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Sunday, March 9, 2014

Waivers and Adjustment of Status for Refugee/Asylee Cases

A Clever Waiver for Humanitarian Refugees and those holding Asylum

Adjustment of status for individuals granted asylum or refugee status can be tricky. Because they have no sponsor in the US, they have no easy means of converting from "legally here" to "lawful permanent resident" or LPR. In the code there exists a provision for just this case -- INA 209. Under INA 209, any refugee admitted under the 50,000 person cap as a humanitarian refugee pursuant to INA 207, and any individual granted asylum under INA 208, may apply for LPR status after 1 year (See, INA 207(a) & (c), INA 208(d)(3), and INA 209(a) & (b)).

However, what if the individual applying for adjustment has a criminal history? Typically a 212 or 601 waiver would address these problems in an I-130/I-485 context (including removal proceedings) -- however, that cannot be done when the refugee or asylum holder cannot return to his/her home country to await adjudication of the waiver. Grid lock.

The resolution is found in INA 209(c). The code specifically permits the waiver of criminal conduct for asylee/refugee applicants -- with a few provisions. In 2005, USCIS issues guidance on the application of 209(c). An excerpt dealing with what may, and may not be waived is included here:
Section 209(c) of the Act prohibits the Secretary from waiving the following grounds of inadmissibility:

  • Section 212(a)(2)(C) of the Act relating to drug trafficking;
  • Section 212(a)(3)(A) of the Act relating to security grounds;
  • Section 212(a)(3)(B) of the Act relating to terrorist activities;
  • Section 212(a)(3)(C) of the Act relating to foreign policy considerations; and
  • Section 212(a)(3)(E) of the Act relating to Nazi persecution and genocide.

The Secretary may waive any other ground of inadmissibility under section 212(a) of the Act for humanitarian purposes, to assure family unity, or when it is otherwise in the public interest. (Interoffice Memo, Aytes, HQPRD 70/23.10, 31 Oct 2005)

While there are provisions that allow USCIS to enter a waiver sue sponte when reviewing an I-485 for refugees/asylees, this counselor strongly recommends that an I-602 always be included with any filing where a waiver is required. The 602 form requests USCIS waive any precluding events or history. The more serious the crime, the more information must be provided to prove the "equities" of the case -- the balance in favor of granting the waiver vs. the seriousness of the crime warranting denial. Writing the waiver brief to accompany the 602, and providing all relevant information and supporting document, is critical. Be sure to speak with a competent attorney who has experience writing 601 or 212 waivers -- much of the content will be similar. The advantage to a 602 waiver, however, is that the presumption is in favor of the immigrant for all but the most serious offenses.

More information on the application of 209(c) can be found in the case Matter of Jean, 23 I&N Dec 373 (AG 2002). This case is interesting in its own right -- the Attorney General took a direct interest in the 209(c) case after BIA applied too liberal a standard in granting 209(c) waivers. Any immigrant convicted of particularly serious crimes, or those involving violence or weapons, should read this case very carefully. Would you like help adjusting your status from asylee/refugee to lawful, permanent resident? Do you have a criminal history that might prevent you from adjusting? Talk to us! We have years of experience working with folks just like you. We can help! 703-402-2723.

Sean Hanover, Esq.
Hanover Law
Offices in Fairfax and DC
888 16th St. NW
Washington, DC 20006

1 comment:

US Waivers Pardon said...

Useful information regarding this issue.

US Visa Waiver

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