DOS Cable on Waivers of Ineligibility

UNCLAS STATE 226596

VISAS

E.O. 12958: N/A

TAGS: CVIS

SUBJECT: P.L. 104-208 UPDATE NO. 5 - WAIVERS OF INELIGIBILITY

REFERENCE: (A) STATE 218953, (B) STATE 208799, ( C) STATE 219622

Summary

1. This is cable number 5 of the series on P.L. 104-208, the “Illegal Immigration Reform and Immigrant Responsibility Act of 1996” (IIRAIRA 96). This Act added a new waiver (at 212(d)(12)) that is applicable to 212(a)(6)(F), which was amended by the new law as well. IIRAIRA 96 also amended the waiver provisions found at 212(h) and (i). It is important to note that amended INA 212(i) has a direct and immediate impact on consular processing and that the amendment to INA 212(h) has no, repeat, no impact on consular processing. The latter amendment is provided for your information only. The texts of the revised law are provided with supplemental explanation. End summary.

212(a)(6)(F) and 212(d)(12)

2. Text of 212(a)(6)(F)

(F) Subject of civil penalty. -

(i) In general - an alien who is the subject of a final order for violation of section 274C is inadmissible.

(ii) Waiver authorized. - For provision authorizing waiver of clause (i), see subsection (d)(12).

[Amended by sec. 345(a)(1) of Pub. L. 104-208, 9/30/96]

3. Text of INA 212(d)(12)

(12) The Attorney General may, in the discretion of the Attorney General for humanitarian purposes or to assure family unity, waive application of clause (i) of subsection (a)(6)(F) -

(A) In the case of an alien lawfully admitted for permanent residence who temporarily proceeded abroad voluntarily and not under an order of deportation or removal, and who is otherwise admissible to the United States as a returning resident under section 211(b), and

(B) In the case of an alien seeking admission or adjustment of status under section 201(b)(2)(A) or under section 203(a), if no previous civil money penalty was imposed against the alien under section 274C and the offense was committed solely to assist, aid or support the alien’s spouse or child (and not another individual). No court shall have jurisdiction to review a decision of the Attorney General to grant or deny a waiver under this paragraph.

[Added by sec. 345(a)(2) of Pub. L. 104-208, 9/30/96]

Discussion of 212(d)(12)

4. Section 212(a)(6)(F) is amended to create an immigrant visa waiver for certain section 274C violators (document fraud). A waiver may be granted to an alien who is ineligible under 212(a)(6)(F) if: 1) the alien is a permanent resident or an alien seeking admission as a family-sponsored or employment-based immigrant, 2) no civil money penalty has been imposed, and 3) the final order resulted from an offense that was committed solely to assist an individual who, at the time of the document fraud offense, was the alien’s spouse or child. It is clear that the qualifying relationship must exist at the time of the commission of the fraud and not just at the time of application for the waiver. This waiver is processed in the same fashion as other immigrant visa waivers and on the same form. As the Attorney General grants such waivers in her discretion, the role of the consular officer continues to consist of providing necessary guidance and assistance in the preparation of the waiver form and collection of the requisite documents.

INA 212(i) waiver narrowed

5. Text

(i)(1) The Attorney General may, in the discretion of the Attorney General, waive application of clause (i) of subsection (a)(6)(C) in the case of an immigrant who is the spouse, son, or daughter of a United States citizen or of an immigrant lawfully admitted for permanent residence, if it is established to the satisfaction of the Attorney General that the refusal of admission to the United States of such immigrant alien would result in extreme hardship to the citizen or lawfully resident spouse or parent of such an alien.

(2) No court shall have jurisdiction to review a decision on or action of the Attorney General regarding waiver under paragraph (1).

[Amended by sec. 343 of Pub. L. 104-208, 9/30/96]

6. The amendment to INA 212(i) has an immediate impact on processing of 212(i) waivers. INA (i) was expanded by IMMACT 90 to allow aliens who did not possess the requisite relationship to seek a 212(i) waiver after 10 years had passed from the date of commission of the offense. P.L. 104-208, however, has removed that provision, again restricting the benefits of the waiver to those aliens who have the stated relationship. As the amended waiver provision is immediately effective, visas can not be issued to immigrant visa applicants who have received a waiver under the repealed provision. If INS devises any pertinent processing instructions regarding this waiver (and its application to pipeline cases), the department will forward them to the field.

INA 212(d)(11): Waiver for 212(a)(6)(E)

Text

(11) The Attorney General may, in his discretion for humanitarian purposes, to assure family unity, or when it is otherwise in the public interest, waive application of clause (i) of subsection (a)(6)(E) in the case of an alien lawfully admitted for permanent residence who temporarily proceeded abroad voluntarily and not under an order of deportation, and who is otherwise admissible to the United States as a returning resident under section 211(b) and in the case of an alien seeking admission or adjustment of status as an immediate relative or immigrant under section 203(a) (other than paragraph (4) thereof) if the alien has encouraged, induced, assisted, abetted, or aided only an individual who at the time of such action was the alien’s spouse, parent, son, or daughter (and no other individual) to enter the United States in violation of law.

[Amended by sec. 351 of Pub. L. 104-208, 9/30/96]

8. This amendment applies only to waivers filed after the effective date of this act, 9/30/96. This is a clarifying amendment, so that the waiver can only be granted to an alien if the smuggling was performed only to aid certain family members. That family relationship must have been in existence at the time of the smuggling and not just at the time of application for the waiver.

INA 212(h) waiver expanded

(h) The Attorney General may, in his discretion, waive the application of subparagraphs (A)(i)(I), B, D, and E of subsection

(a)(2) and subparagraph (A)(i)(II) of such subsection insofar as it relates to a single offense of simple possession of 30 grams or less of marijuana if -

(1)(A) In the case of any immigrant it is established to the satisfaction of the Attorney General that -

(i) The alien is inadmissible only under subparagraph (D)(i) or

(D)(ii) of such subsection or the activities for which the alien is inadmissible occurred more than 15 years before the date of the alien’s application for a visa, entry, or adjustment of status.

(ii) The admission to the United States of such alien would not be contrary to the national welfare, safety, or security of the United States, and

(iii) The alien has been rehabilitated; or

(B) in the case of an immigrant who is the spouse, parent, son, or daughter of a citizen of the United States or an alien lawfully admitted for permanent residence, if it is established to the satisfaction of the Attorney General that the alien’s exclusion would result in extreme hardship to the United States citizen or lawfully resident spouse, parent, son, or daughter of such alien; and (2) The Attorney General, in his discretion and pursuant to such terms, conditions and procedures as he may be regulations prescribe, has consented to the alien’s applying or reapplying for a visa, for admission to the United States, or adjustment of status. No waiver shall be provided under this subsection in the case of an alien who has been convicted of, (or who has admitted committing acts that constitute) murder or criminal acts involving torture an attempt or conspiracy to commit murder or a criminal act involving torture. No waiver shall be granted under this subsection in the case of an alien who has previously been admitted to the United States as an alien lawfully admitted for permanent residence if either since the date of such admission the alien has been convicted of an aggravated felony or the alien has not lawfully resided continuously in the United States for a period of not less than 7 years immediately preceding the date of initiation of proceedings to remove the alien from the United States. No court shall have jurisdiction to review a decision of the Attorney General to grant or deny a waiver under this subsection.

[Amended by sec. 348 of Pub. L. 104-208, 9/30/96]

10. The exclusion and deportation provisions under the INA have been extensively reworked into a new concept of removal. Included in the revamping are changes in or repeal of “waiver” type provisions. The added 212(h) provision constitutes such a change by providing a waiver to certain permanent resident aliens who are in, or subject to, “removal” proceedings, as this amendment addresses permanent residents in the United States, it does not, repeat, it does not affect consular processing. Consequently, paragraph 9, above, is provided for informational purposes

11. Minimize considered.

Christopher