9 FAM 302.11
(U) Ineligibility based on Previous removal and unlawful
presence in the united States - INA 212(a)(9)
(CT:VISA-938; 09-10-2019)
(Office of Origin: CA/VO/L/R)
9 FAM 302.11-1 (U) Statutory and
Regulatory Authority
9 FAM 302.11-1(A) (U)
Immigration and Nationality Act
(CT:VISA-272; 12-20-2016)
(U) INA 101(g) (8 U.S.C. 1101(g));
INA 212(a)(9)(A) (8 U.S.C. 1182(a)(9)(A)); INA 212(a)(9)(B) (8 U.S.C.
1182(a)(9)(B)); INA 212(a)(9)(C) (8 U.S.C. 1182(a)(9)(C)); INA 212(d)(3) (8
U.S.C. 1182(d)(3)); INA 235 (8 U.S.C. 1225).
9 FAM 302.11-1(B) (U) Code of
Federal Regulations
(CT:VISA-272; 12-20-2016)
(U) 8 CFR 212.7(e); 22 CFR 40.93.
9 FAM 302.11-2 (U) Individuals
Previously Removed - INA 212(a)(9)(A)
9 FAM 302.11-2(A) (U) Grounds
(CT:VISA-347; 04-18-2017)
a. (U) INA 212(a)(9)(A)(i)
makes inadmissible, and therefore ineligible for a visa, any alien who has been
ordered removed under INA 235(b)(1) or INA 240 as an arriving alien, and who
seeks admission within 5 years (or 20 years if second or subsequent removal or
at any time if convicted of an aggravated felony) of the date of such removal,
unless prior permission has been granted (see 9 FAM
302.11-2(B)(5)).
b. (U) INA 212(a)(9)(A)(ii)
makes inadmissible, and therefore ineligible for a visa, any alien who has been
ordered removed from the U.S. or departed while an order of removal was
outstanding and who seeks admission within 10 years (or within 20 years if it
is after a second or subsequent removal or at any time if the individual is
convicted of an aggravated felony) from the date of such departure or removal,
unless prior permission has been granted (see 9 FAM
302.11-2(B)(5)).
9 FAM 302.11-2(B) (U)
Application
9 FAM 302.11-2(B)(1) (U)
Five Year Bar
(CT:VISA-272; 12-20-2016)
(U) An alien who has been found to
be inadmissible as an arriving alien, whether as a result of a summary
determination of inadmissibility by an immigration officer at the port of entry
under INA 235(b)(1) (Expedited Removal) or as a result of a finding of
inadmissibility by an Immigration Judge during a hearing in Immigration Court
under INA 240 (Removal Proceedings) that DHS initiated upon the aliens
arrival in the United States, is inadmissible under INA 212(a)(9)(A)(i) unless
the alien has remained outside of the United States for five consecutive years
since the date of deportation or removal. Under INA 101(g), an alien who
departs the United States while a final removal order is in effect is deemed to
have been removed, even if the alien leaves on his or her own.
9 FAM 302.11-2(B)(2) (U) Ten
Year Bar
(CT:VISA-272; 12-20-2016)
(U) An alien who has otherwise
been removed from the United States under any provision of law, or who departed
while an order of removal was in effect, is inadmissible under INA
212(a)(9)(A)(ii) unless the alien has remained outside of the United States for
10 consecutive years since the date of removal or departure.
9 FAM 302.11-2(B)(3) (U)
Twenty Year Bar
(CT:VISA-272; 12-20-2016)
(U) An alien who has been removed
from the United States two or more times is inadmissible under INA
212(a)(9)(A)(i) or INA 212(a)(9)(A)(ii), as appropriate, unless the alien has
remained outside of the United States for 20 consecutive years since the date
of such removal or departure while a removal order was outstanding.
9 FAM 302.11-2(B)(4) (U)
Permanent Bar
(CT:VISA-272; 12-20-2016)
(U) If an alien who has been removed
has also been convicted of an aggravated felony, the alien is permanently
inadmissible for a visa under INA 212(a)(9)(A)(i) or 212(a)(9)(A)(ii), as
appropriate. "Aggravated felony" is defined in INA 101(a)(43)
(see 9 FAM
102.3-1 for additional information). For purposes of this permanent
bar, it does not matter whether the individual has been convicted of an
aggravated felony in the United States or outside of the United States; it also
does not matter whether the conviction itself resulted in the removal of the
alien, or whether the alien was convicted prior to or after the removal of the
alien.
9 FAM 302.11-2(B)(5) (U)
Permission to Reapply or Consent to Reapply (CTR)
(CT:VISA-679; 09-24-2018)
a. (U) An alien is not
inadmissible under INA 212(a)(9)(A)(i) or
(ii) if prior to the aliens re-embarkation at a place outside the United
States or attempt to be admitted from a foreign contiguous territory, the
Secretary of Homeland Security has consented to the alien's reapplying for
admission. The individual must file Form I-212 (Application for Permission to
Reapply for Admission into the United States After Deportation or Removal) to
obtain "Consent to Reapply" (CTR) before he/she can lawfully return
to the United States. "Consent to Reapply" is also called
"permission to reapply." If the Secretary of Homeland Security
consents, then the inadmissibility no longer applies. Although the consent to
reapply removes the ground of ineligibility, it does not remove the factual
circumstances which led to the original finding of ineligibility nor does it
affect any other ground of ineligibility.
b. (U) However, for
nonimmigrant visa (NIV) applicants only, DHS will consider CTR to have been
granted for ineligibility under INA 212(a)(9)(A)(i) or (ii) with the approval of a consent to
reapply through the Admissibility Review Information Service (ARIS) via an
ARIS Waiver Request Form. You may favorably recommend an NIV applicant
ineligible under INA 212(a)(9)(A)(i) or
(ii) at any time within the applicability period of the 5, 10, 20 year, or
permanent bar. Therefore, when posts are recommending a waiver through ARIS
for NIV applicants, the applicant should not file an I-212.
c. (U) When submitting the
ARIS request for a 9A ineligibility, post must clearly state, Post recommends
consent to reapply and provide the reason for recommending in the written
comments of the ARIS request.
9 FAM 302.11-2(C) (U) Advisory
Opinions
(CT:VISA-272; 12-20-2016)
(U) An AO is not required for a
potential INA 212(a)(9)(A) ineligibility; however, if you have a question about
the interpretation or application of law or regulation, you may request an AO
from CA/VO/L/A.
9 FAM 302.11-2(D) (U) Reserved
(CT:VISA-347; 04-18-2017)
9 FAM 302.11-2(E) Unavailable
9 FAM 302.11-2(E)(1) Unavailable
(CT:VISA-272; 12-20-2016)
a. Unavailable b. Unavailable c. Unavailable
9 FAM 302.11-2(E)(2) Unavailable
(CT:VISA-272; 12-20-2016)
a. Unavailable b. Unavailable c. Unavailable
9 FAM 302.11-3 (U) Individuals
Unlawfully Present - INA 212(a)(9)(B)
9 FAM 302.11-3(A) (U) Grounds
(CT:VISA-272; 12-20-2016)
(U) INA 212(a)(9)(B) makes
inadmissible, and therefore ineligible for a visa aliens who have, since April
1, 1997, been unlawfully present in the United States for more than 180 days.
9 FAM 302.11-3(B) (U)
Application
9 FAM 302.11-3(B)(1) (U)
Interpretation of Unlawful Presence
(CT:VISA-938; 09-10-2019)
a. (U) INA 212(a)(9)(B)(ii) construes
"unlawful presence" by explaining: the alien is present in the
United States after the expiration of the period of stay authorized by the
[Secretary of Homeland Security] or is present in the United States without
being admitted or paroled." Under this construction, an alien
generally would be unlawfully present if he or she entered the United States
without inspection, or stayed beyond the date specified on the Form I-94,
Arrival and Departure Record, or was found by the Department of Homeland
Security (DHS), an immigration judge (IJ), or the Board of Immigration Appeals
(BIA) to have violated status. However, even aliens fitting into one of these
categories may be deemed to be in a period of authorized stay in certain
circumstances, as noted below.
b. (U) DHS has interpreted
"period of stay authorized by the Secretary of Homeland Security," as
used in this context, to include:
(1) (U) For aliens inspected
and admitted or paroled until a date specified on the Form I-94 or any
extension, any period of presence in the
United States up until either:
(a) (U) the expiration of the
Form I-94 (or any extension); or
(b) (U) a formal finding of a status
violation made by DHS, an IJ, or the BIA in the context of an application for
any immigration benefit or in removal proceedings, whichever comes first.
(2) (U) For aliens inspected
and admitted for "duration of status" (DOS), any period of presence
in the United States, unless DHS, an IJ, or the BIA makes a formal finding of a
status violation, in which case unlawful presence will only being to accrue as
of the date of the formal finding;
(3) (U) For aliens granted
"voluntary departure" (VD), pursuant to INA 240B, the period of time
between the granting of VD and the date of their departure, if the alien
departs according to the terms of the grant of VD;
(4) (U) For aliens who have
applied for extension of stay or change of nonimmigrant classification and who
have remained in the United States after expiration of the From I-94 while
awaiting DHS's decision, the entire period of the pendency of the application,
provided that:
(a) (U) the alien does not work unlawfully
while the application is pending and did not work unlawfully prior to filing
the application; and
(b) (U) the alien did not
otherwise fail to maintain his or her status prior to the filing of the application
(unless the application is approved at the discretion of USCIS and the failure
to maintain status is solely a result of the expiration of the Form I-94), and
further provided either:
(i) (U) that the application
was subsequently approved; or
(ii) (U) if the application
was denied or the alien departed while the application was still pending, that
the application was timely filed and nonfrivolous.
(5) (U) For aliens who have
properly filed an application for adjustment of status to that of a lawful permanent
resident (LPR), the entire period of the pendency of the application, even if
the application is subsequently denied or abandoned, provided the alien (unless
seeking to adjust status under NACARA or HRIFA) did not file for adjustment
"defensively" (i.e., after deportation proceedings had already been
initiated);
(6) (U) For aliens covered by
Temporary Protected Status (TPS), the period after TPS went into effect and
prior to its expiration; and
(7) (U) For aliens granted
deferred action, the period during which deferred action is authorized.
c. (U) You should note that
any unauthorized presence accrued prior to the filing of an application for
adjustment of status, or the granting of voluntary departure, or the filing date
of a TPS an application with prima facie of eligibility was filed (if the
application is approved) is not "cured" by the subsequent period of
authorized stay that result from the approval of these applications.
Additional unauthorized presence will resume accruing after these authorized
periods lapse.
d. (U) For persons who have
been admitted for duration of status (DOS) (as is usually the case with aliens
in A, G, F, J, and I visa status), unlawful presence will not accrue unless
DHS, IJ, or the BIA finds a status violation in the context of a request for an
immigration benefit or in the course of removal proceedings. This finding of
status violation by the DHS, an IJ, or the BIA will cause a period of
"unlawful presence" to begin. In DOS cases where DHS or an IJ or the
BIA makes a formal status violation finding, the alien begins accruing unlawful
presence on the date of the finding (i.e., the date the finding was published
/communicated. For example, if an applicant presents a letter from DHS dated
December 1, 2008, that says the applicant was out of status starting on May 28,
2001, the applicant began to accrue unlawful presence as of December 1, 2008,
not May 28, 2001.
e. (U) A finding of a status
violation by DHS, an IJ, or the BIA is not required in the case of an illegal
entrant or an alien who admitted to a date certain overstays the specified
period of stay indicated on their Form I-94. If you find that an alien entered
without inspection and admission or stayed beyond the date on the Form I-94,
and remained in the United States more than 180 days after entering without
admission or after the expiration of his or her Form I-94, a determination of
inadmissibility under INA 212(a)(9)(B) would be warranted (unless some
exception to INA 212(a)(9)(B) applies in the particular case).
f. (U) When calculating
unlawful presence, the actual date that the Form I-94 (or any extension)
expires is considered authorized and is not counted. In addition, the date of
departure from the United States is not counted as unlawful presence.
9 FAM 302.11-3(B)(2) (U)
Time Frames
(CT:VISA-347; 04-18-2017)
a. (U) In General:
(1) (U) INA 212(a)(9)(B) went into effect on April
1, 1997, and the statute is not retroactive. Periods prior to April 1, 1997,
therefore, cannot be considered when calculating the period of unlawful
presence accrued for purposes of 212(a)(9)(B).
(2) (U) Neither of the INA 212(a)(9)(B)(i)(I) (180+
days but less than a year) or INA 212(a)(9)(B)(i)(II) (one year+) time frames
is cumulative across trips. The unlawful presence must occur in the same trip
to the United States, and periods of unlawful presence accrued on separate
trips cannot be added together. However, separate periods of unlawful presence
occurring during the same overall period of stay (e.g., unlawful presence
before and after a period of voluntary departure) should be added together to
calculate total unlawful presence during a particular stay.
(3) (U) Both provisions are triggered by departure
from the United States, and the bar against reentry applies from the date of
departure.
b. (U) INA 212(a)(9)(B)(i) Departure Prior to Commenced Proceedings Required: The
three-year bar of INA 212(a)(9)(B)(i)(I) applies only to aliens who left the
United States voluntarily before the DHS commenced proceedings against them.
If the alien was (1) unlawfully present for a period of more than 180 days but
less than a year and (2) was placed in proceedings before the alien's departure
(3) those proceedings concluded without a removal, the alien would not be
inadmissible under the three-year bar of INA 212(a)(9)(B)(i)(I).
c. (U) INA 212(a)(9)(B)(i)(II)
Departure at Any Time: The 10-year bar under INA 212(a)(9)(B)(i)(II)
does not contain the same language as the three-year bar under INA
212(a)(9)(B)(i)(I) relating to the alien
having departed voluntarily prior to commencement of removal proceedings.
Thus, an alien who departs the United States after having been unlawfully
present for a period of one year or more subsequent to April 1, 1997, is barred
from returning to the United States for 10 years, whether the departure was
before, during, or after removal proceedings and regardless of whether the
alien departed on his or her own initiative or under removal order. The one
exception to this rule (see also INA 212(a)(9)(B)(v)) is that an alien cannot
become inadmissible under INA 212(a)(9)(B)(i)(II) solely by virtue of a
departure and return to the United States undertaken pursuant to a valid grant
of advance parole based on the aliens pending application for adjustment of
status. Note that this does not preclude a trip under a grant of advance
parole from being considered a departure for any other purposes under the
INA, nor does it call into question the applicability of any other
inadmissibility ground. On the contrary, it is well settled that an alien who
leaves the United States and returns under a grant of advance parole is subject
to those grounds of inadmissibility that may apply, rather than grounds of
deportability, once parole is terminated. (See Matter of Arrabally and
Yerrabelly, 25 I&N Dec. 771 (BIA 2012.)
9 FAM 302.11-3(B)(3) (U)
Asylee Exception
(CT:VISA-347; 04-18-2017)
a. (U) In General: INA
212(a)(9)(B)(iii)(II) provides that no period of time in which an alien has a
bona fide application for asylum pending should be taken into account when
calculating the period of unlawful presence, unless during such period the
alien was employed in the United States without authorization. DHS has
determined that an application for asylum that has an arguable basis in law or
fact, and is not frivolous, whether or not approvable, is a bona fide
application for purposes of the exception set forth in INA 212(a)(9)(B)(iii).
The decision regarding whether or not an asylum claim is frivolous is reserved
to an Immigration Judge or the Board of Immigration not an asylum claim is
frivolous is reserved to an Immigration Judge or the Board of Immigration
Appeals. (See 8 CFR 208.20.)
b. (U) Confirming Bona Fide
Application for Asylum:
(1) (U) If a visa applicant who would otherwise be
inadmissible for a visa under INA 212(a)(9)(B) claims the benefit of the bona
fide asylum exception, you should first determine whether the alien engaged in
unauthorized employment while the asylum claim was pending, and if any part of
such employment occurred on or after April 1, 1997. (See paragraph c below.)
If so, the alien would not be eligible for the bona fide asylum exception, and
he or she should, therefore, be refused under INA 212(a)(9)(B). If the
applicant did not engage in authorized employment, it will then be necessary to
determine whether or not DHS determines the asylum claim was not bona fide.
(2) Unavailable
(a) (U) The alien's complete
name, date of birth, and "A" number (DHS file number);
(b) (U) When and where the alien
lived in the United States;
(c) (U) When and where the alien
filed the asylum application;
(d) (U) Whether the alien worked
in the United States;
(e) (U) If the alien worked in
the United States, whether DHS had authorized such employment and, if so, what
type of authorization documents the alien had been given;
(3) (U) You may presume the
application to have been bona fide if the post receives no report from the
"HQDHS for Asylum Office" within 60 days from the date of the
referral.
c. (U) Work Without Authorization
After April 1, 1997, Bars Use of Asylee Exception:
(1) (U) Under INA
212(a)(9)(B)(iii)(II), an alien is entitled to the exception for bona fide
asylum applicants only if the alien has not worked without authorization while
such application is/was pending. Because INA 212(a)(9)(B) only went into
effect on April 1, 1997, however unauthorized employment prior to that date
should not count against the alien. Therefore, only unauthorized employment
occurring on or after April 1, 1997, will disqualify the alien from being
eligible for the bona fide asylum exception in INA 212(a)(9)(B)(iii)(II).
(2) (U) Prior to seeking the
DHS confirmation that the asylum application was bona fide, you should
interview the applicant with particular attention to questions relating to
possible unauthorized employment by the alien. If the alien has engaged
in unauthorized employment during the pendency of the asylum application, and
if any portion of the unauthorized employment occurred on or after April 1,
1997, then the alien would be ineligible for the exception and no purpose would
be served in submitting the case to DHS for a determination of whether the
asylum claim was bona fide.
(3) (U) You should note that
aliens who apply for asylum may be able to obtain work authorization from DHS
if their application is pending for more than 180 days even if they are not in
a status that would normally allow employment. In such cases, the alien will
receive an employment authorization document (EAD) from DHS. Posts should,
therefore, examine the facts carefully when determining whether or not a
particular employment was not authorized.
9 FAM 302.11-3(B)(4) (U)
Other Exceptions
(CT:VISA-347; 04-18-2017)
a. (U) Minors: Any period of
time that an alien spends unlawfully in the United States while under the age
of 18 does not count toward calculating the accrual of unlawful presence for
purposes of INA 212(a)(9)(B).
b. (U) Family Unity: Any
period of time in which an alien is the beneficiary of the family unity
protection of Section 301 of the Immigration Act of 1990 (IMMACT 90) would not
count toward calculating the accrual of unlawful presence for purposes of INA
212(a)(9)(B). Alien beneficiaries of such protection must maintain their
status by regularly applying to re-register.
c. (U) Battered Spouses and Children:
Battered spouses and children benefitting under INA 204(a)(1)(A)(iii)(I)and INA
212(a)(6)(A)(ii) for immigrant visas may not accrue unlawful presence if there
is a substantial connection between the battering or cruelty and the violation
of the terms of the aliens nonimmigrant visa. In this context, the abuse must
have started before and led to the alien's accrual of unlawful presence. This
requires, at a minimum, establishing the dates of arrival and termination of
the authorized stay, as well as the timing of the abuse and its relationship to
the continued stay beyond that date.
d. (U) Victims of Severe Form of
Trafficking in Persons: INA 212(a)(9)(B)(i) will not apply to an alien
who demonstrates that a severe form of trafficking (as that term is defined in
22 U.S.C. 7102) was at least one central reason for the aliens unlawful
presence in the United States.
9 FAM 302.11-3(B)(5) (U)
Tolling for Good Cause
(CT:VISA-347; 04-18-2017)
a. (U) Tolling is a legal
doctrine which allows for the pausing or delaying of the running of the period
of time set forth by a statute of limitations. Subparagraph (iv) of INA
212(a)(9)(B) provides for "tolling" for up to 120 days of a possible
period of unlawful presence during the pendency of an application to change or
extend NIV status. This subparagraph applies only to possible inadmissibility
under subsection INA 212(a)(9)(B)(i)(I). The tolling is only permitted if the
alien is lawfully admitted to or paroled into the United States, has filed a
nonfrivolous application for a change or extension of status prior to the date
of expiration of the authorized period of stay, and has not been employed
without authorization in the United States before or during the pendency of
such application, but not to exceed 120 days.
b. (U) DHS has inferred that
the "120 days" limitation was probably predicated on an assumption
that they would be able to adjudicate applications for change or extensions of
status within that time frame. Due to DHS backlogs, however, some cases have
been pending as long as six months or more, during which the applicants could
incur the three or 10-year penalties through no fault of their own if only the
first 120 days were tolled and the application was ultimately denied.
Therefore, for all cases involving potential inadmissibility under INA
212(a)(9)(B) whether under the three-year bar of 212(a)(9)(B)(i)(I) or the
10-year bar of INA 212(a)(9)(B)(i)(II), DHS has decided to consider all time
during which an application for extension of stay (EOS) or change of
nonimmigrant status (COS) is pending to be a period of stay authorized by the
Secretary of Homeland Security provided:
(1) (U) The application was
filed in a timely manner; i.e., before the expiration date of the Form I-94,
Arrival and Departure Record;
(2) (U) The application was
"nonfrivolous"; and
(3) (U) The alien has not
engaged in unauthorized employment (whether before or after April 1, 1997).
(4) (U) Although INA
212(a)(9)(B) did not go into effect until April 1, 1997, and the law is not
retroactive, unauthorized employment prior to April 1, 1997, will render an
alien ineligible for the nonfrivolous COS and/or EOS exception because aliens
who have engaged in unauthorized employment are generally not eligible for
change or extension of nonimmigrant stay, and therefore, an application under
such circumstances should generally be considered frivolous.
c. (U) To be considered
"nonfrivolous" the consular officer must find that the application
had an arguable basis in law and fact and must not have been filed for an
improper purpose (e.g., as a groundless excuse for the applicant to remain in
activities incompatible with his or her status). It is not necessary to
determine that the DHS would have approved the application for it to be
considered nonfrivolous.
9 FAM 302.11-3(C) (U) Advisory
Opinions (AO)
(CT:VISA-347; 04-18-2017)
(U) An AO is not required for a
potential INA 212(a)(9)(B) ineligibility; however, if you have a question about
the interpretation or application of law or regulation, you may request an AO
from CA/VO/L/A.
9 FAM 302.11-3(D) (U) Waiver
9 FAM 302.11-3(D)(1) (U)
Waivers for Immigrants
(CT:VISA-379; 06-09-2017)
a. (U) In General: An applicant
for an IV who is inadmissible under INA 212(a)(9)(B) may seek a waiver from DHS
under INA 212(a)(9)(B)(v) if: (1) the alien is the spouse, son, or daughter of
a U.S. citizen or lawful permanent resident; and (2) The Secretary of Homeland
Security is satisfied that denying the alien admission to the United States
would result in extreme hardship to the U.S. citizen or lawful permanent
resident spouse or parent of such alien.
b. (U) I-601-A Provisional Waiver of
Unlawful Presence:
(1) (U) In General: All IV
applicants unlawfully present in the United States who would be found
ineligible for an IV by a consular officer at the time of their IV interview
solely under INA 212(a)(9)(B) may apply for a provisional unlawful presence
waiver (provisional waiver) of this ineligibility prior to leaving the United
States for their immigrant visa interview. Applicants seeking a provisional
waiver must file a Form I-601-A provisional unlawful presence waiver application
with USCIS. On August 29, 2016, USCIS expanded
the provisional unlawful presence waiver process to all IV categories with a
qualifying relationship to a U.S. citizen or lawful permanent resident. If a
consular officer identifies any other ground(s) of ineligibility during the
immigrant visa interview, an approved Form I-601-A would no longer be deemed
valid.
(2) (U) Eligibility:
(a) (U) An alien may be eligible
to apply for a Form I-601-A provisional unlawful presence waiver with USCIS, if
the individual meets the following criteria:
(i) (U) Is physically present
in the United States at the time of filing and appears for biometrics
collection at a USCIS Application Support Center;
(ii) (U) Is at least 17 years
of age at the time of filing;
(iii) (U) Is the beneficiary
of an approved Form I-130, Petition for Alien Relative, Form I-140, Immigrant
Petition for Alien Worker or a Diversity Visa Program selectee. [Please note
that fianc(e) beneficiaries are ineligible to file Form I-601-A];
(iv) (U) Has a case pending
with the Department of State based on:
(U) An approved immigrant visa petition,
for which the Department of State IV processing fee has been paid;
(U) Selection by the Department of State
to participate in the Diversity Visa (DV) Program under INA 203(c) for the fiscal year for which the alien is
registered; or
(U) Eligibility as a derivative
beneficiary under INA 203(d) of an
approved immigrant visa petition or of an alien selected to participate in the
DV Program or other appropriate evidence.
(v) (U) Is, or will be at the
time of the IV interview, ineligible for an immigrant visa based solely on
unlawful presence in the United States under INA 212(a)(9)(B)(i)(I) or INA
212(a)(9)(B)(i)(II);
(vi) (U) Will depart from the
United States to obtain the immigrant visa;
(vii) (U) Has a U.S. citizen or
LPR spouse or parent who would experience extreme hardship if DHS refused to
admit the IV applicant to the United States and otherwise merit favorable
exercise of discretion for a provisional waiver in accordance with INA
212(a)(9)(B)(v); and
(viii) (U) Meets all other
requirements for the provisional unlawful presence waiver as stated in 8 CFR
212.7(e), and the Form I-601-A and its instructions.
(b) (U) An alien is ineligible
for a provisional unlawful presence waiver if the applicant is otherwise
ineligible in accordance with 8 CFR 212.7(e), or the Form I-601-A and its
instructions.
(3) (U) USCIS
Processing and NVC Scheduling:
(a) (U) Those interested in
applying for the provisional unlawful presence waiver must submit the Form I-601-A
directly to USCIS, which will use the Consular Consolidated Database (CCD) to
confirm that a petition was filed or that an applicant is a selectee under the
DV Program.
(b) (U) Upon receipt of an
I-601-A application, USCIS will notify the NVC, or the Kentucky Consular Center
(KCC) if related to a DV case, that an applicant has applied for an I-601-A
provisional unlawful presence waiver. NVC will notify the applicant that it
will not schedule the case for an IV appointment until USCIS notifies NVC of
its adjudication decision. Once USCIS notifies the applicant and NVC of its
decision on the I-601-A application, NVC will schedule the case of any
documentarily-qualified applicant for an IV appointment, notify the applicant
of the appointment date, and forward the case to post for processing. In the
IV case file sent to post, NVC will include a post supplement report with
information confirming whether USCIS processed an I-601-A for the applicant and
whether USCIS approved or denied the provisional unlawful presence waiver. IV
case files will not include a stand-alone I-601-A approval or denial document.
NVC will also record the USCIS decision as a case note for the consular officer
to see in the CCDs IVIS Beneficiary Report and posts may use the USCIS receipt
number to verify the I-601-A decision in CLAIMS via the DHS Person Centric
Query System (PCQS) under Other Agencies/Bureaus in CCD. USCIS will notify KCC of any I-601-A decision
associated with a DV application. KCC will, in turn, contact the appropriate
consular section.
(c) (U) Follow-to-Join Applicants:
To qualify for an I-601-A waiver, an applicant must demonstrate an extreme
hardship to a U.S. citizen or LPR spouse or parent would result if the U.S.
government refused to admit the alien to the United States. For this reason, a
derivative spouse may only to be able to demonstrate a qualifying extreme
hardship after the principal applicant obtains LPR status. FTJ applicants are
instructed to appear with a USCIS approval
notice. You will then verify I-601-A approval through PCQS.
(4) Unavailable
(5) (U) Revocation of Approved
I-601-A:
(a) (U) The approved provisional
unlawful presence waiver is revoked automatically if:
(i) (U) A consular officer
determines that the applicant is ineligible to receive an IV under any section
of law other than INA 212(a)(9)(B)(i)(I) or INA 212(a)(9)(B)(i)(II); or
(ii) (U) The immigrant visa
petition approval associated with the provisional unlawful presence waiver is
at any time revoked, withdrawn, or rendered invalid but not otherwise
reinstated for humanitarian reasons or converted to a widow or widower petition;
or
(iii) (U) The immigrant visa registration is
terminated and has not been reinstated in accordance with INA 203(g); or
(iv) (U) The applicant, at any
time after filing but before approval of the provisional unlawful presence
waiver takes effect enters or attempts to reenter the United States without
being inspected and admitted or paroled.
(b) (U) If a consular officer
determines that the provisional unlawful presence waiver is revoked, the
consular officer should enter I-601-A revoked into the case notes, explain
why the provisional unlawful presence waiver is revoked, and then refuse the
applicant on all appropriate grounds that exist (including unlawful presence
using the code 9B1 or 9B2 in IVO). If the underlying petition remains
valid after the I-601-A is revoked, the applicant may file an I-601,
Application for Waiver of Grounds of Inadmissibility, using existing procedures
for all ineligibilities with USCIS.
(c) (U) Posts with a question
regarding a specific I-601-A decision should contact NVC (or KCC if it is a DV
case), which will liaise with USCIS. Please remember, however, that only USCIS
has authority to adjudicate the I-601-A provisional unlawful presence waiver
application and determine whether the grounds for extreme hardship submitted as
justification for I-601-A approval merit favorable exercise of discretion by
USCIS.
(6) (U) Processing Applicants with
Approved I-601-A:
(a) (U) The provisional unlawful
presence waiver process allows a consular officer to issue an IV to an applicant
with an approved I-601-A who is otherwise qualified for the IV and has no other
ineligibilities beyond INA 212(a)(9)(B)(i). Prior to issuing the immigrant
visa, consular officers must confirm and note the I-601-A approval. For legal,
accountability, and tracking purposes, a consular officer must make a formal
finding of ineligibility and refuse an approved I-601-A applicant in IVO using
the 9B1W refusal code for applicants ineligible under INA 212(a)(9)(B)(i)(I)
and the 9B2W refusal code for applicants ineligible under INA
212(a)(9)(B)(i)(II) except in conditional visa classes (CR) for which a
standard 9B1 or 9B2 refusal code would be used. These codes may be used ONLY
for cases with an approved I-601-A for which no other ineligibility exists.
After refusing the approved I-601-A applicant using the appropriate 9B1W or
9B2W refusal code, except for CR applicants, the consular officer may
immediately proceed to print authorize the case by waiving the refusal in IVO.
(b) (U) Consular officers should
not send a CLOK Deletion request to have the 9B1W or 9B2W hits removed. Both
hits will expire in CLASS after one month and will not replicate to CBPs TECS
system. U.S. Customs and Border Protection therefore will not see the hits at
the port of entry when the applicant seeks admission to the United States as an
immigrant. Because USCIS will notify NVC or KCC electronically of its I-601-A
decisions, posts do not have to include information regarding the I-601-A
approval in the applicants IV packet. Posts must, however, annotate the visa
to read Waiver Section 212(a)(9)(B)(v), which will inform the CBP inspector
at the port of entry of the waiver approval. CBP will also be able to access
the waiver information in the CCD and CLAIMS if necessary.
(7) (U) Processing Applicants with
Denied I-601-A: Those applicants denied an I-601-A may not appeal the
USCIS decision, but may file a new I-601-A. If the applicant chooses not to
submit a new I-601-A to USCIS, the applicant must leave the United States to
appear for his or her IV interview and submit a Form I-601, Application for
Waiver of Grounds of Inadmissibility, to USCIS after a consular officer has
found the applicant ineligible for a visa under INA 212(a) or any other section
of law.
9 FAM 302.11-3(D)(2) (U)
Waivers for Nonimmigrants
(CT:VISA-347; 04-18-2017)
(U) Nonimmigrants who are
inadmissible under INA 212(a)(9)(B) may apply for an INA 212(d)(3)(A) waiver
through the Admissibility Review Information Service (ARIS) via an ARIS Waiver
Request Form. (See 9 FAM 305.4.)
9 FAM 302.11-3(E) Unavailable
9 FAM 302.11-3(E)(1) Unavailable
(CT:VISA-272; 12-20-2016)
a. Unavailable
b. Unavailable
9 FAM 302.11-3(E)(2) Unavailable
(CT:VISA-272; 12-20-2016)
Unavailable Unavailable
9 FAM 302.11-4 (U) Individuals
Unlawfully Present After Previous Immigration Violation - INA 212(a)(9)(c)
9 FAM 302.11-4(A) (U) Grounds
(CT:VISA-347; 04-18-2017)
(U) Under INA 212(a)(9)(C), any alien who:
(1) Has been unlawfully present in the U.S. for an
aggregate period of more than one year, or
(2) Has been ordered removed under section 235(b)(1),
or other provision of law and who enters or attempts to reenter the United
States without being admitted or attempts to enter without inspection is
inadmissible.
9 FAM 302.11-4(B) (U)
Application
9 FAM 302.11-4(B)(1) (U) In
General
(CT:VISA-895; 07-16-2019)
a. (U) This provision applies
to aliens who, having previously been unlawfully present for more than a year
(in the aggregate) or having been previously removed, subsequently enter or try
to enter the United States without being admitted. See 9 FAM
302.11-3(B)(1) for the interpretation
of unlawful presence, although the exceptions for 9B at 9 FAM 302.11-3(B)(3) through 9 FAM
302.11-(B)(5) above do not apply to
9C. You should note that the aggregate year of illegal presence must have
occurred after April 1, 1997 to support a 212(a)(9)(C)(i)(I) or 9C1 finding. A
prior removal, however, may have occurred at any time to support a
212(a)(9)(C)(i)(II) or 9C2 finding. The triggering event for boththe entry or
attempted entry into the United States without admission, must have occurred
after April 1, 1997.
b. (U) An admission in
this context is preceded by an inspection by CBP. Therefore, an individual who
has either an aggregate year of illegal presence or a prior removal may trigger
a 212(a)(9)(C)(i) ineligibility by making a false claim to U.S. citizenship at
a Port of Entry (POE). U.S. citizens are not subject to inspection and
admission at POEs, therefore, the attempted entry via a false claim to
citizenship has the same effect as an attempted entry without inspection
outside of a POE.
9 FAM 302.11-4(B)(2) (U)
Effect of INA 212(a)(9)(C) Ineligibility
(CT:VISA-895; 07-16-2019)
(U) An alien subject to INA
212(a)(9)(C) is permanently inadmissible and ineligible for a visa. Such
an alien may, however, seek permission to reapply or consent to reapply. See 9 FAM
302.11-2(B)(5) above.
9 FAM 302.11-4(C) (U) Advisory
Opinions
(CT:VISA-272; 12-20-2016)
(U) An AO is not required for a
potential INA 212(a)(9)(C) ineligibility; however, if you have a question about
the interpretation or application of law or regulation, you may request an AO
from CA/VO/L/A.
9 FAM 302.11-4(D) (U) Waiver
9 FAM 302.11-4(D)(1) (U)
Waivers for Immigrants
(CT:VISA-347; 04-18-2017)
(U) An alien subject to INA
212(a)(9)(C) is permanently inadmissible and ineligible for a visa. Such an
alien may, however, after ten years seek the Secretary of Homeland Security's
consent to reapply (CTR, also sometimes referred to as permission to reapply)
which the alien can obtain through DHS by submitting an Application for
Permission to Reapply for Admission into the United States After Deportation or
Removal (Form I-212). If the Secretary of Homeland Security consents,
then the inadmissibility no longer applies. Although the consent to
reapply removes the ground of ineligibility, it does not remove the factual
circumstances which led to the original finding of ineligibility nor does it
affect any other ground of ineligibility.
9 FAM 302.11-4(D)(2) (U)
Waivers for Nonimmigrants
(CT:VISA-347; 04-18-2017)
a. (U) For nonimmigrant visa
(NIV) applicants with a 212(a)(9)(C)(i)(I) or 9C1 ineligibility, the consular
officer make seek relief on behalf of the applicant by submitting an ARIS
Waiver Request Form through the Admissibility Review Information Service
(ARIS). A consular officer may favorably recommend an NIV applicant
ineligible under 9C1 at any time. This relief is temporary.
b. (U) When submitting the ARIS
request for a 9A ineligibility, post must clearly state, Post recommends
consent to reapply and provide the reason for recommending in the written
comments of the ARIS request.
c. (U) If
9C1 is the applicants only ineligibility and more than ten years have passed
since the ineligibility was incurred, the applicant may choose to apply for
relief by filing form I-212 with DHS in order to obtain permanent relief,
which, if granted, allows for issuance of a full validity visa.
d. (U) For nonimmigrant visa
(NIV) applicants with a 212(a)(9)(C)(i)(II) or 9C2 ineligibility, a visa
applicant is eligible to seek relief only after the ten year bar has passed.
The applicant is only eligible for relief via filing form I-212 with DHS. The
applicant is not eligible for relief via ARIS. If the I-212 is granted, it
provides permanent relief which allows for issuance of a full validity visa.
9 FAM 302.11-4(E) Unavailable
9 FAM 302.11-4(E)(1) Unavailable
(CT:VISA-272; 12-20-2016)
Unavailable
9 FAM 302.11-4(E)(2) Unavailable
(CT:VISA-272; 12-20-2016)
Unavailable