COUNTING UNLAWFUL PRESENCE TOWARD 3/1 0 YEAR BARS
Unlawful presence time not counted toward 3/1 0 year bars (though alien may have been unlawfully present):
· before April I, 1997, • under age 18 (except that time under age 18 DOES count toward 9C),
· asylum "claim pending as long as no unauthorized employment,
· 1-485 pending or timely filed application to extend/change nonimmigrant status (forget about the 120 limit in the statute),
· Duration of Status (admitted Canadians without 1-94 presumed to be in D/S),
· application for family unity benefits pending (this is an old section of law) and certain VA WA applicants
INADMISSIBLE, WAIVER AVAILABLE
Title: section regarding inadmissibility; section regarding waiver. Description and details.
Unlawful pres: 212a9BiI, IT; 212a9Bv. More than 180 days, but less than one year is a 3-year bar. If placed in removal proceedings and VD before one year, no 3-year bar. More than one year or more is a 10-year bar. Time not counted in the aggregate. Bar runs while alien is anywhere in the world, including US. QR: USC or LPR spouse or parent.
Misrep: 212a6Ci; 212i. Fraud or willfully misrepresenting a material fact, seeks/sought to procure a visa, other documentation, or admission to US. Oral or written. Outside US, 30/60 day rule: violates status or applies for green card within 30 days of nonimmigrant entry is non-rebuttable fraud, within 60 days is rebuttable. Within US, Matter of Cavazos: absent aggravating factors, ADS approved without waiver. QR: USC or LPR spouse or parent.
Prior Removal: 212a9Ai, ii; 212a9Aiii. Prior expedited removal at point of entry is 5-year bar. Other removal/deport is 10 years. Catch-and- release (voluntary return program) and VD are not removal/deportation, No relative required for waiver.
Criminal: 212a2AiI, B, D; 212h. Prostitution/pimping (even iflegal where done) or crime of moral turpitude, except a single conviction for which maximum possible penalty one year or less and actual sentence six months or less. Juvenile convictions excepted unless tried as adult. our, hiring prostitute not CIMTs. Permanent inadmissibility, except prostitution/pimping is 10 years. QR LPR/USC spouse, child, parent. No QR required after 15 years when rehabilitation only is ok. For very violent crimes, must prove exceptional and extremely unusual hardship.
Medical: 212alA; 212g. (a) TB, a few other communicable diseases. QR: VA WA or USCILPR child, spouse or, if alien is unmarried, parent. Don't need extreme hardship. Waiver is about health insurance and public safety. (b) No vaccinations. No QR needed K visa excepted. Prove alien can't vaccinate for medical reasons (e.g. pregnant) or against religious/moral beliefs. (c) Mental disorder that poses danger to alien or others. Waiver: case-by-case.
Smuggling: 212a6E; 212dll. Knowingly has encouraged, induced, assisted, abetted, or aided any other alien to enter or to try to enter the
United States in violation of law. Waiver if alien smuggled is spouse, parent, child. Family unity standard.
Jl 2-year return: 212e; 212e. On Jl this visit or prior visit and subject to 212e (not all Jls subject, must view visa) and has not spent 2 years in home country. Time in other countries doesn't count. QR not always needed; waivers complex.
INADMISSIBLE, NO WAIVER AVAILABLE EITHER TEMPORARILY OR PERMANENTLY
Skipped Hearing 212a6B; no waiver. Failed to attend a removal hearing when NTA
issued after April 1, 1997. 5 year bar after departure.
9CiI 212a9CiI; 212a9Cii, iii. Unlawfully present more than one year in the aggregate after April I, 1997, departed and returned or attempted to return without inspection. All exceptions from the top of the page apply except unlawful presence under age 18. Waiver for VA WA people immediately. Waiver after ten years for all others, no QR.
9CiII 212a9CiII; 212a9Cii, iii. Deported at any time, even before Apr I, 1997, followed by EWI or attempted EWI after April I, 199
Waiver for VA WA people immediately. Waiver after ten years for all others, no QR.
False claim of cit 212a6Cii; no waiver. False claim of citizenship made on or after Sep 30, 1996. Claims made before then are simply misrep. w/waiver. No exception for minors. Claim made for 'any purpose' under INA or StatefFederallaw.
Drug crimes 212a2AiII; no waiver. Any drug conviction except < 30 g marijuana. No intent requirement. No moral turpitude. Convictions under age 18 don't count. Expungements only good if happened in 9th circuit under Fed 1rst Offender.
Gang member 212a3Aii; no waiver. Any prior gang membership at any age, anywhere. Reason to believe only.
Drug trafficking 212a2C; no waiver. Any prior drug sale/trafficking and spouses and kids. Reason to believe only.
LPR deported for Ag Fel 212a2Ai1, B, D; no waiver under 212h. This group doesn't qualify for 212h waiver.
Drug abuser 212alAiv; no waiver. Virtually any drug use in the past three years. Must show three years 'remission'.
Fake asylum 208d6; no waiver, Bar to all future benefits. Asylum filed after Apr I, 1997. Attorney General finds it "frivolous".
Fake marriage 204c; not exactly waivable, Bar to all future I-130s. If IV application not based on 1-130, waiver under 212i.
Other Lots of other rare situations, e.g. terrorists, attempt on President's life, communists, Nazis, genocide, etc.
Nonimmigrant waiver and Parole People who are not eligible for an immigrant waiver are still eligible for a nonimmigrant waiver under 212d3to enter temporarily and can get Humanitarian Parole to enter temporarily usually for medical treatment or to attend a funeral.