Kurzban's Immigration Law Sourcebook, 19th Ed. — Corrections, Clarifications, and Selected Updates

84 (Ch. 3, ¶ I.F.)

Parole in Place (Keeping Families Together)

On page 84, replace subsection F. to read as follows:

Parole-in-Place to Promote Family Unity—89 FR 67459-490 (Aug. 20, 2024); USCIS, FAQs, Keeping Families Together (Aug. 2024), AILA Doc. No. 24081937. On June 17, 2024, President Biden and DHS announced a program that would provide the possibility of a “green card” to certain long-term residents of the U.S. who: (i) originally entered the U.S. without admission or parole; (ii) have been continuously present in the U.S. for at least 10 years as of June 17, 2024; and (iii) have a legally valid marriage to a U.S. citizen (USC) as of June 17, 2024. Noncitizen children of requestors would have also been included if they were physically present in the U.S. without admission or parole, had a qualifying stepchild relationship to a USC as of June 17, 2024, due to their parent entering into a legally valid marriage with a USC on or before June 17, 2024, and before the child was 18. This program did not include marriage to an LPR, but did include widow(ers) of USCs. 89 FR at 67475. A TPS beneficiary or DACA recipient could have also requested parole-in-place. FAQs, supra at p. 4. The program was declared invalid when a district court in Texas determined it was contrary to the INA and issued an order vacating the rule under the APA and issuing declaratory relief. Texas v. U.S., 2024 WL 4711951 (E.D. Tex. 2024) [finding parole-in-place to obtain adjustment of status is contrary to the INA because parole is solely to parole a person “into” the U.S.]. A previous order staying the program and allowing for the submission of applications but not approvals was appealed. On Nov. 12, 2024, Justice Alito determined that the challenge was moot in light of the final order of the district court vacating the rule. On Nov. 13, 2024, DHS announced that pending applications (on an I-131F) will not be adjudicated, and intake will cease for any new applications due to the final order vacating the rule. In addition, all appointments for adjudications of applications were cancelled. USCIS Issues Guidance After Federal Court Vacated the Keeping Families Together Program, AILA Doc. No. 24111302. The program is effectively ended.

On pps. 237–239, replace subsections 8.a. and 8.b. under INA §212(d)(3)(A) [8 USC §1182(d)(3)(A)]—General waiver for NIVs; 9 FAM 305.4-3 to read as follows:

Criteria/Procedure for DHS—

DHS Criteria—Follows 3 criteria established in Matter of Hranka, 16 I&N Dec. 491 (BIA 1978), to determine waiver: (1) risk of harm to society if applicant is admitted; (2) seriousness of applicant’s criminal or immigration-law violation; and (3) applicant’s reason for seeking entry. See also 8 CFR §§212.4, 1212.4; 9 FAM 305.4-3; 75 FR 82242 (Dec. 30, 2010). The FAM specifies 6 factors at 9 FAM 305.4-3(C): (i) recency and seriousness of the activity or condition causing inadmissibility, see, e.g., Matter of A-, 11 I&N Dec. 99 (DD 1965) [waiver granted where applicant applied 14 years after repeated criminal activity] (ii) whether there is a single, isolated incident or a pattern of misconduct; (iii) evidence of reformation or rehabilitation, see, e.g., Matter of A‑, supra; In re Stanley Victor Smith, 2009 WL 4899019 (BIA Nov. 24, 2009) [cooperated with LEA]; but see In re Charlene Juanita Lam, 2009 WL 4899030 (BIA Nov. 24, 2009) [not completed rehab in 5 years]; In re James Edward Sellars, 2010 WL 3042222 (BIA Jan. 7, 2010) [applicant did not assume personal accountability or express remorse]; (iv) reasons for the proposed travel to the U.S.; In re Seyyed Mohammad Tavakkoli,2009 WL 2437183 (July 30, 2009) [maintaining current employment as a truck driver]; In re Maryann Marjen Tokeak,2008 WL 5477747 (BIA Dec. 9, 2008) [visiting daughter applicant had not seen for many years]; (v) positive or negative effect, if any, of the planned travel on U.S. public interests; and (vi) other discretionary factors. See, e.g., 1 USCIS-PM, Pt. E, Ch. 8 [designating discretionary factors].

In addition, DHS will not issue a waiver if the person is ineligible under INA §212(a)(3)(A)(i)(I) [espionage or sabotage], §212(a)(3)(A)(ii) [any unlawful activity], §212(a)(3)(A)(iii) [overthrow government by force], §212(a)(3)(C) [foreign policy grounds], and §§212(a)(3)(E)(i) & (ii) [Nazi and genocide].

DHS Procedure at the Border—The §212(d)(3)(A) waiver may be obtained through CBP at a port of entry, field office, or admissibility review office, through USCIS or through a DOS consulate abroad. For a detailed procedural outline to obtain this waiver, see Waiver of Inadmissibility Practice Guide (Apr. 15, 2013), AILA Doc. No. 07060774. There is a distinction between an INA §212(d)(3)(A)(i) waiver and an INA §212(d)(3)(A)(ii) waiver. The former is at a consular office and requires DHS concurrence. The latter may be before CBP at the border but does not require DOS approval. The (d)(3)(A)(ii) waiver is for someone with a valid entry document (e.g., visa) who needs a waiver to enter. The application is submitted on Form I-192. IFM at 17.5(d)(1)–(2); Memo, Williams, Ex. Assoc. Comm. Field Ops., HQINS 70/12.2.1 (Sept. 30, 2002), AILA Doc. No. 02111340; 8 CFR §212.4(b). The Secy. of DHS has delegated adjudication of certain waivers to CBP: (i) INA §212(d)(3)(A)(ii) waivers, (ii) waivers requested from consular posts in Canada; and (iii) “seat of government” recommendations made by DOS to CBP. Canadians may seek inadmissibility waivers through the Admissibility Review Office if applying for visas at U.S. Embassy in Ottawa or at U.S. consulates. CBP will also process I-192, I-212 and I-824 waivers for visa-exempt Canadians at the border or online through e-SAFE (https://e-safe.cbp.dhs.gov), AILA Doc. No. 19080132. Visa-exempt nationals of Palau, the Federated States of Micronesia and the Marshall Islands may also use e-Safe. Id. If at the port of entry (e.g., where the traveler is visa-exempt or has a valid nonimmigrant visa), then a waiver may be granted by CBP. That waiver request is submitted on Form I‑192 at a port of entry or online through e-SAFE for visa-exempt nationals of Canada, Palau, the Federated States of Micronesia and the Marshall Islands. AILA, Practice Alert: New Limited Electronic Filing Available for Forms I-192 and I-212 (Aug. 15, 2019), AILA Doc. No. 19080131; 8 CFR §§212.4(b), 1212.4(b). For a list of designated ports of entry that accept I‑192 applications, see AILA Doc. Nos. 11051064, 20062531, but be mindful that CBP no longer accepts I-192 applications at preclearance ports. For long-pending cases inquire to aroattorneyinquirywaiver@cbp.dhs.gov. If submitted at a consulate, neither application nor fee required. 8 CFR §212.4(a)(1). Where person with waiver in U.S. desires to change status, waiver may continue to be valid but is subject to DHS scrutiny for continuing validity. Letter, Bednarz, Chief NIV Branch, Adjudications (HQ 212.42-C) (Mar. 17, 1994), AILA Doc. No. 94031791. However, a waiver issued for a visa application may only be approved for that visa type and a waiver issued in one NIV classification cannot be used to enter U.S. in another. Minutes, AILA/U.S. CBP Office of Field Ops. (Apr. 6, 2016), at Q.4, AILA Doc. No. 16052700.

Criteria/Procedure for Consular Officers/DOS—

DOS Criteria—Pursuant to 9 FAM 305.4-3(B) DOS requires the following conditions to be met before a waiver may be recommended or granted: (i) the applicant is not ineligible under INA §214(b); (ii) the applicant is not inadmissible under INA §212(a)(3)(A)(i)(I) [espionage or sabotage], §212(a)(3)(A)(ii) [any unlawful activity], §212(a)(3)(A)(iii) [overthrow government by force], §212(a)(3)(C) [foreign policy grounds], and §§212(a)(3)(E)(i) & (ii) [Nazi and genocide]; (iii) the applicant is not seeking a waiver of nonimmigrant documentary requirements of INA §212(a)(7)(B) which may only be waived under INA §212(d)(4); and (iv) the applicant is otherwise qualified for the NIV they are seeking.

A K visa holder may also be ineligible for an INA §212(d)(3) waiver if the ground of inadmissibility would not be waivable for a similarly situated immigrant visa applicant. If inadmissibility is waivable, however (e.g., by a §212(h) waiver), a K visa applicant may obtain waiver by filing form I-601. 9 FAM 502.7-3(C)(6).

If applicant is not ineligible supra the consular officer may issue the waiver in their discretion as long as the person’s presence would not be harmful to U.S. interests. No qualifying family relationship, nor the passage of any period of time is required and the waiver may be recommended for any legitimate purpose of travel. 9 FAM 305.4-3(C)(a) Consular officers “should consider” the following factors, among others, when recommending a waiver: (1) the recency and seriousness of the actions causing ineligibility; (2) the reasons for the proposed travel to the U.S.; (3) the positive or negative effect of the planned travel on US public interest; this includes cases “where the applicant has graduated with a degree from an institution of higher education in the U.S., or has earned credentials to engaged in skilled labor in the U.S, and is seeking to travel to the U.S. to commence or continue employment with a U.S. employer in a field related to the education that the applicant attained in the U.S.; See AILA Doc. No. 24071509; FAQs at AILA Doc. No. 24062001; (4) whether the ineligibility ground requiring the waiver is a single, isolated incident or a pattern of misconduct; and (5) evidence of reformation or rehabilitation. 9 FAM 305.4-3(C)(c). The consular officer “should be consistent in waiver recommendations” and if a waiver was granted in the past by another officer, the current officer “should” also approve future applications absent “new derogatory information, a material change in the purpose of [the] trip or some other change of circumstances….” 9 FAM 305.4-3(D).

DOS Procedure—Applicant at consulate needs DHS approval and consular officer’s recommendation. If the consular officer is recommending the waiver, the applicant must submit it to the CBP Admissibility Review Office (ARO) via ARIS. 9 FAM 305.4-3(E)(1)(a). If consular officer is denying it and the Secretary of State will not make an affirmative recommendation, the consular officer is directed to inform the applicant that they will not submit the application to ARO via ARIS. 9 FAM 305.4-3(E)(1)(b). If the applicant requests a waiver after the consular officer declines to issue it, the consular officer should refer the request to the Department for review if it meets any of the following criteria: (1) foreign relations; (2) national security; (3) law enforcement; (4) significant public interest as described in 9 FAM 305.4-3(C)(c)(3); or (5) urgent humanitarian or medical reasons. 22 CFR §40.301; 84 FR 19712-14 (May 6, 2019). If the consular finds the applicant’s waiver request does not implicate these criteria, supervisor concurrence is required to send the waiver request to the Department. 9 FAM 305.4-3(E)(2).

Expedite Requests—9 FAM 305.4-3(F). Consular officers will expedite a waiver request if: (1) there is an urgent humanitarian need to travel such as a medical treatment or death in the applicant’s family; (2) there is a clear and significant U.S. government or public interest; or (3) the applicant meets the criteria under 9 FAM 305.4-3(C)(c)(3) because they have graduated with a degree from an institution of higher education in the US, or earned credentials to engage in skilled labor and seek to travel to commence or continue employment with a U.S. employer. For humanitarian requests or public interest requests they should give specific dates of treatment, funerals or meetings. Other requests should be made substantially in advance. The electronic form has an option to request expedited treatment. Absent expedite, the usual processing times range from 180 to 240 days. 9 FAM 305.4-3(I).

Maximum waiver validity request is for 60 months multiple-entries except C-1/D for 24 months. 9 FAM 305.4-3(G)(1).

Waiver due to ineligibility under INA §§212(a)(9)(A)(i), (A)(ii) or (C) because of a removal order must first obtain an I-212 waiver through the ARO. 9 FAM 305.4-4. Can only apply for 212(a)(9)(C) relief with proof that applicant has been out of the U.S. for 10 years or more. 9 FAM 305.4-4(C)(a)(1). For others, must file I-212 consistent with instructions on USCIS website. 9 FAM 305.4-6(B). Criteria/Procedures for IJ/EOIR—

A waiver may be granted for someone inadmissible at the border in removal proceedings. Atunnise v. Mukasey, 523 F.3d 830, 838–39 (7th Cir. 2008) [inadmissible K-3 applicant found removable is eligible for §212(d)(3)(A) waiver; IJ erred under the “apparent eligibility” regulation in not advising of right to apply]. The circuits are split on whether an INA §212(d)(3)(A) waiver may also be granted by an IJ in removal proceedings to waive inadmissibility for a “U” visa. Compare Jimenez-Rodriguez v. Garland, 996 F.3d 190 (4th Cir. 2021) [finding that 8 CFR §1003.10(b) and 8 CFR §1240.1(a)(1)(iv) support the consideration of an INA §212(d)(3)(A)(ii) waiver]; L.D.G. v. Holder, 744 F.3d 1022 (7th Cir. 2014); Baez-Sanchez v. Sessions, 872 F.3d 854 (7th Cir. 2017) [followed L.D.G. giving broad reading to delegation of AG’s powers to IJs under 8 CFR §1003.10(a); rejecting Matter of Khan]; Meridor v. U.S. Att’y Gen., 891 F.3d 1302, 1307 (11th Cir. 2018) [IJs under statute’s plain language and as AG’s delegate have jurisdiction to determine the §212(d)(3)(A) waiver]; see also Baez-Sanchez v. Barr, 947 F.3d 1033, 1036 (7th Cir. 2020) [chastising BIA for failing to follow court’s prior order; granting waiver because BIA had opportunity to address on remand the court’s concerns and “disdained it … by obduracy”]. But see 8 CFR §1003.10(b) [limits IJ jurisdiction to “powers and duties delegated to them” by AG]; Man v. Barr, 940 F.3d 1354 (9th Cir. 2019) [joining 3d Cir. and deferring to Khan]; Sunday v. U.S. Att’y Gen., 832 F.3d 211, 213-17 (3d Cir. 2016) [IJ has no authority to grant waiver to person already admitted into U.S. to cure inadmissibility under U visa]; Matter of Khan, 26 I&N Dec. 797 (BIA 2016) [regulations do not give IJ authority to grant an INA §212(d)(3)(A)(ii) waiver to a petitioner seeking U status, because a U applicant is in U.S. and IJ’s authority is limited to reviewing port of entry denials; decision applies nationwide including 7th Cir. under Brand X]; Borrego v. Mukasey, 539 F.3d 689 (7th Cir. 2008) [IJ has no authority to retroactively grant such a waiver]; Matter of Rodriguez-Esteban, 20 I&N Dec. 88 (BIA 1989) (same); Matter of Avetisyan, 25 I&N Dec. 688, 691 (BIA 2012) (“[i]n conducting proceedings, an Immigration Judge exercises the powers and duties delegated by law and by the Attorney General of the United States through regulation”). Also, an NIV waiver under INA §212(d)(3)(B) cannot be granted nunc pro tunc in removal proceedings where applicant was erroneously granted admission. Matter of Fueyo, 20 I&N Dec. 84 (BIA 1989). Accord Borrego v. Mukasey, 539 F.3d 689 (7th Cir. 2008) [Fueyo reasonable for denying INA §212(d)(3)(A)(ii) waiver retroactively to cure inadmissibility after admission].

At least one court has found that the denial of an I-192 is not reviewable in federal court. Ji Lin v. Mayorkas, 537 F.Supp.3d 408 (E.D.N.Y. 2021) [INA §242(a)(2)(B)(ii) bars review of I-192 denial and any motion to reopen or reconsider the denial (I-290B) in conjunction with the review of a U visa application]. And the 9th Circuit has determined that there is no jurisdiction under INA §212(a)(2)(B)(ii) to challenge the denial of an INA §212(d)(3)(A)(ii) waiver in the context of a U visa. Vega v. USCIS, 65 F.4th 469 (9th Cir. 2023) [no jurisdiction to review an INA §212(d)(3)(A)(ii) waiver in context of U visa application, despite guidelines under Matter of Hranka, because statute’s language is discretionary].

On p. 772, subsection (26) Classified Information—(relating to rules of evidence in removal hearings):

1. In the middle of the paragraph starting on line 15, correct both the name of the IJ and the AILA Doc. No. so that sentence reads:
   
   The immigration court has established detailed procedures on protecting confidential information. McNulty, Chief IJ, OP-Memo 24-01, Classified Information in Immigration Court Proceedings (June 18, 2024), AILA Doc. No. 24070904.
2. At the end of that same first full paragraph of subsection (26), add the following:
   For the BIA’s method of addressing classified information, see Wetmore, Chief Appellate IJ, BIA Operating Policies and Procedures Memorandum 24-01 (July 1, 2024), AILA Doc. No. 24070906.

2061 (Ch. 8, ¶V.E.1.a.(2))

Academic Honorarium Payments for B-1s

Change reference to INA §212(g) to INA §212(q)

2084 (Ch. 8, ¶VI.D.12.c.4)

STEM OPT Extension

On p. 2084 under subsection (4)(b)(i), STEM OPT Extension—Generally—, note the following:

The full Federal Register citation for environmental and natural resources economics field is 89 FR 59748 (July 23, 2024).

2132 (Ch. 8, ¶VII.C.1.i.4)

H-1B Petitioners, Self-Petitioning Owners

On p. 2132 relating to H-1B petitioners, replace subsection (4) Self-Petitioning Owner Is Not an Employee to read as follows:

(4) Ownership Does Not Necessarily Bar the Owner from Being an H-1B Employee—Although previously USCIS was reluctant to granting owners the right to hold the status of beneficiaries for H-1B purposes, see, e.g., Administrator, WHD v. Avenue Dental Care aka Mahadeep Virk, DDS, 2006-LCA-29 (June 28, 2007) at 20–21, aff’d, ARB No. 07-101 (ARB Jan. 7, 2010) at 5–8 [suggesting that more than a 50% ownership interest may defeat the employee-employer relationship but deciding that 50% does not], their position has changed. They now recognize that where an H-1B beneficiary has a controlling interest in the company (meaning more than 50%or have majority rights”), the employer company “may petition for H-1B status on [the beneficiary’s] behalf.” USCIS, FAQs for Individuals in the H-1B Nonimmigrant Status, Q. (Company Ownership) (July 2024), AILA Doc. No. 24071810. Moreover, there is a long line of administrative precedent supporting an employment relationship where there is a sole owner of the corporation. Matter of M, 8 I&N Dec. 24 (BIA/AG 1958); Matter of Allan Gee, Inc., 17 I&N Dec. 296 (RC 1979); Matter of Aphrodite Invs. Ltd., 17 I&N Dec. 530 (Comm. 1980). And nonprecedent AAO decisions support the right of a corporation to petition for an H-1B for its owner. Matter of X, __, SRC 98-101-50785 (AAO Aug. 9, 1999), 21 Immigr. Rep. B2-6 [following Matter of Aphrodite, a sole owner and sole employee of the company is not precluded from an H-1B]. Matter of X (AAO Feb. 23, 2006), AILA Doc. No. 08041470.