204(l) allows other
surviving family members to continue to receive immigration benefits from a pending or approved petition
after the petitioner or principal beneficiary has died. In cases where 204(l) applies, the beneficiary or
derivative beneficiary may continue with the case as if the petitioner or principal beneficiary had not died.
The two main requirements for 204(l) eligibility are that: (1) the beneficiary must have been residing
in the United States at the time of the petitioner’s death and continue to be residing here; and (2) where
applicable, the surviving relative is able to obtain a qualifying substitute sponsor who can file an affidavit of
support. Substitute sponsors include the following relatives of the beneficiary: spouse, parent, mother-in-law,
father-in-law, sibling, child at least 18 years of age, son, daughter, daughter-in-law, son-in-law, sister-in-
law, brother-in-law, grandparent, grandchild, or a legal guardian. A substitute sponsor must be either a USC
or LPR, at least 18 years of age, and domiciled in the United States. The affidavit of support requirement is
covered in greater detail in Chapter Eight.
In addition to providing relief to the eligible surviving principal and derivative beneficiaries of a
family-based immigration case, 204(l) also applies in the following situations:
• Derivative beneficiary of Form I-140, Immigrant Petition for Alien Worker, and the principal
beneficiary died;
• Beneficiary of a pending Form I-730, Refugee/Asylee Relative Petition, and the petitioner died;
• T or U visa derivative beneficiary and the principal T or U visa holder died; or
• Derivative asylee and the principal asylee died.
• VAWA self-petition or adjustment of status derivative beneficiary
Note that Section 204(l) does not allow a surviving family member to apply for adjustment of status if
not otherwise eligible. Nor does it require approval of a petition or application if the officer believes the
beneficiary or applicant is ineligible. For example, in the case of a pending I-130 spouse petition, the USCIS
officer might determine that there was no good-faith marriage. Where the surviving relative qualifies for 204(l)
relief but needs a “qualifying relative” for a waiver of inadmissibility, USCIS will consider the death of a USC
or LPR petitioner as the “functional equivalent of extreme hardship.”
Example: Joyce is the adult daughter of USC Norman and the beneficiary of an approved F-1 petition
with a current priority date. Norman just died, but Joyce qualifies for 204(l) relief because she has
been living in the United States for the past five years and her USC brother is willing to be a substitute
sponsor. Joyce will need an unlawful presence waiver when she departs the United States for her
consular appointment abroad. She can qualify for a waiver using her now-deceased father as the
qualifying relative.
C. HUMANITARIAN REINSTATEMENT
What if the surviving relative was not residing in the United States when the petitioner died? A more
limited remedy known as humanitarian reinstatement is available when the petitioner dies after the petition was
approved and the beneficiary can establish that it would be “inappropriate” to revoke the petition based on
humanitarian factors. USCIS has indicated that the following factors would be considered in satisfying the test
of inappropriateness: impact of revocation on the family unit in the United States; the beneficiary’s poor health
or advanced age; the beneficiary’s long residence in the United States; absence of any ties to the beneficiary’s
country of origin; and any undue delay by USCIS or the consulate in processing the petition or application. In
order to reinstate the I-130 petition, the beneficiary must file a formal motion or request and attach supporting
documentation, including an affidavit of support from a substitute sponsor. There is no fee for this type of motion.
Because of the broader relief available under INA §204(l), applicants for humanitarian reinstatement
will largely consist of those who have never resided in the United States. Note that humanitarian reinstatement
only applies to family-based petitions where the petitioner has died after the petition was approved. It does
not provide a remedy to the surviving derivative of a principal beneficiary who died before immigrating.
Example: Josefina, from Guatemala, has been waiting for many years to immigrate in the F2B
category. Her priority date will be current soon, but her LPR father died last month. Josefina’s mother
and siblings all live in the United States as LPRs or USCs, but Josefina stayed in Guatemala to finish her
university education and take care of her grandmother who has since died. She has no family left in
Guatemala and her whole family has been eagerly awaiting reunification in the United States. Josefina
should be able to make a compelling argument in favor of humanitarian reinstatement and she has
several family members who qualify to be substitute sponsors.
Where’s the Law?
Child Status Protection Act

• INA § 201(f), 203(h)
• USCIS Policy Manual, Volume 7, Part A, Chapter 7
• 9 FAM 502.1-1(D)(1)
Widow Self Petitions

• INA § 201(b)(2)(A)(i)
• 8 CFR § 201(b)(1)
204(l) Remedy for Surviving Relatives

• INA § 204(l)
• 2010 USCIS Memorandum on INA § 204(l)
www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/
2011/January/Death-of-Qualifying-Relative.pdf
Humanitarian Reinstatement
• 8 CFR § 205.1
Practice Tips
• Take timely action where applicable to “seek to acquire” LPR status. If your client is subject
to the “seek to acquire” rule, make sure he or she does not delay in filing for adjustment of
status or paying fees or filing a DS-260 if consular processing.
• Remember that there is a deadline on filing widow self-petitions; eligibility is limited to the
two-year period after the death of the USC. Assist widow(er)s of USCs to self-petition within
two years of the death of their USC spouse.
• Assess inadmissibility issues and the need for qualifying relatives for a waiver before you
counsel a surviving relative about proceeding with immigrating. Some surviving relatives
will not have a route to residency because of inadmissibility, even when it looks like a
widow self-petition, 204(l) or humanitarian reinstatement may apply. For example,
where a widow of a USC needs a qualifying relative for a waiver and the USC spouse
never filed an I-130, there may be no way to qualify for a waiver. And where a surviving
relative abroad wants to seek humanitarian reinstatement but needs a waiver of
inadmissibility, there may also be no option to create waiver eligibility.
Chapter 7
IMMIGRATING THROUGH MARRIAGE
7.1 INTRODUCTION
In previous chapters, we reviewed the basic concepts and procedures relating to family-based
immigration. Several immigration law provisions, however, apply specifically to immigration based on
marriage to a U.S. citizen (USC) or lawful permanent resident (LPR). Some of these provisions are intended to
deter immigration based on a fraudulent or "sham" marriage, including:
• Conditional residency status for spouses and their children immigrating based on marriage within
two years of the marriage;
• Restrictions on filing an I-130 spouse petition where a marriage takes place while the noncitizen
spouse is in removal proceedings;
• Higher burden of proof for I-130 approval where an LPR is petitioning for a spouse within five
years of immigrating based on a prior marriage to a USC or LPR;
• Bar to qualifying as a beneficiary of a future family-based petition after a government
determination that a noncitizen entered into fraudulent marriage; and
• Deportability based on a presumption of marriage fraud.
Other sections of the Immigration and Nationality Act (INA) provide special remedies or benefits to those who
are fiancé(e)s of USCs or are married to USCs:
• Option to seek K-1 nonimmigrant fiancé(e) visa to travel to the United States to marry a USC
fiancé(e) petitioner and adjust status after arrival, and
• Option for noncitizen spouse of USC to apply for K-3 nonimmigrant visa to travel to the United
States after an I-130 has been filed by the USC spouse.
Each of these marriage-related restrictions and special remedies is described below.
CONDITIONAL RESIDENCE
A. OVERVIEW
Certain spouses, and their children, who immigrate on the basis of marriage are subject to a two-year
"conditional residence" period. The persons affected are spouses who receive LPR status based on a marriage
that occurred within two years of obtaining permanent residency. Conditional status also applies to the
children, sons, or daughters of the conditional resident spouse if they enter the United States as immigrants or
are approved for adjustment of status based on their parent’s marriage to a USC or LPR within two years of
the marriage.
Although the INA does not limit conditional residency to those who immigrate based on marriage to a
USC, as a practical matter it has not been common for the spouse of an LPR in the F-2A category to be a
conditional resident. This is because the typical backlogs in the F-2A category have made it unlikely that the
immigrating spouse would become an LPR within two years of the marriage.
Conditional residents have the same rights and benefits as full permanent residents. They can work in
the United States without additional authorization, travel to and from the United States, and file family-based
petitions for other family members. However, their conditional residence will terminate and not covert to full
permanent residence unless the conditional resident takes steps, described below, to remove the conditions on
his or her residency.
B. CONDITIONAL RESIDENT STATUS IN ACTION

The scenarios below illustrate when conditional residence does, and does not, apply.
Example: Peggy, from Ireland, married Tom, a USC, in January 2017. Peggy has two children, ages
8 and 10, from a prior marriage. On August 10, 2018, Peggy and the children all adjusted status
based on I-130 petitions filed by Tom. They are all conditional residents because they obtained LPR
status based on Peggy’s marriage to Tom, and all received residency status within two years of that
marriage. Their conditional residence status will expire on August 10, 2020.
Example: Bishara, from Kenya, married USC Louise on February 20, 2017. On January 10, 2019
Bishara's immigrant visa was approved at his consular interview, but he waited until March 1, 2019
to fly to the United States. Bishara is not a conditional resident because he was already married for
more than two years at the time of his admission to the United States on March 1, 2019.
Example: Hilda, from Peru, married Enrique on May 5, 2016. The following year, Hilda adjusted
status as a derivative beneficiary spouse based on the F-4 petition filed for Enrique by his USC brother.
Although Hilda immigrated as the derivative beneficiary of her spouse within two years of her
marriage, she is not a conditional resident. Conditional residency only applies where a spouse
immigrates directly based on a spousal petition.
C. REMOVING THE CONDITIONS ON RESIDENCE

Conditional residents must file an I-751, Petition to Remove Conditions on Residence, in order to remain
permanent residents. The form allows the conditional resident applicant to indicate whether the petition is being
filed jointly with his or her spouse or whether instead the petition is based on a waiver of the joint petition based
on divorce, battery or extreme cruelty, or extreme hardship. Where the petitioner spouse has since died, the
conditional resident may also file an I-751 petition based on showing that the underlying marriage was
entered into in good faith and that the spouse has died. Each of these options is described below. If the I-751
petition is approved, the applicant is granted permanent residency without conditions and will be issued a
residency card with the customary ten-year validity period.
1. Filing a Joint Petition to Remove Conditions

The conditional resident should file a joint petition on Form I-751, signed by both spouses, within 90
days before the second anniversary of the conditional residence. The supporting evidence must include
documentation establishing a bona fide marriage. If the joint petition is not filed within this period, conditional
residence may be terminated and the noncitizen may be placed in removal proceedings.
2. Exemption Based on Death of Petitioner Spouse

The conditions may also be removed if the marriage was entered into in good faith and the petitioner
spouse is deceased. Technically, this is considered an “exemption” from the joint filing requirement rather than
a waiver. If filing the I-751 on this basis, the conditional resident should submit a copy of the death certificate
with evidence of a bona fide marriage.
3. Filing a Waiver of the Joint Petition Requirement

If the couple cannot complete a joint petition – because the marriage has terminated or the USC spouse
does not desire to cooperate in removing the conditions – then the conditional resident needs to file an I-751
requesting a waiver. A waiver may be available based on one or more of three grounds:
a. Divorce Waiver
The conditional resident may apply for a waiver if the marriage was entered into in good faith but
ended in divorce. The waiver should include documentation of termination of the marriage and provide
evidence that the marriage was bona fide. The divorce must be final, not just pending, in order for a waiver on
this basis to be approved. Under current USCIS policy, however, an I-751 waiver request based on divorce
can be filed with proof of the pending divorce, which will trigger the issuance of a Request For Evidence (RFE),
providing the conditional resident with a period of 87 days to submit the final decree. A conditional resident
who does not anticipate having a final decree within three or four months after filing the I-751 needs at least
one additional basis for requesting a waiver of the joint petition requirement.
Example: Hortenica became a conditional resident based on immigrating within two years of her
marriage to USC Raul. Six months before the expiration of her status, Hortencia found out that Raul
was having an affair. Raul moved out of their home and Hortencia filed for divorce. Hortencia is seeing
a doctor for help with the depression and anxiety she has experienced as a result of these marital
issues. She fears confiding in her family in Mexico because they oppose divorce. Hortencia’s
conditional residency card will expire in one month, but her divorce is not likely to be final for another
five or six months. Under the circumstances, Hortencia may decide to seek a waiver both based on
divorce and on extreme hardship. This will protect her waiver eligibility in the event that she does not
have a final divorce decree by the RFE deadline set by USCIS.
b. Extreme Hardship Waiver
A conditional resident may seek a waiver of the joint filing requirement based on extreme hardship.
Only those hardship factors arising after obtaining conditional resident status will be considered. Proof of
good faith marriage is not required, but advocates should expect that it will be very difficult to obtain an
extreme hardship waiver if USCIS suspects the marriage was not bona fide.
c. Battered Spouse Waiver

This waiver is available when a conditional resident or his or her child was battered or subjected to
extreme cruelty by his or her spouse or parent. The conditional resident must also show that the marriage was
entered into in good faith.
D. TERMINATION OF CONDITIONAL RESIDENCE, AND REIVEW IN REMOVAL PROCEEDINGS

Termination of conditional residence occurs if no joint petition or waiver is filed, or if the I-751 joint
petition or waiver is denied by USCIS. When conditional residency is terminated, USCIS will normally issue a
Notice to Appear and initiate removal proceedings. A denied I-751 waiver may be reviewed in removal
proceedings before an immigration judge (IJ). If the conditional resident did not previously file an I-751 joint
petition or waiver, he or she will need to request a continuance of the court proceedings to file the petition with
USCIS. An IJ only has authority to review an I-751 that has been submitted to USCIS and then denied.
Example: Conditional resident Lucas failed to file an I-751 when his status expired. Two years later,
he was placed in removal proceedings for being out of status and failing to file an I-751 petition. Lucas
has strong evidence that he was in a bona fide marriage, and he and his wife have since divorced.
Lucas must file his I-751 petition with USCIS and ask the IJ to postpone his hearing while the I-751
waiver petition is reviewed. If the waiver is approved, Lucas will move to terminate proceedings before
the IJ because, with the approval of the I-751, he is now an LPR. If the waiver is denied, the IJ has
authority to review the decision.
7.2 OTHER PROVISIONS RELATED TO PREVENTING MARRIAGE FRAUD
A. OVERVIEW
Other sections of the INA address marriage fraud concerns by creating a higher burden of proof of
bona fide marriage for I-130 spousal petitions in certain circumstances, and by creating penalties for those
determined to have entered into a sham marriage to immigrate. These provisions are described below.
B. MARRIAGE IN REMOVAL PROCEEDINGS

Special rules apply to the adjudication of an I-130 petition filed for a spouse when the marriage took
place while the noncitizen spouse is in removal proceedings. In this situation, the I-130 relative visa petition
will not be approved unless the beneficiary has resided outside the United States for two years after the
marriage. Petitioners can request an exemption from this requirement by presenting “clear and convincing
evidence” that the marriage is bona fide. This is a higher standard of proof than the "preponderance of
evidence" standard (i.e. more than 50 percent likely) that otherwise applies to the adjudication of petitions. If
this burden of proof is not met, the I-130 petition will not be approved until the foreign national spouse has
resided outside the United States for two years. The I-130 petitioner must request this exemption in writing at
the time of filing the I-130 and I-130A.
Example: Cristina, from Guatemala, was arrested in May 2015 as she attempted to enter the United
States without inspection. She was placed in removal proceedings and is awaiting her court date to
testify in support of her application for asylum. Two months ago, Cristina married USC Frank, who
wants to petition for Cristina. The petition can only be approved while Cristina is in the United States if
Frank submits a written request for an exemption from the two-year foreign residence requirement and
presents clear and convincing evidence that his marriage to Cristina is bona fide.
C. HIGHER BURDEN OF PROOF FOR CERTAIN LPR PETITIONERS

The INA imposes restrictions on the approval of a spouse petition filed by an LPR who immigrated
through a prior marriage. In this circumstance, the LPR must show that either: (a) LPR status was granted more
than five years prior to filing the petition for the current spouse; (b) the prior marriage was terminated by the
death of the prior spouse; or (c) clear and convincing evidence establishes that the prior marriage was bona
fide.
Example: Sadie, from Ukraine, immigrated on November 5, 2015 based on marriage to USC Daniel.
In February 2018, Sadie and Daniel divorced, and the following year, on March 3, 2019, Sadie
married Yaroslav, who is also from Ukraine. If Sadie files an I-130 petition for Yaroslav before
November 5, 2020, she will need to present clear and convincing evidence that her marriage to
Daniel was bona fide. If Sadie delays filing the I-130 petition until more than five years after her date
of immigration, i.e. after November 5, 2020, she will not be required to submit this additional evidence.
D. MARRIAGE FRAUD PENALTY

The INA prohibits the approval of petitions filed on behalf of noncitizens who ever attempted or
conspired to commit marriage fraud. Even if no benefit was obtained by the fraudulent marriage, the
noncitizen is still subject to this bar.
Example: Rania, from Malaysia, came to the United States on a tourist visa in 2012. In order to remain
in the United States when her authorized stay expired, Rania asked her good friend Mike, a USC, to
marry her. After the marriage, Rania applied for adjustment of status by submitting an I-130 petition
from Mike, and an I-485 adjustment of status application. Before the interview was scheduled, Rania
and Mike withdrew the applications because Rania was worried about the repercussions of trying to
immigrate based on a sham marriage. Rania and Mike divorced and Rania is now married to USC
Henry. Although Rania and Henry have a bona fide marriage, she will not be able to immigrate through
Henry, or through any other family petition, if USCIS determines that her prior marriage was fraudulent.
E. DEPORTABILITY FOR MARRIAGE FRAUD
An LPR who immigrates on the basis of marriage within two years of the marriage, and divorces
within two years of marriage is presumed to have engaged in marriage fraud and is deportable on that basis
under INA § 237(a)(1)(G). If charged with deportability, the LPR can defeat the charge by showing that the
marriage was indeed bona fide. This ground of deportability is not likely to affect most LPRs because, since
1986, individuals immigrating on the basis of marriage within two years of the marriage are given
conditional residency and have to address the bona fides of their marriage through the I-751 joint petition or
waiver.
Example: Eloise immigrated from Finland in 1980 based on her marriage to USC Spencer in 1979.
In 1981, Eloise and Spencer divorced. Eloise has never remarried and she now wants to naturalize.
With these facts, Eloise is subject to the presumption of marriage fraud deportability ground. At her
naturalization interview, the USCIS officer may ask her questions about her marriage and if the
officer is not satisfied with her responses, she is at risk of being placed in removal proceedings.
7.3 FIANCÉ/E PETITIONS
A. OVERVIEW
Fiancé(e) petitions provide a streamlined procedure by which USCs (but not LPRs) can help noncitizens
they intend to marry to immigrate. A USC may apply for issuance of a “K-1” nonimmigrant visa for the
noncitizen which permits the noncitizen fiancé(e) to enter the United States to marry the petitioner. To obtain a
K-1, there is a requirement that the parties must have met within two years of filing the fiancé(e) petition and
indicate that they intend to marry within 90 days of the fiancé(e)’s admission into the United States.
The process of obtaining a nonimmigrant fiancé(e) visa begins with the USC filing an I-129F petition
with USCIS. The petitioner must submit proof that he or she is a USC and that each party is free to contract a
valid marriage with the other. In addition, the petitioner must swear that each party intends to marry the other
within 90 days of the noncitizen fiancé(e)’s entry into the United States.
USCIS will approve the petition if the petitioner establishes that the parties have the legal capacity, a
bona fide relationship, and the intention to marry. Once approved, the file is forwarded to the National Visa
Center (NVC), which then sends it on to the appropriate U.S. consular office. Upon receiving the approved K
visa petition, the consulate will interview the noncitizen after he or she has obtained security clearances and
collected necessary documents. If the applicant establishes his or her eligibility for admission as a fiancé(e),
the consulate will issue the K-1 visa. Once in the United States, the K-1 fiancé(e) is expected to marry the USC
fiancé(e) within 90 days of arrival and then apply for adjustment of status. If the relationship fails, however,
and the K-1 fiancé(e) wants to immigrate through marriage to another individual, he or she will have to go
through consular processing abroad. Under INA § 245(d), a person who enters the United States as a
fiancé(e) may only adjust status as the spouse of the fiancé(e) petitioner.
B. FIANCÉ(E) VISA IN ACTION
Example: In June 2016, USC Mark met Graciela, a citizen of Argentina, when he went to visit
Patagonia. Mark and Graciela began a relationship that continued after Mark returned to the United
States, with frequent calls and two more visits by Mark to Argentina. During Mark's last visit to
Argentina, they decided to get married. Upon his return home, Mark filed an I-129F petition for
Graciela to come to the United States as a fiancé(e). The petition was approved six months later and
Graciela then completed a nonimmigrant visa application and attended a visa interview at the U.S.
consulate in Buenos Aires. Two months after Graciela arrived in the United States with her K-1 visa,
she and Mark married. A few weeks later, Graciela filed an I-485 application to adjust status as the
spouse of a USC.
Example: Akari, from Japan, came to the United States on a K-1 visa in December 2017. Although
she was excited to join her fiancé Brad in the United States, within a month of living together, she
realized the relationship was not going to work out. Akari and Brad parted ways, and Akari later met
and married USC Jaspar. Because Akari is seeking to immigrate through someone other than fiancé
petitioner Brad, she is not eligible to adjust status in the United States. Jaspar must file an I-130 petition
for Akari, and once it is approved, Akari will need to apply for an immigrant visa at the U.S. consulate
in Tokyo.
C. PREVIOUS MEETING REQUIREMENT

As a result of Congress’ attempt to deter cases involving “mail order brides,” a couple must have met
in person within the two years preceding the filing of the fiancé(e) petition. However, in some countries it is still
common practice for persons to enter prearranged marriages. In those countries, strict and long-established
customs may prevent couples from meeting between the time the marriage is arranged and the wedding day.
To accommodate these situations, the law allows USCIS to waive the previous meeting requirement in its
discretion. The regulations permit this exemption for persons who can show that (a) they are following strict
cultural practices, or (b) would experience extreme hardship if forced to comply with this requirement.
1. Established Custom Exemption

To satisfy requirements for the first exemption, the petitioner must show both that the personal meeting
would violate established customs and that all other aspects of the traditional marriage arrangements will be
followed. In cases where the couple is following cultural or social practices, they should submit affidavits from
religious or other appropriate officials attesting to the details of those traditional arrangements. Letters from
family members might also help prove that the parties are complying with requirements that they not meet
before the marriage.
2. Extreme Hardship Exception
If the petitioner is claiming extreme hardship, he or she should submit all possible supporting evidence.
This might include evidence of the following: the couple’s having met before the two-year period; political
conditions preventing travel to the fiancé(e)’s country; problems preventing the fiancé(e) from leaving the home
country and traveling to the United States; financial barriers; or medical problems that have affected the
mobility of either party.
The statute, regulations, and legislative history provide little guidance as to what factors USCIS should
consider in granting exemptions under either of the two grounds. As a result, petitioners should provide as
much documentation as possible to show a bona fide intent to marry and eligibility for the requested exemption.
There are many conceivable situations that could give rise to a legitimate claim by the parties that hardship
prevented their being able to see each other during the preceding two years. Cases are common in which
couples have met and carried on a long-distance relationship, but due to financial, political, or medical reasons
have been unable to meet during the preceding two years.
D. ADDITIONAL REQUIREMENTS FOR FIANCÉ(E) PETITIONERS

Legal provisions enacted in 2005 are intended to protect a prospective spouse from abuse by the
fiancé(e) petitioner. These provisions limit the number of fiancé(e) petitions that may be filed by a petitioner
and require the petitioner to disclose certain criminal convictions on the I-129F petition. While criminal
convictions do not affect the approvability of the petition, the law requires that the consular officer advise the
fiancé(e) abroad of the convictions disclosed in the I-129F petition, and provide the fiancé(e) visa applicant
with a resource pamphlet developed by DHS that addresses marriage-based immigration issues, including the
legal rights of survivors of domestic violence.
E. CHILDREN OF FIANCÉ(E)S
The unmarried children of a foreign national granted a K-1 visa may obtain a K-2 visa to accompany
or follow-to-join the fiancé(e). After the parent has married the USC, the children may adjust status in the same
way as the parent, even though they might have been over 18 at the time the marriage took place and
otherwise would not satisfy the definition of stepchildren. In addition, a K-2 visa holder who entered the United
States before age 21 may adjust status even if he or she turned 21 before the adjustment application was filed
or adjudicated.
Example: Lien, from Vietnam, received a K-1 visa to travel to the United States and marry her USC
fiancé Keith. Her 19-year-old daughter Mai was issued a K-2 visa and plans to move to the United
States with her mother. After Lien and Keith marry, Lien and Mai will both be eligible to file for
adjustment of status. Mai's eligibility to adjust status is not affected by: (a) being too old to qualify as
Keith's stepdaughter; and (b) possibly being over age 21 at the time the adjustment of status
application is adjudicated.
F. TWO-YEAR CONDITIONAL RESIDENCE FOR FIANCÉ(E)S
A noncitizen fiancé(e) is required to marry the citizen petitioner within 90 days of entry or lose his or
her lawful status and be subject to removal. After the marriage, the noncitizen spouse must file for adjustment
of status and will be subject to the two-year conditional residence requirement discussed above, assuming the
adjustment of status application is approved within two years of the marriage of the K-1 fiancé(e) and the USC
petitioner. Note that as long as the parties have married within 90 days of the noncitizen spouse’s entry, no I-
130 is required; the noncitizen spouse just submits an application for adjustment of status, with the customary
supporting documents. Adjustment of status requirements and procedures are discussed in Chapter Eight.
7.4 K-3 AND K-4 FOR SPOUSES OF USCS AND THEIR CHILDREN
A. OVERVIEW
The K-3 visa was created in 2000 to enable the spouse of a USC to enter the United States to await
the adjudication of a pending I-130 petition and then apply for adjustment of status. At the time the visa was
created, there were significant delays in the adjudication of spouse immediate relative I-130 petitions,
resulting in prolonged separation of spouses. The K-3 was intended to remedy this problem by allowing the
spouse I-130 beneficiary to enter the United States to await petition adjudication while reunited with the
USC spouse.
The K-3 application process begins with the USC spouse filing an I-129F petition, the same form used
by USCs to file for fiancé(e)s. The petition must include proof that an I-130 petition has already been filed by
the USC on behalf of his or her spouse. After the petition is approved, it is forwarded to the NVC for pre-
processing before being sent to the designated consulate abroad. Once the case is at the consulate, the
noncitizen spouse applies for a K-3 visa; any unmarried children of the K-3 applicant are eligible to apply for
K-4 derivative visas.
Under current policy, the NVC will not proceed with the processing of a K-3 visa application if the I-
130 is approved first or before consular processing for the K-3 has been advanced. This means that it only
makes sense to pursue a K-3 visa where USCIS processing times indicate that the 129F petition is likely to be
adjudicated sooner than the I-130 petition. You can check current processing times on the USCIS website.
Where’s the Law?
Conditional Residence:
• INA § 216
• 8 CFR § 216
Marriage in Removal Proceedings:
• INA § 204(g)
Petition for Subsequent Spouse:
• INA § 204(a)(2)(A)
Marriage Fraud Penalty:
• INA § 204(c)
Deportability Based on Marriage Fraud:
• INA § 237(a)(1)(G)
Fiancé(e) Visas:
• INA § 214(d)
• INA §245(d)
• 9 FAM 502.7-3
K-3 Visa:
• INA § 101(a)(15)(k)(ii)
Practice Tips
• Be aware of when your client can avoid having conditional residence status (rather
than lawful permanent residence) by changing the timing of the final adjudication, e.g.
rescheduling a consular interview, or waiting to enter the United States until after the
second anniversary of the underlying marriage.
• Provide a written advisal to conditional resident clients about the need to take action to
remove the conditions on their residency before the expiration of conditional resident
status.
• If the noncitizen stepchildren of a USC or LPR immigrate through the stepparent, but the
noncitizen spouse does not, the children should not be classified as conditional
residents. This may happen when the noncitizen spouse is unable to immigrate because
she or he is subject to a ground of inadmissibility that cannot be waived, but the USC or
LPR stepparent has petitioned for the stepchildren. If there is no conditional resident
spouse, the children should be approved for full LPR status.
• Review the marital history of the petitioner and beneficiary to be aware of any fact
patterns that may raise the issue of sham marriage to a USCIS or DOS adjudicator.
• When the fiancé(e) of a USC lives abroad, review the pros and cons of marrying
abroad and then filing an I-130 for the noncitizen spouse versus applying for the
noncitizen spouse to come to the United States as a fiancé(e) to marry after entry.
Chapter 8
OVERVIEW OF THE APPLICATION PROCESS FOR
PERMANENT RESIDENCE
8.1 INTRODUCTION
In Chapter Five, we learned that family-based immigration is usually a two-part process. First, the U.S.
citizen (USC) or lawful permanent resident (LPR) files an I-130 petition for the qualifying relative, which
establishes the beneficiary’s priority date. Then, once the priority date is current, the beneficiary and any
derivative beneficiaries may apply to immigrate based on the approved petition, either by filing for adjustment
of status in the United States or by seeking an immigrant visa with a U.S. embassy or consulate overseas. The
application for LPR status is the stage of the process where the intending immigrant must establish that he or
she is admissible to the United States or eligible for a waiver of any applicable inadmissibility grounds.
In this chapter, we will describe the process for both ways of obtaining lawful permanent residence:
(1) applying with U.S. Citizenship and Immigration Services (USCIS) for adjustment of status in the United
States; and (2) applying with the U.S. Department of State (DOS) to obtain an immigrant visa overseas.
Intending immigrants who are already in the United States will likely opt for adjustment, assuming they are
eligible to do so. Among the benefits of adjusting in the United States are the ability to obtain employment
authorization and travel permission while the adjustment application is pending. However, to be eligible for
adjustment, applicants must meet the requirements in either Section 245(a) or Section 245(i) of the Immigration
and Nationality Act (INA). Petition beneficiaries who are physically in the United States but cannot meet the §
245(a) or § 245(i) criteria to adjust will have to leave the United States and apply for an immigrant visa at a
U.S. consulate or embassy abroad. Likewise, consular processing is also the mechanism used by intending
immigrants who are residing abroad. We will explain the roles of the National Visa Center (NVC) and consular
staff, both part of DOS, in reviewing immigrant visa applications, conducting interviews, and issuing immigrant
visas.
In the final section of this chapter, we will turn to the affidavit of support, a requirement for most
individuals immigrating through the family-based system, whether adjusting status or consular processing. In
this process, the petitioner is known as the “sponsor” and must submit an affidavit of support, along with
evidence that he or she can support the intending immigrant. The financial requirements can be demonstrated
by proving an annual household income equal to at least 125 percent of the Federal poverty line or can be
met by counting certain assets or by securing a joint sponsor. We will also review the types of cases in which
an affidavit of support is not required.
8.2 THE PERMANENT RESIDENCE APPLICATION PROCESS IN ACTION
The following scenarios illustrate the two ways to apply for LPR status: adjustment of status in the United
States and consular processing overseas.
Example: USC Hans recently married Argentine citizen Lorena who remained in the United States after
overstaying her tourist visa. As an immediate relative who entered with inspection, Lorena is eligible to
adjust status under INA § 245(a). Hans will file an I-130 petition for Lorena. Because immediate
relatives are not subject to the quotas, Lorena can simultaneously submit her I-485 adjustment
application, along with an I-944 Declaration of Self-Sufficiency and other supporting documents, and
applications for employment authorization and advance parole travel permission. Hans will need to
include an affidavit of support proving that he has the financial resources to support Lorena. The couple
will need to attend an adjustment interview with USCIS before Lorena can be granted LPR status.
Example: While vacationing in Guyana, USC Angie met and married Guyanese national Sheldon.
Upon returning to the United States, Angie filed an I-130 petition for her new husband. Once the
petition is approved, Sheldon will be notified by the NVC about the forms he needs to complete and
the documents he needs to gather to apply for an immigrant visa. The required documents include a
DS 5540 Public Charge Questionnaire and an affidavit of support from Angie, showing that she can
support Sheldon. After completing these steps, Sheldon will be scheduled for an interview at the U.S.
consulate in Georgetown. If his application is approved, he will be issued an immigrant visa. Upon
admission to the United States with his immigrant visa, Sheldon will be an LPR. In order to receive his
LPR card, Sheldon needs to make an online immigrant visa fee payment to USCIS.
8.3 ADJUSTMENT OF STATUS IN THE UNITED STATES
A. EVOLUTION OF THE LAW ON ADJUSTMENT OF STATUS

Under INA § 245(a), only noncitizens who were inspected and admitted or paroled and meet other
requirements may adjust status through a relative or employment petition in the United States. In the past, many
noncitizens who were ineligible to adjust under this section had to apply for an immigrant visa and return to
their home country for an interview at the U.S. consulate. If approved, they would obtain residency upon
entering the United States with their immigrant visa. This caused a great hardship to many applicants who had
to separate from family in the United States and spend great amounts of money because of the travel and time
involved.
In 1994, Congress changed the law to extend adjustment eligibility in the United States to a broader
group of applicants than those eligible under § 245(a) if they paid a penalty fee, in addition to the regular fee
to file for adjustment. The main beneficiaries of the addition of INA § 245(i) are individuals who entered the
United States without inspection. These changes, however, were enacted only on a temporary basis until
January 14, 1998. At that point, Congress let § 245(i) adjustment expire, while grandfathering in all
applicants on whose behalf a qualifying petition (I-130, I-360, I-140, I-526) or labor certification application
had been filed already. Before the enactment of § 245(i), only noncitizens who had entered the United States
with inspection and fulfilled other requirements could apply for adjustment. All others had to apply for
permanent residence abroad at a U.S. consulate. However, § 245(i) permitted many noncitizens who had
entered without inspection to adjust here upon payment of a penalty fee.
On December 21, 2000, Congress passed a second piece of legislation called the Legal Immigration
and Family Equity (“LIFE”) Act. The LIFE Act temporarily restored § 245(i) eligibility to individuals on whose
behalf a qualifying immigrant visa petition or labor certification application was filed on or before April 30,
2001. If the petition was filed after January 14, 1998, the applicant must also submit proof that the principal
beneficiary of the petition was physically present in the United States on December 21, 2000. Even now,
almost two decades later, many individuals are still able to apply for adjustment of status under INA § 245(i)
based on a qualifying petition filed before the April 30, 2001 deadline.
In the sections below, we will start by examining the criteria to adjust under section 245(a) along with
some bars under section 245(c) that prohibit adjustment for preference relatives who have worked without
authorization or have ever resided in the United States without lawful status. We will then discuss the criteria
for adjustment under section 245(i). Whether applying under § 245(a) or § 245(i), a noncitizen must not be
subject to any of the grounds of inadmissibility at INA § 212(a) or, if inadmissible, must be eligible for and
granted a waiver of the relevant ground(s). We will conclude with a review of the mechanics of the adjustment
application process.
B. SECTION 245(A): ADJUSTMENT ELIGIBILITY WITHOUT PENALTY FEE

Under INA § 245(a), a noncitizen may adjust to permanent residence in the United States, if (a) the
noncitizen was “inspected and admitted or paroled” into the United States; (b) an immigrant visa is available
at the time of filing; and (c) the noncitizen is admissible. Inspection occurs when a foreign national presents
himself or herself at a port of entry to an immigration officer for questioning and is authorized to enter the
country. As discussed in Chapter Four, an “admission” is an entry to the United States that is lawful, after
inspection. A lawful admission is one in which a noncitizen physically presented himself or herself for inspection
and did not make a false claim to U.S. citizenship. Types of admission include entry as a nonimmigrant, an
immigrant, or a refugee. Noncitizens who are “paroled” into the United States are also eligible to adjust under
INA § 245(a). Typically, parole will be based on compelling humanitarian circumstances.
Eligibility for § 245(a) adjustment is not determined solely by manner of entry. Many noncitizens who
entered with inspection may nevertheless be ineligible for adjustment under INA § 245(a) because of
provisions found at INA § 245(c). INA § 245(c) bars certain categories of noncitizens from adjusting under
§ 245(a), including:
• Alien crewmen
• Noncitizens who are in unlawful status on the date they apply for adjustment, who failed to
continuously maintain lawful status since entry into the United States or who accepted unauthorized
employment before filing for adjustment (except immediate relatives)
• Noncitizens most recently admitted in transit without a visa
• Noncitizens admitted most recently without a visa under the Visa Waiver Program (except
immediate relatives)
• Noncitizens deportable under anti-terrorism provisions of the INA
• Noncitizens who have ever engaged in unauthorized employment or otherwise violated the terms
of a nonimmigrant visa (except immediate relatives).
Note that immediate relatives are exempt from some of the § 245(c) bars. An applicant who is the spouse of
a USC, child of a USC, or parent of an adult USC may still adjust under § 245(a) even if he or she is not in
lawful immigration status on the date of filing for adjustment, failed to continuously maintain a lawful status
since entering the United States, has worked without authorization, entered under the Visa Waiver Program,
or ever violated the terms of his or her nonimmigrant status. Also, the § 245(c) bars do not apply to approved
self-petitioners under the Violence Against Women Act (VAWA) and to Special Immigrant Juveniles who are
eligible to adjust status under INA § 245(a) regardless of manner of entry, being out of status, or having
worked without authorization.
Example: Corina, from Croatia, came to the United States on an F-1 student visa in 2006. She
dropped out of school after two years and began working. She married Lucas, an LPR, in May 2016.
Under current law, Corina is not eligible for adjustment of status under INA § 245(a). Even though
Corina entered with inspection, she violated her nonimmigrant status by dropping out of school which,
under INA § 245(c)(8), makes her ineligible to adjust. However, Corina would be eligible to adjust if
Lucas naturalized. In that case, Corina would convert from F-2A to immediate relative status, and
immediate relatives are exempt from this § 245(c) bar.
Example: In January 2017, Natalia from Portugal came to the United States with a tourist visa and
was authorized to stay for six months. Instead of returning to Portugal, Natalia remained in the United
States and married a USC. Even though she is out of status, Natalia qualifies to adjust status under INA
§ 245(a) because she is an immediate relative.
C. SECTION 245(I): ADJUSTMENT WITH PENALTY FEE

Many noncitizens are not eligible to adjust status under § 245(a) because (a) they cannot prove that
they were inspected and admitted or paroled into the United States; or (b) even if they were admitted or
paroled, they are preference immigrants who have either failed to continuously maintain status or worked
without authorization. Such clients should be screened to see whether they might qualify to adjust instead under
§ 245(i).
1. Eligibility Requirements
To qualify for adjustment of status under INA § 245(i), an applicant must establish that:
• He or she is the beneficiary or derivative beneficiary of one of the following qualifying petition
types filed on or before April 30, 2001:
o Form I-130, Petition for Alien Relative
o Form I-360, Petition for Amerasian, Widow(er), or Special Immigrant
o Form I-140, Immigrant Petition for Alien Worker
o Form I-526, Immigrant Petition by Alien Entrepreneur, or
o Application for labor certification filed with the Department of Labor.
• The application or petition was “approvable when filed” meaning it was filed properly (submitted
with the proper filing fee and signature), was meritorious in fact, was not fraudulent, and, at the
time of filing, the beneficiary had the appropriate family or employment relationship to support
issuance of an immigrant visa. It does not matter if the petition was later denied, revoked or
withdrawn. What matters is that it was approvable based on the facts known at the time of filing.
• If the petition was filed after January 14, 1998 but on or before April 30, 2001, the principal
beneficiary was physically present in the United States on December 21, 2000 (the date the LIFE
Act was enacted). There is no physical presence requirement if the petition was filed on or before
January 14, 1998.
Example: USC Sylvester filed a petition for his sister Jesse on February 9, 2001 while Jesse was still in
Belize. Jesse entered the United States without inspection in 2002. Because the petition was filed on
or before April 30, 2001, it meets the cut-off date for § 245(i) adjustment. However, Jesse does not
qualify to adjust under § 245(i) because she was not physically present in the United States on
December 21, 2000.
Example: USC Sylvester filed a petition for his brother Luis on February 9, 1997. Luis entered the
United States without inspection in 2002. Since the petition was filed on or before January 14, 1998,
there is no physical presence requirement. Therefore, Luis qualifies to adjust under § 245(i) despite not
being present in the United States until 2002.
2. Grandfathering
There is no expiration date for § 245(i) adjustment eligibility. Principal and derivative beneficiaries of
a qualifying petition may still take advantage of § 245(i) through a principle called “grandfathering,” even if
seeking adjustment of status decades after the original pre-May 1, 2001 petition or based on a different,
subsequent petition. In other words, a noncitizen who meets the eligibility criteria above is grandfathered. In
that case, the grandfathered noncitizen may use § 245(i) to adjust status based on the original petition or on
the basis of a subsequent petition filed on his or her behalf.
Example: Ginelda is the beneficiary of an F-2A petition filed by her ex-spouse in 1997. They divorced
in 1999 and the I-130 petition was revoked. Now Ginelda is married to a USC who wants to petition
for her. She is not eligible to adjust status under § 245(a) because she entered without inspection. But
because she is “grandfathered” based on the 1997 “approvable when filed” petition, she can use §
245(i) to adjust status through a new I-130 filed by her current spouse.
3. Derivatives
Noncitizens eligible to file for adjustment under INA § 245(i) include not only the principal beneficiary
of a qualifying, approvable when filed petition but also any derivative beneficiaries (unmarried children under
21 and spouse of the principal) who were alive or classified as a derivative at the time the petition was filed
or on or before April 30, 2001. It is not required that the derivative was listed on the original petition. A
derivative does not need to adjust with the principal beneficiary to be considered grandfathered. A derivative
remains grandfathered even after losing the status of “spouse” through divorce or the status of “child” by
turning 21 or through marriage.
Example: Lily’s LPR father filed an F-2A petition for Lily’s mother on January 10, 1998, when Lily was
11. Lily, who entered the United States without inspection, is now over 21 and she has married Hector,
an LPR from Colombia. If Hector files a visa petition for Lily, she will be eligible to adjust status under
INA § 245(i) because she is grandfathered for § 245(i) purposes. The petition for her mother was
filed by the § 245(i) deadline and Lily qualified as a derivative beneficiary at that time. Note that if
Lily’s father had filed the F-2A petition on January 20, 1998, Lily would only be eligible to adjust status
if she could show that the principal beneficiary of the petition – her mother – was physically present in
the United States on December 21, 2000.
In contrast, a derivative beneficiary who came into existence after the § 245(i) filing deadline (i.e. a
spouse who married the principal after April 30, 2001 or a child born to the principal after April 30, 2001),
is considered an “after-acquired beneficiary.” These individuals do not qualify as derivatives of the original
petition and do not acquire independent grandfathered status. They can only adjust under § 245(i) if they are
adjusting as a derivative of the grandfathered principal beneficiary’s adjustment application in a preference
category.
Example: In 1999, Claude’s USC mother filed an I-130 for him. Since that petition was approvable
when filed, Claude is grandfathered under § 245(i). In 2010, Claude married his wife, Maribel.
Maribel entered the United States without inspection in 2003. Claude’s F-3 priority date is now current.
Since he and Maribel married after April 30, 2001, Maribel is an after-acquired derivative and can
also benefit from § 245(i) as long as she is adjusting status as Claude’s dependent. However, if the
couple divorces before Maribel is able to immigrate, she loses her § 245(i) eligibility since she is not
independently grandfathered.
When screening clients, remember to ask not only whether a qualifying petition was filed on their behalf
by April 30, 2001 but also whether such a petition was filed on behalf of their spouse, prior spouse or parent.
If no prior petition was filed on behalf of your client, or his or her spouse, ex-spouse, or parent, adjustment of
status under § 245(i) is not an option.
4. Penalty Fee
As discussed above, § 245(i) adjustment applicants must pay a penalty fee of $1000 in addition to
the standard filing fee for the adjustment application. Children under age 17 and Family Unity applicants or
beneficiaries do not have to pay the penalty fee. Family Unity is a special status for spouses and unmarried
children of individuals who gained their LPR status through the legalization programs. The relative must have
been in the United States before May 5, 1988, or December 1, 1988, depending on the legalization program,
and must have applied to the Immigration and Naturalization Service or USCIS for the status.
D. ADJUSTMENT AND THE GROUNDS OF INADMISSIBILITY

Being eligible to file for adjustment of status under § 245(a) or § 245(i) is not the same as being
eligible for LPR status. To become an LPR, an applicant must prove that he or she is not inadmissible under §
212(a) or is otherwise eligible for a waiver. Practitioners must screen clients carefully for all grounds of
inadmissibility at the outset of representation. If a client’s conduct has triggered a 212(a) ground, determine
whether the applicant will qualify for a waiver of inadmissibility, assuming that a waiver is available. Applying
for adjustment and being found inadmissible and not eligible for a waiver will result in a denial of the
adjustment application. Moreover, USCIS policy is to issue a notice to appear (NTA) upon denying adjustment
applications of individuals who are either inadmissible or deportable. Therefore, if an undocumented client
will not be eligible for LPR status, it will not make sense for the family member to proceed with filing an I-130
for that relative, given the likelihood of ending up in removal proceedings.
Example: Omar entered the United States from Mexico on a border crossing card in 2010 and
remained past his authorized stay. He is now married to USC Katya who wants to petition for him.
Omar would be eligible for § 245(a) adjustment as an immediate relative who was inspected and
admitted. However, during your inadmissibility screening, you learn that Omar also brought his ten-
year-old nephew to the United States with him using someone else’s border crossing card. Because
his conduct is considered smuggling, Omar will be found inadmissible on this basis. He will not be
eligible for a waiver because the person he assisted to enter unlawfully was not his spouse, parent,
son, or daughter. Since Omar will not be able to show he is admissible in order to adjust, it will not
make sense for Katya to file an I-130 on his behalf.
The inadmissibility grounds that arise the most often for those seeking LPR status abroad are the three-
and ten-year bars at INA § 212(a)(9)(B). These apply to noncitizens who have accrued a certain amount of
unlawful presence in the United States and then depart the country. One of the many benefits to adjusting status
as opposed consular processing is that someone living without status in the United States can avoid a departure
which would trigger an unlawful presence bar.
Example: Julia entered the United States with a tourist visa in 2000 and has remained here since then.
She married her USC spouse last year and has now applied for adjustment of status under § 245(a).
Even though Julia has been accruing unlawful presence since her authorized stay expired, she is not
inadmissible under INA § 212(a)(9)(B) because she does not have to depart the United States to
apply for LPR status. If Julia did not qualify to adjust and instead had to apply for an immigrant visa
abroad, her departure would trigger the unlawful presence inadmissibility ground.
For a review of the various grounds of inadmissibility, please refer to Chapter Four.
E. ADJUSTMENT AND DISCRETION

Adjustment of status is a discretionary decision by USCIS. Even if an applicant satisfies the other
statutory requirements to adjust under INA § 245(a) or § 245(i), he or she may be denied based on negative
factors that the adjudicator finds significant. For example, certain criminal convictions or fraud may not
constitute conduct that triggers inadmissibility but could still be grounds for a discretionary denial. If there are
serious adverse factors in a client’s background, make sure to explain them, highlight the positive factors in the
client’s case, and argue that, because the positive factors outweigh the negative ones, the client merits a
favorable exercise of discretion.
F. THE ADJUSTMENT APPLICATION PROCESS

The application for adjustment is made on Form I-485. It is possible to file an I-130 visa petition along
with the I-485 application in a “one-step” process for a person who will be eligible to adjust as soon as the
visa petition is approved, such as an immediate relative. Other persons will have to file their I-485 with an
approval notice of their previously filed I-130 petition (or I-360 or I-140, if applicable) once the Visa Bulletin
reflects that, based on their priority date, they are eligible to file an application. Adjustment applicants should
consult the Visa Bulletin Chart B reflecting Dates for Filing Applications, as long as USCIS allows for using
Chart B to file for adjustment. This will be noted on the USCIS website at www.uscis.gov/visabulletininfo. If
applying under INA § 245(i) the adjustment applicant must also submit a Form I-485 Supplement A, along
with the $1,000 penalty fee, unless an exemption applies. If the § 245(i) adjustment applicant is grandfathered
based on a petition filed after January 14, 1998 but on or before April 30, 2001, the application must include
proof that the principal beneficiary of the qualifying petition was physically present on December 21, 2000.
Example: Monica, from Mexico, entered the United States without inspection in 1999 and has
remained here since then. The following year, her USC brother filed a petition on her behalf. In 2004,
Monica’s 17-year-old daughter Alejandra entered the United States without inspection to live with her
mother. The F-4 priority date is not current, but Monica and Alejandra are now each married to USCs
and want to adjust status through their spouses. Because the F-4 petition was filed on or before April
30, 2001 and Monica was physically present in the United States on December 21, 2000, they are
each “grandfathered” under § 245(i). They can each file a “one-step” adjustment including both the
I-130 petition and the I-485 application. Their application packets will each need to include the I-485
Supplement A and proof that Monica was physically present on December 21, 2000.
1. What to Include in Adjustment Application Packet
Before filing, always consult the USCIS website for the current version of the I-485 and other forms, a
list of required supporting evidence, and relevant filing and biometrics fees. Any foreign language document,
such as a birth or marriage certificate, must be accompanied by a certified English language translation. The
USCIS website also has instructions about the appropriate filing location for the adjustment application.
Remember that, under current USCIS policy, USCIS will likely not issue a request for evidence (RFE) if the
application lacks required initial evidence. Instead, USCIS may just deny the application and issue an NTA if
the applicant is not lawfully in the United States.
Note that applicants for adjustment of status must submit a medical examination report on Form I-693
performed by a USCIS-approved civil surgeon. Results of medical submitted on or after November 1, 2018
must be signed by the civil surgeon within 60 days of submission. Once submitted, the results will be valid for
two years from the date of the civil surgeon’s signature. The medical exam results may be submitted
concurrently with the adjustment application, in response to a request by USCIS, or at the time of the interview.
With long wait times for adjustment interviews in some jurisdictions, it may be advisable to wait to obtain a
medical examination until an adjustment interview is scheduled or USCIS requests submission. This will avoid
needing to obtain a new medical exam if the adjustment of status application is pending for more than two
years.
While optional, adjustment applicants can simultaneously request an employment authorization

document (EAD) and advance parole travel document with no additional filing fee. Ideally, the requisite I-765
and I-131 application forms should be included with the adjustment application.
2. What Happens After Filing?

Once the application is accepted for processing, USCIS will send a receipt notice for each form type
with a unique receipt number. Next, the applicant will receive a notice for a biometrics appointment at a local
Application Support Center. The fingerprints and photographs taken at the appointment allow USCIS to
conduct required background and security checks. USCIS will also process any applications for an EAD
and/or advance parole submitted with the adjustment of status application.
Many family-based adjustment applicants will be interviewed at the USCIS field office that has
jurisdiction over the applicant’s place of residence. Depending on how soon an interview for adjustment is
scheduled, some documents may have to be updated at the interview, especially financial documentation and
offers of employment, and possibly medical exams. At the interview, the USCIS officer will review the
information in the application to confirm that it is accurate. The applicant should bring the originals/certified
copies of any document they submitted as a copy. Applicants immigrating through marriage should be
prepared to answer questions about the validity of their marriage. An adjustment applicant may be
accompanied to the interview by their legal representative; legal representation at interviews is recommended
in cases involving complex legal issues, where there are concerns about the applicant’s adjustment eligibility
due to criminal history or other inadmissibility issues, or when the client is otherwise vulnerable.
If USCIS needs further information to make a decision, it may issue an RFE and the applicant will usually
have 30 days to respond. Adjustment applicants are required to notify USCIS of any change in address within
10 days of moving. Failure to update one’s address with USCIS can lead to the applicant not receiving
important notices about the case, and failure to attend an appointment or interview or respond to an RFE will
result in the application being denied based on abandonment.
If the adjustment is approved, the applicant will receive an approval notice; the Form I-551, Permanent
Resident card (“green card”) will be mailed to the applicant. In the interim, he or she may request an I-551
passport stamp to serve as temporary evidence of LPR status. If the adjustment application is denied, USCIS
must provide the reasons for denial. If the applicant does not have underlying lawful status to fall back on, a
denial will likely result in USCIS issuing an NTA commencing removal proceedings. Applicants placed in
removal proceedings may request a de novo review of the application by the immigration judge. There is no
appeal of an I-485 denial, but other possible options include filing a motion to reopen or reconsider with
USCIS or re-applying. Under current USCIS policy, an NTA will generally not be issued while a motion to
reopen or reconsider is pending.
Example: Marlena’s application for adjustment of status was denied because she failed to include a
translation of her marriage certificate. Marlena plans to file a timely motion to reopen with the
translation she failed to submit initially. In these circumstances, USCIS is likely to not issue an NTA while
the motion to reopen is pending. If the motion to reopen is approved, Marlena’s adjustment application
may then be approved.
G. OTHER BASES FOR ADJUSTMENT OF STATUS

The prior discussion on adjustment of status focused on INA § 245(a) and § 245(i) since these are
the paths to LPR status taken by most adjustment applicants, including beneficiaries of family-based petitions,
employment-based petitions, and Diversity Lottery Visa applicants. Employment-based immigration and the
Diversity Visa Lottery are covered in Chapter Ten. Some noncitizens, however, are eligible to apply for
adjustment of status based on other statutory provisions. For example, victims of severe forms of trafficking
who have been granted T nonimmigrant status can apply to adjust under the provisions of INA § 245(l)
while victims of certain serious crimes who have obtained U nonimmigrant status adjust according to the
requirements set forth in INA § 245(m). This is discussed in Chapter Eleven. Refugees and asylees are
eligible to apply for adjustment under INA § 209 once certain conditions have been met. Registry at INA
§249 enables certain individuals who have been present in the United States since January 1, 1972, the
ability to apply for adjustment of status, even if they are here unlawfully. The requirements for Cubans living
in the United States who seek to adjust status under the Cuban Adjustment Act of 1966 are not part of the
INA but are contained in Public Law 89-732.
It is important to make sure you are consulting the relevant legal authority when assessing a client for
eligibility to adjust status, depending on their specific pathway to LPR status. Also keep in mind that the
grounds of inadmissibility and related waivers may apply differently to clients, depending on the statutory
basis of their eligibility to adjust status.
8.4 CONSULAR PROCESSING OVERSEAS
Applicants who are not eligible for adjustment of status under § 245(a) or § 245(i) may apply for
lawful permanent residency by seeking an immigrant visa at a U.S. consulate abroad. This process, known as
“consular processing,” is described below.
A. OVERVIEW OF THE PROCEDURE

Consular processing is always a two-part process. In the family- and employment-based immigration
context, it usually begins with the filing of an I-130 or I-140 petition with USCIS. Once approved and when
an immigrant visa is available, beneficiaries can apply for an immigrant visa with DOS. Consular processing
is handled by two DOS components: the NVC and the immigrant visa section at the relevant U.S. consulate or
embassy abroad. Here is a summary of the process with each step explained in greater detail below.
Log on to Consular Electronic Application Center (CEAC)
Pay affidavit of support and immigrant visa fees
Submit DS-260 visa application form
Submit I-864 and financial documents
Submit other documents to the NVC
Prepare for consular interview
Attend medical exam and consular interview abroad
Once visa issued, pay USCIS immigrant fee
Present immigrant visa and sealed immigrant packet to CBP at port of entry
Enter United States as LPR
Receive green card in mail
B. NATIONAL VISA CENTER
Assuming the I-130 indicated the beneficiary would be consular processing, after approving the I-
130, USCIS sends notice to the petitioner and forwards the approved petition to the NVC. Located in
Portsmouth, New Hampshire, the NVC handles pre-processing of immigrant visa applications and document
review before forwarding the completed file to the appropriate U.S. consulate. If the applicant is an immediate
relative or when the priority date is “current” based on the Visa Bulletin Chart B for those in a preference
category the NVC advises the intending immigrant that he or she is eligible to pay the fees, complete forms,
and submit documentation for an immigrant visa. At this time, NVC also informs the intending immigrant of the
specific documents needed and explains the process of obtaining the immigrant visa through the consulate.
For almost all consular posts, the NVC schedules the appointment for the immigrant visa interview. After initial
processing is complete, the NVC forwards the approved I-130, the completed forms and documentation to
the appropriate consular post abroad.
To obtain LPR status, the intending immigrant will apply for an immigrant visa at one of the following
U.S. consulates: (1) the consulate in the country where the person last resided; (2) the consulate in the country
where the person is currently residing and intends to remain throughout the processing stage; (3) any other
consulate that will accept jurisdiction of the case if the person is currently residing in the United States and
establishes hardship if forced to return to the country of last residence. In the last situation, hardship can be civil
unrest or war, but cannot simply be economic factors. Applicants from a country with which the United States
does not maintain diplomatic relations will process their applications at a consulate designated by the DOS.
NVC processing begins with creation of a case based on information found on the I-130. A case
number is assigned and notification is sent instructing the applicant to log on to the Consular Electronic
Application Center (CEAC) to check case status, pay fees, submit documents and read messages. If the
applicant is in a preference category that is not yet current, the NVC stores the approved I-130 petition until
the case is ready for further processing.
The NVC sends notices by regular mail unless an e-mail address is on file. Notices will be sent to the
attorney or accredited representative who assisted in filing the I-130 and submitted a Form G-28, Notice of
Appearance as Attorney or Representative. If the petitioner filed the I-130 pro se, or there is a change in
representation, a Form G-28 can be submitted to the NVC through the “Ask NVC” public inquiry form
described below. Applicants processing through CEAC may provide up to six e-mail addresses, and
correspondence will be sent to each address.
Example: Illona’s father filed an F-1 petition for her in 2012 with the assistance of an accredited
representative. The family was just notified by the NVC that Illona, who is in Ukraine, can begin
consular processing. Her father wants to retain you to represent Illona in the immigrant visa process.
You should submit a G-28 Notice of Appearance on the case. Once the NVC has updated its records,
it will begin sending all correspondence about her case to you as the representative.
The immigrant visa and affidavit of support fees should be paid electronically from a checking or
savings account held at a U.S. financial institution. To pay online, payers are instructed to go to the CEAC
Immigrant Visa Invoice Payment Center and follow the fee collection instructions. Currently, the fee for the
affidavit of support is $120 and the immigrant visa fee is $325 for family-based processing.
C. PRE-SCREENING
The next step in consular processing is a “pre-screening” to determine that the applicant is ready to
present all the required documents and forms for the consular interview. After the necessary fees have been
paid, all applicants must complete and submit the DS-260, Online Immigrant Visa and Alien Registration
Application. The form is completed and submitted through the CEAC website. It asks for standard biographical
data on the applicant and includes questions related to the applicant’s admissibility to the United States. Once
submitted, there is currently no way for the applicant to make edits or corrections before the interview so make
sure all information is entered correctly prior to submitting. All information entered online is accessible by the
NVC and consular posts, and the applicant is not required to submit a paper version to the NVC or bring a
copy to the visa interview.
The petitioner must complete and submit the Form I-864 affidavit of support and supporting
documentation to the NVC. Additionally, the applicant must submit civil documents and police certificates
(unless the applicant is from a country where one is not available). The NVC will review the documents and
forms for completeness and may send a notice to the representative or agent if there are any missing documents
or deficiencies on the forms. This notice will include a list of the missing documents and/or instructions on
correcting incomplete forms.
For most cases, the applicant will be instructed to submit documents electronically through CEAC.
Applicants must scan and save the I-864, financial evidence, civil documents and translations and then upload
these documents to their CEAC account online. If uploading documents on CEAC, the applicant should not mail
documents to the NVC but must be prepared to present the original physical documents, plus a photocopy of
each, at the time of the visa interview. However, for some older cases, photocopies of the documents are mailed
to the NVC. The NVC will instruct the applicant on the correct submission method to use. If submitting by mail, it
is important to return these documents with the original NVC instruction letter that contains the case number
and bar code.
As of February 24, 2020, the new DOS public charge rules are in effect. Immigrant visa applications
should prepare the DS-5540 Public Charge Questionnaire and related documents to bring to the interview
or to upload into CEAC. At the present time, NVC does not have a role in reviewing the DS-5540 but this
may change in the months to come.
For information on the status of a case pending at the NVC, one may call the automated voice center
at (603) 334-0700. Alternatively, there is an “Ask NVC” public inquiry form for case inquiries that can be
used by a petitioner, immigrant visa applicant or legal representative of record; you can access the form with
this link: travel.state.gov/content/travel/en/us-visas/visa-information-resources/ask-nvc.html
D. CONSULAR APPOINTMENT
Applicants are generally notified about the date and time of their immigrant visa interview four to six
weeks in advance via an appointment letter issued by the NVC. The letter instructs applicants to visit the DOS
website for interview preparation instructions and to review consulate-specific instructions. The consulate
website provides information to the visa applicant on how to prepare for the medical examination and reminds
the applicant of all the necessary original documents that must be available at the time of the interview.
Additionally, applicants are advised about the interview process, including that:
• Failure to bring a copy of the appointment letter to the interview may delay the interview;
• No final arrangements regarding travel, or termination of employment or sale of property abroad
should be made prior to the issuance of the visa;
• It may be necessary to spend several hours at the consulate before a decision is made on the
application. In addition, applicants may not receive a visa on the day of the appointment and may
have to return to the consulate at a later date. At some consulates, such as in Ciudad Juarez,
Mexico, the visa applicant will be sent the decision by DHL courier service a few days after the
interview; and
• No assurances can be given in advance that a visa will be issued.
In addition to the general notices provided on the DOS website, applicants are advised to look at the
specific instructions provided by the individual consulate to determine if there are other requirements or
documents needed.
Example: USC Hadicha filed an I-130 for her brother, Parviz, which was approved in 2006. This
year, the Visa Bulletin indicated his F-4 priority date was current and NVC contacted Parviz to begin
consular processing. After submitting all required documents, Parviz and his wife, both in their 80s,
were scheduled for immigrant visa interviews at the U.S. embassy in Kazakhstan. The accompanying
instructions asked them to schedule medical exam appointments at one of the designated medical
clinics in Almaty at least a week prior to their interview date. The instructions also provided that another
person could accompany the visa applicant to the interview to assist if the applicant is elderly or
disabled.
E. CONSULAR INTERVIEW
During the interview, the consular official will confirm the information contained in the application,
screen for any applicable ground(s) of inadmissibility and review the required supporting documents. The
consular officer may inquire into the validity of the marriage or relationship that forms the basis of the immigrant
petition. If the applicant is found inadmissible for a ground that can be waived, the applicant will be given an
opportunity to submit a waiver application and supporting documentation to a USCIS lockbox in the United
States. USCIS will adjudicate the waiver, and once a decision is made, will notify the appropriate consulate.
The consulate will then notify the visa applicant of the decision on the waiver and immigrant visa application.
Note that the process of applying for and getting a waiver application approved can take several months;
during this time, the applicant will be forced to wait outside the United States.
When an immigrant visa is issued, it is valid for up to six months. In order to obtain permanent resident
status, the immigrant visa holder must travel to the United States and be admitted within the visa validity period.
Additionally, in order to obtain a visa, the applicant must present a passport that is valid for at least 60 days
beyond the validity of the immigrant visa. Children and sons and daughters granted immigrant visas as
immediate relatives or in the F-1, F-2A and F-2B preference categories should be warned by consular officials
that they are admissible in those categories only if they remain unmarried at the time of admission to the United
States.
Immigrant visa denials are called “refusals.” If an immigrant visa is refused, the consular officer will
inform the applicant of the reasons for the denial, including the provision of law or regulation on which the
refusal was based. If the reason for the refusal may be overcome with the submission of additional documents
and the applicant indicates an intention to submit the additional evidence, the file will remain open for up to
one year. Once the applicant has obtained the necessary documentation, the interview should be rescheduled.
However, if no action is taken on the case for one year after the interview, registration, or eligibility to apply
for an immigrant visa, the application may be terminated. The consulate should notify the applicant of the
termination and the right to have the registration reinstated within one year by demonstrating that the failure to
act was due to circumstances beyond his or her control. See discussion of termination below.
If the consular officer requests information or documentation that you believe is inappropriate or
unnecessary, or wrongly denies the visa application, communicate directly with the consular post, commonly
through the consulate’s designated email address. Put your concerns in writing and cite the regulations, Foreign
Affairs Manual, or DOS cables that support your position. If you are unsuccessful in getting a response from
the consulate or a satisfactory resolution, you should also consider contacting your legislative representative
for assistance in situations where the consulate is not responding to your requests for communication or review.
Finally, where a visa is refused based on a misinterpretation of the law, you may seek review and intervention
from officials at the DOS Visa Office in Washington, DC at legalnet@state.gov. Note that this review is limited
to challenges to legal interpretations, rather than fact determinations or discretionary decisions.
F. USCIS IMMIGRANT FEE

Most immigrant visa holders are required to pay a USCIS Immigrant Fee (currently $220) after they
receive the visa packet from the consulate, and, ideally, before departing for the United States. This fee is separate
from the immigrant visa fee paid to DOS. It covers the cost of producing and delivering the permanent resident
card once the visa holder is admitted to the United States. The fee must be paid online through the USCIS website
with a debit or credit card or a checking account from a U.S. financial institution. If the fee is not paid, the visa
holder will still be admitted to the United States and receive a passport stamp valid for one year evidencing LPR
status. However, the new resident will not receive an I-551, Permanent Resident Card, until the required fee is
paid.
G. TERMINATION OF REGISTRATION
Under INA § 203(g), DOS is authorized to terminate the registration of anyone who fails to apply for
an immigrant visa within one year of notification of the availability of the visa. This provision applies if the
applicant fails to contact the NVC after being notified of visa availability or if the applicant fails to appear for
a scheduled interview and does not contact the consulate within a year of the missed appointment. Registration
is also terminated if a noncitizen fails to submit evidence to overcome the basis for a visa refusal within one
year after the refusal. Termination of registration means that the underlying petition is revoked.
The regulations require that the consulate notify the registrant of the termination of registration and the
right to seek reinstatement within one year of notification by establishing that the failure to apply for an
immigrant visa within one year was due to circumstances beyond the applicant’s control. Such circumstances
include illness preventing the noncitizen from traveling and inability to get travel documents.
Example: Alma was scheduled for her consular interview to immigrate based on a petition filed by her
LPR father. Alma was unable to attend the interview, but did not contact the consulate to reschedule or
respond to a letter from the consulate advising her about termination of her case. Two years after
Alma’s failure to attend the consular interview, her application was terminated, and the underlying I-
130 petition filed by her father was revoked.
8.5 ADJUSTMENT OR CONSULAR PROCESSING OF DERIVATIVES

Derivative beneficiaries will need to file their own separate applications for adjustment or an immigrant
visa. A derivative cannot immigrate before the principal beneficiary. If the derivative is immigrating or adjusting
either at the same time or within six months of the principal beneficiary, he or she is known as an
“accompanying derivative.” If immigrating or adjusting more than six months after the principal, the spouse or
child is considered a “follow-to-join” derivative. To continue to qualify as a derivative, he or she must continue
to meet the definition of “spouse” or “child” until immigrating.
8.6 AFFIDAVIT OF SUPPORT
A. OVERVIEW
Most family-based immigrants and some employment-based immigrants are required to submit an
affidavit of support from the petitioner who becomes the “sponsor.” This is a legally enforceable contract in
which the sponsor accepts financial responsibility for the intending immigrant and agrees to support him or her
at an annual income that is not less than 125% of the Federal poverty guideline. The affidavit of support plays
a role in the adjudicator’s determination of whether the intending immigrant is inadmissible as someone who
is likely to become a public charge under INA § 212(a)(4). You may recall from Chapter Four that the
sponsor’s affidavit of support is only one factor the USCIS or consular officer will consider in determining
whether an intending immigrant is likely to become a public charge, along with the noncitizen’s age, health,
family status, assets and financial resources, and education and skills. Nevertheless, while the affidavit of
support is no longer the primary focus of the assessment of public charge inadmissibility, practitioners must
carefully review the affidavit of support and supporting documentation to make sure it meets all legal
requirements. An insufficient affidavit of support will lead to a determination of public charge inadmissibility
without further consideration of the other public charge related factors in the applicant’s case.
B. AFFIDAVIT OF SUPPORT REQUIREMENTS

In family-based immigration cases, the affidavit of support signed by the petitioner/sponsor must prove
that he or she will be able to support the I-130 beneficiary financially. Generally, the affidavit of support is
submitted using Form I-864 and included with the adjustment of status application sent to USCIS or supporting
documents sent to NVC. However, petitioners sponsoring only one relative and relying solely on income
documented on a W-2 form may submit the shorter Form I-864EZ instead. Under INA § 213A, the sponsor
must be a USC or LPR, at least 18 years old, and domiciled in the United States or a territory or possession.
The sponsor must show that he or she has the means to maintain an annual income equal to at least 125
percent of the Federal poverty income guideline for his or her household unit, including the intending immigrant.
The financial requirements can be demonstrated by proving an annual household income equal to at least
125 percent of the Federal poverty line or can be met by counting certain assets or by securing a joint sponsor.
In family-based cases, the petitioner must always be a sponsor and complete an affidavit of support, even if
he or she cannot meet the 125 percent requirement.
Example: Tran is an F-1 beneficiary applying for adjustment of status. His petitioner father, Linh Quach,
is a USC receiving SSI benefits, with an income below 125 percent of the poverty income guidelines.
They plan to use a joint sponsor to satisfy the affidavit of support requirements. Linh Quach must still file
an affidavit of support for his son.
The size of the household unit is defined in the regulations at 8 CFR § 213a.1 as including:
• The sponsor;
• The sponsor’s spouse and children;
• All persons who the sponsor claimed as a dependent on his/her most recent tax return;
• The intending immigrant and all accompanying family members; and
• Noncitizens on whose behalf the sponsor has filed prior I-864 affidavits.
In addition, the sponsor may include a “relative” – parent, spouse, sibling, or adult son or daughter –
if including them would allow the sponsor to count their income. Make sure that no household member is
counted more than once.
Example: Linh Quach lives with his two teenage sons, Thien and Tran, and his mother. He is petitioning
for his wife. Linh Quach’s household size is four, including him, his wife, and his two sons. His mother
does not need to be included as part of the household for affidavit of support purposes, even though
she lives with Linh Quach.
The I-864 requires the sponsor to estimate his or her current individual annual income, indicate income
on the last three income tax returns, and include a copy of the most recent income tax return. The sponsor can
also include in the income calculation the income from any household members who are residing with the
sponsor, provided they complete a Form I-864A, which is a contract between the sponsor and the household
member. The sponsor may also include the income from the intending immigrant, who would not need to
complete an I-864A unless other derivative family members are also immigrating. If the intending immigrant is
the spouse of the sponsor, that person does not need to be residing with the sponsor. To include the income of
the intending immigrant, the income must be from lawful employment in the United States or from a lawful
source that will continue to be available after the person immigrates. Household members signing an I-864A
form do not need to be USCs or LPRs. These household members do not need to have resided with the sponsor
for any set period if they currently share their principal residence with the sponsor.
Example: Linh Quach’s mother makes $55,000 as a grade school teacher. If she is willing to sign an
I-864A form, her income can be included in the affidavit of support filed by her son for his wife. Linh-
Quach’s household size will then be five, including his mother.
Example: USC Casey is petitioning for his wife Agnes, from Hungary. Agnes lives with Casey and
earns about $500 per week doing childcare in their home. Although Agnes has been doing this work
for two years, and is earning about $24,000 year, her income cannot be included because she does
not have work authorization.
Significant assets, such as cash, stocks, and real estate, may be combined with the sponsor’s income
to meet the 125 percent requirement, and these can be assets of the sponsor, other household members who
executed an I-864A, or the intending immigrant. The value of the assets must be at least five times the difference
between the sponsor’s total household income and the appropriate 125 percent of the poverty income
guidelines. If the intending immigrant is the sponsor’s spouse or child over 18 and the sponsor is a USC, the
value of the assets must only be three times the shortfall.
Example: Martin is submitting an affidavit of support in connection with his brother Neil’s immigrant
visa application. Neil is immigrating with his wife and four children, so Martin must show enough
income for a household of seven. Under the 2020 poverty guidelines, Martin needs to show an income
of at least $49,550, and Martin only earns $40,000. Martin is $9,550 short of this amount. If he can
show assets in the amount of $47,750 – five times the income shortfall – he will be able to satisfy the
affidavit of support requirement.
If the petitioning relative cannot meet the affidavit of support requirements, even with household
members’ income and assets, another person can also submit an affidavit of support if he or she agrees to be
jointly and severally liable with the petitioner. The joint sponsor must be either a USC, LPR, or U.S. national, at
least 18 years old, and be domiciled in the United States.
Each intending immigrant – whether a principal beneficiary or derivative – may have only one joint
sponsor. But in family-based preference category cases comprised of a principal beneficiary and at least one
accompanying derivative, the sponsor may use up to two joint sponsors. The sponsor may apportion the
financial burden between the two joint sponsors, so that, for example, one joint sponsor bears responsibility
for the principal beneficiary and the second joint sponsor bears responsibility for the derivative. In that situation,
the first joint sponsor would include the principal beneficiary as a household member and would bear the
financial responsibility for that person, while the second joint sponsor would include the derivative. Each joint
sponsor would identify on the I-864 the intending immigrant(s) that he or she is sponsoring and must meet the
full 125 percent income requirement; the joint sponsor cannot combine income with the petitioner sponsor and
his or her household.
Example: In the example above, assume that Martin is unemployed and will need to use a joint
sponsor. Another brother, Bill, is married and has one child. Bill does not make enough money to
sponsor both Neil, Neil’s wife, and their four children, since that would total nine people in Bill’s
household. But Bill can sign an affidavit of support on behalf of Neil and Neil’s wife. That would mean
that Bill’s household totaled five. A second joint sponsor would need to sign another affidavit of support
on behalf of the four children. Martin still must file an affidavit of support because he is the petitioning
relative.
Note that the affidavit of support is a binding contract that is legally enforceable against the sponsor
by the sponsored immigrant, or any entity that provides a means-tested benefit to the noncitizen. The affidavit
of support obligation ends when the sponsored immigrant becomes a citizen of the United States, has
worked or can be credited with 40 qualifying quarters of work, ceases to hold the status of LPR and departs
the United States, or dies. The sponsor’s obligation also terminates if the sponsor dies.
Although the USCIS regulations provide that the I-130 petition terminates automatically with the
death of the petitioner, Chapter Six discussed the possibility of continuing with the immigration process if
either INA § 204(l) protection applies or humanitarian reinstatement is a possibility. In both situations,
however, the intending immigrant must demonstrate that he or she has a “substitute” sponsor who will submit
an affidavit of support. Beneficiaries residing in the United States whose petitioning family member has died
will need to file an affidavit of support from a substitute sponsor as part of the adjustment of status or consular
processing procedure. Those who are residing abroad and will be requesting humanitarian reinstatement of
the petition will need to include an affidavit of support from the substitute sponsor along with the request.
The list of family members of the intending immigrant who can act as a substitute sponsor in that
situation include the following: spouse, parent, mother-in-law, father-in-law, sibling, child (at least 18 years
old), son, daughter, son-in-law, daughter-in-law, sister-in-law, brother-in-law, grandparent, grandchild, or a
legal guardian. A substitute sponsor must be a USC, U.S. national or LPR. In situations where the surviving
relative does not have a qualifying relative to serve as a substitute sponsor, he or she will not be eligible for §
204(l) relief or humanitarian reinstatement.
C. EXEMPTIONS FROM THE AFFIDAVIT OF SUPPORT REQUIREMENT
Certain individuals are exempt from the affidavit of support requirement. These include self-petitioning
widows and widowers of USCs and battered spouses and children immigrating under VAWA. Children who
will be deriving citizenship status pursuant to the Child Citizenship Act of 2000 (discussed in Chapter Thirteen)
because they are under 18 and will be residing in the United States with at least one USC parent are also
exempt from the affidavit of support requirement. Persons applying for residency status under other laws (e.g.,
Cuban adjustment, asylees and refugees, special immigrant juveniles) are not subject to the affidavit of support
requirement. Employment-based immigrants are also exempt unless a close relative of the intending immigrant
filed the I-140 or has a “significant” (five percent or more) ownership interest in the petitioning business entity.
Another important exemption applies to those intending immigrants who have already acquired 40
qualifying quarters. A “qualifying quarter” is a legal term relating to a unit of wage that, if earned in most types
of employment, counts toward coverage for Social Security benefits. In order to earn a qualifying quarter, the
worker must have a valid Social Security number (SSN). An SSN is only valid for work purposes if the worker
presented an EAD to the Social Security Administration. But once having obtained an SSN, one does not need
to have a current EAD in order to post earnings to the Social Security account and gain qualifying quarters.
One earns up to four qualifying quarters in a calendar year. But a spouse and child may also be
credited with the quarters earned by the spouse or parent: spouses may be credited with all the quarters earned
by the other spouse during marriage, assuming the marriage did not end in divorce; children may be credited
with all quarters earned by either or both parents up until the child turns 18. Since the affidavit of support
requirements terminate when the sponsored immigrant earns or is credited with 40 qualifying quarters,
intending immigrants who demonstrate through Social Security earnings statements that they have already
satisfied that requirement do not have to submit an affidavit of support.
Finally, it is important to note that being exempt from the affidavit of support requirement is not the same
as being exempt from the public charge ground of inadmissibility. Of the four categories of family-based
immigrants described above who are exempt from the affidavit of support requirement, only VAWA self-
petitioners are also not subject to public charge inadmissibility. Self-petitioning widow(er)s and immigrating
children who will derive citizenship must still show that they are not likely to become a public charge in order
to be approved for LPR status.
Where’s the Law?
Adjustment of Status:
• INA § 245(a), § 245(i)
• 8 CFR § 245
• USCIS Policy Manual, Volume 7
• Adjudicator’s Field Manual, Chapter 23.5
Consular Processing:
• 9 FAM 504
• INA § 203(g)
Affidavit of Support:
• INA § 213A
• 8 CFR § 213a; 22 CFR § 40.41
• 9 FAM 601.14
Practice Tips
• Remember that your client must be admissible to adjust status or consular process. If the I-
130 beneficiary is subject to a ground of inadmissibility that is not waivable or does not
qualify for a waiver, it may not make sense for the family member to proceed with filing an
I-130 for that relative at all.
• Always screen new I-130 beneficiaries for adjustment eligibility under both INA § 245(a)
and INA § 245(i). Screening for 245(a) eligibility includes asking questions to determine
(a) how the beneficiary entered the United States and (b) whether the beneficiary is in an
immediate relative category. Screening for 245(i) eligibility includes asking questions to
determine (a) if the beneficiary was the principal or derivative beneficiary of an
“approvable when filed” I-130, I-140, I-360, I-526, or application for labor certification
filed on or before April 30, 2001 and (b) if the application was filed after January 14,
1998, whether the principal beneficiary was physically present on December 21, 2000.
• For I-130 beneficiaries in the United States who will have to apply for an immigrant visa
abroad, screen thoroughly for inadmissibility triggered by departure. Departing the United
States can trigger several immigration-related inadmissibility grounds, including the three-
or ten-year bar under INA § 212(a)(9)(B). Collect details about clients’ immigration
histories and, if necessary, file requests under the Freedom of Information Act (FOIA) to
clarify any ambiguities, such as whether a particular border encounter resulted in expedited
removal or voluntary return.
• You will not be present at your client’s immigrant visa interview. Agree on a way for your
client to call, email or otherwise communicate with you while abroad in the event any
questions or complications arise before or after their consular interview. This will enable you
to find out how the interview went while your client’s memory is still fresh.
• Educate clients about how USCIS or DOS is assessing public charge inadmissibility and
prepare them for questions about the public charge factors and the affidavit of support at
the interview. New regulations on public charge mean that this is an issue to monitor closely
for developments on interpretation and implementation. Make sure you have the latest
information about what your client needs to do to avoid being subject to public charge
inadmissibility.
Chapter 9
OVERVIEW OF REMOVAL PROCEEDINGS AND DEFENSES
TO REMOVAL
9.1 INTRODUCTION
Under immigration law, “removal” is the term used to refer to deportation of a noncitizen from the
United States. Removal orders may be issued by immigration judges (IJs) in immigration court proceedings
known as removal proceedings if the noncitizen is found to be inadmissible or deportable and not eligible for
any form of relief. In addition to removal orders issued in court, the Department of Homeland Security (DHS)
can also issue three types of non-court removal orders: reinstatement of removal, administrative removal and
expedited removal. All of these non-court removal orders are issued by a DHS officer without a hearing and
with very little appellate review. According to the Office of Immigration Statistics, in 2018 DHS apprehended
570,000 noncitizens. Approximately 140,000 of them (24.5%) were removed through expedited removal.
There are different ways that a noncitizen may end up in removal proceedings or subject to a removal
order. Someone can be apprehended by U.S. Customs and Border Protection (CBP) upon trying to enter the
United States without inspection or after such an entry. Local law enforcement may turn noncitizens over to
U.S. Immigration and Customs Enforcement (ICE) after completion of a criminal sentence. Individuals may be
arrested by ICE during a raid at their home or workplace. In addition, applicants for certain immigration
benefits may be placed in removal proceedings if their applications are denied by U.S. Citizenship and
Immigration Services (USCIS) and they are not otherwise legally present in the United States.
With an estimated eleven million undocumented people residing in the United States, the fear of being
apprehended and removed from this country is pervasive among noncitizens. In this chapter we will review the
basic structure of a removal proceeding as well as the rights and remedies available to noncitizens who are in
proceedings. We will also discuss which noncitizens are exposed to being removed from the United States
without a removal hearing.
9.2 REMOVAL PROCEEDINGS IN ACTION
These scenarios illustrate some of the different situations that may trigger removal proceedings in immigration
court or a summary removal order.
Example: Corina entered the United States on a tourist visa in 2009. In 2018, she married USC Frank
and applied for adjustment of status. Last week her application was denied because she was found to
be inadmissible under the public charge ground of inadmissibility. Because Corina is otherwise
deportable for having overstayed her authorized stay, the denial of her adjustment application means
that she will likely be placed in removal proceedings. In immigration court, an IJ will decide whether
she is deportable as charged and, if so, whether she is eligible for any relief from removal.
Example: Kia came to the United States seeking admission with a fake border crossing card, and was
detained by CBP. Within a few hours she is processed for issuance of an expedited removal order and
removed without an immigration court hearing because she was apprehended while seeking
admission through misrepresentation.
Example: Kia, from the scenario above, returns to her home in Colombia after receiving an expedited
removal order. The following year, she successfully enters the United States without inspection. She is
later apprehended by ICE in a work raid and is now subject to reinstatement of removal. This means
that her prior order of removal is “reinstated” and she will be removed without an immigration court
hearing.
Example: Donald has been living in the United States for over 20 years without any documentation.
In 2019 he was convicted of an “aggravated felony”. He is ordered removed through “administrative
removal,” a summary procedure without an immigration court hearing.
9.3 REMOVAL PROCEEDINGS IN IMMIGRATION COURT
A. OVERVIEW
The current structure of removal proceedings commenced on April 1, 1997. Prior to that date,
immigration court proceedings were referred to as “deportation proceedings” or “exclusion proceedings,”
depending on whether the individual was charged with a ground of deportability or inadmissibility. The old
deportation and exclusion law and procedures continue to exist for noncitizens whose proceedings began
prior to April 1, 1997.
Removal proceedings in immigration court under Immigration and Nationality Act (INA) § 240 begin
after a notice to appear (NTA) is issued by DHS, served on the noncitizen, and filed with the immigration court.
The NTA is the document that charges the noncitizen (or “respondent”) with acts or conduct that violate the
immigration law. First, the respondent will be scheduled to appear briefly at a master calendar hearing at an
immigration court under the authority of the Executive Office for Immigration Review (EOIR). At this preliminary
hearing, he or she will ultimately plead to the allegations in the NTA. If the IJ determines the respondent is
inadmissible or deportable as charged, the IJ will set an individual hearing for consideration of the
respondent’s application(s) for any applicable form of relief from removal. The individual hearing resembles
a trial at which both the respondent and the ICE trial attorney may call witnesses to testify and present evidence
into the record. After a decision to grant or deny relief is made by the IJ, either side may appeal to the Board
of Immigration Appeals (BIA) within 30 days of the decision.
While only a licensed attorney or fully accredited Department of Justice (DOJ) representative may
represent a noncitizen in immigration court, advocates who do not practice in immigration court can still
provide valuable assistance to respondents with an upcoming hearing. By understanding how removal
proceedings work, advocates can help clients understand the process, ensure they comply with their
obligations, and assist them in obtaining qualified representation.
B. IMMIGRATION COURT PROCEEDINGS IN ACTION

The following scenario illustrates how a client may end up in removal proceedings and how a case in
immigration court might proceed.
Example: Marlena entered the United States without inspection in 2003 and has lived here since then.
After she was arrested by ICE in a work raid in January 2019, Marlena was placed in removal
proceedings and released without bond because she is the single parent of two USC children. Marlena
attended her first hearing without representation and asked for a continuance to find counsel. At her
next master calendar hearing in July, Marlena was accompanied by the fully accredited representative
she hired to take her case. Marlena, through her representative, conceded inadmissibility under INA
§ 212(a)(6)(A) for being present without admission, and explained that she will apply for “non-LPR
cancellation of removal.” The IJ set a date for her to file her application and supporting documents,
and scheduled her individual calendar hearing for May 2021. If her application for non- LPR
cancellation is approved, Marlena will become an LPR.
C. BASICS OF REMOVAL PROCEEDINGS

1. The Parties
Immigration courts are under the authority of the EOIR, an agency within the U.S. Department of Justice
(DOJ), and IJs are administrative judges appointed by the U.S. Attorney General. The procedures and
safeguards in immigration court differ from those in most federal judicial courts. As of July 1, 2019, there were
approximately 400 IJs located in 63 immigration courts around the country.
The interests of DHS in immigration court are represented by the Office of the Principal Legal Advisor
(OPLA) within ICE. OPLA’s 25 offices employ a cadre of prosecuting trial attorneys known as Assistant Chief
Counsel or “ICE trial attorneys.” The noncitizen responding to the charges and allegations of DHS set forth in
the NTA is referred to as the respondent.
2. The Notice To Appear

Removal proceedings under INA § 240 commence when the charging document, Form I-862, Notice
to Appear (NTA), is filed in immigration court. (Note that for deportation proceedings commenced before April
1, 1997, the charging document was Form I-221, Order to Show Cause). After the NTA is issued by one of
the component agencies of DHS (ICE, CBP or USCIS), a copy is served on the respondent in person or by
mail. However, under 8 CFR § 1239.1(a), removal proceedings are not formally commenced until the NTA is
filed with the immigration court. This means that, if your client has been served with an NTA but the NTA has
not yet been filed in immigrant court, your client is not yet in removal proceedings.
The NTA includes both factual assertions – called allegations – and a charge or charges of
inadmissibility or deportability – in other words, the section(s) in the INA that the respondent is alleged to have
violated. The NTA also specifies the time and place of the hearing and the consequences of failing to appear,
including the entry of an in absentia removal order. Sometimes there is a lag of weeks or even months between
DHS serving the NTA on a respondent and filing the NTA with the court. Clients or counsel may need to keep
calling the automated EOIR immigration court information system at (800) 898- 7180 until it indicates a
specific hearing date, time and location.
In the past, most NTAs were issued by ICE. However, under a June 28, 2018 policy memo, USCIS
has begun to issue NTAs to certain applicants for immigration benefits following denial of their applications.
As implemented as of December 2019, USCIS may issue an NTA when the noncitizen is no longer in a period
of authorized stay following denial of an application or petition for adjustment of status, U or T nonimmigrant
status, Violence Against Women Act (VAWA) protection or Special Immigrant Juvenile Status (SIJS); a
refugee/asylee relative petition; or an application to extend or change nonimmigrant status. USCIS has
always issued NTAs to removable asylum applicants whose cases were not granted by the Asylum Office.
Thus, undocumented clients seeking these benefits must be counseled about the risks of being placed into
removal proceedings if the application is denied. Because the USCIS NTA policy may be applied to denials
of other applications both now and in the future, all noncitizen applicants for any benefits who are not in the
United States legally should be counseled about exposure to enforcement if their applications are denied.
3. Burdens of Proof
If charged with a ground of inadmissibility, the respondent will bear the burden of proof to show
“clearly and beyond doubt” that he or she is entitled to admission. If a respondent is charged with a ground
of deportability, DHS has the burden of proof to show by “clear and convincing” evidence that the noncitizen
is deportable. This standard is lower than the “beyond a reasonable doubt” standard used in criminal
proceedings but higher than the “preponderance of the evidence” standard used in civil proceedings.
Example: In removal proceedings, Carla is charged with being inadmissible under INA §
212(a)(6)(A) as a person who is present in the United States without being inspected and admitted, or
paroled. In immigration court, the Assistant Chief Counsel does not have to prove this charge; instead
Carla is the one who needs to show that she was clearly and beyond doubt admitted or paroled. If
she cannot do this, the IJ will uphold the charge of inadmissibility.
Example: In removal proceedings, LPR Abeer is charged with being deportable for a “crime involving
moral turpitude” committed within five years of his admission. Because this case involves a charge of
deportability, the government has the burden to show that Abeer is deportable as charged. If the ICE
trial attorney cannot do so, the IJ will terminate the proceedings.
4. Representation by Counsel and Legal Services Lists
Unlike in criminal cases, there is no right to appointed counsel at the government’s expense in
immigration court. Under INA § 239(a)(1)(E), respondents in proceedings have a right to counsel at their own
expense and must be given an adequate opportunity to obtain counsel. This means a respondent may request
a continuance of a master calendar hearing to try to obtain legal representation. Respondents must also be
given a list of available legal services, and these lists are to be updated quarterly by EOIR. Assuming a
respondent does obtain counsel, the attorney or fully accredited representative must enter his or her
appearance by filing a Form EOIR-28 with the court and serving a copy on ICE. For the many respondents
who cannot secure representation and are proceeding pro se, 8 CFR § 1240.11(a)(2) requires the IJ to inform
them of any apparent eligibility for relief from removal and the opportunity to apply for such relief.
5. Bond Hearings
Some noncitizens in removal proceedings will never be taken into immigration custody. Others will be
placed in custody but then released on bond. Certain detained respondents, including many noncitizens
convicted of a crime, are subject to mandatory detention and are therefore not eligible for a bond. Where a
bond is set, the minimum bond amount is $1,500. In some cases, where the bond amount set is too high, the
respondent may request a bond redetermination hearing before the IJ. These hearings are informal and
evidence is frequently presented through argument by the legal representatives rather than by direct testimony.
In setting a bond, the judge considers whether the respondent is a threat to national security, a danger to the
community, or likely to abscond.
Example: Gregoria, from Mexico, entered the United States without inspection in 2010 and has
lived here since then. She was arrested by ICE when they came to her house looking for someone
else. Gregoria was served with an NTA and her bond was set at $8,000. Her family retained a
lawyer who requested a bond hearing. At the hearing, her lawyer told the IJ that Gregoria qualifies
for non-LPR cancellation of removal. He also presented proof that Gregoria is gainfully employed,
has two USC children, co-owns a home with her boyfriend, and has no criminal history. The IJ
reduced the bond to $1,500 which Gregoria’s family was able to pay and she was released from
custody to await her master calendar hearing.
6. Master Calendar and Merits Hearings

Master calendar hearings are preliminary hearings during which a respondent will plead to the
charges in the NTA and, if seeking relief from the court, submit applications for relief and request an individual
hearing date. “Pleading to the charges” means that the respondent indicates whether he or she is admitting or
denying the factual allegations and conceding or denying the charges of removability in the NTA. Typically,
multiple respondents are scheduled to appear before the IJ at the same date and time, and each master
calendar hearing will last just minutes. A respondent attending his or her master calendar hearing without
counsel can request a continuance to have time to seek representation.
In some situations, the case may conclude at the master calendar hearing without further hearings. For
example, when a person is planning to admit the allegations and concede the charges in the NTA, and is just
seeking permission to depart the United States under voluntary departure within a certain period of time, the IJ
typically will rule on that request at the master calendar hearing. If, however, the respondent is contesting the
charges of inadmissibility or deportability, the IJ will set a date for a “contested removal hearing.” If the
respondent is instead conceding the charges and applying for relief from removal, the IJ will set a date for an
individual hearing, known as a merits hearing. Given current immigration court backlogs, there is often a multi-
year wait for a merits hearing.
The law allows removal proceedings to go forward by video or telephonic conference. However, a
merits hearing may only be conducted by telephone with the consent of the respondent, who must be advised
of his or her alternative “right to proceed in person or through video conference.” Both master calendar and
merits hearings where the respondent appears by video teleconference (VTC) rather than in-person are
becoming more common, particularly where the respondent is being held in a detention center that is not close
to an immigration court.
7. In Absentia Orders
Where the respondent does not appear at his or her scheduled hearing, the IJ may nevertheless uphold
the charges and order him or her removed from the United States. This is known as an “in absentia” removal
order. There are strict limitations on reopening such an order. An IJ may rescind the in absentia order upon the
filing of a motion to reopen if the respondent did not receive proper notice of the hearing, and this motion can
be filed at any time. If the respondent did receive proper notice of the hearing but was ordered removed in
absentia, he or she can file a motion to rescind the in absentia order and to reopen removal proceedings if the
failure to appear was based on “exceptional circumstances,” such as serious illness or death of an immediate
family member. A motion to reopen an in absentia order based on exceptional circumstances must be filed
within 180 days of the order, and in some cases the 180 days can be tolled if there was ineffective assistance
of counsel. For clients with an NTA, it is very important to immediately determine where and when the next
court appearance is scheduled in order to avoid an in absentia order. You can easily check this information
by calling the automated EOIR information system. Another way to avoid an in absentia order is for
respondents to always report any change of address to the immigration court with Form EOIR-33.
8. Other Rights in Proceedings

Aside from the right to counsel at one’s own expense, respondents are afforded other basic rights. The
Fifth Amendment of the Constitution guarantees individuals in removal proceedings the right to due process
and the opportunity for a full and fair hearing. This includes the right to a competent interpreter during hearings
for respondents who do not speak English. In addition, when a noncitizen is in removal proceedings, ICE must
notify the diplomatic officer of the respondent’s country of nationality, and detained noncitizens have the right
to communicate with their consulate. Finally, there are special provisions that apply to minors and mentally
incompetent respondents.
9. Assisting Clients in Proceedings
The stakes of immigration court proceedings are high – either the respondent will be ordered removed
from the United States or he or she will be granted relief and permitted to stay. Thus, attorneys and fully
accredited representatives should not practice removal defense without the necessary training, mentoring, and
expertise. One source of guidance is the Immigration Court Practice Manual. It outlines uniform procedures
and requirements for court practice, including how to file documents with the court, the components of master
and individual hearings, appealing IJ decisions, navigating bond proceedings for detained respondents, and
seeking a stay of removal. The manual also covers motions practice, including when and how to file a motion
to continue, a motion to change venue, and a motion to suppress evidence. Other common motions include a
motion to reopen proceedings after an IJ decision to consider new facts or evidence in the case; a motion to
reopen and rescind an in absentia order; a motion to administratively close proceedings (which temporarily
removes a case from the court’s active docket); and a motion to terminate proceedings. DOJ representatives
who are only partially accredited or others who lack the expertise or resources to represent clients in removal
proceedings may still provide valuable assistance to respondents, short of appearing in court. Advocates can
help confirm the date, place and time of someone’s hearing by calling the EOIR 1- 800 number. They can
advise clients of the importance of notifying the court of any change in address using Form EOIR-33; ensuring
that the court has a current address is critical to receiving notices of future hearing dates and avoiding an in
absentia order. Finally, advocates should refer these individuals to agencies or advocates who have the
credentials and competency to provide immigration court representation.
9.4 EXPEDITED REMOVAL UNDER INA § 235(b)
Many noncitizens have been ordered removed through expedited removal, a summary removal
procedure where the order of removal is entered by an ICE or CBP officer without a hearing in immigration
court.
A. “ARRIVING ALIENS"
Persons who arrive to a port of entry, either by plane or overland, seeking admission without valid
documentation are considered "arriving aliens." These “arriving aliens” who have not been admitted or
paroled at a port of entry may be subject to expedited removal based on being inadmissible either under INA
§ 212(a)(6)(C) (for fraud or willful misrepresentation) or INA § 212(a)(7) (for lack of valid entry documents)
unless the CBP officer allows the individual to withdraw his or her request for admission. An individual removed
based on an expedited removal order is inadmissible under INA§ 212(a)(9)(A) for a five-year period.
B. EXPANSION OF EXPEDITED REMOVAL

In July 2019, USCIS announced that expedited removal would be expanded to apply to noncitizens
apprehended anywhere in the United States who entered without inspection and cannot show that they have
been present in the United States for at least two years. On September 27, 2019, this expansion of expedited
removal was enjoined. As a result, expedited removal continues to affect only those noncitizens apprehended
by DHS within 100 miles of the border and within two weeks of entry without inspection.
C. EXPEDITED REMOVAL IN ACTION
Example: Weixing, from China, arrived at Los Angeles International Airport with a passport and
tourist visa that did not belong to him. He had purchased the documents from someone else and
glued his own photograph into the passport. During questioning at CBP inspection, Weixing admitted
that this was not his passport. He did not express a fear of returning to China. Because Weixing was
inadmissible for material misrepresentation, he was subject to expedited removal. He was not
permitted to speak to an attorney or see an IJ. Instead, CBP had him sign some papers and later that
day he was put on a flight back to Beijing. As a result of having an expedited removal order,
Weixing is inadmissible for five years.
Example: Marta from Honduras left her country in 2019 and entered the United States without
inspection with the help of a coyote. She was apprehended three days later in Texas three miles from
the United States/Mexico border. She is subject to expedited removal.
D. CREDIBLE FEAR
If a noncitizen subject to expedited removal indicates a desire to apply for asylum or related relief, or
expresses a fear of persecution, ICE or CBP must refer the noncitizen to an asylum officer for a credible fear
interview. The asylum seeker has a right to counsel for the credible fear interview. A noncitizen found to have
a credible fear – that is, who can show that there is a significant possibility that he or she could satisfy the
qualifications for asylum - will then have the opportunity to present his or her asylum claim before an IJ pursuant
to INA §240. If it is determined that the noncitizen does not meet the credible fear standard, this decision may
be reviewed, either in person or telephonically, by an IJ. Such review shall take place within seven days, and
the noncitizen must be detained during the process.
In some cases, asylum seekers subject to the Migration Protection Protocol (also known as “Remain in
Mexico”) who seek asylum at the Southern border will not be given a credible fear interview. Instead, they will
present their asylum claim directly to an IJ and, while their case is pending, they will be forced to wait in
Mexico. Those subject to the “Remain in Mexico” policy will not be allowed to enter the United States unless
and until their asylum application has been granted.
Example: Rosa, from Honduras, is fleeing gang violence directed at her and her small children. When
she arrived at the United States border in Tijuana, she asked the CBP officer for asylum. However,
under the Remain in Mexico policy, Rosa was not allowed to enter the United States and have a
credible fear interview with USCIS. Instead, she was given an NTA before the IJ in San Diego and
turned away from the United States. Rosa will be allowed entry to the United States for her asylum
hearings with the IJ but will have to wait in Mexico in between hearings. Only if she is ultimately granted
asylum will she be allowed entry into the United States.
E. NEW THIRD-COUNTRY TRANSIT REGULATIONS
In July 2019, USCIS issued new regulations preventing any asylum seeker who enters or attempts to
enter the United States at the southern border from being eligible for asylum unless they have applied for
asylum in a country of transit and been denied. Under these rules, asylum seekers who have traveled through
Mexico or Guatemala and have not applied for and been denied asylum in either country are ineligible to
apply for asylum in the United States. The only exception is where the person is a victim of a severe form of
trafficking. Although litigation challenging these regulations is pending, they are now in effect and apply to
asylum seekers who entered or attempted to enter the United States on or after July 16, 2019 and are having
credible fear interviews or asylum adjudications after September 11, 2019.
The rule does not prevent an asylum seeker from qualifying for withholding of removal or relief under
the Convention Against Torture. In this situation, instead of a credible fear interview, the DHS officer will
conduct a “reasonable fear” interview, described below, to determine whether the asylum seeker may qualify
for either form of relief. Withholding of removal and relief under the Convention Against Torture (CAT) are
described in Chapter Twelve.
Example: Carlos, from Honduras, arrived at the U.S. border in Tijuana on January 8, 2020. When he
presents himself at the border, he is subject to expedited removal because he has no entry documents.
Because of the third-country transit rule now in effect, Carlos does not qualify for asylum. If he
establishes a reasonable fear of persecution or torture in Honduras, he will be placed in removal
proceedings to apply for withholding of removal or relief under the Convention Against Torture.
9.5 ADMINISTRATIVE REMOVAL

Noncitizens who are not LPRs and who have a conviction for an aggravated felony offense are also
subject to removal without an immigration court hearing. In this circumstance, noncitizens are ineligible for most
forms of relief and are removed based on an administrative order of removal issued by a DHS officer.
Noncitizens subject to these non-court removal orders are only eligible to seek withholding of removal and
CAT protection before an IJ after a reasonable fear interview with an asylum officer.
9.6 REINSTATEMENT OF REMOVAL
Another type of non-IJ removal order is reinstatement of removal, discussed in Chapter Four. Under
INA § 241(a)(5), DHS can reinstate a prior removal order against someone who was ordered removed or
deported, departed the United States, and subsequently reentered the United States without authorization.
Once ICE or CBP reinstates the prior order, the noncitizen is not eligible for most forms of relief and shall be
removed under the prior order without a hearing before an IJ.
Example: Dorit presented false documents at the Atlanta airport in 2016. She was issued an expedited
removal order and sent back to Israel. Two years later, she flew to Mexico, entered the United States
without inspection, and has resided here since. In addition to having triggered the permanent bar when
she entered EWI in 2018, Dorit is subject to reinstatement of removal. If she is apprehended by ICE,
her 2016 expedited removal order may be reinstated.
A. REASONABLE FEAR
If a noncitizen subject to reinstatement of removal expresses a fear of persecution or torture, he or she
must be referred to an asylum officer with USCIS for a reasonable fear interview. However, the asylum officer
can only determine whether the noncitizen has a reasonable possibility of succeeding in his or her
application(s) for withholding of removal and/or CAT protection. Reasonable fear interviews differ from
credible fear interviews in two principal ways: (1) the standard for reasonable fear - “reasonable possibility”-
is much higher than the credible fear standard - “significant possibility” - and (2) noncitizens subject to
reasonable fear are not eligible for asylum, but are only eligible for withholding of removal and CAT
protection. As discussed in Chapter Twelve, both withholding of removal and CAT protection are lesser forms
of relief subject to a higher burden of proof than asylum.
If the asylum officer determines that the noncitizen has a reasonable possibility of persecution or torture,
then the case will be referred to an IJ for a “Withholding Only” hearing where the judge will determine if the
noncitizen qualifies for withholding of removal or CAT protection. These are the only forms of relief the
noncitizen may seek in such a hearing. If the asylum officer determines that the noncitizen does not have a
reasonable possibility of persecution or torture, the decision may be reviewed by an IJ. The IJ’s final decision
cannot be appealed.
9.7 DEFENSES TO REMOVAL
A. OVERVIEW
Assuming the IJ finds the respondent inadmissible or deportable as charged, the IJ must then determine
whether the respondent is eligible for any form of relief from removal. Some forms of relief can be granted by
either an IJ or by USCIS, such as adjustment of status or asylum. Other benefits can only be sought before the
IJ in immigration court, such as cancellation of removal. Finally, some types of relief can only be granted by
USCIS. Where USCIS has exclusive authority to decide an issue – e.g. a visa petition, VAWA self-petition, U
or T nonimmigrant petition, or application for Deferred Action for Childhood Arrivals (DACA) renewal – the
respondent must typically seek a continuance of the case in order to pursue USCIS adjudication. Recent case
legal authority has created new obstacles to obtaining continuances to await adjudications by USCIS.
The remainder of this chapter will review three forms of relief commonly sought by respondents in
proceedings: the different types of cancellation of removal, adjustment of status and voluntary departure. A
complete review of all forms of relief from removal is beyond the scope of this introductory manual.
B. CANCELLATION OF REMOVAL
1. Cancellation of Removal for Non-LPRs, INA § 240A(b)
Cancellation of removal permits an IJ to grant discretionary relief from removal to any noncitizen who
can meet certain eligibility requirements. Following the grant of cancellation of removal, the noncitizen
becomes an LPR. There is a numerical cap of 4,000 non-LPR cancellation applications that can be granted
each fiscal year. An applicant for non-LPR cancellation must establish:
• Ten years of physical presence immediately preceding the application (physical presence is cut
off by service of an NTA, the commission of a crime rendering the person inadmissible or
deportable, or certain absences from the United States over 180 days);
• Good moral character during the ten-year period;
• Exceptional and extremely unusual hardship to a USC or LPR spouse, parent or child;
• No conviction for an offense that would make the applicant inadmissible or deportable; and
• Warrants a favorable exercise of discretion.
The hardship requirement for non-LPR cancellation of removal is often very difficult to satisfy because
of the high degree of hardship to the qualifying relative(s) that must be shown. Interpreting this standard of
hardship, the BIA found that an applicant who had lived in the United States for 20 years, had three USC
children, two of whom were ages 12 and eight, and parents and seven siblings who were LPRs, was unable
to establish exceptional and unusual hardship. See Matter of Monreal, 23 I&N Dec. 56 (BIA 2001). Typical
factors considered in the assessment of hardship include the following:
• Family ties and community ties in the United States;

• Social adjustment in the United States;
• Health-related issues, including psychological and physical problems;
• Age both at the time of entry and at the time of relief;
• Economic and political conditions in the individual's home country, including quality of life
factors;
• Ability to raise children if family members not available to help;
• Educational opportunities for children and applicant;
• Separation from family members, especially in single-parent situations;
• Separation from family members when qualifying family member is ill or elderly;
• Length of time in the United States;
• Financial situation, including business or occupation and economic hardship (generally not
sufficient by itself, but severe economic hardship may constitute extreme hardship).
Matter of Anderson, 16 I&N Dec 596 (BIA 1978).
Example: Amat from Indonesia is in removal proceedings and has filed an application for non-LPR
cancellation of removal. At his individual hearing, DHS concedes that Amat has good moral character,
no criminal convictions, and the required ten years of continuous physical presence in the United States.
Amat’s attorney calls him to testify about the exceptional and extremely unusual hardship his five USC
children will suffer if he is deported to Indonesia with or without them. Other witnesses testify on his
behalf as well. The IJ grants the application and Amat becomes an LPR.
Note that noncitizens in immigration court proceedings that commenced before April 1, 1997 were
eligible for a remedy known as suspension of deportation which also results in a grant of LPR status if approved.
While you are unlikely to encounter clients eligible to seek this remedy, it requires showing seven years of
continuous residence in the United States, good moral character during that period, and that deportation would
result in extreme hardship to the applicant or to the applicant’s USC or LPR spouse, parent, or child.
2. Cancellation of Removal for LPRs, INA § 240A(a)

Cancellation of removal for LPRs is also a successor remedy to a prior form of relief referred to as an
INA § 212(c) waiver. To be eligible, the LPR must show that he or she:
• Has been an LPR for not less than five years;

• Has resided continuously in the United States for seven years after having been admitted in any
status;
• Has not been convicted of an aggravated felony; and
• Warrants a favorable exercise of discretion.
Unlike non-LPR cancellation, neither a showing of hardship nor a USC or LPR qualifying relative is
necessary to qualify for this form of relief. However, on the negative side, the very broad range of offenses
that fall within the aggravated felony definition prevent many LPRs from eligibility for this remedy. Even if an
applicant is eligible for LPR cancellation of removal, he or she still must convince the IJ that a favorable
exercise of discretion is warranted.
Example: Roger from Scotland has been an LPR since 2008. Since then, he has only left the United
States once in 2012 to visit his dying mother. Last year, Roger was convicted of a controlled substance
offense and served six months in jail. Following his release, he was transferred to ICE custody and
placed into removal proceedings. In immigration court, Roger applied for LPR cancellation. Assuming
the drug conviction is not an aggravated felony, the IJ may grant him cancellation if he or she decides
Roger deserves a favorable exercise of discretion. Roger should provide evidence of all family ties in
the United States, his lengthy residence here, his positive work history, filing of tax returns, record of
community involvement, lack of family members back in Scotland and, most importantly, his
rehabilitation from any prior drug use.
3. Cancellation for Abused Spouses and/or Children
A separate form of cancellation of removal under INA § 240A(b)(2) applies to abused spouses and
children of LPR/USCs. Under this provision, only three years of physical presence, good moral character, and
extreme hardship is required. This remedy is described in Chapter Eleven.
4. NACARA Suspension and Cancellation

The Nicaraguan and Central American Relief Act (NACARA), enacted in December 1997, provides
several forms of relief for specific nationalities. One section of the law provides for adjustment of status for
Nicaraguans and Cubans who were continuously present in the United States since December 1, 1995.
However, the application period for this relief ended on April 1, 2000. A second provision of the law provides
certain Salvadorans, Guatemalans and Eastern Europeans with the opportunity to file for suspension of
deportation and cancellation of removal under relaxed rules.
C. ADJUSTMENT OF STATUS
Noncitizens in removal proceedings may obtain or re-obtain lawful permanent residency by asserting
the defense of adjustment of status in immigration court. For example, an IJ may approve an application for
adjustment of status based on refugee or asylee status, an approved family or employment-based visa petition,
or a VAWA self-petition. The eligibility requirements are the same as those for applicants adjusting with USCIS.
However, pursuing adjustment before the IJ is not available for respondents who are charged in the NTA as
being arriving aliens; by regulation, only USCIS has jurisdiction over adjustment applications filed by arriving
aliens in removal proceedings.
Example: Hilda entered the United States on a B-2 visa and overstayed. After Hilda married USC
Sam, a notario advised the couple to file a one-step I-130 petition and adjustment application with
USCIS. Hilda’s adjustment application was denied and she was placed in removal proceedings. In
immigration court, Hilda will be able to renew her adjustment application before the IJ.
Example: You will represent Miremba from Uganda in her upcoming master calendar hearing. She
has a current F-4 priority date based on a petition filed by her brother in 1999. You determine
Miremba is eligible for adjustment under INA § 245(i). Although she is eligible to adjust before the IJ,
it may take a year or more before she can be scheduled for a merits hearing. Therefore, instead of
waiting, you might file a motion to terminate proceedings to allow Miremba to file for adjustment with
USCIS. USCIS will not have jurisdiction to decide the adjustment application unless the IJ terminates
proceedings.
D. VOLUNTARY DEPARTURE
Voluntary departure is a form of relief that allows noncitizens to return voluntarily at their own expense
to their home country. Clients may have trouble viewing voluntary departure as immigration relief because it
requires departing the United States. However, the advantage to obtaining this form of relief is that a departure
in compliance with a grant of voluntary departure is not considered a removal. For this reason, the noncitizen
does not trigger inadmissibility when departing pursuant to a voluntary departure order.
The requirements to qualify for voluntary departure depend on whether it is requested before the
conclusion or at the conclusion of the merits hearing.
• Under INA § 240B(a), voluntary departure before the completion of removal proceedings can
be approved for up to 120 days. To qualify, a respondent must request voluntary departure at
the master calendar hearing; make no additional requests for relief from removal; concede
removability; and waive appeal. The IJ may require the respondent to post a bond of $500 or
more.
• Under INA § 240B(b), if a respondent seeks voluntary departure at the conclusion of
proceedings, typically as a form of alternative relief if the main remedy the respondent is seeking
is denied, he or she can only get up to 60 days to depart. Moreover, the requirements the
applicant must satisfy are stricter and include showing that he or she has been physically present
in the United States for at least one year preceding service of the NTA; has been a person of
good moral character for five years; and has the means and intent to depart the United States.
Finally, the IJ must require the respondent to post a bond of $500 or more to guarantee
departure.
In both instances, the respondent must show that he or she merits a favorable exercise of discretion and
is not deportable as an aggravated felon or terrorist. In addition, he or she is typically required to present a
valid passport or other travel document to qualify, unless the receiving country does not require one or DHS
already has it.
Example: 19-year old Rashida, from Niger, has a master calendar hearing next week. According to
her NTA, she entered without inspection three months ago and was apprehended at the border.
Rashida has no family in the United States and is not eligible for relief from removal that will allow her
to stay in the United States. Assuming she is willing to concede removability and can pay for her trip
home, Rashida may request voluntary departure before the conclusion of proceedings, also known as
prehearing voluntary departure.
Example: You represent Meenha in removal proceedings. She has been in the United States for three
years and fears returning to El Salvador because of the drug violence, which resulted in the death of
her brother. Meenha plans to apply for asylum and, in the alternative, voluntary departure. If the IJ
denies her asylum application, she will be eligible for voluntary departure at the conclusion of her
hearing since she can show more than one year of physical presence in United States before service
of the NTA, good moral character for at least five years, and the ability to leave at her own expense.
It is important to note that a voluntary departure order automatically converts to a removal order if the
respondent fails to depart within the time provided. In addition, individuals who overstay voluntary departure
are barred for ten years from most forms of relief, including adjustment of status, cancellation of removal, and
change of nonimmigrant status.
Example: Antonia entered the United States with a tourist visa in 2017 and remained beyond her
authorized stay. In removal proceedings, the IJ granted her request for 90 days to depart the United
States voluntarily. As long as Antonia complies with the order, she will not trigger inadmissibility under
INA § 212(a)(9)(A) when she departs. If Antonia stays beyond the 90-day voluntary departure date
set by the IJ, her subsequent departure will be considered a removal and she will trigger inadmissibility
under INA § 212(a)(9)(A).
E. OTHER FORMS OF RELIEF FROM REMOVAL

Other forms of relief that may be applied for in proceedings as a defense to removal include
Temporary Protected Status (TPS), asylum, withholding of removal and CAT protection. A detailed discussion
of these forms of relief is found in Chapter Twelve.
Where’s the Law?
Removal Proceedings:
• INA § 240
• 8 CFR § 1003
Expedited Removal:
• INA § 235(b)
Reinstatement of Removal:
• INA § 241(a)(5)
Administrative Removal:
• INA § 238(b)
Cancellation of Removal:
• INA § 240A
Voluntary Departure:
• INA § 240B
Practice Tips
• Always screen for exposure to reinstatement of removal. Clients are not always aware that
they have a prior removal order, particularly if they received an in absentia or expedited
removal order. You may want to file a Freedom of Information Act (FOIA) request with
DHS and/or EOIR to clarify someone’s immigration history before a decision is made to
proceed with applying for a particular benefit or form of relief.
• Before a client applies affirmatively for a benefit with USCIS, make sure to also screen them
for possible relief from removal. Under current USCIS guidance for issuing NTAs, many
undocumented clients whose benefit applications are denied will be placed into removal
proceedings. It is critical to not only screen clients for eligibility for the relevant benefit, but
also screen them for relief for removal, in the event their application is denied and they are
placed in removal proceedings in immigration court under the new NTA guidance.
• Before seeking voluntary departure, clients must be informed of the serious risks of failing
to depart within the allotted time frame. If a client is not actually prepared to depart the
United States within the 60 to 120 voluntary departure timeframe that the IJ may provide,
he or she should not request this remedy. The consequences of overstaying a voluntary
departure grant, which include having a removal order and civil penalties, can be more
severe than just receiving an order of removal.
• While this chapter has outlined a number of actions that partially accredited
representatives can take to assist and advise clients in proceedings, it is optimal to have
competent representation in immigration court. Consider developing a referral list of local
agencies and attorneys with removal expertise to provide to potential clients whom you or
your agency cannot represent.
Chapter 10
EMPLOYMENT-BASED IMMIGRATION AND DIVERSITY
IMMIGRANTS
10.1 INTRODUCTION
To work legally in the United States, a foreign national must typically have a permanent resident card,
an employment authorization document (EAD), or an employment-based nonimmigrant status allowing him or
her to work for a particular employer. Individuals seeking permission to enter the United States specifically to
work need to qualify for either a temporary nonimmigrant visa or lawful permanent residency (LPR) status.
Employment-based nonimmigrant visas allow employers to hire noncitizens to work in a specific job for a
limited period of time. At the end of their authorized stay, most workers are expected to return to their home
country. Most nonimmigrant workers are only authorized to remain in the United States if they are working for
the particular employer that sponsored them for nonimmigrant status. Depending on their job skills, education,
and work experience, certain individuals may also apply for LPR status based on employment. The five
employment-based immigrant visa categories have numerical caps that often result in significant waiting
periods to obtain LPR status, much like the family-based preference system. While family-based immigration is
premised on family unity and family relationships, employment-based immigration is intended to benefit U.S.
employers that need certain qualified workers.
After discussing employment-based nonimmigrant and immigrant visas, this chapter turns to the
Diversity Immigrant Visa Program, often referred to as the “green card lottery.” Administered by the U.S.
Department of State (DOS), this program issues up to 50,000 immigrant visas each year to qualifying
applicants from countries with historically low rates of immigration to the United States. Each fall, applications
may be filed online during a specified registration period and those randomly selected are notified the
following spring. Individuals selected for a diversity visa must be eligible to either consular process or adjust
status and they, along with any qualifying spouses and children, must immigrate before September 30 of the
following year.
10.2 EMPLOYMENT-BASED IMMIGRATION IN ACTION

Example: Aapo is struggling to support his family as a farmer in the Guatemalan highlands. He hears
he can earn good wages picking tomatoes in Georgia for several months. The recruiter tells him that
he must apply for an H-2A nonimmigrant visa at the embassy in Guatemala City after the employer’s
I-129 petition is approved. Assuming Aapo convinces the consular officer that he will depart the United
States at the end of the tomato harvest and his visa is granted, he can seek temporary admission to
work in the United States.
Example: Marie-Pierre came as a tourist to the United States from Haiti and obtained Temporary
Protected Status (TPS) shortly after arriving. She has been working as a French teacher and wants to
stay here permanently. The school agrees to sponsor her for a green card. If her employer can prove
to the U.S. Department of Labor (DOL) that it cannot find a qualified U.S. worker to fill the position and
the U.S. Citizenship and Immigration Service (USCIS) approves an I-140 petition, Marie-Pierre could
then apply for adjustment to LPR status.
10.3 NONIMMIGRANT STATUS BASED ON EMPLOYMENT
A. OVERVIEW
There are many different types of employment-based nonimmigrant visa classifications defined in INA
§ 101(a)(15). These temporary classifications are referred to by the letter of the corresponding subsection of
the law. For example, § 101(a)(15)(A) describes the “A visa” requirements for foreign diplomats while §
101(a)(15)(I) details the “I visa” criteria for representatives of foreign media. These classifications permit
nonimmigrant workers to enter (or remain in) the United States for a temporary period of time to perform a
specific type of work.
Depending on the visa classification and, in some cases, the nationality of the intended employee, the
employer is often required to file a Form I-129, Petition for a Nonimmigrant Worker with USCIS. Only after
the petition is approved may a worker located overseas apply for a visa with DOS. Following an interview at
a U.S. consulate abroad and issuance of a visa, the worker may seek entry to the United States to assume
temporary employment for the petitioning employer. The period of authorized stay is determined by U.S.
Customs and Border Protection (CBP) upon admitting the noncitizen into the United States. Unless the period
of stay is later extended through an extension of status petition filed with USCIS, the worker must depart the
United States when his or her period of authorized stay expires. If the noncitizen worker is already in the United
States in another valid nonimmigrant status when the employer files the I-129 petition, his or her status is
changed to the new employment-based category without having to depart the United States to seek a visa
overseas.
B. NONIMMIGRANT STATUS IN ACTION

The scenarios below illustrate the difference between obtaining a temporary employment-based visa
overseas to come to the United States to work and changing into an employment-based status from within the
United States.
Example: Alejandro has managed a boutique hotel in Mexico City since completing his hotel
management degree four years ago. He was recently recruited by Marriott International to manage a
luxury resort in Vermont. Alejandro applies for a TN visa (created by the NAFTA treaty for certain
Mexican and Canadian professionals) at the U.S. embassy and submits a letter from the hotel
confirming his job offer as well as proof of his education and experience. His wife and ten year-old
son can simultaneously apply for derivative TD visas to accompany him to the United States. Assuming
their visas are approved, Alejandro and his family can be admitted by CBP in TN/TD status for up to
three years.
Example: Siddarth came to the United States in F-1 status to attend college in Boston. After graduating,
he received Optional Practical Training (OPT) to work for one year. The tech company where he works
has promised to sponsor Siddarth for an H-1B visa. Assuming USCIS approves his employer’s I-129
petition, Siddarth could change from F-1 into H-1B nonimmigrant status without having to leave the
United States. If Siddarth wanted to travel abroad, he would need to apply for an H-1B visa at a U.S.
consulate abroad in order to return to the United States. This is because the change of status petition
impacts only his current status in the United States but is not a visa; a valid visa stamp issued by DOS
would be required to seek re-admission after international travel and resume H- 1B status.
C. COMMON TYPES OF NONIMMIGRANT EMPLOYMENT-BASED STATUS

Below is a summary of some common temporary nonimmigrant employment visa categories. Each category
specifies the eligibility criteria, duration of status, whether a USCIS petition is required, and whether the
nonimmigrant is employment-authorized incident to status or needs an EAD. Note that each of these
nonimmigrant visa categories permits applicants to bring their spouse and unmarried children under the age
of 21 with them as derivative beneficiaries.
1. H-1B visas
Available to high-skilled workers in "specialty occupations" that require at least a bachelor's degree or the
equivalent. Currently 65,000 visas are available each year, plus 20,000 more for professionals with a
master’s or doctoral degree from a U.S. university. The sponsoring employer must file Form I-129 with USCIS.
Because the demand for high-skilled workers far exceeds the annual supply of H-1B visas, USCIS conducts a
lottery each April in order to allocate them. If the employer’s petition is selected in the April lottery (there is
approximately a 1 in 3 chance in recent years) and approved, the soonest the sponsored employee can
actually obtain H-1B status and begin working is October 1 of the same year. Admission in H-1B status is
limited in duration to three years with a renewal for up to six years total. Examples of H-1B positions include
engineers, computer programmers, financial analysts, teachers, and graphic designers. Those in H-1B status
can work for the petitioning employer incident to status by presenting an I-797 Approval Notice; this means
they do not need an EAD.
2. H-2A visas –
Available to temporary agricultural workers from certain designated countries. Visas are not numerically
limited. The employer must demonstrate to DOL that there are not sufficient U.S. workers willing, qualified, and
available to do the temporary work. It must then file an I-129 petition with USCIS on the worker’s behalf.
Admission in H-2A status is granted for up to one year and can be renewed for up to three years. H-2A workers
make up a small percentage (about three to four percent) of the overall agricultural workforce. In 2018, DOL
certified a total of 242,762 H-2A positions. Most H-2A visas are granted for work in the Southeast. Examples
include agricultural jobs planting and harvesting crops such as tobacco, hay, oranges, cotton, and corn. H-
2A nonimmigrants are authorized to work for the petitioning employer incident to status so an EAD is not
required.
3. H-2B visas
Available to "seasonal" non-agricultural workers from certain designated countries. Employers must prove to
DOL their temporary labor need as well as the lack of U.S. workers willing, qualified, and available to perform
the work. The employer must then file an I-129 petition with USCIS. There are 66,000 visas available per
year. H-2B status is granted for up to one year and can be renewed up to a maximum of three years. H-2B
jobs are frequently in industries such as hospitality, construction, landscaping, amusement parks, and forestry.
H-2B holders may work for the petitioning employer incident to status.
4. L-1A and L-1B visas

Available to noncitizens working for a multinational corporation abroad for at least one year in the past three
years who are to be transferred to the corporation's office in the United States. L-1A visas are for managers or
executives while L-1B visas are for workers with "specialized knowledge." The sponsoring employer must file
Form I-129 with USCIS. There is no limit to the number of visas available each year. L-1 status is granted for
three years, unless the employer is establishing a new office, in which case status is granted for one year. Two-
year extensions are available for up to seven years total for L-1A visas and five years total for L-1B visas.
Examples of L-1A positions are operations managers and executive vice presidents; examples of L- 1B
positions are sales engineers and marketing engineers. L-1 nonimmigrants are authorized to work for the
petitioning company incident to status.
5. O-1 visas
Available to individuals who have extraordinary ability in the sciences, arts, education, business, or athletics,
or an extensively documented record of extraordinary achievement in movies or television. The employer must
file Form I-129 with USCIS. There is no limitation to the number of visas that may be issued per year. O-1
status is valid for up to three years (or for the duration of the relevant activity or event in the United States) and
can be extended in one-year increments with no limits on the number of extensions. Examples of O-1 positions
are researchers in solid organ transplant pathology and internationally known artists. O-1 nonimmigrants are
authorized to work for the petitioning employer incident to status.
6. P visas
Available to internationally recognized athletes and entertainers (P-1); artists or entertainers coming to perform
under a reciprocal exchange program (P-2); and artists or entertainers in culturally unique programs. The
employer must file Form I-129 with USCIS. There is no limitation on the number of visas that may be issued per
year. P status is granted for the length of time needed to complete a particular event, tour, or season, up to a
maximum of one year with one-year extensions permitted. P visa athletes may be admitted for a period of up
to five years with one extension of another five years. Examples of P visa positions are circus personnel and
ballet dancers. P nonimmigrants are authorized to work for the petitioning employer incident to status.
7. R-1 visas
Available to religious workers who have been members of a religious denomination with non-profit status in
the United States for at least two years. The religious organization must file Form I-129 with USCIS. There is
no limitation on the number of visas that may be granted. R-1 status is granted initially for up to 30 months,
with extensions permitted up to a maximum total of five years. Examples of R-1 visa positions are ministers,
religious brothers and sisters, and other traditional religious positions in a denomination (e.g. parish music
director, catechist, religion teacher). R nonimmigrants are authorized to work for the petitioning employer
incident to status.
8. TN visas
Available to citizens of Canada and Mexico who are employed in one of the specific professions listed in the
North American Free Trade Agreement (NAFTA). Canadians apply for TN status at a U.S. port-of-entry and
Mexicans apply for a TN visa at a U.S. consulate. The sponsoring employer must only file Form I-129 with
USCIS if the beneficiary is already in the United States and seeking an extension of stay or change of status.
There is no limitation on the number of TN visas that may be granted. Initial TN status may be granted for up
to three years and can be renewed in one-year increments. There is no maximum period of stay. Examples of
TN positions are architects, attorneys, disaster relief insurance claims adjusters, and economists. TN
nonimmigrants are authorized to work incident to status for the designated employer.
Note that these categories do not meet the foreign labor needs of every U.S. employer. Likewise, there
are many foreign workers who would like to apply for nonimmigrant status to work temporarily in the United
States but are not eligible to do so. The H-2B program is only for employers needing seasonal labor, not for
longer-term workers. Especially for less-skilled, non-agricultural workers in industries like restaurant, hospitality,
retail, landscaping, construction or health care, there is no applicable employment- based nonimmigrant
category. Even if there is an employment-based category for a particular worker, those already in the United
States without status are not eligible to obtain nonimmigrant status since they are not in valid status to begin
with. And leaving the United States to apply for a visa overseas would result in triggering inadmissibility under
INA § 212(a)(9)(B) for anyone who has already accrued more than six months of unlawful presence
D. HOW TO OBTAIN NONIMMIGRANT EMPLOYMENT-BASED STATUS

The exact process for obtaining nonimmigrant status based on employment depends on the type of
status and whether the foreign worker is located overseas or is already in the United States. With the exception
of Canadian nationals, foreign workers overseas need a valid visa stamp in their passport to seek admission
to the United States in nonimmigrant status. After submitting the nonimmigrant visa application electronically to
DOS using Form DS-160, the applicant must schedule a visa interview appointment with the relevant U.S.
consulate. However, before the applicant can apply for a visa, most classifications require the prospective
employer to have an I-129 petition approved by USCIS. If the worker is already in the United States in another
valid nonimmigrant status, such as F-1 student status or B-2 tourist status, the petitioner may file the I-129 as a
“change of status” petition; it must be filed prior to the expiration of the worker’s current status.
Whether applying for an employment-based visa abroad or status in the United States, most workers
will need to prove what is called “nonimmigrant intent” – i.e. that they do not intend to remain permanently in
the United States but will return home upon the expiration of their stay. This is because, under INA§214(b),
applicants for nonimmigrant visas or admission are presumed to be immigrants until they can establish to the
contrary. The presumption can be rebutted with evidence of strong ties to the home country, including family
ties, employment ties, and financial ties (e.g. bank accounts or home ownership), which indicate the
nonimmigrant is likely to return home upon expiration of their nonimmigrant stay. Among the exceptions to the
nonimmigrant intent requirement are H-1B and L status. These are each considered a “dual intent” status
meaning these workers can simultaneously intend to depart the United States at the end of their nonimmigrant
stay and intend to seek permanent residence in the United States. For this reason, many employers seek to
change an employee’s status into H-1B or L prior to beginning the permanent residence process on the
noncitizen’s behalf.
Example: Natasha, a university student in Russia, was recruited to spend the summer operating rides
at a Florida amusement park. First, her prospective employer must file an application for temporary
labor certification with DOL to establish there are no American workers available for this seasonal,
non-agricultural job. Next, the employer will file an I-129 petition with USCIS. Upon approval,
Natasha can apply for an H-2B visa at the U.S. embassy in Moscow. She will need to provide
evidence that she has nonimmigrant intent and will return to Russia when her job ends in September.
This might include proof that she has enrolled to continue her studies in the Fall, has signed a lease for
an apartment, checking and savings account statements, and that she and her parents complied with
their tourist visas when they visited the United States a few years ago. If the consular officer finds that
Natasha will not try to stay longer than the duration of her summer job, the officer will issue her an H-
2B visa and she may seek temporary admission.
E. STUDENTS, EXCHANGE VISITORS, AND TEMPORARY BUSINESS VISITORS

While they are not considered to be employment-based nonimmigrants, students and exchange visitors may
be able to work in the United States under certain circumstances.
F-1 academic students and M-1 vocational students are permitted into the United States for a temporary period
to pursue full-time academic or vocational studies. A foreign student accepted into a U.S. elementary or high
school, university, or language training program may be eligible for F-1 status, while someone pursuing
technical training at a vocational high school, trade school, or community college may seek M-1 status.
Typically, F-1 and M-1 students are not authorized to work. However, in certain situations, F-1 students are
permitted to work on campus. They may also be able to obtain Curricular Practical Training (CPT) to work off
campus during their academic studies and this work permission will be noted on their Form I-20. Likewise, if
authorized by the Designated School Official for Optional Practical Training (OPT), F-1s and M-1s may apply
with USCIS for an EAD to work in a related field following completion of their studies.
J-1 exchange visitors come to the United States to participate in a range of different work and study exchange
programs designated by DOS. J-1s include professors, scholars, students, interns, trainees, teachers,
specialists, au pairs, and camp counselors; some are authorized to work while others are not. If the exchange
program is a work program, this will be noted on the visitor’s Form DS-2019, Certificate of Eligibility for
Exchange Visitor Status, and the J-1 is authorized to work in the United States pursuant to their status.
B-1 status allows certain people to visit the United States for business purposes related to their employment
overseas. B-1 visitors are admitted temporarily to conduct business activities of a professional or commercial
nature such as negotiating a contract, meeting with business associates, attending or speaking at a conference,
or participating in short-term training. B-1s are not permitted to be gainfully employed or paid by a U.S.-based
company during their authorized stay.
10.4 PERMANENT EMPLOYMENT-BASED IMMIGRATION
A. OVERVIEW
In addition to the types of temporary nonimmigrant status discussed above, employment can also be a
path to the right to work and live permanently in the United States. As in the family-based immigration process,
a petition with USCIS is a prerequisite to obtaining LPR status. Once the petition for the foreign worker is
approved, he or she may apply for LPR status, either through adjustment of status in the United States or
consular processing abroad.
Like family-based green cards, immigration through employment is also limited. The statute allocates
only 140,000 immigrant visas per year for foreign workers and their eligible spouses and minor, unmarried
children. Moreover, each country is limited to seven percent of the worldwide level of immigrant admissions.
As a result, the DOS Visa Bulletin reflects waiting periods for nationals from certain, high- demand countries in
many of the five employment-based preference categories. Depending on the nature of the particular job offer
and the individual worker’s skills and background, there often is no viable path for that individual to immigrate
through employment.
B. EMPLOYMENT-BASED IMMIGRATION IN ACTION

Below are some scenarios illustrating an employment-based path to permanent residence:
Example: Sister Sophie has worked for the Diocese of Charlotte in R-1 status for the last three and a
half years. Both she and her employer would like her to remain beyond the maximum five-year stay
permitted for R-1s. To sponsor Sister Sophie for a Special Immigrant Religious Worker green card, the
diocese must file an I-360 petition with USCIS along with proof that she has been a member of the
Roman Catholic denomination for the last two years, has two years of experience as a religious worker,
and is qualified to perform the duties of the offered full-time position. Once the petition is approved
and Sister Sophie has a current priority date, she can file her I-485 adjustment of status application.
Example: Bo is a renowned biochemist employed as a senior research scientist at a prestigious
research hospital in Beijing. He was just offered a permanent, tenure‑track position to teach
microbiology at MIT. The university plans to file an I-140 petition to classify Bo as an EB-1 outstanding
researcher. The petition must include evidence of Bo’s international recognition in the fields of
biochemistry and microbiology and at least three years of teaching or research experience. Once the
petition is approved, Bo, along with his wife and children, may apply for immigrant visas with the U.S.
embassy.
C. EMPLOYMENT-BASED PREFERENCE CATEGORIES

Employment-based immigrant visas are divided into five preference categories. Each category
requires USCIS to approve a petition, usually filed by the sponsoring employer. This is most often Form I-
140, Immigrant Petition for Alien Worker, but can also be an I-360 or I-526 petition. Some categories also
require the employer to first obtain an approved labor certification from DOL before submitting the petition to
USCIS. The worker’s priority date is established by the filing of the labor certification with DOL, if required;
otherwise it is established by filing the immigrant petition with USCIS. Only after USCIS approves the petition
and the worker has a current priority date may the worker seek adjustment of status or consular processing,
including demonstrating that he or she is not inadmissible (or is eligible for a waiver).
Like the family-based charts, the DOS Visa Bulletin also includes two sets of dates for employment-
based immigrants: Chart A final action dates and Chart B filing dates. Depending on a worker’s preference
category and country of chargeability, many will face significant waiting periods between approval of the
petition and the ability to apply to immigrate.
Below is a summary of which foreign workers qualify for each of the five preference categories,
along with the requisite USCIS petition and whether a DOL labor certification is needed. All preference
categories described below permit the immigration of derivatives (i.e. the applicant's spouse and unmarried
children under the age of 21) with the applicant.
1. EB-1
Available to three types of priority workers: individuals of "extraordinary ability" in the arts, sciences, education,
business or athletics; outstanding professors and researchers; and multinational managers and executives. This
category is for individuals who have risen to the very top of their field of endeavor and have demonstrated
sustained national or international acclaim. Outstanding professors and researchers must have a minimum of
three years of experience in teaching or research. The I-140 must be filed with USCIS, along with
documentation of the worker's extraordinary ability. No job offer or labor certification is required for this
category.
2. EB-2
Available to two types of workers: members of the professions holding advanced degrees and individuals with
exceptional abilities in the arts, science or business. Generally, this category requires an approved labor
certification from DOL. One exception to the labor certification requirement is for EB-2 workers who can prove
their work and presence is in the U.S. national interest. This is referred to as a National Interest Waiver (NIW)
and requires the worker to include evidence that the job satisfies the NIW requirements. EB-2 applications
require an I-140 to be filed with USCIS, along with documentation of the worker's advanced degree or
exceptional ability.
3. EB-3
Available to three groups of workers: skilled workers whose job requires at least two years of training or
experience; professionals with college degrees; and “other workers” for those performing unskilled labor that
is not temporary or seasonal. Professionals must possess a bachelor's degree or its foreign equivalent. A labor
certification certified by DOL and a permanent, full-time job offer are required for all EB-3 petitions. After
obtaining the labor certification, the employer must file an I-140 with USCIS, along with evidence that the
individual meets all the requirements for the offered job.
4. EB-4
Available to certain "special immigrants," including religious workers, employees of U.S. Foreign Service posts,
translators, former U.S. government employees and others. Note this category also includes special immigrant
juveniles, whose eligibility for LPR status based on abuse, abandonment, or neglect is described in Chapter
Twelve. Religious workers must demonstrate two years of membership in a religious denomination having a
non-profit status in the United States and two years of experience as a religious worker immediately before the
filing of the visa petition. The religious worker must be coming to work full-time in a compensated position.
Translators with the U.S. Armed Forces must have worked directly with U.S. Armed Forces or Chief of Mission
as a translator or interpreter for at least 12 months, and have obtained a favorable recommendation. For EB-
4 workers, Form I-360 must be submitted to USCIS with evidence of the noncitizen's eligibility for the specific
classification. No DOL labor certification is required for this category.
5. EB-5
Available to noncitizens who will invest 1.8 million dollars in a job-creating enterprise that employs at least ten
full-time U.S. workers. If the enterprise is in a recognized high-unemployment or rural area, the minimum
investment required is only $900,000. Form I-526 must be submitted to USCIS with supporting documents.
The category allows for conditional residency for an initial two-year period and the removal of conditional
residency 90 days before the second anniversary of conditional residency. No labor certification is required
for this category.
D. THE EMPLOYMENT-BASED IMMIGRATION PROCESS
The path to an employment-based green card, like family-based immigration, is at least a two-step
process. The first step requires the employer to file an I-140 or other petition with USCIS. This is the
employment-based equivalent of the I-130. With its petition, the employer must include evidence of its ability
to pay the offered wage. Note there are a few categories where the intending immigrant can self-petition.
Once the petition has been approved and the beneficiary has a current priority date, he or she can proceed
with the second step of seeking LPR status.
For EB-1, EB-2 or EB-3 immigrants where the Visa Bulletin indicates no backlogs and the worker is
eligible to adjust status in the United States, the I-140 and I-485 adjustment application may be filed with
USCIS concurrently, similar to the “one-step” process in family-based immigration. The benefit of concurrent
filing is that the noncitizen may simultaneously seek an EAD and advance parole so that he or she may work
lawfully and travel while the applications are adjudicated. To determine whether USCIS is allowing the use of
Chart B dates to file for adjustment for a given month, check the USCIS website at
www.uscis.gov/visabulletininfo.
For the majority of EB-2 and EB-3 immigrants, the LPR process actually involves three steps, as opposed
to two. Before the sponsoring employer can file the I-140, it must first obtain an approved labor certification
from DOL. This requires the employer to test the labor market in the geographic area of the job offer in order
to confirm that there are no U.S. workers able, qualified and willing to perform the work for which the noncitizen
is being hired. DOL must also confirm that employment of the noncitizen will not adversely affect the wages
and working conditions of U.S. workers. DOL procedures for obtaining a labor certification are described in
the regulations at 20 CFR § 656 and summarized on the DOL website at:
www.foreignlaborcert.doleta.gov/perm.cfm. Employers file the ETA Form 9089, Application for Permanent
Employment Certification, online through DOL’s Program Electronic Review Management (PERM) system.
Testing the labor market and obtaining an approved “PERM labor certification” is a technical process that can
take six months or more and is best navigated with experienced legal representation.
The below chart summarizes, for each preference category, which USCIS petition is required, who
may file that petition, and whether a DOL labor certification is needed.
Preference Eligible Worker USCIS Who Files Petition? Labor Certification

Category Petition Required?
Person of extraordinary ability Employer or worker

No
Outstanding professor/researcher Employer
First (EB-1) I-140
Multinational executive/manager Employer
Professional with advanced degree Employer Yes
Second (EB-2) Person of exceptional ability in (Worker, if seeking (unless seeking
arts/sciences/business I-140
NIW) NIW
Professional with bachelor's degree

Third (EB-3) Skilled worker Employer Yes
I-140
Other worker
Special immigrant including

Fourth (EB-4) I-360 Employer No
religious worker
Fifth (EB-5) Immigrant investor I-526 Worker No
Like family-based immigrants, employment-based immigrants may either adjust status or consular
process. Workers who are in the United States and eligible to adjust status under INA § 245(a) or § 245(i)
may file their I-485 adjustment application here. Workers who are in the United States but not eligible to adjust
and workers located overseas must go through consular processing. Either way, the applicant must prove that
he or she is admissible under INA §212(a) or, if not, is eligible and approved for a waiver of inadmissibility.
Employment-based adjustment under INA § 245(a) requires proof that the applicant was inspected
and admitted or paroled. § 245(a) adjustment is not available if the worker has ever worked without
authorization or been in the United States unlawfully, with one minor exception. INA § 245(k) protects §
245(a) adjustment eligibility for employment-based immigrants in the first, second, third or fourth preference
categories who worked without authorization or have been in the United States without lawful status for an
aggregate period of 180 days or less. This provision applies only to those seeking to adjust through
employment; it is not available to family-based or other intending immigrants.
Example: Viviani entered the United States without inspection in November 1998. In February 1999,
she applied for TPS and has maintained her TPS ever since. In 2012, Viviani obtained advance parole
and returned to Honduras for a month to visit her mother. The school where Viviani teaches is willing
to file a labor certification and I-140 petition on her behalf. Since Viviani has a U.S. college degree
and substantial work history, she should be eligible for the EB-3 preference category as a professional
with a bachelor’s degree. Assuming the school can show there are no qualified U.S. workers to perform
the job and USCIS approves the I-140, Viviani could apply for adjustment. Her 2012 parole into the
United States counts as an inspection and parole under INA § 245(a). It is true that she failed to
maintain lawful status for three months (from her EWI in November 1998 to filing her TPS application
in February 1999). However, because this period of unlawful status was less than 180 days, INA §
245(k) “forgives” it and permits Viviani to adjust under § 245(a) as long as she is not inadmissible.
10.5 DIVERSITY VISAS

The Diversity Immigrant Visa Program, commonly known as the “diversity lottery” or “green card
lottery,” makes available each year by random selection 50,000 immigrant visas to qualifying applicants from
countries with historically low rates of immigration to the United States. Each year, DOS publishes a list of
countries whose natives are eligible for the diversity lottery that year based on being “low-admission”
countries. Countries of “high admission” typically include Mexico, India, the Philippines and China, among
others. The natives of these countries are not eligible for the diversity lottery. Eligibility to apply for the diversity
lottery is determined by an applicant’s place of birth, not citizenship.
Eligibility for the diversity lottery requires that the applicant have a high school diploma or its
equivalent. Alternatively, within five years of applying, the applicant must have at least two years of work
experience in an occupation requiring at least two years of training or experience.
The online registration period takes place each fall and a noncitizen may only file one application.
There is no application fee. Following registration in the fall, lottery entrants may check online the following
spring to learn whether they have been selected from among millions of applications.
After the noncitizen is selected for a diversity visa, to obtain LPR status he or she must either apply for
adjustment of status or complete consular processing, including demonstrating admissibility. The spouse and
minor, unmarried children of the diversity visa applicant qualify as derivative beneficiaries and are also eligible
to apply for LPR status. However, the noncitizen and all qualifying derivatives must have their adjustments
approved or be issued immigrant visas by September 30 of the applicable fiscal year. There is no guarantee
that someone selected in a given lottery will actually receive a diversity visa; once all 50,000 visas for the
fiscal year have been issued, the program terminates without any carry-over of benefits.
Example: Bilen was born in Eritrea but lives with her husband, Kebede, in Ethiopia. The couple wants
to immigrate to the United States but neither has a qualifying relative to file a petition for them. The
DOS website indicates that individuals born in Eritrea and Ethiopia are eligible for the diversity lottery
this year. Since they are each college graduates, Bilen and Kebede both meet the educational
requirement. They can each submit an application through the DOS website during the fall registration
window and list the other as a derivative spouse. If either Bilen or Kebede is randomly selected the
following spring, they should each apply for their immigrant visa as soon as possible. At the consular
interview, the spouse selected in the lottery will need to present proof of at least a high school education
or equivalent. Both spouses must also show they are not inadmissible and must be issued visas by
September 30 in order to immigrate.
Where’s the Law?
Employment-based nonimmigrant status:

• INA §§ 101(a)(15) and 214
• 8 CFR § 214.2
Employment-based immigrant visas:
• INA § 203(c)
• 22 CFR § 42.2; 8 CFR § 204.5; 20 CFR § 65
• USCIS Policy Manual: Volume 7, Part B
• USCIS Adjudicator’s Field Manual, Chapter 22
Diversity visas:
• INA § 203(c)
• 22 CFR § 42.2
Practice Tips
• Include in your intake form questions to assess eligibility for an employment-based

green card or diversity visa. Clients who may not have a family member to sponsor
them and are not eligible for humanitarian relief may have a path to permanent
residency through an employer willing to serve as a sponsor. Inquire about client’s
educational background, work history and current employment situation to assess
potential employment-based options. Depending on the client’s country of birth and
educational/employment history, he or she may be eligible to enter the diversity visa
lottery and should be instructed about how to access the program instructions and
submit an application each year.
• It is easy for family-based practitioners accustomed to assessing adjustment eligibility
under INA § 245(a) through family sponsorship to forget about the value of INA §
245(k) in the employment context. This provision can protect the ability of an
employment-based immigrant in the first, second, third or fourth preference category
who has worked without authorization or been in the United States without lawful status
for an aggregate period of 180 days or less to adjust under INA § 245(a). Make sure
to build this into your screening tools.
• Applicants for the diversity lottery must list their spouse on the application. Failure to
disclose one’s spouse, if married, will invalidate the application.
• Screen all clients for prior labor certifications. We learned in Chapter Eight that the
beneficiary or derivative beneficiary of a labor certification application filed on or
before April 30, 2001 can be grandfathered under INA § 245(i), so long as the
application was approvable when filed. Do not limit your inquiry to I-130 or other
USCIS petitions.
Chapter 11
IMMIGRATION RELIEF FOR VICTIMS OF ABUSE AND CRIME:
VAWA, U AND T STATUS
11.1 INTRODUCTION
Noncitizen victims of domestic abuse and crime are particularly vulnerable in both the criminal and
immigration legal systems. Uncertainty as to their immigration status, coupled with fear of removal and the
resulting separation from family and support networks, frequently makes noncitizen crime victims reluctant to
report their abusers to the authorities or to seek relief. Over the past two decades, through the advocacy of
immigrant, domestic abuse, and human rights activists, Congress has become increasingly aware of the special
vulnerability of noncitizen victims and has implemented a number of special forms of immigration relief for
them. This chapter will review the following types of relief that apply to nonimmigrant victims of abuse and
crime: Self-petitioning under the Violence Against Women Act (VAWA), VAWA cancellation of removal, U
nonimmigrant status, and T nonimmigrant status.
The forms of immigration relief in the following list are specifically directed to spouses and children of
abusive U.S. citizens (USCs) and lawful permanent residents (LPRs). Self-petitioning also applies to parents of
abusive USC sons and daughters, but VAWA cancellation does not:
• VAWA self-petitioning for LPR status;

• VAWA cancellation of removal; and
• Abused spouse waiver for conditional permanent residents.
In addition, there are other immigration remedies for victims of abuse and crime who have no family
relationship with a USC or LPR. These include:
• T nonimmigrant status for victims of severe forms of human trafficking; and

• U nonimmigrant status for persons who have suffered substantial harm as a result of being the
victim of certain listed crimes.
Of course, victims of abuse or crime may also apply for any other form of immigration relief for which
they are eligible. Additional humanitarian relief, including Special Immigrant Juvenile Status (SIJS) for abused,
neglected or abandoned minors and asylum and related relief are discussed in Chapter Twelve.
11.2 VAWA, U AND T RELIEF IN ACTION
The following scenarios illustrate how VAWA self-petitioning and U and T visas provide immigration
relief to victims of domestic violence and other crimes.
Example: Evelyn is undocumented and resides with her USC spouse Harold. Harold has been
physically and emotionally abusing Evelyn for the past year. Even though Harold has never petitioned
for Evelyn, she can file a self-petition to be classified as the abused spouse of a USC. If her petition is
approved, she will be eligible to apply for adjustment of status.
Example: Soraya traveled to the United States to work for a family as a nanny. Although she had a
contract with them, her employers ignored the contract, confiscated Soraya’s documents, refused to
pay her and threatened her with abuse if she tried to leave. Soraya finally escaped and was helped
by a social services agency to contact the police. Soraya is now applying for T nonimmigrant status. If
approved, Soraya will eventually be eligible to apply for adjustment of status.
Example: Kemala, from Indonesia, entered the United States on a tourist visa in 2009 and has
remained here since then. Last year, Kemala was the victim of a sexual assault. She has been helpful
in the investigation of the crime and is now applying for U nonimmigrant status. If approved, Kemala
will eventually be able to apply to adjust status.
11.3 VAWA SELF-PETITIONING FOR ABUSED SPOUSES AND CHILDREN OF USCS

AND LPRS
A. OVERVIEW
Under regular family-based immigration, the USC or LPR spouse or parent initiates the process by filing
a visa petition with U.S. Citizenship and Immigration Service (USCIS) to establish the status of the petitioner
and the family relationship with the beneficiary. If that petition is approved, then the foreign spouse or child
applies for permanent residence based upon the USC or LPR relative’s approved petition. Unfortunately, where
there is domestic abuse, the petition process provides another tool for the abusive USC or LPR petitioner to
exert control over the abused family member. For example, the abusive USC or LPR may threaten to not file a
petition in the first place, to withdraw a pending petition, or to report the undocumented family member to U.S.
Immigration and Customs Enforcement (ICE).
In response to this problem, Congress enacted a special “self-petitioning” remedy in the Violence
Against Women Act of 1994, updated by the Battered Immigrant Women Protection Act of 2000 (VAWA
2000) and the Violence Against Women Reauthorization Acts of 2005 and 2013. Self-petitioning echoes the
family-based immigration process, but allows the foreign spouse or child (defined as unmarried and under 21
years of age) of a USC or LPR abuser to file his or her own “self-petition” (called a “self-petition”), thereby
allowing the victim, instead of the abuser, to initiate and control the immigration process. In addition, with the
enactment of VAWA 2005, parents of abusive USC adult sons and daughters are also eligible to self-petition.
B. ELIGIBILITY REQUIREMENTS
The following noncitizens are eligible to self-petition:
• Abused spouses of USCs and LPRs

• Non-abused spouses whose children have been abused by the USC or LPR spouse, even if the
children are not the stepchildren of the abuser spouse
• Abused persons who are “intended spouses” of USCs and LPRs. The term “intended spouse”
means the person believes that he or she has married a USC or LPR and a marriage ceremony
was actually performed but the marriage is not legitimate solely because of the bigamy of the
USC or LPR abuser.
• Abused children of USCs and LPRs. Note that abused sons and daughters of USCs and LPRs who
are now over 21 but under 25 may self-petition up to age 25 if the abuse was “at least one
central reason” for the filing delay.
• Abused parents of USC adult sons and daughters
Moreover, the children (unmarried and under 21) of self-petitioning spouses may be included as derivative
beneficiaries of the self-petitioner.
1. Self-Petitioning Spouses
A self-petitioning spouse must establish the following:
• Marriage or “intended marriage” to the abuser;

• The abuser is a USC or LPR;
• The victim entered into the marriage in good faith, meaning that he or she intended to establish a
life together with the spouse and did not enter into the marriage solely for immigration purposes;
• Battery or extreme cruelty by the USC or LPR spouse during the marriage to the self-petitioner or
his or her child;
• Past or present residence with the abuser (but there is no minimum amount of time that the victim
must have lived with the abuser);
• Either (a) current residence in the United States or (b) if living abroad, the abuser is an employee
of the U.S. government or a member of the U.S. uniformed services or abused the noncitizen
spouse or the noncitizen spouse’s child in the United States; and
• Good moral character.
2. Self-Petitioning Children
A self-petitioning abused child must establish the following:
• Parent-child relationship to the abusive parent;

• The self-petitioner is a child (meaning unmarried and under 21) at the time the application is
filed. (Note the exception described above for abused sons and daughters of USCs and LPRs);
• Battery or extreme cruelty inflicted by the USC or LPR parent upon the self-petitioner;
• Past or present residence with the abuser (visitation is sufficient);
• Either (a) current residence in the United States or (b) if living abroad, the abusive parent is an
employee of the U.S. government or a member of the uniformed services or subjected the
applicant to abuse in the United States; and
• Good moral character (good moral character is presumed if the self-petitioner is under age 14).
3. Self-Petitioning Parents
A self-petitioning parent must establish the following:
• Parent-child relationship to the abusive son or daughter;

• Abusive adult son or daughter is USC;
• Battery or extreme cruelty inflicted by USC son or daughter upon the parent;
• Past or present residence with the abusive USC son or daughter; and
• Good moral character.
It is not yet clear whether self-petitioning parents may apply from outside the United States.
Note that a special provision allows USCIS to find that the self-petitioner is a person of good moral
character despite falling under one of the statutory bars to good moral character in INA § 101(f) if the act or
conviction that creates the statutory bar is waivable and was connected to the applicant’s having been abused.
C. BATTERY OR EXTREME CRUELTY

The term used for abuse under the Immigration and Nationality Act (INA) is “battery or extreme cruelty.” This
phrase is defined broadly under the regulations (8 CFR § 204.2 et seq.) and includes both physical and mental
abuse including:
• Acts and threatened acts of violence;

• Forceful detention causing physical or mental injury;
• Psychological abuse;
• Sexual abuse, rape, molestation;
• Forced prostitution;
• Acts that may not appear violent but are part of an overall pattern of violence;
• Social isolation;
• Accusations of infidelity;
• Stalking;
• Interrogating the victim’s friends, family, or coworkers;
• Economic abuse (such as not allowing the victim to work outside the home);
• Actions against some other person or thing if these acts were deliberately used to perpetrate
extreme cruelty against the self-petitioner or the self-petitioner’s child.
D. DOCUMENTING THE ABUSE

Congress has created a special standard of proof for self-petitions known as the “any credible
evidence” standard. Although self-petitioners are encouraged to submit primary evidence whenever possible,
the circumstance of being an abused spouse, parent, or child may limit access to primary documents, including
birth certificates, naturalization certificates, and permanent resident cards. Under this special evidentiary
standard, USCIS will consider any credible evidence relevant to the petition. The self- petitioner’s own
declaration describing the bona fides of the marriage (in a spousal case) and the abuse is a crucial piece of
supporting evidence. Police reports and/or medical records documenting the abuse are also helpful to include
if available. The determination of what evidence is credible and the weight to be given that evidence is within
the sole discretion of USCIS. Note that a VAWA self-petitioner is not required to have had any contact with
law enforcement in order to establish that he is she was the victim of battery or extreme cruelty, unlike in the U
visa context discussed below.
Example: Soo-jin from Korea and her eight-year-old son have no lawful status. They live with Soo-
jin’s USC husband, Gordon. Gordon is very possessive and gets angry when Soo-jin spends time with
friends. He controls the family’s finances, all their important documents, and monitors Soo-jin’s
communications with others as well as where she goes when she leaves their home. He constantly
berates her and calls her degrading names. Whenever they get into an argument, Gordon breaks
furniture and threatens to harm her and her son. Soo-jin is eligible to self-petition under VAWA, and
her son can be a derivative beneficiary. Because she is married to a USC, she is considered an
immediate relative and may file for adjustment of status at the same time. Since Soo- jin does not have
access to important documents, she may use any credible evidence to show that she meets each of the
requirements for VAWA.
E. CERTAIN CHANGES IN STATUS DO NOT AFFECT THE SELF-PETITION

Both before a self-petition is filed and while it is pending, changes in circumstances can occur. These might
include a child turning 21 or a self-petitioning spouse obtaining a divorce from the abuser. There are a number
of special provisions under VAWA governing these sorts of changes which are summarized below:
• Divorce: An abused spouse may self-petition up to two years after a divorce from the abuser if
there was a connection between the divorce and the abuse. USCIS does not require that the
divorce decree specifically state that the termination of the marriage was due to domestic
violence. Instead the self- petitioner must demonstrate that the battering or extreme cruelty led to
or caused the divorce, typically through his or her supporting declaration submitted with the self-
petition.
• Death of the abuser: An abused spouse or child of a USC or abused parent of an adult USC
may self-petition up to two years after the abuser’s death.
• Abuser’s loss of status: Spouses and children of abusive USCs and LPRs and parents of abusive
adult USC sons and daughters can self-petition up to two years after the USC or LPR loses
immigration status if the loss of status is related to the domestic violence.
• Remarriage: A self-petitioner’s remarriage after the approval of a spousal self-petition will not
revoke the approval.
• Turning 21: Self-petitioning and derivative children do not “age out” of eligibility as long as they
were under 21 when the self-petition was filed. Moreover, the Child Status Protection Act applies
to VAWA self-petitions.
• Abused sons or daughters filing prior to age 21: Abused sons and daughters of USCs and
LPRs who qualified to self-petition before turning 21 may file the self-petition prior to reaching
age 25 if the abuse the person suffered was at least one central reason for the filing delay.
F. ADJUSTMENT OF STATUS AND OTHER BENEFITS FOR APPROVED VAWA SELF- PETITIONERS
VAWA self-petitions are filed with the USCIS Vermont Service Center (VSC) on Form I-360, which
takes the place of the Form I-130 that a petitioner would file in a standard family-based case. If the self-
petition is approved, the applicant receives employment authorization and “deferred action”, a form of
permission to remain in the United States, along with employment authorization.
Because VAWA self-petitioning mirrors family-based immigration, self-petitioners will either be

immediate relatives or preference category immigrants. VAWA self-petitioners who are the spouse or child of
a USC or the parent of an adult USC are considered “immediate relatives” and are not subject to any
immigrant visa quotas. VAWA self-petitioners who are the spouse or child of an LPR must wait for a current
priority date in the F2A category before they can apply for adjustment of status.
All approved VAWA self-petitioners are eligible to apply for adjustment of status under INA § 245(a)
even if they entered the United States without inspection or are preference immigrants who are out of status.
Self-petitioners who fall within an immediate relative category may file their self-petition and application for
adjustment concurrently through the same “one-step” adjustment process discussed in Chapter Eight. In
contrast, self-petitioners who are preference category immigrants must wait for their priority date to become
current before filing for adjustment. While waiting for a current priority date, USCIS policy has allowed
approved self-petitioners to obtain extensions of deferred action and employment authorization.
Example: Fernando, from Guatemala, entered the United States without inspection. He has been
abused by his USC spouse and meets all the requirements for VAWA self-petitioning. Because he is an
immediate relative, he can file his I-360 self-petition along with his I-485 application for adjustment of
status. While he waits for his I-360 to be adjudicated by the VSC, he will be eligible for the benefits of
being an adjustment of status applicant, i.e. employment authorization and advance parole. When his
self-petition is approved, his case file will be sent to the USCIS field office closest to where Fernando
resides so that he can be interviewed about his adjustment application.
Example: Marla, from Estonia, entered the United States with a B-1 visa and her authorized stay has
expired. She married LPR Dan who physically abused her. Marla meets all of the requirements for a
VAWA self-petition but, unless the Visa Bulletin is current for the F2A category, she will have to wait
for her priority date to become current before she can apply to adjust status. The fact that her B-1 stay
expired will not affect her ability to adjust status. After her I-360 is approved, she will receive deferred
action and employment authorization.
VAWA self-petitioners benefit from certain special provisions related to inadmissibility. They are
exempt from public charge inadmissibility and are eligible for special waiver provisions for inadmissibility
based on health, crimes, misrepresentation and the permanent bar. They are also eligible for an abuse-related
exemption from the unlawful presence ground of inadmissibility.
11.4 VAWA CANCELLATION OF REMOVAL
A. OVERVIEW
Some abused spouses and children of LPRs and USCs may not be eligible to self-petition but may still
be eligible for a related form of relief known as VAWA cancellation of removal. A grant of cancellation of
removal gives the recipient LPR status. Unlike self-petitioning, however, cancellation of removal may be applied
for only in removal proceedings as a form of relief from removal.
The following noncitizens are eligible to apply for cancellation of removal:
• Abused spouses of USCs and LPRs;

• Abused sons and daughters (both children and persons over 21) of USCs;
• Parents of abused children of USCs or LPRs, even if not married to the abuser; and
• Abused “intended spouses” of USCs or LPRs.
A grant of cancellation does not include the recipient’s children, but the U.S. Department of Homeland
Security (DHS) must parole the recipient’s child (or, if the recipient is a child, the recipient’s parent) into the
United States and grant them employment authorization. This parole status lasts until the child or parent is able
to obtain an immigrant visa based upon a visa petition filed by the recipient, now an LPR. Parole may also be
granted to a child or parent who is already in the United States.
The group of persons eligible to apply for cancellation of removal is wider than the group of persons
eligible to self-petition. For example, the following persons are eligible for cancellation, even though they could
not self-petition:
• An adult son or daughter of an abusive USC or LPR;

• Spouses of abusive USCs who were divorced or widowed more than two years ago;
• Spouses of abused LPRs who were divorced more than two years ago or who are widowed; and
• Persons who are parents of abused children of USCs or LPRs and who are not married to the
abuser.
B. ELIGIBILITY REQUIREMENTS
To be eligible for VAWA cancellation of removal, an applicant must meet the following requirements:
• Three years of continuous physical presence in the United States (brief absences and absences
related to abuse do not interrupt this period);
• Good moral character during that time;
• The USC or LPR spouse or parent has subjected the applicant or the applicant’s child to battery
or extreme mental cruelty;
• Removal would cause extreme hardship to the applicant or his or her child or parent;
• The applicant is not inadmissible under the inadmissibility grounds dealing with commission of
crimes or security and related issues, nor deportable under the deportation grounds dealing with
marriage fraud, crimes, failure to register, falsification of documents, or security and related
issues; and
• The applicant has not been convicted of an aggravated felony, as defined at INA § 101(a)(43).
In regard to the good moral character requirement listed above, there is a special provision, similar to
that for VAWA self-petitioners, allowing the immigration judge (IJ) to find that the applicant is of good moral
character despite falling under a statutory bar where the act or conviction creating the bar was connected to
abuse of the applicant. the applicant’s having been abused.
11.5 U AND T NONIMMIGRANT STATUS
A. OVERVIEW
In the Victims of Trafficking and Violence Protection Act of 2000, Congress created two extraordinary
types of nonimmigrant status, commonly referred to as “U” and “T” status based on their locations at INA §§
101(a)(15)(U) and (T). They are intended to protect victims of serious crime who have gathered the courage
to come forward, report the crime, and assist in its investigation or prosecution. The T visa applies to victims of
severe forms of human trafficking and reflects Congress’ concern with the growing impact of human trafficking
and its intention to vigorously prosecute traffickers and protect their victims. The U visa applies to noncitizens
who suffer substantial physical or mental abuse resulting from a wide range of specified criminal activity,
including felony assault; rape; manslaughter; and domestic violence. While this chapter refers to U and T
“visas,” note that most people who apply for these remedies do so from within the United States. As a result,
an approval typically results in a grant of T or U “status,” not a visa. Only those individuals applying for
admission from abroad will receive a visa.
The benefits of U and T visas are similar. Both provide an authorized stay in the United States and
employment authorization. After three years in either U or T status, the nonimmigrant may apply to adjust to
LPR status; a T nonimmigrant may qualify to adjust in a shorter period of time if the Attorney General has
determined that the investigation or prosecution is complete. In addition, qualifying family members of the
principal applicant may obtain U or T status as derivative beneficiaries.
Unlike VAWA, neither U nor T status requires that the victim be related to a USC or LPR. The victim may
apply for a U or T visa regardless of his or her current immigration status and regardless of whether he or she
is in the United States lawfully.
U and T status facilitate important collaboration between immigrant victims of crime and law
enforcement. The law enforcement certifications required for U visa applications and strongly recommended
for T visa applications are a means for law enforcement to help victims deal with the traumatic effects of crime
and rebuild their lives. At the same time, immigrant victims gain security in their immigration status, enabling
them to better assist law enforcement in investigating and prosecuting crimes.
B. REQUIREMENTS FOR U NONIMMIGRANT RELIEF FOR VICTIMS OF CRIME

An applicant for U nonimmigrant status or a U visa must establish the following:
• The applicant has been the victims of a specified crime, as described below
• The applicant has suffered substantial physical or mental abuse as a result of having been a
victim of the crime; certain criminal activity;
• The applicant (or, if the applicant is under age 16, his or her parent, guardian or next friend)
possesses information concerning the criminal activity and has been helpful, is being helpful, or is
likely to be helpful in the investigation or prosecution;
• The criminal activity violated the laws of the United States or occurred in the United States or its
territories or possessions;
• The application includes a certification from a federal, state, or local law enforcement official,
prosecutor, judge or other authority investigating criminal activity, or from a DHS official, stating
that the applicant “has been helpful, is being helpful, or is likely to be helpful” in the investigation
or prosecution of the listed criminal activity; and
• The applicant is admissible.
Note that in contrast to T visas, U visas always require close collaboration with law enforcement
because of the requirement that the petition contain a law enforcement certification. Potential certifying
agencies include police departments, prosecutors, judges, family protection agencies, the Equal Employment
Opportunity Commission, federal and state Departments of Labor and other investigative agencies. Criminal
activity, for purposes of the U visa, is defined as 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, fraud in foreign labor contracting, stalking or attempt, conspiracy, or solicitation to commit any
of the above-mentioned crimes, or any similar activity in violation of federal, state or local criminal law.
The INA provides a special inadmissibility waiver for U visa applicants filed on Form I-192. Under this
waiver, any ground of inadmissibility may be waived in the public or national interest, except for the grounds
related to perpetrators of Nazi persecution, genocide, acts of torture or extrajudicial killings.
Example: Jordana first entered the United States several years ago, using her cousin’s border crossing
card. Since her arrival, she has been sending money to her family in Mexico for them to pay a smuggler
to bring her young son to the United States, and they have finally been reunited. As Jordana left work
one night, she was attacked by two men who robbed her at gunpoint. They hit her repeatedly before
running away with her purse and some jewelry. One of the men threatened to come back and finish
her off if she told anyone what happened. A coworker found her and called the police. Jordana gave
a statement to the police and provided a description of the two men. She is terrified that she may be
attacked again and, as a result, is suffering from anxiety and depression. Jordana may qualify for U
status. She is inadmissible for misrepresentation and smuggling, but both grounds may be waived
under the special waiver provision that applies to U applicants. When she applies for U status, Jordana
may also apply for her son to be a derivative beneficiary.
C. BENEFITTS OF U STATUS
Applications for U status, or a U visa abroad, are made on Form I-918, and are adjudicated at the
VSC and Nebraska Service Center (NSC). There is no fee for the application. All applications must include a
law enforcement certification completed on Form I-918B. Derivative status for eligible family members of the
U applicant may be sought through submission of Form I-918A. An adult U nonimmigrant or applicant may
apply for derivatives status for his or her spouse and children, and a U nonimmigrant or applicant who is under
21 may apply for derivative status for his or her spouse, children, parent and unmarried siblings under 18. U
status for derivative beneficiaries will only be approved if the crime victim’s application for U status is approved.
By statute, U status approvals for principal beneficiaries are capped at 10,000 per year. There is no
limit imposed on the number of derivative beneficiaries who may be approved for derivative U status or a U
visa. When the cap is reached in a fiscal year, approvable applicants are placed on a wait list and granted
deferred action until the fiscal year when U status or a U visa may be issued. Those who receive deferred
action are not prioritized for removal and may apply for employment authorization.
In recent years, demand for U visas has far exceeded the 10,000 available visas per year. This has
led to a significant number of individuals being placed on the waiting list and long waiting times for
adjudication of their applications for U status.
Example: In August 2019, Peg submitted an application for a U visa based on being the victim of a
felonious assault. Under current timelines, Peg can expect to wait approximately four years before she
hears anything about her case. If she appears to be eligible for a U visa at that time, she will be placed
on a wait list and granted deferred action. It may then take another ten years or more before she is
eligible to receive actual U status because of the thousands of people in line before her. After being
granted U status, Peg will have to wait an additional three years to qualify for adjustment of status. If
Peg has a child, she can apply for her child to be granted U derivative status.
D. U ADJUSTMENT OF STATUS
U nonimmigrants apply for adjustment of status under special provisions found under INA § 245(m).
Applicants must show:
• Physical presence in the United States for three years since the date of approval of U status;
• No unreasonable refusal to provide assistance to law enforcement in connection with the
qualifying criminal activity leading to U status;
• No inadmissibility under INA § 212(a)(3)(E) (related to participants in Nazi persecution,
genocide, torture or extrajudicial killing); and
• Presence in the United States is justified on humanitarian grounds, to ensure family unity, or in the
public interest.
Adjustment applications are filed with the VSC, and only USCIS has jurisdiction to adjudicate these
applications. U status holders who are in removal proceedings should seek termination of proceedings before
or after applying for adjustment of status, and those with outstanding orders of removal should file for
reopening and termination.
Adjustment provides another opportunity to assist qualifying family members who were not included
as derivatives in the U application stage. When a principal U status holder applies for residence, he or she
may also apply for a spouse, parent or child as long as that family member did not have U nonimmigrant
status. The application for the family member is submitted by the U status holder on Form I-929 and must also
include proof that either the U status holder or the qualifying family member will suffer extreme hardship if not
allowed to remain in or be admitted to the United States. Upon approval of the I-929, the qualifying family
member may apply for residency through adjustment of status or at a U.S. consulate abroad.
Example: Two years after being approved for U status, Helena married Hector, an undocumented
man from Brazil. Hector does not qualify to be a U derivative beneficiary because he married Helena
after she applied for U status. But Helena can apply for Hector to have qualifying relative status as her
spouse. She cannot submit the application until she applies for adjustment of status, and the application
cannot be approved unless Helena’s application for adjustment is approved. If the I-929 petition is
approved, Hector will be eligible to apply for LPR status himself.
E. REQUIREMENTS FOR T NONIMMIGRANT RELIEF FOR VICTIMS OF HUMAN TRAFFICKING

To be eligible for a T nonimmigrant visa, the applicant must meet the following requirements:
• The applicant is or has been a victim of a “severe form of trafficking in persons,” as described
below:
o Sex trafficking is defined as the recruitment, harboring, transportation, provision, or obtaining
of a person for the purpose of a commercial sex act, where the act is induced by force, fraud,
or coercion, or where the person induced to perform the act is under 18 years of age.
o Labor trafficking is defined as the recruitment, harboring, transportation, providing, or
obtaining of a person for labor or services, through force, fraud, or coercion, for the purpose
of subjecting the person to involuntary servitude or debt bondage;
• The applicant must be physically present in the United States, American Samoa, or the Northern
Mariana Islands on account of the trafficking. This refers to physical presence on account of
trafficking at the time of applying for T status. It does not require that the person entered the United
States on account of trafficking;
• The applicant must have complied with any reasonable request for assistance from federal, state,
or local law enforcement in the investigation or prosecution of acts of trafficking or must not have
attained 18 years of age. There is an additional exception to this requirement if the person is unable
to cooperate with law enforcement due to physical or psychological trauma. Unless the age or
trauma exception applies, the applicant must have had contact with a law enforcement agency in
order to report the crime and be available for requests for assistance; and
• The applicant would suffer extreme hardship involving unusual and severe harm upon removal. In
determining whether the applicant has experienced this level of hardship, USCIS considers factors
such as the applicant’s age and personal circumstances, the physical or psychological
consequences of the trafficking, the impact of loss of access to the U.S. criminal justice system for
protection and criminal and civil redress; and whether the applicant would be protected in his or
her country against retaliation or re-victimization.
Example: 16-year-old Jhoni fled gang violence and abuse by his grandfather in El Salvador. He was
apprehended at the border and released to his aunt in Maryland. She demands that he work for her
janitorial business, cleaning floors and toilets without safety equipment. He is often tired and falls asleep
at school when he attends. She threatens to kick him out and often withholds food. She pays Jhoni
$200 a month but then charges him for monthly expenses of $100 for rent, $50 for food, $50 for a
cell phone, and $20 for toiletries. He pays for his clothing and school supplies. She makes Jhoni talk
to his grandmother in El Salvador on speaker phone. His aunt often talks about how ICE is conducting
raids and how glad she is of her U.S. citizenship. With these facts, Jhoni meets all the requirements for
a T visa and is not required to cooperate with law enforcement in the investigation or prosecution of
the trafficking since he is under the age of 18.
An application for a T visa is made on Form I-914 and must be supported by evidence to establish the
requirements set forth above. Though not absolutely required, one way to establish that the applicant has been
a victim of human trafficking and the applicant’s compliance with any reasonable request from prosecutors is
through submission of Supplement B to Form I-914, the Declaration of Law Enforcement Officer for Victim of
Trafficking in Persons. The T visa application is adjudicated by the VSC, rather than by local USCIS district
offices.
F. CONTINUED PRESENCE FOR VICTIMS OF TRAFFICKING

Not all trafficking victims wish to apply for the T visa. Instead, they may simply want to return home.
Nonetheless, they may want to stay in the United States long enough to pursue civil remedies such as wage
and hour claims and damages lawsuits. Additionally, law enforcement may need a victim to stay in the United
States in connection with a criminal investigation or prosecution. Individuals identified by law enforcement as
trafficking victims may be eligible for a temporary authorized stay in the United States known as “continued
presence.” Only law enforcement officials may request continued presence and the request must be made to
the ICE Law Enforcement Parole Branch. If approved, the initial duration of continued presence will be one
year (with the possibility for renewal) and entitles recipients to an Employment Authorization Document (EAD).
Many recipients of continued presence later go on to apply for T nonimmigrant status.
G. BENEFITS OF T STATUS
T nonimmigrant status is granted for three years and recipients may apply for employment
authorization. Additionally, when a trafficking victim receives either continued presence or a T visa, he or she
is eligible for public benefits to the same extent as refugees in the United States. Though only 5,000 T visas
can be granted to principal beneficiaries per fiscal year, this cap has never been reached.
Like U visa applicants, T visa applicants may also apply for family members to have derivative status.
An adult T nonimmigrant may apply for admission of his or her spouse and children, and a T nonimmigrant
who is under 21 may apply for admission of his or her spouse, children, parent, and unmarried siblings under
18.
H. T ADJUSTMENT OF STATUS
T nonimmigrants may apply for adjustment of status after three years in T status or once the investigation
or prosecution of the trafficking is complete, whichever occurs earlier. T nonimmigrants apply for adjustment
of status under special provisions found under INA § 245(l).
Applicants must show:
• Lawful admittance in T status and T status at the time of the application;

• Continuous presence for three years since grant of T status or physically present in the United States
for a continuous period of three years during the trafficking investigation or prosecution;
• Good moral character since admission in T status;
• Compliance with any request for assistance from law enforcement in the investigation or
prosecution of trafficking or the applicant must show that he or she would suffer extreme hardship
involving unusual harm upon removal from the United States. This is required for adjustment even
if the person was under 18 when trafficked. If the applicant never reported the crime to law
enforcement or cooperated with law enforcement, he or she will need to show extreme hardship;
and
• Admissibility. There is a special waiver for T adjustment, which allows for many grounds of
inadmissibility to be waived if USCIS determines that the activities that made the person
inadmissible were caused by or incident to the victimization arising out of trafficking and it is in the
national interest to do so.
I. COMPARING THE REMEDIES

VAWA self-petitioning, U status, and T status have many similarities. Some people may be able to
qualify for more than one type of immigration relief. The chart below outlines some of the differences and
similarities of each remedy.
VAWA U STATUS T STATUS
Relationship to Abuser must be the applicant’s

None required None required
Applicant parent, spouse or adult son or
daughter
Immigration Status
Abuser must be a USC or LPR None required None required
of Perpetrator
Law Enforcement
Not required Requires Form I-918B May file without
Certification
Special provisions regarding Some grounds do not apply;

inadmissibility. Other grounds may be
Special provisions regarding
waived if determined that the
inadmissibility. No public charge
Inadmissibility activities that made the
Exceptions/ inadmissibility. All grounds person inadmissible were
No public charge inadmissibility. waivable except those
Waivers caused by or incident to the
Special waiver provisions for some related to Nazi persecution,
victimization arising out of
grounds of inadmissibility. genocide, torture. Special trafficking and it is in the
waiver standard of in the national interest to do so.
public or national interest.
Immediate relatives always have a Annual cap of 5,000, but is

visa available. Those in a Annual cap of 10K is
rarely reached. May apply
preference category cannot reached every year, resulting
Immigrant Visa for LPR status after three
Availability become an LPR until their I-360 in a very long backlog. May years in T status or once
priority date becomes current apply for LPR status after
investigation/ prosecution is
according to the family-based three years in U status.
complete.
Visa Bulletin.
Applicant age 21 or over Applicant age 21 or over

may include spouse and may include spouse and
Self-petitioner may include children. children.
Derivatives children who are unmarried and
under 21 years old. Applicant under 21 may Applicant under 21 may
include spouse, children, include spouse, children,
parent, and unmarried parent, and unmarried
siblings under 18. siblings under 18.
Statutory Authority
for Adjustment of INA § 245(a) INA § 245(m) INA § 245(l)
Status
Where’s the Law?
VAWA Self-Petitions:
• INA §§ 204(a)(1)(A)(iii) – (vi); (B)(i) – (v); (C); (D); (J)
• 8 CFR §§ 103.2(b)(17)(ii); 204.2(c)(2)(i); 204.1(g)
• USCIS Adjudicator’s Field Manual, Chapters 21.14; 21.15
VAWA Cancellation of Removal:

• INA § 240A(b)(2)
• 8 CFR § 1229(b)(2)
T Visas:
• INA §§ 101(a)(15)(T), 214(o), 212(d)(13), 245(l)
• 8 CFR §§ 214.11, 245.23(a)
• USCIS Adjudicator’s Field Manual, Chapter 39.2
U Visas:
• INA §§ 101(a)(15)(U), 214(p), 212(d)(14), 245(m)
• 8 CFR § 214.14
• USCIS Adjudicator’s Field Manual, Chapter 39.1
Practice Tips:
• Where multiple remedies may be a possibility, compare the options.

There is some overlap between VAWA, U and T status. Consider the differences in
eligibility requirements; compare the inadmissibility grounds that could apply and the
availability of a visa and overall time involved in obtaining deferred action, a visa, or
permanent residency.
• Remember that the evidentiary standard for these benefits is “any credible evidence.” It
is important to develop an applicant’s declaration with facts that show abuse and
explain how the applicant has been affected in order to support his or her eligibility for
relief. Be creative in finding proof.
• A law enforcement certification is a requirement for U visa eligibility.

It is helpful to develop a good working relationship with law enforcement. In some
cases, it may be necessary to educate law enforcement about the requirements for U
status.
• Advise potential U visa applicants about the very long wait involved in obtaining U
status.
Make sure clients understand the difference between having a pending U application,
having a spot on the wait list along with deferred action, and receiving a grant of U
status
• Counsel all applicants for VAWA, U and T status about their exposure to being placed
in removal proceedings if their applications are denied.
All applicants should be counseled about the risk of being placed in removal
proceedings if their applications are denied, as well as possible remedies available to
them in removal proceedings.
Chapter 12
OTHER HUMANITARIAN RELIEF
12.1 INTRODUCTION
In the previous chapter we covered VAWA, U and T status, forms of relief that offer protection to
survivors of abuse or crime. In this chapter, we review additional forms of humanitarian relief. Some of these
immigration remedies offer protection to vulnerable populations, including individuals from countries with
conditions that make it unsafe to return (Temporary Protected Status); those who have fled persecution or fear
future persecution (asylum and related remedies and refugee admission); and children who have been victims
of abuse, abandonment or neglect (Special Immigrant Juvenile Status or SIJS).
Deferred Action for Childhood Arrivals (DACA) and Parole in Place (PIP) are types of relief created
more recently to offer protection to special populations of undocumented people - those who were brought to
the United States as children and certain relatives of those who have served in the U.S. armed forces,
respectively. Some types of relief offer legal status and can lead to lawful permanent resident (LPR) status.
Others, such as TPS and DACA, merely allow noncitizens to remain in the United States temporarily and
authorize them to work.
12.2 TEMPORARY PROTECTED STATUS
A. OVERVIEW
Under INA § 244, the Attorney General is authorized to designate foreign states for Temporary
Protected Status (TPS) if he or she finds that there is an emergency situation, such as an ongoing armed conflict
that would endanger nationals if they returned, or an environmental disaster, such as an earthquake, flood,
drought or epidemic, resulting in substantial, but temporary, disruption of living conditions. For environmental
disaster designations, the foreign state must request the designation.
As the name indicates, TPS is a temporary benefit that offers protection from removal and employment
authorization. This temporary legal protection does not provide a pathway to permanent residence or
citizenship. However, the U.S. Department of Homeland Security (DHS) has repeatedly extended the
designation for some countries, which means that many TPS recipients have been able to live and work in the
United States for several years and develop deep social, economic and familial ties here.
Since the creation of TPS in 1990, numerous countries have received designations. The ten countries
currently designated include: El Salvador, Haiti, Honduras, Nepal, Nicaragua, Somalia, Sudan, South Sudan,
Syria and Yemen. Approximately 300,000 to 400,000 people currently hold TPS. Initial designations are
made for a period of six to 18 months. At least 60 days before the expiration of the designation, DHS must
decide whether to extend or terminate the designation for a country based on an assessment of whether current
circumstances justify an ongoing designation. If TPS is extended, recipients are required to re-register during a
specific period. In the past, TPS designations were routinely extended, especially for countries with long term
designations, such as El Salvador and Honduras which have been designated, respectively, since 2001 and
1999. Upon termination of TPS for some nationalities, the Attorney General has granted a further temporary
relief known as Deferred Enforced Departure (DED) for a specified period of time for persons who were
previously covered by TPS.
The current administration has moved to terminate TPS for a number of countries, though ongoing
litigation has raised challenges to these decisions. For details about the countries that are currently designated
for TPS, visit the U.S. Citizenship and Immigration Services (USCIS) website at:
www.uscis.gov/humanitarian/temporary-protected-status. In 2018, a federal judge in California issued an
injunction temporarily halting TPS terminations for Sudan, Nicaragua, Haiti, and El Salvador, and ordering
USICS to maintain TPS status for nationals of those countries. USCIS has also agreed to temporarily maintain
TPS for beneficiaries from Nepal and Honduras as a result of another lawsuit pending in the same federal
court. Information about TPS under the current injunction is also available at the USCIS website referenced
above and the CLINIC website at: cliniclegal.org/issues/temporary-protected-status-tps-and-deferred-
enforced-departure-ded.
Nationals of a designated foreign country who are in the United States may be granted TPS and
employment authorization for the effective period of the designation if they register for TPS by a specified date.
USCIS may accept late initial registrations and re-registration applications under certain circumstances. TPS
holders may also apply for advance parole, which gives them permission to reenter the United States after
temporary travel abroad.
B. TPS IN ACTION
The following hypothetical illustrates who may qualify for TPS
Example: Jose, from Honduras, has resided in the United States since 1998, when he entered without
inspection. He applied for TPS in 1999 and has continued to maintain his TPS status since then. Jose’s
brother, Manuel, entered the United States in 2000 but does not qualify for TPS because he was not
here when Honduras was designated for TPS.
C. ELIGIBILITY FOR TPS

In order to be eligible for TPS, nationals of the designated country must satisfy the following requirements:
• Continuous physical presence in the United States since the effective date of the most recent
designation;
• Continuous residence in the United States since such date as the Attorney General may
designate;
• Admissibility as an immigrant under INA § 212. INA §§ 212(a)(4) (public charge), 212(a)(5)
(lack of labor certification) and 212(a)(7)(A) (lack of valid immigrant visa and passport) are
waived for TPS applicants. All other inadmissibility grounds, with the exception of INA §§
212(a)(2)(A) and (B) (relating to criminal inadmissibility grounds), § 212(a)(2)(C) (relating to
drug offenses, except as to single offense of simple possession of thirty grams or less of
marijuana), and §§ 212(a)(3)(A),(B),(C) and (E) (relating to national security and participation
in genocide or Nazi persecution), may be waived for humanitarian purposes, to assure family
unity or when it is otherwise in the public interest;
• No conviction for two or more misdemeanors or one felony; and
• No participation in the persecution of any person on account of race, religion, nationality,
political opinion or membership in a particular social group.
Example: Serge, from Haiti, came to the United States EWI in 2010. He was present in the United
States when Haiti was designated for TPS in 2010, due to a devastating earthquake. Serge applied
for TPS and, because he had been continuously present in the United States since Haiti was designated
for TPS, and because he was admissible, he was granted TPS. He has re-registered when required and
has been able to live and work in the United States lawfully. Serge was recently convicted of his second
misdemeanor offense. He is no longer eligible to renew his TPS and it may be terminated if DHS
discovers the conviction.
D. POTENTIAL OPTIONS FOR ADJUSTMENT OF STATUS

While TPS does not provide an independent path to LPR status, there are two ways in which it may help
some beneficiaries of immediate relative petitions become eligible to adjust status. First, travel abroad and
reentry with advance parole can help the beneficiary of certain petitions who previously entered EWI to
become eligible for adjustment of status under INA § 245(a). In addition, decisions in the Sixth and Ninth
Circuit Courts of Appeal have also opened the door for many individuals who entered the United States without
inspection but subsequently received TPS, to adjust status in those circuits, without the need for advance parole
travel. In the Sixth Circuit case, the court ruled that a grant of TPS satisfies the admission-related requirement
of INA § 245(a). Flores v. USCIS, 18 F.3d 548 (6th Cir. 2013). Four years later, the Ninth Circuit similarly
determined that a TPS recipient has satisfied the inspection and admission requirement for purposes of
adjustment of status under INA § 245(a). Ramirez v. Brown, 852 F.3d 954 (9th Cir. 2017). Note that in
almost all cases, only those TPS holders who are seeking to adjust status as immediate relatives will benefit
from travel on advance parole or the circuit court rulings on TPS admission. This is because, as we learned in
Chapter Eight, immigrants in the preference categories will not qualify to adjust under INA § 245(a) if they
were ever out of status or worked without authorization; this limitation does not apply to immediate relatives.
Example: Paola, from Honduras, came to the United States EWI in 1997 and has had TPS since April
1999. She is now married to a U.S. citizen (USC) and hopes to become an LPR through her spouse.
Last year Paola traveled to Canada on advance parole. That return on advance parole means she is
now a person who was inspected and paroled and therefore eligible to adjust status under INA §
245(a). If Paola lived in a state under the jurisdiction of the Sixth or Ninth Circuit, she would have
qualified to adjust status without travel on advance parole because her TPS status is considered an
admission.
12.3 ASYLUM, WITHHOLDING AND THE CONVENTION AGAINST TORTURE
A. OVERVIEW
Asylum, withholding of removal, and protection under the Convention Against Torture (CAT) are all
remedies that are available for those who have fled their home country due to persecution or torture or who
fear being persecuted or tortured if they have to return to their home country. Asylum is a form of relief that can
be applied for affirmatively before USCIS or defensively before an immigration judge (IJ) while in removal
proceedings. In contrast, withholding of removal and CAT protection are only available in removal
proceedings.
While asylum is granted in the exercise of discretion, withholding of removal and CAT are mandatory
if the applicant satisfied the eligibility requirements. Of these three remedies, only asylum is a pathway to LPR
status and eventual U.S. citizenship; withholding of removal and CAT provide protection from removal only
and employment authorization.
B. ASYLUM
Applicants for asylum must establish that they meet the definition of refugee found at INA §
101(a)(42)(A). Although many people refer to the asylum remedy as “political asylum,” persecution based
on political opinion is only one of five grounds supporting asylum protection. Under the statute, a refugee is a
person who is unable or unwilling to return to his native country because of persecution or a well-founded fear
of persecution on account of race, religion, nationality, membership in a particular social group, or political
opinion. The standard of proof for asylum is a “preponderance of the evidence.” Both past persecution and/or
a well-founded fear of future persecution can be grounds for asylum.
While asylum applications are submitted in the United States, note that refugees are those who are
admitted to the United States after applying and being approved for refugee status abroad through the
Refugee Admissions Program. Upon approval, they enter the United States in refugee status. After one year of
refugee status in the United States, refugees are required to apply for LPR status.
Asylum applications submitted affirmatively are adjudicated by a USCIS asylum officer after an in-
person interview. If the application is not approved and the applicant is otherwise not in the United States
lawfully, the applicant will be placed in removal proceedings and the application can be renewed in
immigration court. Individuals who are in removal proceedings who have not already applied for asylum may
also file an initial application for asylum if they qualify to do so. Applications for asylum filed or renewed in
immigration court are decided by the IJ. If the IJ denies the asylum application, the decision can be appealed
to the Board of Immigration Appeals (BIA).
Example: Martha is from Cameroon and is Anglophone. She is in current F-1 status which will expire
once she completes her studies. Martha, who has been in the United States for less than one year, tells
you she fears returning to Cameroon because of her past involvement in pro-Anglophone movements
which led to her imprisonment and torture. Martha may qualify for asylum based on her political
opinion and possibly her nationality as an Anglophone Cameroonian.
1. Applying for Asylum

Unless an exception applies, applicants must file the Form I-589, Application for Asylum, within one year of
arrival in the United States. Applications may be filed beyond the one-year deadline by persons who can
show:
• Changed circumstances that materially affect eligibility for asylum, which can include country
conditions or changes in the United States (including changes in U.S. law), or in the life of the
applicant (such as a person coming out as LGBTIQ); or
• Extraordinary circumstances relating to the delay in filing the application, which can include
maintaining lawful immigration status, illness, PTSD or being a minor; and
• The application was filed within a reasonable time of either or both of those circumstances.
Example: Jamila from Morocco came to the United States as a student two years ago. Growing up, she
was bullied by classmates and neighbors because she dressed and behaved more like a boy. Her father
disapproved and has beaten her and threatened her with violence in the past. Having lived in the United
States for some time, she has become more comfortable with her own sexuality and now identifies openly
as a lesbian. Jamila is now seeking asylum under the theory that she would be persecuted for her
membership in a particular social group based on her sexual identify. If she returns to Morocco, she fears
that, as a lesbian, her family will force her to marry or harm her if she refuses, and that the government is
unable or unwilling to protect her from these actions. Although more than a year has passed since she
came to the United States, she may qualify for the “changed circumstance” exception to the one-year bar
if she files her application within a reasonable time from the changed circumstance.
2. Groups Ineligible for Asylum

Applicants for asylum do not have to establish admissibility but they are barred from eligibility if they fall
within one of the categories below:
• Persecutor of others on account of a protected ground;

• Poses a danger to the security of the United States;
• Engaging in terrorist activity;
• Convicted of a particularly serious crime constituting a danger to the community (aggravated
felonies with a one-year sentence are deemed to be particularly serious crimes and a five-year
sentence for withholding of removal);
• Commission of a serious non-political crime;
• Firm resettlement in a third country (does not apply to withholding of removal).
3. Asylum for Noncitizens in Expedited Removal

As discussed in Chapter Nine, noncitizens subject to expedited removal who express a fear of
persecution to a U.S. Customs and Border Protection (CBP) or U.S. Immigration and Customs Enforcement
(ICE) officer, however, will be referred for a credible fear screening by a USCIS asylum officer. A person has
a credible fear if there is a significant possibility that the person could establish eligibility for asylum, taking into
account the credibility of the person’s statements and other facts known to the officer. A negative credible fear
determination may be reviewed by an IJ. If the noncitizen is determined to have a credible fear of persecution,
he or she will be placed in regular removal proceedings to apply for asylum in immigration court.
4. Benefits of Asylum
Asylum applicants may apply for employment authorization after their asylum application has been
pending for 150 days (excluding delays caused by the applicant). After asylum is granted, asylees may work
lawfully incident to their status. After one year in asylee status, asylees may apply for permanent residency.
Note that, under INA § 208 (d)(6), filing a frivolous claim for asylum has serious consequences, including
permanent ineligibility for immigration benefits. Only an IJ or the Board of Immigration Appeals (BIA) can
determine that an asylum application is frivolous.
Both asylees and refugees may apply for their spouses and children to be granted derivative asylee
or refugee status. The application is filed on Form I-730 and generally must be submitted within two years of
admission as a refugee or approval of the asylum application. A separate Form I-730 must be filed for each
derivative.
A special adjustment of status provision at INA§ 209 provides that refugees and asylees can adjust
status after one year. Under INA § 209(c), most grounds of inadmissibility that apply to asylees and refugees
are waivable to assure family unity, for humanitarian or public interest purposes. For refugees, if the adjustment
application is approved, the effective date of LPR status is the date the applicant was first admitted to the United
States as a refugee. For asylees, a grant of LPR status is dated back to one year before the approval of the
adjustment of application.
Example: Ali entered the United States as a refugee from the Democratic Republic of Congo on June
10, 2017. He applied for adjustment of status in August 2018 and his application was approved on
February 15, 2019. His LPR card states that he has been an LPR since June 10, 2017, his date of
admission as a refugee. Ali’s friend Graciela, from Guatemala, was granted asylum on November 3,
2016. She applied for adjustment of status on March 15, 2018 and her application was approved
on December 14, 2018. Her LPR card states that she has been an LPR since December 14, 2017, one
year prior to the approval of her adjustment application.
C. WITHHOLDING OF REMOVAL
In many circumstances, an individual who fears persecution may be disqualified from seeking asylum.
For example, a person with an aggravated felony conviction with a one-year sentence, or who is beyond the
one-year filing deadline and does not qualify for an exception, will not be eligible to apply for asylum
regardless of the degree of persecution feared or experienced. Withholding of removal is an alternative form
of relief available to noncitizens fearing persecution and it is available only in removal proceedings. Unlike
asylum, withholding is a mandatory form of relief if the noncitizen can meet the higher standard of proof it
requires. The standard of proof for withholding is that the noncitizen must show a “clear probability” of
persecution, rather than the more generous “well founded fear” standard for asylum.
In contrast to asylum, the grant of withholding does not eventually lead to a permanent status. The
benefit of a grant of withholding is that the noncitizen cannot be deported to the country where he or she fears
persecution and may remain in the United States and obtain employment authorization. However, someone
granted withholding has no right to apply for LPR status and may not travel outside the United States.
Applications for withholding of removal are submitted on the same form used for asylum, Form I- 589, and
generally, an asylum applicant would also request withholding in the alternative.
Example: Edgar fears returning to his home country because he believes he will be persecuted on
account of his membership in a particular social group. Edgar has a conviction for an aggravated
felony and was sentenced to one year. Thus, he is ineligible for asylum. However, he may be eligible
for withholding of removal if he can show a clear probability –a more than 50 percent chance – of
persecution on account of his membership in a particular social group.
D. PROTECTION UNDER THE CONVENTION AGAINST TORTURE

This remedy stems from the United States being a signatory to the Convention Against Torture and
Other Forms of Cruel, Inhuman or Degrading Treatment or Punishment (Convention Against Torture or CAT).
Withholding of removal and deferral of removal under CAT are available to individuals in removal
proceedings who cannot obtain asylum or withholding of removal under the INA because they have triggered
one of the bars to asylum or because the torture faced in the home country is not on account of one of the five
protected grounds, among other reasons. In order to be eligible for protection under CAT, the noncitizen must
demonstrate that it is more likely than not that he or she will be tortured if returned to the proposed country of
removal.
In some cases, noncitizens barred from asylum, withholding of removal, and withholding of removal
under CAT due to INA § 241(b)(3)(B) (i.e., conviction of a particularly serious crime, security threat, or
persecutor of others), may receive deferral of removal under CAT. While there are no bars to the granting of
deferral of removal under CAT, this is a limited form of relief because the IJ can terminate the status more easily
than withholding of removal if the individual is no longer likely to be tortured in the country from which they
fled. Additionally, individuals granted deferral of removal under CAT may be detained by DHS if they are
deemed to be a threat to the community. The regulations do not require that DHS release the person from
detention.
Example: Edgar is placed in removal proceedings and applies for asylum, withholding of removal,
and protection under CAT. His asylum application is denied because of his aggravated felony
conviction, for which he was sentenced to three years. He argues that he qualifies for withholding
because he was severely beaten by a group of men who he believes are members of a powerful
political group he opposes. He believes they targeted him because of his political views. During
immigration proceedings, the IJ finds that Edgar was in fact the victim of extreme violence and that the
police did nothing to protect him after the crime was reported. However, she determines that the attack
was not related to his political opinion or any of the five protected grounds. Edgar cannot qualify for
withholding of removal, but he may qualify for deferral of removal under CAT.
Under the Convention Against Torture, a person may not be returned to a country where he or she will be
tortured. The BIA defines torture as an act:
• causing severe physical or mental pain or suffering that must be an extreme form of cruel and
inhuman treatment;
• specifically intended to inflict severe physical or mental pain or suffering;
• having an illicit purpose such as obtaining information or a confession;
• intentionally directed by the government against a person in the offender’s custody or control; and
• not arising from lawful sanctions such as a judicially imposed death penalty.
Noncitizens claiming fear of torture during the expedited removal (credible fear) or reinstatement of
removal (reasonable fear) process shall have that claim reviewed by an asylum officer during the process.
Such a claim may be reviewed by an IJ if the asylum officer makes a negative credible or reasonable fear
determination.
12.4 SPECIAL IMMIGRANT JUVENILE STATUS
A. OVERVIEW
SIJS is an immigration benefit available to children who have been the victims of abuse, abandonment
or neglect at the hands of a parent. Created in 1990, SIJS provides eligible children with a pathway to lawful
permanent residence. SIJS is a unique immigration benefit in that it requires the involvement of a state court as
a prerequisite for applying for the status with USCIS. A state court must find that the child cannot be reunified
with one or both parents due to abuse, abandonment or neglect. The involvement of the state tribunal reflects
Congress’ belief that the appropriate state court, which routinely handles matters related to family law and
child protection, is most suited to making these factual determinations. Only once this finding has been made
can the applicant apply for SIJS by filing an I-360 petition with USCIS.
Individuals with approved SIJS petitions may apply for permanent residency once an immigrant visa
becomes available in the EB-4 preference category according to the employment-based Visa Bulletin. In
recent years, with the influx of unaccompanied minors fleeing Honduras, El Salvador and Guatemala, the
demand for SIJS has increased resulting in a backlog of available visas for those countries. Note that LPRs who
gain their status through SIJS may never petition for a parent, even a parent who did not abuse, abandon or
neglect the child.
B. SIJS IN ACTION
The following scenario illustrates when SIJS may be an appropriate form of relief.
Example: Ranya from Bangladesh is thirteen years old and lives with her mother in California; both are
undocumented. Ranya barely knows her father who was abusive and abandoned the family when she
was very young. Ranya’s mother plans to divorce him and to officially seek legal and physical custody
over Ranya. It is not possible for Ranya to reunite with her father and it would not be in her best interest
to return to Bangladesh where she has no other family able to care for her. Ranya may be a good
candidate for SIJS. However, once Ranya becomes a USC, she can never petition for either parent, even
her mother.
C. ELIGIBILITY FOR SIJS

To be eligible for SIJS, a child must meet the following requirements under INA § 101(a)(27)(J):
• The child must be under 21;

• The child is dependent on a juvenile court or has been legally committed to, or placed under the
custody of, an agency, entity or individual appointed by a juvenile court. A juvenile court is defined
as a court that is authorized under state law to make judicial determinations about the care and
custody of juveniles;
• The child’s reunification with one or both parents is not viable due to abuse, neglect, abandonment
or similar basis under state law; and
• It is not in the child’s best interest to be returned to the child’s or the parent’s country of origin.
In order to apply for SIJS, the child must obtain an order from a state court with findings that track the
eligibility requirements above. The child may then file the I-360 petition along with the state court order with
USCIS. If the child is applying affirmatively (meaning that she is not in removal proceedings), and a visa is
available based on the Chart B of the Visa Bulletin for the EB-4 category, the child may simultaneously file the
I-485 application and seek permanent residence. If the child is in removal proceedings, the child may file for
adjustment of status in immigration court or the child may seek termination of his or her removal case and file
the I-485 with USCIS. Note that special immigrant juveniles are eligible to adjust status under INA § 245(a)
regardless of manner of entry.
12.5 DEFERRED ACTION FOR CHILDHOOD ARRIVALS
A. OVERVIEW
The DACA program was created by an executive order under the Obama administration on June 15,
2012. Under this program, certain individuals who entered the United States as children and who met specific
guidelines were able to request deferred action for two years (subject to renewal) and be eligible to apply for
work authorization. To date, over 800,000 individuals have received DACA.
The benefits of DACA are limited to protection against removal and employment authorization. A
DACA recipient is considered lawfully present in the United States while he or she has deferred action and
does not accrue unlawful presence during this period. However, any prior unlawful presence is not erased.
DACA does not afford an individual lawful status in the United States, nor does it offer a path to LPR status or
citizenship. DACA does not offer any benefits to derivative family members. An individual DACA grant may
be terminated at any time and, in certain situations, denial of a DACA application can lead to enforcement
action.
As described below, the Trump administration moved to end the DACA program, but litigation has
kept the program alive for those who already have DACA and are applying to renew their status.
B. DACA IN ACTION
The hypothetical below illustrates the benefits of DACA for eligible recipients.
Example: Ananda, from India, came to the United States when she was two years old with her parents.
Her family entered lawfully on visitor visas but stayed beyond their authorized stay. Ananda did not
realize she was undocumented until her senior year of high school when the DACA program was
announced. Her parents helped her apply for DACA in 2013 and she has renewed her DACA every
two years. Ananda has been able to work legally to help support her family and no longer fears
deportation.
C. DACA TERMINATION AND RESULTING LITIGATION

On September 5, 2017, DHS formally rescinded the June 15, 2012 memorandum that created DACA
and announced that DACA would be phased out. Several lawsuits challenged the Trump administration’s
rescission of the original 2012 DACA memo. On January 10, 2018, a federal judge in California issued a
preliminary injunction in one of those lawsuits, Regents of the University of California, et al. v. Department of
Homeland Security. The injunction, which remains in effect as of this writing, temporarily stops the termination
of the DACA program and directs USCIS to resume accepting certain DACA applications. Note that the U.S.
Supreme Court held oral arguments about the legality of the termination of DACA on November 12, 2019. A
decision is expected by June 2020.
According to the California court, DHS must maintain the DACA program on a nationwide basis on
the same terms and conditions in effect before the September 5, 2017 rescission, with several exceptions. As
a result, the injunction affects those who have or had DACA and those who never had DACA differently:
• Individuals who have never had DACA are not eligible to submit an initial DACA application.
• Individuals whose DACA grant expired more than one year ago, or was terminated at any time,
must apply as initial applicants and include the required supporting evidence.
• Those whose most recent DACA grant expired one year ago or less may request DACA as renewal
applicants and should follow the instructions for renewal requests.
• Those who are still in valid DACA may submit renewal applications. Best practice remains to submit
the renewal application at least 120 to 150 days before the DACA expiration date. DHS will not
proactively provide DACA requestor information to ICE unless the person poses a threat to public
safety, national security, or meets the criteria for issuance of a notice to appear (NTA). DHS
reserves the right to terminate individual DACA grants on a case-by-case basis.
Because of the uncertainty surrounding the future of the DACA program, DACA recipients should be
screened for permanent immigration relief. Some recipients may have requested DACA pro se without an in-
depth screening for immigration options. Others may be eligible for remedies that were previously unavailable
due to changed circumstances in their home country or personal circumstances.
D. ORIGINAL DACA GUIDELINES - ELIGIBILITY REQUIREMENTS

While USCIS is not currently accepting DACA requests from first-time applicants, renewal applicants
must have met the original guidelines. Those who previously held DACA but allowed their deferred action to
expire may renew their DACA but, if it expired more than one year ago, they must file as an initial applicant
and demonstrate their eligibility under the original 2012 guidelines.
To be eligible for DACA under the original June 15, 2012 guidelines, an individual must have submitted
evidence to show the following:
• Arrived in the United States before turning 16;

• Under age of 31 as of June 15, 2012;
• Continuous residence in the United States from June 15, 2007 until the present;
• Physical presence in the United States without lawful status on June 15, 2012;
• Physical presence in the United States at the time of the DACA request;
• Current school attendance or graduation or certificate of completion from a U.S. high school, or
completion of general education development (GED) program, or honorable discharge from
Coast Guard or Armed Forces of the United States; and
• No conviction of a felony, significant misdemeanor, three or more other misdemeanors, and not
presenting a threat to national security or public safety.
1. Age and Continuous Residence

Individuals must have been at least 15 years old to apply for DACA, unless they were in removal
proceedings, had a final removal order or a voluntary departure order. Applicants who had brief, casual, and
innocent absences from the United States were still able to show that they “continuously resided” in the United
States. An absence is considered brief, casual, and innocent if it was short, reasonably calculated to satisfy a
lawful purpose, and not a response to a removal order or voluntary departure order.
2. Criminal History and Juvenile Delinquency

DHS considers the totality of circumstance, including an individual’s full offense history, when evaluating
requests for deferred action. The rules for crime bars include the following definitions:
• A “felony” is defined as a federal, state, or local criminal offense that may lead to a term of
imprisonment of more than one year.
• A “non-significant misdemeanor” is a crime that may lead to a term of imprisonment of one year
or less, but greater than five days.
• A “significant misdemeanor” is a crime that may lead to a term of imprisonment of one year or less,
but greater than five days, or is a domestic violence, sexual abuse or exploitation, burglary,
unlawful possession or use of a firearm, drug distribution or trafficking, or driving under the
influence offense (regardless of the actual sentence given).
• A “significant misdemeanor” also includes other offenses where an individual was sentenced to
time in custody of more than 90 days (a suspended sentence is not included).
In addition, individuals with juvenile adjudications are not automatically barred from DACA and such cases
are subject to a case-by-case review and could be denied as a matter of discretion.
Example: Antonio was brought to the United States without authorization in 1990 when he was eight
years old. He has lived in the United States since then and finished high school here. When he was
sixteen he went to juvenile court for a shoplifting charge and completed community service. He was
granted DACA for the first time in 2013 and has continued to renew his DACA status since then. His
juvenile adjudication was not a bar but it could be considered as a matter of discretion.
Example: Celeste was first granted DACA in 2016. Subsequently, she was charged as a minor with
possession of alcohol and let her DACA expire in May 2018 Her conviction is not automatically
disqualifying and she may be able to renew her DACA. However, since her last DACA grant expired
more than one year ago, she must submit her request as an initial application with supporting
documentation to show that she meets all initial DACA guidelines.
12.6 PAROLE IN PLACE
A. OVERVIEW
Another form of relief that is temporary in nature is the Parole in Place (PIP) program for the spouses,
parents, sons and daughters of certain members of the U.S. Armed Forces. PIP allows these undocumented
family members the right to reside in the United States and qualify for certain benefits including eligibility for
employment authorization. If granted, the parole and employment authorization will each be valid for one
year. The parolee may apply for re-parole at the end of that period. A grant of PIP may also create eligibility
for immediate relatives who entered the United States without inspection to adjust to LPR status under INA §
245(a). According to recent reports, the Trump administration has considered plans to end the PIP program.
To date, however, there has been no formal announcement by USCIS regarding ending the PIP program.
B. PIP ELIGIBILITY REQUIREMENTS

The PIP program was officially recognized and implemented in 2013. The authority for DHS to grant
PIP to those already physically present in the United States after an entry without inspection come from INA
§212(d)(5)(A) which allows for a discretionary grant of parole on a case-by-case basis for urgent
humanitarian reasons or significant public benefit. To be eligible for PIP, an applicant must be the spouse,
parent or son or daughter of:
• An active-duty member of the U.S. armed forces;

• An individual in the Selected Reserve of the Ready Reserve; or
• An individual (living or deceased) who previously served on active duty or in the Selected Reserve
of the Ready Reserve and was not dishonorably discharged.
In order to request PIP, the applicant must submit a completed Form I-131 to the USCIS office with
jurisdiction over one’s place of residence. The application should be accompanied by evidence of the family
relationship, proof of current or former membership in the U.S. armed forces, two photos and documentation
of any additional favorable discretionary factors. More information is available at:
www.uscis.gov/military/discretionary-options-military-members-enlistees-and-their-families and in the
Adjudicator’s Field Manual at Chapter 21.1(c)(1).
While someone who entered the United States without inspection normally would not be eligible to
adjust status under INA § 245(a), a grant of PIP can satisfy the “inspected and admitted or paroled”
requirement to adjust under this section. Note that in most cases only the spouses, children, and parents of
USCs – immediate relatives – may qualify to adjust status after being granted PIP. If the military member is an
LPR, the spouse, parent, or child would still benefit from PIP by being granted permission to remain here and
apply for employment authorization, but would still have to consular process in order to immigrate.
Example: Claudia, from Mexico, entered the United States without inspection in 1983. Her daughter
Charlene was born in the United States in 1997 and served in the U.S. Ready Reserve. As soon as she
turned 21, Charlene filed an I-130 petition for Claudia. Claudia, however, has not sought to immigrate
because she would need to depart the United States to consular process and she does not have a
qualifying relative for a waiver of unlawful presence. Claudia now qualifies for PIP. If approved, she
will be able to adjust status under INA § 245(a).
Where’s the Law?
Temporary Protected Status:

• INA § 244
• 8 CFR § 244
• Ajdudicator’s Field Manual, Chapter 38.1
• Flores v. USCIS, 718 F.3d 548 (6th Cir. 2013)
• Ramirez v. Brown, 852 F.3d 954 (9th Cir. 2017).
Asylum:
• INA § 101(a)(42)(A)
• 8 CFR § 208
Withholding of Removal:
• INA § 241(b)(3)
• 8 CFR §§ 208; 1208.16(b)
Deferral of Removal:
• 8 CFR §§ 208.16; 208.17; and 1208.16(b)
Special Immigrant Juvenile Status:
• INA §§ 101(a)(27)(J); 245(h)
• 8 CFR § 204.11
• USCIS Policy Manual, Volume 6, Part J
Deferred Action for Childhood Arrivals:
• DHS Memo, “Exercising Prosecutorial Discretion with Respect
to Individuals Who Came to the United States as Children”
(Nov. 20, 2014)
• USCIS Guidance:
www.uscis.gov/humanitarian/deferred-action-childhood-
arrivals- response-january-2018-preliminary-injunction
Parole in Place:
• USCIS Policy Memo,“Discretionary Options for Designated
Spouses, Parents, and Sons and Daughters of Certain Military
Personnel, Veterans and Enlistees” (PM-602-0114, Nov. 23,
2016)
Practice Tips
• Screen all recipients of temporary protection to see if a more permanent remedy is

available. Even if you have determined that someone qualifies for temporary relief, such
as DACA or TPS, remember to screen for more permanent relief. Traveling and returning
on advance parole may help DACA or TPS holders who are immediate relative
beneficiaries of an approved I-130 become eligible to adjust to LPR status.
• Screen persons from TPS-eligible countries for potential eligibility for late initial
registration or late re-registration. TPS holders who fail to re-register timely may qualify
for late re-registration with good cause. In addition, individuals who were present at the
time of TPS designation but failed to register may qualify in some circumstances for late
initial registration.
• File timely applications for asylum where possible but screen for exceptions to the one-
year deadline when necessary.
• Screen DACA renewal applications and TPS re-registration applications carefully before
filing. Before a client decides to apply, make sure that there are no new developments
that would impact on the applicant’s eligibility.
• Stay connected to legal updates. The outcome of pending litigation will impact the
ongoing availability of DACA renewal and TPS for those from El Salvador, Honduras,
Haiti, Nepal, Nicaragua and Sudan. There may also be new developments about the
continued availability of PIP. Likewise, asylum eligibility and procedures are changing
rapidly, especially for those who seek asylum at the southern border.
Chapter 13
CITIZENSHIP THROUGH ACQUISITION, DERIVATION, AND
NATURALIZATION
13.1 INTRODUCTION
U.S. citizenship may be conferred in a number of ways. First, all persons born in the United States,
except the children of diplomats, are U.S. citizens (USCs), regardless of the citizenship status of the parents.
Second, citizenship is also “acquired” at birth by some children born abroad to at least one USC parent. Third,
some lawful permanent resident (LPR) children “derive” citizenship after birth based on having a USC parent.
Fourth, in addition to these examples of citizenship “by operation of law”, many hundreds of thousands of
people become USCs each year through naturalization, a process by which an LPR who meets certain
eligibility criteria applies for citizenship with U.S. Citizenship and Immigration Services (USCIS).
In this chapter, we will review the basic eligibility requirements for establishing citizenship through
acquisition, derivation and naturalization. Acquisition takes place at birth when a child is born outside the
United States to at least one USC parent who meets certain residence requirements. Derivation takes place
sometime after birth when certain events happen before the LPR child turns 18. We will also examine the
eligibility requirements for naturalization including proving continuous residence and physical presence,
establishing good moral character and passing the English and civics tests. Finally, we will review the special
provision that allows certain children of USCs residing abroad to apply for early naturalization when they do
not otherwise qualify to acquire or derive citizenship.
A. CITIZENSHIP IN ACTION
These scenarios illustrate the various ways that a person may have or obtain U.S. citizenship.
Example: Grace was born in Chicago to undocumented parents from Guatemala. Grace is a USC
because she was born in the United States.
Example: Manuel was born in Mexico to a Mexican national father and a USC mother who lived in
the United States for most of her life before moving to Mexico and marrying Manuel’s father. Manuel
is a USC through acquisition.
Example: Aminata is an LPR who applied for naturalization. Her application was approved and her
naturalization swearing-in ceremony is scheduled for tomorrow. Once she is sworn in, she will be a
USC through naturalization. Aminata’s ten-year old LPR daughter who lives with her will then
automatically become a USC through derivation.
13.2 ACQUISITION OF CITIZENSHIP
A. OVERVIEW
Children can acquire citizenship at birth when they are born outside of the United States to a USC
parent or parents. The laws for acquiring citizenship at birth have changed over the years. Thus, whether
someone has acquired citizenship at birth depends on the date of birth and what laws for acquisition were in
effect at that time. Different rules apply to children born in wedlock (meaning the parents were married when
the child was born) and those born out of wedlock.
B. ACQUISITION RULES
The current requirements for acquisition of citizenship apply to children born on or after November 14, 1986.
They are listed below.
1. Child Born in Wedlock to Two U. S. Citizen Parents (INA § 301(c)):

One parent must have lived in the United States or its outlying possessions at any time before the child’s birth.
2. Child Born in Wedlock to One Citizen Parent and One National Parent (INA § 301(d)):
The citizen parent must have lived in the United States or its possessions for at least one continuous year before
the child was born. Since 2019, only persons born in American Samoa or Swains Island are noncitizen
nationals.
3. Child Born in Wedlock to One Citizen Parent and One Noncitizen Parent (INA § 301(g))
The child is a citizen if the citizen parent lived in the United States for five years before the child’s birth. At least
two of the five years must be after the citizen parent was 14 years old. However, if the child was born in a
possession, the citizen parent must have lived in the United States or its territories for at least one continuous
year before the child was born.
Example: Matthew was born in Boston on March 17, 1978. He lived in the United States until he was
21 and then moved to Armenia with his girlfriend. In 2005, he married Shushan, an Armenian citizen,
and they had a child, Ani, who was born on June 1, 2008 in Yerevan. Ani is a USC. She automatically
acquired citizenship from her USC father at birth since her parents were married and since Matthew
lived in the United States for at least five years before Ani was born, with more than two of those years
after Matthew was 14 years old.
4. Child Born Out of Wedlock to One U.S. Citizen Parent (INA § 309)
Historically, immigration law has made it easier for children born out of wedlock to USC mothers to
acquire citizenship at birth than for children born out of wedlock to USC fathers. Under INA § 309(c), if the
USC mother lived in the United States or one its possessions for one continuous year before the child’s birth,
the child is a USC.
Example: Antonio, age twelve, was born in Mexico to a USC mother and a Mexican father. His
parents were not married when he was born and have never married. When Antonio was ten, his
mother returned to the United States. Antonio and his father have entered the United States without
inspection to reunite with Antonio’s mother. Even though Antonio may think he is in the United States
illegally, he is a USC as long as he can prove that his mother lived in the United States for at least one
year before his birth.
In contrast, children born out of wedlock to a USC father are required to show a longer period of prior
residency in the United States depending on when the child was born, as well as meet other requirements, as
set forth in INA §§ 309(a) and (b). Under these provisions, a child born out of wedlock to a USC father is a
citizen at birth if all of the following conditions are met:
• The father meets the United States residency requirements outlined on the previous page for the
appropriate situation, one citizen parent and one national parent, or one citizen parent and one
noncitizen parent;
• There is clear evidence identifying the child’s father;
• The father was a USC at the time of the child’s birth;
• The father agreed in writing to provide financial support for the child until age 18; and
• Before the child is age 18, the child is legitimated, or the father states in writing that he is the
father of the child under oath, or the paternity of the child is established by a competent court.
In a case decided by the U.S. Supreme Court on June 12, 2017, the court held that it is unconstitutional
to have a more favorable physical presence requirement for USC mothers of children born out of wedlock
than for USC fathers of children born out of wedlock. Sessions v. Morales-Santana, 137 S. Ct. 1678 (2017).
Prior to the decision, unwed USC fathers were required to show physical presence in the United States or one
of its outlying possessions for five years, at least two of which were after the age of 14. In contrast, unwed USC
mothers were only required to show one year of continuous physical presence in the United States to confer
citizenship on their children born abroad. But instead of deciding to apply the more favorable one-year
physical presence requirement to USC fathers of children born out of wedlock, the court ruled that the longer
period of physical presence should apply prospectively to USC mothers. The prospective application means
that the decision will only impact children born abroad on or after June 12, 2017, the day the decision was
issued.
Example: Greta is a USC who was born in Chicago on May 5, 1995. Two years later, in 1997, Greta
and her family moved to Germany, and she has resided there since then. Greta has been living with
her German partner Rolf since 2015 but they have never married. On December 27, 2016, Greta
and Rolf had a daughter, Sabine. In January 2019, the couple had a baby boy, Max. Because Sabine
was born in Germany in 2016, before the Morales-Santana decision, she acquired citizenship from
her mother since Greta lived in the United States continuously for one year prior to Sabine’s birth.
However, their son Max was born after the Morales-Santana decision. Therefore, Max would only
have acquired U.S. citizenship at birth if Greta could show five years of residence in the United States
before Max’s birth, with two years of residence after age 14. Since Greta only lived in the United
States for two years before moving to Germany, Max is not a USC.
5. Previous Rules on Acquisition of Citizenship

The rules governing acquisition have changed over time so make sure you are consulting the rules that
were in effect on the date the child was born. These are summarized in Volume 12, Part H, Chapter 3 of the
USCIS Policy Manual, which also links to two charts illustrating these rules. Consult Nationality Chart 1 for
children born in wedlock and Nationality Chart 2 for children born outside of wedlock.
13.3 DERIVATION OF CITIZENSHIP (INA § 320)
A. OVERVIEW
While acquisition of citizenship happens automatically at birth, derivation of citizenship occurs when
certain events take place after birth. Derivation, also referred to as “acquisition after birth,” happens
automatically to children who are LPRs and have at least one parent who is a USC with whom they reside in
the United States. The parent may be a citizen by birth or naturalization. Derivation often occurs when the LPR
child’s parent naturalizes or when the LPR child immigrates through a USC parent, as long as these events take
place before the child turns 18 years old. As with acquisition of citizenship, the laws on derivation have
changed over time. Much depends on when the person was born and the law that was in effect at the time the
last event occurred prior to the child turning 18.
B. DERIVATION RULES
The current law on derivation of citizenship after birth has been in effect since the passage of the Child
Citizenship Act of 2000. Under these rules, a child automatically becomes a citizen when all of the following
conditions are met:
• At least one parent is a citizen, either by birth or by naturalization;

• The child is under age 18;
• The child is not married;
• The child is an LPR; and
• The child is in the legal and physical custody of the citizen parent.
Example: Ibrahim, age 10, is an LPR from Somalia who lives with his parents in Atlanta. They came to
the United States as refugees in 2010. Ibrahim’s father recently became a USC, but his mother is still
an LPR. Ibrahim automatically derived citizenship from his father when his father naturalized. Ibrahim’s
sister Aminata, age 19, is also an LPR but she did not derive citizenship because she was over age 18
when her father naturalized.
Another common scenario in which a child will automatically derive citizenship is when the child becomes an
LPR through adjustment of status or entering the United States on an immigrant visa.
Example: Tuan, age 16, lives in Vietnam. His mother is deceased, and his father lives in the United
States. When Tuan’s father became a USC, he filed an I-130 to bring Tuan to the United States to live
with him. When Tuan enters the United States as an LPR next month to reside with his father, he will
automatically become a USC by derivation.
Remember that, if the child is not an LPR, derivation is not possible.
Example: Tuan, age 16, lives in Vietnam. He applies for a tourist visa and comes to visit his USC father
in the United States. Once his authorized stay as a tourist expires, Tuan decides to enroll in school and
stay here with his father. While Tuan’s father is a USC and Tuan now resides in his father’s physical
and legal custody, Tuan has no lawful status. Even though he is under 18, Tuan cannot derive
citizenship from his father because Tuan is not an LPR. If Tuan’s father files an I-130 for him and Tuan
applies for adjustment of status, he will derive citizenship if his application is approved and he becomes
an LPR before he turns age 18.
Note: Derivation of citizenship does not apply where the USC parent is a stepparent. That is because there is
a separate definition of “child” for citizenship and naturalization purposes at INA § 101(c) does not include
stepchildren.
Example: Tricia, a 14-year-old from Ireland, immigrated to the United States with her mother Mary,
through petitions filed by her mother’s USC spouse George. Even though Tricia is an LPR, under age
18, unmarried, and residing in the custody of her mother and stepfather George, she will not derive
citizenship because her USC parent is a stepparent.
The effective date of the Child Citizenship Act was February 27, 2001. LPRs who turned 18 before this
date may still have derived citizenship but only where both parents became citizens before their LPR child
turned 18 or one parent with custody, in the case of death or divorce. For the different rules on derivation over
time, consult Nationality Chart 3 in Volume 12, Part H, Chapter 4 of the USCIS Policy Manual.
13.4 DOCUMENTING ACQUISITION OR DERIVATION

Let’s say you discover that a client has automatically acquired U.S. citizenship at birth or derived
citizenship after birth. The client is a USC but has no document to prove it. Citizenship through acquisition or
derivation can be documented in two ways. The citizen may apply for a U.S. passport with the U.S. Department
of State (DOS) or a certificate of citizenship (using Form N-600) with USCIS. There is no deadline when
applying for either form of documentation. In general, it is easier, faster, and cheaper to apply for a U.S.
passport than a certificate of citizenship. However, a passport expires while a certificate of citizenship does
not. Many clients will eventually seek both forms of proof of citizenship.
Example: Maria is 30 years old, but she has lived in the United States as an LPR since the age of five.
When Maria was ten, both of her parents became USCs, and she automatically derived citizenship
from them. She has been a citizen since the age of ten, even if she never applied for proof of citizenship
nor was aware of her citizenship status. Maria can apply for a U.S. passport or a certificate of
citizenship to document her U.S. citizenship status.
There is a third way to document acquisition of citizenship for a child living outside the United States.
The child’s parent may file for a Consular Report of Birth Abroad (CRBA) with the nearest U.S. embassy or
consulate. The application must be submitted before the child’s 18th birthday.
Example: USC Andres and his wife, Amelia, an Australian citizen, live in Melbourne. They just had a
child, Charlotte, who they want to take to the United States to visit her grandparents. They may file a
CRBA with the U.S. consulate in Melbourne in addition to applying for a U.S. passport. They will need
to include proof that Charlotte meets the criteria for acquisition of U.S. citizenship from Andres by
showing Andres lived in the United States for at least five years before Charlotte’s birth (two of which
were after he turned 14).
Remember that, regardless of whether someone is applying for a passport, certificate of citizenship or CRBA,
the applicant must include proof that he or she meets the applicable legal requirements for obtaining citizenship
by operation of law.
13.5 NATURALIZATION
A. OVERVIEW
Naturalization is the way for LPRs to become USCs by fulfilling certain substantive and procedural
requirements. Unlike acquisition and derivation, which happen automatically by operation of law,
naturalization requires USCIS to specifically determine eligibility and approve an application. Benefits of
naturalization include protection against deportation, the right to vote, freedom to travel and remain abroad
without abandonment of status, and greater ability to immigrate family members. There is no requirement,
however, that LPRs naturalize.
To qualify to naturalize, an applicant must generally meet the following requirements:
• be an LPR;
• be at least 18 years old;
• show continuous residence as an LPR in the United States for at least five years (or at least three years
if applicant is married to a USC);
• show physical presence in the United States for at least half of the five year (or three year) period;
• have good moral character;
• pass an English exam;
• pass a test on U.S. history and government; and
• take an oath of allegiance to the United States.
An application for naturalization is filed on Form N-400 in accordance with the instructions on the
USCIS website. An application may be submitted up to 90 days before fulfilling the continuous residence
requirement for naturalization. Applicants who are unable to pay the application fee may apply for a fee
waiver. Some applicants who do not qualify for a fee waiver may request a reduced fee (currently $320 plus
the biometrics fee) if their annual household income is greater than 150 percent but not more than 200 percent
of the Federal Poverty income guidelines in effect at the time of filing. Naturalization interviews are scheduled
by mailed appointment letters.
B. GENERAL REQUIREMENTS TO NATURALIZE (INA § 316)

1. LPR Status
An applicant for naturalization must be an LPR. The one exception to this requirement is under INA §
329 for persons who performed (or are performing) active duty military service during a period of declared
war or designated hostilities. These periods include World War I, World War II, the Korean War, the Vietnam
War, the Persian Gulf Conflict, and the War of Terrorism (which has been ongoing since September 11,
2001).
2. Age
You must be at least 18 years of age to file an application for citizenship. As discussed above, children
under 18 may derive citizenship automatically when at least one parent is a USC. In certain cases, a USC
parent may apply to naturalize a child under 18 who resides outside the United States but is temporarily
lawfully present in the United States. This is discussed at the end of the chapter.
3. Continuous Residence
Most permanent residents must establish that they have continuously resided in the United States as an
LPR for at least five years prior to applying for naturalization. LPRs who have been married to and living with
a USC for three years, where the spouse has been a USC for that three-year period, need only show three
years of continuous residence as an LPR. Other continuous residence exceptions exist for certain LPRs, including
persons serving in the military, spouses of military personnel and other government employees. Also, note that
a refugee’s LPR status is dated back to the date he or she entered the United States as a refugee and an asylee’s
LPR grant is backdated to one year prior to the date his or her adjustment application is approved.
In general, continuous residence is broken by absences of one year or more, and there is a presumption
that absences of six months or more disrupt continuous residence unless the applicant can prove otherwise. If
the applicant is unable to rebut the presumption that he or she has broken continuous residence, he or she may
resume residence and apply for naturalization at least six months before reaching the end of the relevant
statutory period. Persons with lengthy absences from the United States also need to consider whether their time
outside the United States may constitute abandonment of residency, which could lead to removal proceedings
and loss of LPR status.
Example: Carmen adjusted to LPR status on October 1, 2014 based on a petition filed by her
employer. On August 1, 2017 she traveled to her family home in the Philippines, intending to remain
for two months. Due to her mother's illness, she stayed in the Philippines for seven months to help her
father. She has not left the United States since returning on March 1, 2018. If Carmen applies to
naturalize, she will have the burden of overcoming the presumption that her seven-month absence
disrupted the requisite five-year period of continuous residence
Example: LPR Gladys is applying for naturalization. In 2017 she spent nine months in the Philippines
visiting her grandchildren and traveling. She did not buy a return flight and was unsure how long she
would stay abroad. On September 5, 2017, she returned to the United States, where she lives with
one of her sons. If USCIS determines that she broke her continuous residence, she will have to re-
establish continuous residence starting from the date she returned to the United States. The earliest she
may re-apply is March 5, 2022, which is six months before she will re-accrue five years of continuous
residence.
Example: Kevin, from Panama, became an LPR in 2012. In 2014, Kevin travelled to Brazil to study
gymnastics; he obtained a re-entry permit before he left because he knew his course of study would
last more than one year. He returned to the United States on June 15, 2015. With the prior permission
he obtained, Kevin will not be seen as having abandoned his residency status. However, he did
break his continuous residence for citizenship purposes. He will need to re-accrue the required
continuous residence if he wants to apply to naturalize. USCIS will consider that he has re-established
five years of continuous residence once he has been back in the United States for four years and one
day (June 16, 2019).
4. Physical Presence
An applicant for naturalization must show that he or she has been physically present in the United
States for half the required period of continuous residence. Some groups of applicants, including persons who
served in the military, may count time abroad as time in the United States for the physical presence requirement.
Provisions specific to military members and their families are discussed in Volume 12, Part I of the USCIS Policy
Manual.
Example: Kurt, an LPR from Germany, has been married to his USC wife Nina for four years. Kurt
became an LPR in December 2017. To be eligible for naturalization in December 2020, Kurt will need
to show that he has been physically present in the United States for 18 of the last 36 months, i.e. half
of the required three-year period of continuous residence for spouses of USCs.
5. Difference Between Continuous Residence and Physical Presence Requirements
The continuous residence requirement focuses on the amount of time an applicant was outside the
United States on a single trip. The physical presence requirement involves looking at the total number of days
a naturalization applicant was outside the United States on all of his or her trips.
Example: In the last hypothetical in Section 3, Kevin had the required physical presence to qualify for
citizenship because he was in the United States for more than half of the past five years. However,
Kevin’s one-year absence interrupted his continuous residence, so that he needs to wait four years and
one day after his return to meet the five-year continuous residence requirement and be eligible for
citizenship.
6. Good Moral Character

Naturalization requires that the applicant be a person of good moral character for the period of
required continuous residence (usually five years preceding the application) and up to the time of taking the
oath of allegiance. Good moral character is not actually defined in the INA, but the lack of good moral
character is defined at INA § 101(f); specifically, this provision lists certain acts or circumstances that prevent
a person from establishing good moral character either permanently or if the act or circumstance took place
during the period in which good moral character needs to be established. Good moral character bars include
certain criminal offenses, providing false testimony under oath, and smuggling. Regulations at 8 CFR § 316.10
relating to good moral character bars for naturalization applicants also specifically include failure to support
dependents and committing other “unlawful acts” that adversely reflect on the applicant’s moral character.
Several questions in the naturalization application address matters related to the assessment of good moral
character.
Example: Martina has lived continuously in the United States as an LPR for seven years and wants to
apply to naturalize. She speaks fluent English and has already completed a citizenship class where
she learned the information covered in the test on U.S. history and government. She has no criminal
record apart from a simple DUI offense from last year, and she already fulfilled all the requirements of
her sentence and had her license reinstated. Even though Martina’s DUI offense does not trigger
inadmissibility or deportability consequences, if she applies to naturalize now, the USCIS adjudicator
may treat her DUI offense as a basis to deny her application for other “unlawful acts” within the good
moral character period.
Note that males born after 1960 who lived in the United States between the ages of 18 and 26 are
required to register for the Selective Service before their 26th birthday. A naturalization applicant who knew
he was supposed to register for the Selective Service and failed to do so can be found not to have good moral
character. Someone who is 26 years or older and did not register should include with their naturalization
application a statement explaining their failure to register as well as a status information letter from the Selective
Service. Keep in mind that after age 31, this is no longer relevant since the conduct would fall outside the
statutory period for establishing good moral character.
7. Testing of English Literacy and Knowledge of History and Government (INA § 312)
Unless an exception applies, all applicants must pass an exam showing basic knowledge of U.S.
history and government (civics) and the ability to read, write, speak and understand basic English. The English
and civics tests can be the most difficult part of the naturalization process for many applicants.
These tests are administered in person at the naturalization interview. An applicant’s ability to speak
and understand English is assessed by whether he or she understands and can respond to the questions
normally asked during the naturalization interview related to eligibility. In addition, the applicant must read out
loud one sentence in English from the three printed sentences provided by the examining officer. Finally, the
applicant must also write one of three English sentences dictated by the officer to the applicant.
In order to pass the civics test, the applicant must answer correctly six of up to ten questions posed
orally by the officer. The six questions come from a standardized list of 100 civics questions that are published
on the USCIS website.
LPRs who have resided in United States for 20 years and are over age 50, or have resided in the
United States for 15 years and are over 55, are exempt from the English literacy requirement. The
naturalization interview will also be conducted in the language of the applicant’s choice with the assistance of
an interpreter provided by the applicant. These individuals must still pass the civics test, but may answer the
civics questions in their own language. In addition, applicants who are over 65 and have been an LPR for 20
years are only required to learn the answers to shorter version of the civics test consisting of 20 total questions.
8. Disability Exception
Certain physically or developmentally disabled or mentally impaired applicants may be exempted
from both the English and civics requirement. The disability or impairment must be “medically determinable”
and must have lasted, or be expected to last, at least 12 months. Illiteracy or advanced age, alone, will not
qualify someone for this exemption. Applicants must submit a “Medical Certification for Disability Exceptions”
(Form N-648) to establish eligibility for a disability exception to the testing requirements. The licensed medical
professional signing the N-648 must explain how the applicant’s disability or impairment prevents him or her
from complying with the English requirement, the civics requirement, or both requirements.
Seeking an exception to the English and/or civics requirements is different from requesting an
accommodation to these requirements. An accommodation modifies the way in which the applicant meets the
English and civics requirements but does not exempt the individual from these requirements. A reasonable
accommodation might include access to a sign language interpreter or providing an extended time for testing.
Example: Boris, age 72, has been diagnosed with vascular dementia due to a series of strokes he
suffered about ten years ago, before coming to the United States. A CT scan shows brain damage. His
symptoms include memory impairment, confusion, short attention span, weakness on one side of his
body, and difficulties with daily activities such as cooking and caring for himself. Boris lives with his
daughter, who takes care of him. His illness is so severe that there is no way he could pass the English
and civics tests, even with accommodations. Since his condition is not likely to improve, if Boris’
physician signs an N-648 explaining the connection between his dementia and his inability to learn
English and civics, Boris is likely to qualify for a disability waiver, exempting him from these
naturalization requirements.
Example: LPR Martha has significant developmental disabilities that impair her ability to learn and to
respond to questions. Martha’s counsel believes she can pass the English and civics tests as long as
she is provided extra time to respond to questions. She plans to obtain a letter from Martha’s doctor
explaining Martha’s disability and requesting the special accommodation of allowing Martha to have
more time to respond to the adjudicator’s questions.
Refer to the USCIS Policy Manual for more information about accommodations related to completing
the naturalization application, interview, and oath, including the help of a family member or other designated
representative if the applicant is unable due to mental disability.
9. Oath of Allegiance (INA § 337)

Subsequent to the naturalization interview, naturalization applicants must take an oath of allegiance
to the United States in a public oath ceremony (or “swearing-in ceremony”). At that time, an applicant declares
his or her attachment to the United States and its Constitution and his or her willingness to support and defend
the United States. Persons who have religious or moral objections to military service may take a modified oath.
The oath requirement may also be waived for persons who cannot understand the meaning of the oath because
of a physical or developmental disability or a mental impairment. In that case, the applicant’s legal guardian,
surrogate, or certain family members who can serve as a designated representative may assist in submitting a
written waiver request along with a medical professional’s evaluation of why the disability prevents the
applicant from understanding the oath requirements.
C. EXPOSURE TO DEPORTABILITY
The naturalization application process is also an opportunity for the USCIS adjudicator to confirm the
applicant’s initial eligibility for LPR status as well as determine whether the LPR has committed any deportable
act since immigrating. Thus, in addition to screening naturalization clients for their eligibility to naturalize,
advocates must also review whether there may be any deficiencies in the applicant’s underlying LPR status or
any post-LPR conduct that could trigger deportability. For example, the applicant may be ineligible to establish
good moral character due to a crime that also creates deportability. Or the applicant may have immigrated
without revealing certain acts that would have disqualified the applicant from qualifying for LPR status in the
first place. These circumstances could lead, not only to a denial of the N-400 application, but to USCIS
deciding to institute removal proceedings. Under the current policy guidance, USCIS may issue an NTA, even
if the applicant is otherwise eligible for naturalization, to any deportable applicant. The guidance also provides
that USCIS will issue an NTA after denying an N-400 for a lack of good moral character based on an
underlying criminal offense making the applicant removable.
Example: Martina has been an LPR since 2000 and wants to apply for naturalization. She immigrated
in the F2A category based on marriage to LPR Sam. However, you discover that Martina’s prior
marriage to her first husband in Mexico had not been legally terminated when she married Sam in
1995. If Martina was still married when she married Sam, she would not have been eligible to adjust
status in 2000. This would make her deportable under INA § 237(a)(1) for being inadmissible at the
time of admission, and USCIS may issue an NTA on this basis.
Another issue that might be uncovered during the naturalization process is deportability based on
abandonment of residency. Although the continuous residence requirement for naturalization focuses on the
five (or three) year period prior to filing the application, extended absences by the LPR predating this period
can expose the client to removal proceedings if the adjudicator concludes that the length of the absence and
reasons for the extended absence support a conclusion that the applicant abandoned his or her LPR status.
Example: Lucia, from Mexico, has been an LPR for 15 years. Eight years ago, when she was 30, Lucia
returned to Mexico to live with her family after a bitter divorce from her husband. Lucia sold her
belongings before she left, and she then found a place to live in her hometown in Mexico. She lived
and worked there for three years before returning to the United States five years ago. Although Lucia
has been continuously residing in the United States for the past five years, she will have to disclose her
three-year absence when she applies to naturalize. This may expose Lucia to removal proceedings
based on abandonment of residency.
13.6 CITIZENSHIP FOR CERTAIN CHILDREN OF USCS RESIDING OVERSEAS

In certain circumstances, when a child of a USC living abroad does not qualify for automatic citizenship
by acquisition or derivation, a citizen parent may apply to naturalize the child. This is sometimes referred to as
“naturalization of children” or “§ 322 citizenship.” Unlike acquisition and derivation, this is not automatic but
requires the child’s parent to apply for naturalization on the child’s behalf using Form N-600K. Also, unlike
acquisition and derivation, the N-600K must be filed and approved before the child’s 18th birthday. Finally,
at the time of the N-600K interview, the child must be lawfully present in the United States based on a lawful
temporary admission (as a student or visitor, for example). The process may only apply where the following
requirements are met:
• At least one parent is a citizen, either by birth or by naturalization;

• The citizen parent must have lived in the United States for a total of five years, at least two of which
were after age 14, or the USC parent of the citizen parent (i.e. the child’s grandparent) must have
lived in the United States for a total of five years, two of which were after age 14;
• The child is under age 18, and remains under age 18 until the naturalization process is completed;
• The child is not married;
• The child is residing outside of the United States in the legal and physical custody of the citizen
parent; and
• The child is temporarily present in the United States under a lawful admission, and remains in lawful
status until the naturalization process is completed.
Unlike naturalization of adults, § 322 citizenship the does not require the child to pass an English or
civics test, meet continuous residence or physical presence requirements, or demonstrate good moral
character. However, children 14 years or older must take the oath of allegiance unless that requirement is
waived. The child does not become a citizen until USCIS approves the application. If the child is about to turn
18 or his or her lawful status is about to expire, it may be advisable to request that adjudication of the N-600K
be expedited.
Example: Erika, an orphan from Thailand, was adopted by two USC parents who went overseas after
college as Peace Corps volunteers. After finishing in the Peace Corps, they decided to remain overseas
and find permanent jobs there. Erika’s parents have not petitioned for her to become an LPR because
this strategy will not work when they are all living abroad. In this situation, Erika’s parents can apply to
naturalize her using Form N-600K, then apply on her behalf for a tourist visa so that Erika can enter the
United States to attend the naturalization interview. They travel with her to the United States, and after
Erika is granted citizenship, they return with her to their home overseas. Later, Erika’s mother becomes
pregnant and has a child, a boy named Adrian. Adrian acquires U.S. citizenship at birth through his
parents.
Where is the Law?
Acquisition of Citizenship at Birth:

• INA §§ 301 and 309
• USCIS Policy Manual, Volume 12 – Citizenship &
Naturalization, Part H, Chapter 3
• Sessions v. Morales-Santana, 137 S.Ct. 1678 (2017)
Derivation:
• INA § 320
• 8 CFR §§ 320.1 and 320.2
Naturalization, Part H, Chapter 4
Naturalization:
• INA §§ 312 – 337
• 8 CFR §§ 310 - 331.4
Naturalization, Parts A-G; I-L
Citizenship For Certain Children of USCs Residing Abroad:
• INA § 322
• 8 CFR § 322
Naturalization, Part H; Chapter 5
Practice Tips:
• Always check whether your client may have acquired citizenship at birth. To assess
this issue, all you need to do is ask one question: Were either of you parents a USC
when you were born? If so, you client may have acquired citizenship and you will
need to ask additional questions to make this determination.
• Always check whether LPR clients who immigrated before age 18 derived
citizenship. For LPR clients who immigrated before age 18, ask questions to
determine if the client had a USC parent through whom the client may have derived
citizenship.
• When screening naturalization clients, look at all absences beyond those required
in the application form. An LPR client may not have disrupted continuous residence if
he or she has not taken trips longer than six months during the five-year (or three-
year) statutory period. However, long absences at any time after acquiring LPR
status can subject an LPR to exposure for having abandoned their residency. Before
advising a client to apply to naturalize, assess the risk the client could be charged
with being deportable based on abandonment.
• Determine the basis of the client’s underlying residency and confirm that the client
was eligible for his or her status at the time of immigrating. Naturalization provides
USICS an opportunity to review a client’s entire immigration history and A-file. If an
officer discovers that a client was not eligible to become a resident to begin with,
not only will the naturalization application be denied but the client could be placed
into removal proceedings. If it is not clear what information was provided to USCIS
at the time the client immigrated, make a FOIA request to examine the client’s
immigration file before advising the client to apply for naturalization.
• Naturalization applicants with conduct that has not triggered an automatic bar to
good moral character under the statute or regulation may still be denied on the
basis of discretion. In evaluating good moral character, USCIS looks at the totality
of the circumstances, balancing the good against the bad. The examiner may also
look at conduct outside of the relevant statutory period. Consider whether the client
has any adverse discretionary issues that may lead to a denial based on lack of
good moral character. Clients with any unlawful conduct within the required good
moral character period may want to wait to apply until the conduct is outside the
period.
GLOSSARY OF IMMIGRATION LAW TERMS
Accredited representatives are non-attorneys who have been authorized by the U.S. Department of
Justice’s Recognition and Accreditation program to represent persons before the U.S. Department of
Homeland Security (including U.S. Citizenship and Immigration Services) and, for fully accredited
representatives, before judges in immigration court.
Adjustment of status is the process whereby a noncitizen applies for permanent resident status in the United
States. Most noncitizens who adjust status do so through the family-based or employment-based immigration
system.
Administrative Appeals Office (AAO) is the appellate body of U.S. Citizenship and Immigration Services
(USCIS) that has jurisdiction over the appeal of most USCIS decisions that can be appealed.
Asylees are persons who are granted asylum inside the United States based on their fear of persecution in
their home countries. This persecution must be based on their race, religion, nationality, political opinion, or
membership in a particular social group.
The Board of Immigration Appeals (BIA) is an administrative court within the Department of Justice. It
interprets immigration law and reviews certain decisions by USCIS.
U.S. citizens, or USCs, include persons born in the United States; persons born abroad who gain citizenship
through a USC parent or parents; persons born abroad who gain citizenship after birth through a USC
parent or parents; and persons born abroad who naturalize.
Consular processing is the process whereby a noncitizen applies for lawful permanent residence at a U.S.
consulate abroad. Most noncitizens who consular process do so through the family-based or employment-
based immigration system
Customs and Border Protection (CBP) is the sub-agency within the Department of Homeland Security
charged with protecting the U.S. border and determining whether a noncitizen is authorized to enter the
United States.
Deferred action is a temporary immigration status granted to persons based on certain humanitarian factors.
A program called Deferred Action for Childhood Arrivals (DACA) was available to noncitizens who
entered the United States before they turned 16 and who satisfy educational, residence, and other
requirements. Persons granted deferred action may work legally in the United States.
The Department of State is the agency that determines whether or not to grant visas to noncitizens who want
to enter the United States. It operates through U.S. consulates or embassies located in most foreign countries.
The Diversity Immigrant Visa Lottery, or “green card lottery”, is a pathway to permanent resident status
available each year to noncitizens from countries with low rates of immigration to the United States.
An employment authorization document (EAD) is a permit allowing a noncitizen to work legally in the
United States.
The employment-based immigration system allows employers to sponsor skilled workers to enter the United
States and perhaps obtain lawful permanent resident status.
EWI stands for “entry without inspection” and refers to noncitizens entering the United States unlawfully,
without inspection by an immigration officer. This is usually done by entering somewhere other than a port-
of-entry.
The Executive Office for Immigration Review (EOIR) is the sub-agency within the Department of Justice that
operates the immigration court system.
The family-based immigration system allows for certain close family members of U.S. citizens and lawful
permanent residents to obtain lawful permanent resident status. The family- based system is by far the largest
path to lawful permanent residence in the United States.
A green card is another term used for a lawful permanent resident card (Form I-551).
Grounds of inadmissibility or deportability may prevent noncitizens from obtaining lawful permanent
resident status, and may even result in their removal from the United States. Some of the major obstacles to
obtaining LPR status include health-related factors, criminal conduct, fraud, smuggling, unlawful presence in
the United States, and other immigration violations.
An I-94 is a form given by Customs and Border Protection to nonimmigrants upon their admission to the
United States. The I-94 indicates their immigration classification and authorized period of stay.
Immigration courts, which are part of the Executive Office for Immigration Review, hold administrative
hearings to determine if a noncitizen can remain in the United States or must be removed.
Immigration and Customs Enforcement (ICE) is the sub-agency within the Department of Homeland
Security charged with enforcing immigration laws inside the United States.
The Immigration and Nationality Act (INA) contains almost all of the statutes passed by Congress that
relate to immigration and nationality law.
Lawful permanent residents, or LPRs, are allowed to reside in the United States indefinitely. They can also
travel and work in most areas of employment, and can sponsor their spouses and unmarried children for
lawful permanent residence. They are subject to immigration laws and may lose their LPR status.
Naturalization is the process whereby a lawful permanent resident becomes a U.S. citizen. To qualify, the
LPR must be at least 18, have continuously resided in the United States for a certain number of years; speak,
read, and write basic English; and demonstrate good moral character.
Noncitizen, referred to in the immigration laws as “alien,” includes any person present in the United States
who is not a U.S. citizen.
Nonimmigrants are noncitizens who are admitted to the United States for a specific purpose and for a
limited period of time. They are issued nonimmigrant visas. Examples of nonimmigrants include students,
tourists, and religious workers.
Parole allows certain noncitizens to temporarily, physically enter the United States if they are applying for
admission but are either inadmissible or do not have a legal basis for being admitted. A person granted
parole is not provided an immigration status nor have they made an “admission” into the U.S.
Refugees are persons who were granted refugee status abroad based on their fear of persecution in their
home countries. This persecution must be based on their race, religion, nationality, political opinion, or
membership in a particular social group.
Regulations are written by federal agencies to interpret and implement federal laws. The Department of
Homeland Security writes the regulations for immigration laws.
A relative petition is the form filed by a U.S. citizen or permanent resident to start the process of immigrating
a close family member. This petition establishes that the petitioner is a citizen or LPR and the that the petitioner
and the family member have a qualifying relationship.
Temporary Protected Status (TPS) is an immigration status available to persons in the United States, who
are from specially designated countries, and who cannot return home due to ongoing armed conflict or a
natural disaster. Persons granted TPS are allowed to work legally and remain in the United States
temporarily.
Undocumented individuals are noncitizens who either entered the country illegally and remain in the US
without immigration status or overstayed their authorized time period to be in the US legally.
Unlawful Presence is the period of time a person is in the United States without having been admitted or
paroled or when a person is not in a period of authorized stay.
The United States Citizenship and Immigration Services (USCIS) is the sub-agency within the Department
of Homeland Security charged with adjudicating applications for immigration benefits.
A visa is a permit issued by the Department of State and placed in a noncitizen’s passport that allows its
holder to seek admission to the United States. Visas are issued to immigrants, or lawful permanent residents,
and to nonimmigrants.
A waiver is an application to forgive a ground of inadmissibility or deportability. Not all grounds of

inadmissibility and deportability allow for waivers.
COMMON ACRONYMS
Throughout this manual and training, the following acronyms and abbreviations refer to the following words:
AO: Asylum Office
BIA: Board of Immigration Appeals
CAT: Convention Against Torture
CBP: U.S. Customs and Border Protection
CFR Code of Federal Regulations
CSPA: Child Status Protection Act
DED: Deferred Enforced Departure
DHS: Department of Homeland Security
DOS: Department of State
EAD: employment authorization document
EOIR: Executive Office for Immigration Review
EWI: Entry Without Inspection
FOIA: Freedom of Information Act
ICE: Immigration and Customs Enforcement
IJ: immigration judge
INA: Immigration and Nationality Act
LPR: Lawful Permanent Resident
NACARA: Nicaraguan and Central American Relief Act
NOID: Notice of Intent to Deny
NTA: notice to appear NVC: National Visa Center
OPLA: Office of the Principal Legal Advisor

PIP: Parole in Place
RFE: Request For Evidence
SIJS: Special Immigrant Juvenile Status TPS: Temporary Protected Status
USC: United States Citizen USC: U.S. Code
USCIS: United States Citizenship and Immigration Services
VAWA: Violence Against Women Act
APPENDICES
A. Nonimmigrant Visa
B. Immigrant Visa
C. I-94, Arrival Departure Record
D. I-551, Permanent Resident Card
E. Employment Authorization Document
F. I-512L, Advance Parole Authorization
G. Request for Evidence
H. Notice of Intent to Deny
I. Notice of Approval
J. Notice of Denial
K. Certificate of Naturalization
L. Certificate of Citizenship
M. I-213, Record of Deportable/Inadmissible Alien
N. Notice to Appear
O. Expedited Removal Order
P. In Absentia Order of Removal
Q. Order of the Immigration Judge
208
A. Nonimmigrant Visa
B. Immigrant Visa
C. I-94 Arrival Departure Record
D. I-551, Permanent Resident Card
E. Employment Authorization
F. I-512L, Advance Parole Authorization
G. Request for Evidence
U.S. Department of Homeland Security

U.S. Citizenship and Immigration Services
May 30, 2019 7 5 Lower Welden St.
St. Albans, VT 05479
U.S. Citizenship
and Immigration
Services
1 1 1 1 1 1 11111 1 11111 1 1 1 111111 1 11111111 111111111 1
1 1 11 1 1 111 I I I 1111111111 1 111 1 11 1 1 11 1 1 1 1 1 1
RE:R
1-914, Application for T Nonimmigrant Status
1 1 11111111111 111 11111 1 1 1 1 1 1 1
II 1111111111111111111111111111111111111
REQUEST FOR EVIDENCE

IMPORTANT: THIS NOTICE CONTAINS YOUR UNIQUE RECEIPT NUMBER. THIS -
-
PAGE MUST BE SUBMITTED WITH THE REQUESTED EVIDENCE.
-
You are receiving this notice because U.S. Citizenship and Immigration Services (USCIS) requires
additional evidence to process your form. Please provide the evidence requested on the attached -
-
-
page(s). Include duplicate copies if you are requesting consular notification.
-
-
Your response must be received in this office by August 25, 2019.
Please note that you have _been allotted the maximum period allowed for responding to a Request for -
-
Evidence (RFE). The time period for responding cannot be extended. See Title 8 Code of Federal
-
-
Regulations (8 CFR), Section 103.2(b)(8)(iv). Because many immigration benefits are time sensitive,
you are encouraged to respond to this request as early as possible, but no later than the deadline -
-
provided above. If you do not respond to this notice within the allotted time, your case may be
denied. The regulations do not provide for an extension of time to submit the requested evidence.
-
You must submit all requested evidence at the same time. If you submit only some of the requested
evidence, USCIS will consider your response a request for a decision on the record. See 8 CFR
103.2(b)(l 1). If you submit a document in any language other than English, the document must be
accompanied by a full and complete English translation. The translator must certify that the
translation is accurate and he or she is competent to translate from that language to English. If you
submit a foreign language translation in response to this request for evidence, you must also
include a copy of the foreign language document.
The processing of your form or benefit request will resume upon timely receipt of your response.
Written inquiries may be mailed to:
USCIS/ Vermont Service Center

ATTN: VAWAT U Division
75 Lower Welden Street
St. Albans, VT 05479-0001
VSCl9 I 4VSCV AW0000 I 0617307 1 of 6 WWW.USCIS gov

U.S. Dcparlment of Homeland Security
U.S. Cilixcn�hip and Immigration Services
Wstricr 5 -- l'lti/od.dpl1ia Fidil O.f]icl!
H. Notice of Intent to Deny 30 N. 4 t•' Str�ct
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625 East Madison St.

Lancaster, PA 17602
NOTICE OF INTENT TO DENY
Dear-
On January 26, 2018, yo.u filed an Application to Register Permanent Residence or Affjust Status (Form l-
485) seeking adjustment of status under Section 245(a) of the Immigration and Nationality Act (the Act).
The application is based on an approved Petition for Alien Relative (Form /-130) filed on your behalf by
yotir U.S. citizen spouse The qualifying marriage between you and Ms.- took
place on October 19, 2017 in Lancaster, PA.
On May 29, 2018, you appeared at the Philadelphia Field Office of USCIS to provide sworn testimony
and evidence in connection with the application. You testified that you were previously married to-
and this marriage terminated through divorce in April 20, 2014 in Haiti.
APPLICABLE LAW
Section 245 of the Act states:
(a) The status of an alien who was inspected and admitted or paroled into the United States may
be adjusted by the Attorney General, in his discretion and under such regulations as he may
prescribe, to that of an alien lawfully admitted for pennanent residence if:
(I) the alien makes an application for such adjusbnent,
(2) the alien is eligible to receive an immigrant visa and is admissible to the United States
for permanent residence, and
(3) an immigrant visa is immediately available to him at the time his application is filed.
An applicant has not been lawfully admitted to the United States if he or she commits an act of fraud in
relation to a vi_sa application. Fraud constitutes a ground of inadmissibility under Section 212(a)(6)(C)(i) of
the Act which states:
(C) Misrepresentation.-
(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.
Section 222 of the Act provides, in pertinent part:
www.uscis.gov
I. Approval Notice
U.S. Department of Homeland Security
J. Denial Notice U.S. Citizenship and Immigration Services
Portland Field Office
I 455 NW Overton St, Suite I
Portland. OR 97209
U.S. Citizenship
and Immigration
Services
Date: OCT 3 0 . ·
MSC1391672322
Vancouver, WA 98684
DEClSION
Dear
Thank you for submitting Form I-485, Application to Register Permanent Residence or Adjust
Status, to U.S. Citizenship and Immigration Services (USCIS) under section 245 of the
Immigration and Nationality Act (INA).
After a thorough review of your application and supporting documents, unfortunately, we must
inform you that we are denying your application for the following reason(s).
Generally, to qualify for adjustment under INA 245, an applicant must:
• Be inspected and admitted or paroled into the United States;

• Be eligible to receive an immigrant visa;
• Be admissible to the United States for permanent residence; and
• Have an immigrant visa immediately available at the time the application is filed.
Statement of Facts and Analysis, Including Ground(s) for Denial
You filed Form l-485 based on being the beneficia1y of a visa petition (Form l-130) filed on your
behalf by your lawful permanent resident father.
USCIS received your Form I-485 application on August 12, 2013. The Form l-130 visa petition
was filed on your behalf June 14, 201 ::::. A review of USC IS records fails to find any evidence
that you are the beneficiary of any r,cher visa petition.
You indicated on your Form I-485 application that you last entered the United States on
September 2, 1999 as a non-immigrant visitor under the "visa waiver" program. You were
authorized to remain in the United States for a maximum of90 days, until December l, 1999.
A review of USC IS records fails to find any evidence that you were subsequently granted any
other valid status in the United States, or that your period of authorized admission has ever been
extended. Therefore, on the date your Form 1-485 application was filed, your authorized period
of admission had expired and you were not lawfully present in the United States.
K. Certificate of Naturalization
L. Certificate of Citizenship
M. I-213, Record of Deportable/Inadmissible Alien
U.S. Department of Homeland Security Subject ID :lliJIDita) Record of Deportable/lnadmissible Alien

familv Name (CAPS) First Middle Sex Hair Eyes Cmplxn
M
Country ofCi1izcnship Passport Number and Country of Issue File Number Height Weight Occupation
MEXICO CASE No:
U.S. Address Scars and Marks
Date, Place, Time. and Manner of Last Entry Passenger Boarded 31

03/17/2001, 0000 mile(s) of CAL
Number, Street. City, Province (State) and Country of Pcnnancnl Residence Method ofLocauonl'Appre ns1on
MEXICO
Date ofBirth Date of Action Loca1ion Code Al/Near Date/Hour
Age:21 10/07/2019 SND/CAL CALEXICO 03/17/2001 0000
City, Province (State) and Country of Birth R □ Fonn : (Type aod No.) Lifted □ Not Lifted 0 By
MEXICO
NIV Issuing Post and NIV Number Social Security Account Name StalUS at Entry Status When FOWld
PWA Other
Date Visa Issued Social Security Number Length ofTime Illegally in U.S.
NOT APPLICABLE
hnmigralion Record Criminal Re<:ord
NEGATIVE None Known
Name. Address, and Nationality of Spouse (Maiden Name. if Appropriate) Number and Nationality of Minor Children
F11hcr's Name, Na1ionaliry. and Address, if Known Mother's Prescn1 and Maiden Names, Nationality, and Address. ifKnown
Monies Due/Propc:ny in U.S. Not in lmmcdia1e Possession fingerprinted? D Y cs D No Systems Checks Charge Code Words(s)
None Claimed
Name and Addrm of(Last)(Currcnt) U.S. Employer Type ofEmploym,nt Salary Employed from/to
Hr
Narrative (Outline particulass under which ahcn was loca1cd/apprchcndcd. Include details not shown above regarding timt, place and maMer of Jast entry, attempted entry, or any other entry, and
clements which es1ablish administrali,•e and/or criminal violatton Indicate means and route oftravel 10 mlcrior.)
FINS #:8451867
NARRATIVE:
SUBJ. IMPOSTER TO I-586. I-275 DUE TO LACK OF SPACE
(b) (6) (b) (7)(C)

CBP Officer
Alu:n has b<:cn advised of communication privileges (Date/Initials) (Signature and Title ofImmigration Officer)
Distribution: Received: (Subject and Documents) {Report ofInterview)
Officer.
October 07, 2019 at 0806

on: ______________________ ( ti. me )
Dispo�ition:
Other
Examining Officer:
Form 1-213 (Rev. 08/01/07) Y

N. Notice to Appear
1
2
O. Expedited Removal Order
U .S. Department of Homeland Security Notice and Order of Expedited Removal
DETERMINATION OF INADMISSIBILITY Event No: IMB1902000103
FileNo--
February 13, 2019
Date:
In the Matter of:
Pursuant to section 235(b)(l) of the Immigration andNationality Act (Act ), (8 U.S.C. 1225(b)(l)), the
Department of Homeland Security has determined that you are inadmissible to the United States under
□
section(s) 2 l 2(a) D (6)(C)( i); D (6)(C)(ii); � (7)(A)(i)(I); D (7)(A)(i)(Il); (7)(B)(i)(I); and/or D (7)(B)( i)(II)
of the Act, as amended, and therefore are subject to removal, in that:
1. You are an immigrant not in possession of a valid unexpired immigrant visa, reentry
permit, border crossing card, or other valid entry document required by the Immigration
and Nationality Act. You are not a citizen or national of the United States, you are a
native of Honduras and a citizen of Honduras, and on February 9, 2019, you illegally
entered the United States at/near San Ysidro, California, and you were not inspected by an
Immigration Officer.
BORDER PATROL AGENT

Name and title of immigration officer (Print)
ORDER OF REMOVAL
UNDER SECTION 235(b)(l) OF THE ACT
Based upon the determination set forth above and evidence presented during inspection or examination pursuant
to section 235 of the Act, and by the authority contained in section 235(b)( l ) of the Act, you are found to be
inadmissible as charged and ordered removed from the United States.
S000
Name and title of immigration officer (Print)
so.oo
ame and title of supervisor (Print) ignature of supervisor, if available
D Check here if supervisory concurrence was obtained by telephone or other means (no supervisor on duty).
CERTIFICATE OF S ERVICE
inal of this notice upon the above-named person on ·....;,,.._,_-__

--�....:. 3,_J-0
\ __;_ __, __
(Date)
Ci
Signature of11nmigration officer
Form 1-860 (Rev.08/01/07)
P. In Absentia Order of Removal
Q. Order of the Immigration Judge

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Introduction to Immigration Law

CLINIC’s Introduction to Immigration Law manual is designed to accompany our introductory

1.2 THE U.S. IMMIGRATION LAW SYSTEM IN ACTION

1.3 WHO’S WHO IN THE IMMIGRATION LAW UNIVERSE

1. Lawful Permanent Residents

2. Asylees and Refugees

a. Temporary Protected Status

c. Other Temporary Relief

A. THE IMMIGRATION AND NATIONALITY ACT

C. AGENCY POLICY GUIDANCE

1.5 FEDERAL AGENCIES THAT CARRY OUT IMMIGRATION LAWS

A. DEPARTMENT OF HOMELAND SECURITY

U.S. Citizenship and Immigration Services (USCIS)

U.S. Immigration and Customs Enforcement (ICE)

U.S. Customs and Border Protection (CBP)

E. DEPARTMENT OF HEALTH AND HUMAN SERVICES

2.1 THE RECOGNITION AND ACCREDITATION PROGRAM OVERVIEW 1

For a current roster of recognized organizations and accredited representatives, see:

2.2 RECOGNITION AND ACCREDITATION IN ACTION

2.3 ORGANIZATIONAL RECOGNITION BY DOJ UNDER 8 CFR § 1292.11

B. REPORTING, RECORDKEEPING, AND POSTING REQUIREMENTS

• the total number of clients served;

C. PREPARING THE RECOGNITION APPLICATION FOR THE AGENCY OFFICE

• Brief cover letter presenting the application with a list of enclosures;

- A description of the experience, qualifications, and breadth of immigration knowledge of

D. EXTENSION OF RECOGNITION AND ACCREDITATION TO MULTIPLE LOCATIONS

2.4 INDIVIDUAL STAFF ACCREDITATION TO REPRESENT UNDER 8 CFR § 1292.12

A. APPLYING FOR ACCREDITATION

• Must be an employee or volunteer of a recognized organization or an organization applying for

C. APPLICATIONS FOR ACCREDITED REPRESENTATIVE STATUS

D. PRACTICING AS AN ACCREDITED REPRESENTATIVE

2.5 FURTHER INFORMATION

Where is the Law?

Regulations on Recognition and Accreditation

3.2 CASE MANAGEMENT

A. INTAKE AND INTAKE FORMS

E. COMMUNICATING WITH CLIENTS

• Communicate with the client in a language he or she understands;

A. BEST PRACTICES IN INTERVIEWS

2. Be Mindful of Barriers to Communication

CAIR Coalition Practice Tips Series: Working with Immigrant Children

ABA Practice Advisory on Representing Detained Respondents with Diminished Capacity

4. Assess the Case and Explain Next Steps

5. Formalize the Relationship with a Retainer Agreement

• “I help my clients complete immigration paperwork.”

A. PRIMARY SOURCES OF LEGAL AUTHORITY

B. SECONDARY SOURCES OF LEGAL AUTHORITY

1. Board of Immigration Appeals (BIA)

• IJ decisions in removal proceedings;

2. Administrative Appeals Office (AAO)

2. Federal Court Decisions

E. YOU CAN DO IT! FINDING LEGAL AUTHORITY IN ACTION

4.2 INADMISSIBILITY AND DEPORTABILITY IN ACTION

4.3 CONCEPTS OF INADMISSIBILITY AND DEPORTABILITY

4.4 SUMMARY OF INADMISSIBILITY AND DEPORTABILITY GROUNDS

B. INA § 237 (A): CATEGORIES OF DEPORTABILITY

4.5 REVIEW OF SELECTED GROUNDS OF INADMISSIBILITY AND DEPORTABILITY

A. HEALTH GROUNDS, INA § 212(a)(1)

• Communicable diseases, INA § 212(a)(1)(A)(i) - The Department of Health and Human

B. CRIME-BASED GROUNDS, INA §§ 212(a)(2), 237(A)(2)

INA § 212(a)(2) – Crime-Based Inadmissibility includes the following circumstances:

C. PUBLIC CHARGE INADMISSIBILITY AND DEPORTABILITY, INA §§ 212(a)(4), 237(A)(5)

1. Public Charge Inadmissibility