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USCIS Has Jurisdiction Over Certain Requests for Waivers of Inadmissibility, According to Appellate Panel

visaThe Immigration and Nationality Act (INA) gives multiple federal agencies under several Cabinet departments jurisdiction over different—sometimes overlapping—processes. U.S. Citizenship and Immigration Services (USCIS), which is part of the Department of Homeland Security (DHS), handles most visa petitions and applications for adjustment of status. The courts that hear removal cases and other matters are part of the Executive Office of Immigration Review (EOIR), which is part of the Department of Justice. The Board of Immigration Appeals (BIA), also part of EOIR, recently resolved a dispute over whether an immigration judge (IJ) could adjudicate a request for a waiver of inadmissibility by a U visa petitioner, when the petitioner was already in the IJ’s court for another matter. Matter of Khan, 26 I&N Dec. 797 (BIA 2016). The BIA held that USCIS has exclusive jurisdiction to decide whether to grant waivers of inadmissibility.

A prospective immigrant who wishes to come to the U.S. must establish that they do not fall under any of the categories of inadmissibility set forth by the INA. These include criminal convictions, national security issues, and health-related factors. See 8 U.S.C. § 1182(a). USCIS has discretionary authority, however, to admit many otherwise inadmissible people on a temporary nonimmigrant basis. Id. at § 1182(d)(3)(A)(ii). This is known as a waiver of inadmissibility.

The INA creates numerous categories of nonimmigrant visas for people who intend to come to the U.S. for a limited period of time before returning home. These include tourist and business visitor visas, student visas, and various types of work visas. The respondent in Khan was seeking a U visa, which is available to crime victims who are actively assisting law enforcement in an investigation or prosecution. 8 U.S.C. §§ 1101(a)(15)(U), 1184(p). The total number of U visas that may be issued each fiscal year is capped at 10,000, not counting spouses and parents of the principal beneficiaries. A U visa is valid for up to four years and can be extended under some circumstances.

According to the BIA’s ruling in Khan, the respondent came to the U.S. from Guyana and became a lawful permanent resident in 1992. He was convicted of an offense considered to be an “aggravated felony” in 2008, which led to a finding of removability by an IJ in 2012. At around the same time, the respondent was petitioning for a U visa. Since the order of removal rendered him inadmissible, he sought a waiver of inadmissibility.

USCIS denied the respondent’s request for a waiver and therefore also denied the visa petition. The respondent renewed the request for a waiver with the court. The IJ concluded that she had concurrent jurisdiction with USCIS over the waiver request, while also finding that USCIS had exclusive jurisdiction over the U visa petition itself. She denied the request, but DHS still appealed to the BIA on the question of whether the IJ had jurisdiction in the first place. The BIA ruled that the IJ lacked jurisdiction, meaning that USCIS’ original denial stood.

Immigration attorney Samuel C. Berger represents prospective immigrants who want to come to New York City or Northern New Jersey, immigrants who live in this area, and family members and employers petitioning on an immigrant’s behalf. Contact us online, at (201) 587-1500, or at (212) 380-8117 today to schedule a confidential consultation with a member of our experienced and skilled team.

More Blog Posts:

Marriage Fraud Conviction Causes BIA to Deny Request for Waiver, New York & New Jersey Immigration Lawyer Blog, February 23, 2017

USCIS Issues Ruling on Qualifications for National Interest Waivers, New York & New Jersey Immigration Lawyer Blog, January 26, 2017

Federal Government Expands Waiver Program for Certain People Deemed Unlawfully Present in the U.S., New York & New Jersey Immigration Lawyer Blog, September 8, 2016

Photo credit: AIR FORCE ONE [CC BY 2.0], via Flickr.