Green Card & Visa News » Immigration And Nationality

BIA held Advance Parole Absence does not trigger Unlawful Presence Bar

Tushar Mathur — Tue, 01 May 2012 15:28:00 +0000

In a recent BIA decision, the Board surprisingly held that a foreigner
who left the United States after securing an “advance parole” travel document
from the DHS is not considered a departure for the purposes of determining
whether the person is subject to the 10-year unlawful presence bar. The Board held that the foreigner is
therefore allowed to apply for adjustment of status to become permanent
resident under section 245(i) of the Immigration and Nationality Act.

In Matter of Arrabally and Yerrabelly, 25 I&N Dec. 771 (BIA 2012),
the respondents, husband and wife, legally entered the U.S. in 1999 and 2000
respectively. After overstaying their
nonimmigrant visas, they were present in the U.S. without legal status for more
than five years. Subsequently, the male
respondent sought to apply for legal status based on an approved employment
based immigrant visa petition filed on his behalf by an employer pursuant to
section 245(i) of the Act. However, the
couple made a trip to India to attend their aging parents after securing
advance parole travel documents from the DHS.
Upon their return to the United States with advance parole, DHS argued
that they were barred from applying for adjustment of status because they were inadmissible
to reenter the United States for ten years pursuant to section 212(a)(9)(B)(i)(II)
of the Act. This section of the law bars
foreigners from admission for ten years if they departed the United States
after having been unlawfully present for more than one year.

The BIA previously held in Matter
of Lemus that section 245(i) does not overcome the unlawful presence bars,
absent a waiver. In Lemus, the respondent did not have an advance parole document when
he left the United States. Here, the BIA
carved out an exception for the respondents in Matter of Arrabally and Yerrabelly, explaining that their absence
from the U.S. after a grant of advance parole did not constitute a departure
that would trigger the unlawful presence bars.
The BIA noted the advance parole (1) was approved in advance by the
United States Government on the basis of a merits application; (2) presupposed
the alien’s authorized return thereafter, and (3) was requested solely for the
purpose of preserving the alien’s eligibility for adjustment of status. The BIA seemed to be saying that the
respondents merely took a brief trip outside of the United States without no intention
to depart.

Hence, the BIA concluded that the respondents are not inadmissible for
adjustment of status pursuant to section 212(a)(9)(B)(i)(II). Therefore, they are eligible to apply for
adjustment of status based on section 245(i).
The decision no doubt is good news for applicants who must travel for
emergency reasons. However, this
decision could still be challenged by the government in federal court. For example, as the dissenting opinion noted,
a recent Third Circuit decision also involved advance parole travel but reached
a different conclusion. Therefore, it is
very important for applicants to fully understand the legal ramifications
before travelling on advance parole.

BIA held Section 245(i) Unavailable to Reentrants with Prior Violations

Tushar Mathur — Mon, 23 Apr 2012 01:40:00 +0000

Litigation surrounding section 245(i) of the Immigration and Nationality
Act often involves complex factual and legal issues. Matter of Miguel
LEMUS-Losa, 25 I&N Dec. 734 (BIA 2012), a recent BIA decision on section
245(i) is such an example. In LEMUX, the
BIA held that adjustment of status under section 245(i) is unavailable to an
alien who is subject to the 3-year and 10-year bars under section 212(a)(9)(B)(i)(II)
of the Act, without a waiver.

Section 245(i) was enacted in 1994 by Congress to allow certain
applicants for adjustment of status in the U.S.
to be eligible to receive their permanent resident status even though they
entered the U.S.
without having been formally inspected by an immigration officer first. However, Section 301 of the Illegal
Immigration Reform and Immigrant Responsibility Act (IIRIRA) of 1996 imposed
two additional
grounds of inadmissibility for foreigners who have prior violations of
immigration laws. First, section
212(a)(9)(B)(i)(II) of the Act imposes the 3-year and 10-year bars for those
who have been present in the U.S.
unlawfully. Second, section
212(a)(9)(C)(i)(I) punishes those individuals who reentered or attempted to
reenter the U.S.
after prior violations.

In this case, the foreigner reentered the U.S.
without authorization after having been present in the U.S. for more than one year. He then applied for adjustment of
status. Both the immigration court and
the BIA denied his request based on the 10-year-bar under 212(a)(9)(B)(II) of
the Act. The case was appealed to the 7th Circuit, which disagreed and remanded
the case back to the BIA for another decision.
The 7^th Circuit’s decision is based on BIA’s failure to
examine the differences between section 212(a)(9)(B)(i)(II) and section
212(a)(9)(C)(i)(I) of the Act. Section
212(a)(9)(C)(i)(I) makes it inadmissible for foreigners who had accrued one
year of unlawful presence or who had been previously deported from the U.S.,
and then reentered or attempted to reenter the U.S. again. The 7^th Circuit reasoned that these
reentrants’ behavior are more serious than the first class of individuals who
are merely “seeking admission” after accruing unlawful presence.

On remand, the BIA analyzed the statutes again and came to the same
conclusion that section (a)(9)(B)(i)(II) or the 10-year-bar still bars the
applicant from adjustment in spite of section 245(i). According to the BIA, the meaning of “seeking
admission” is a lot broader than the general meaning of the term and covers
many different types of situations. The
BIA concludes that although section (a)(9)(B)(i)(II) and section
(a)(9)(C)(i)(I) are different, neither section covers mere“entry without
inspection” or other conduct that section 245(i) was designed to forgive. Ultimately, the BIA decided to remand the case
to the immigration judge to examine whether section (a)(9)(C)(i)(I) also
applies here as the applicant apparently reentered the U.S. after prior violations. The final chapter of this case has yet to be
written.

EB-5 Investor Visa: Sources of Capital

Tushar Mathur — Thu, 08 Mar 2012 03:04:00 +0000

The U.S. Immigration and Nationality Act sets aside 7.1% worldwide visa numbers to qualified immigrants seeking to enter the U.S. for the purpose of engaging in a new commercial enterprise. The applicant must either have invested or is in the process of actively investing capital not less than U.S. $1,000,000 in the enterprise. This is commonly known as the EB-5 investor visa. Other categories of immigrant visa are usually oversubscribed for countries such as China and India. For instances, many family-based petitions, including those filed by U.S. citizens, are currently backlogged. The EB-2 and EB-3 employment visa categories are similarly oversubscribed. The advantage of the EB-5 visa is that, so far, there has been sufficient number of visa numbers for qualified applicants. It means that once a qualified applicant has establish that he or she meets all the legal requirements, a conditional green card will be issued by the U.S. government. For those immigrants who have sufficient capital, the EB-5 visa is an attractive alternative. It is not to say that it is easy for anybody to apply for an EB-5 visa. Rather, the investor visa requirements are quite complicated and adjudication standards very high.

The EB-5 visa program requires an investment of capital of at least one million U.S. dollars (except for certain target investment areas). Cash investment is perhaps the most direct way to meet the capital requirement. However, the regulations also allow other forms of capital investment including equipment, inventory, other tangible property and cash equivalents. Further, debts secured by assets owned by the investor entrepreneur also qualifies as capital as long as the investor is personally and primarily liable and that the assets of the new commercial enterprise are not used to secure any of the debts. Such a broad definition of capital makes it easier for investors to inject capital into their businesses. For instance, a restaurant owner may have a portion of the capital invested in equipment and cooking appliances; a pharmaceutical company may partially satisfy the capital requirement by investing in laboratory equipments and facilities; and a manufacturer or distributor of goods could meet the capital equipment through the purchase of inventory and other assets. All assets are valued at fair market value in United States dollars.

Another important requirement of capital is that it must come from lawful sources. Assets obtained through unlawful or criminal means cannot be used to meet the capital investment requirement. To prove the lawfulness of sources of capital, an investor must provide documentary evidence including: (1) Foreign business registration records, (2) Corporate, partnership (or any other business entity), and personal tax returns including income, franchise, property (whether real, personal, or intangible) filed within five years in or outside the United States by or on behalf of the immigrant investor; (3) Evidence identifying any other sources of capital; or, (4) Certified copies of any judgments or evidence of all pending governmental civil or criminal actions, and any private civil actions involving monetary judgments against the immigrant investor from any court in or outside the United States within the past fifteen years. Unfortunately, many investors are able to come up with the capital for investment but are not able to provide evidence to prove that the capital comes from lawful sources.

Finally, it is important to note that although an investor must commit to invest one million U.S. dollars in the enterprise, there is no requirement that the full amount must be invested when an EB-5 visa application is filed. An investor can use documents to show that she is in the process of investing the capital, perhaps in different stages depending on the needs of the business enterprise.

New hope for foreigners who are subject to the three/ten year bar

Tushar Mathur — Tue, 10 Jan 2012 21:44:00 +0000

A new proposal by the Department of Homeland Security (DHS) brings new hope to foreigners who are subject to the three and ten year bars because of their unlawful presence in the United States. Rather than leaving the United States to apply for a waiver at an overseas consulate office, these foreigners would be allowed to have their waiver pre-adjudicated by the USCIS in the United States according to the proposal. If their waiver applications are approved, they would still be required to depart the U.S. to apply for immigrant visas to return to the United States.

The 3/10 Year Bar
Section 212(a)(9) of the Immigration and Nationality Act provides that any noncitizen who after having been unlawfully present in the United States for 180-364 days and then voluntarily departs the country before they are placed in removal proceedings is not allowed to return to the United States for three (3) years. Similarly, a noncitizen who has been unlawfully present in the United States for one year or longer and then departs or is deported is not allowed to return to the United States for ten (10) years. These are known as the 3-year-bar and the 10-year-bar. There are some exceptions for asylum applicants, battered spouses, certain family unity beneficiaries and minor children. Furthermore, the unlawful period can be tolled for good cause and non-frivolous requests for extensions. Otherwise, if these noncitizens wish to return to the United States, they must first obtain a waiver from the U.S. government. The Department of Homeland Security has discretion to waive the 3/10-year-bars if the noncitizen can show that his U.S. citizen or legal resident spouse or parent will suffer extreme hardship if he is not allowed to return to the U.S.

Catch 22
For many foreigners who have accrued unlawful presence in the United States but are otherwise eligible for an immigrant visa, they are caught in a “Catch 22” situation. On the one hand, they are not allowed to apply for a green card within the United States because of their unlawful status. On the other, they do not want to leave the country for fear that they would not be able to return to the U.S. because of the 3/10-year-bars. Even if they are eligible to apply for a waiver based on hardship of their spouses and/or parents, they are afraid that the waiver might not be approved. The current policy is that the wavier must be filed with an overseas DHS office. In short, they are stuck between two equally undesirable options.

The New Proposal
The DHS recently announced that it intends to publish in the Federal Register a proposal to revise the procedures for determining the unlawful presence (family unity) waivers for spouses and children of U.S. citizens. The new proposal creates an “in-country processing” mechanism for noncitizens who are spouses and children of U.S. citizens to file the unlawful presence waiver. A noncitizen who has accrued unlawful presence would be able to apply for the waiver from within the United States. This “in-country processing” proposal would permit USCIS to grant a provisional waiver. Applicants would still be required to depart from the U.S. before receiving a final approval on their application. By pre-processing the family unity waiver, the applicant’s waiting time will be shortened. Currently applicants face a long wait when seeking a waiver outside the U.S. The goal of this new proposal is to encourage more noncitizens to come forward to file their immigrant and waiver petitions in the United States.

This process, however, does not change the legal requirements for immigrant visa petition or the family unity waiver application. The “law” regarding immigrant visas and waiver adjudication has not been changed. The change is only procedural in nature. Further, it is important to note that the proposal will not cover spouses and children of legal permanent residents. They must still follow the existing procedure and apply for a waiver at an overseas U.S. consulate office. Finally, applicants must not rely on this proposal yet until it is finalized. Thus far, the DHS has only published a statement of intent to propose the change. It is expected that the change will not be finalized until the end of 2012. Interested foreigners may start gathering documentary evidence to establish their eligibility for a waiver but should not act hastily before they have discussed their case with a qualified immigration attorney.

When is a Lawful Permanent Resident considered seeking admission to the United States?

Tushar Mathur — Mon, 24 Oct 2011 05:21:00 +0000

The United States immigration laws confer certain rights and privileges to a person who has been granted Lawful Permanent Resident (LPR) status by the government. These individuals, commonly known as green card holders, are authorized to work and live in the United States indefinitely. Legal residents are also allowed to return to the United States after international travel. Nonresidents, on the other hand, are considered applicants for admission and must establish that they are admissible to the United States in order to enter.

Sec. 101(a)(13)(C) of the Immigration and Nationality Act provides that a returning LPR should not be regarded as seeking an admission into the United States for purposes of the immigration laws unless the legal resident (i) has abandoned or relinquished that status, (ii) has been absent from the United States for a continuous period in excess of 180 days, (iii) has engaged in illegal activity after having departed the United States, (iv) has departed from the United States while under legal process seeking removal of the alien from the United States, including removal proceedings and extradition proceedings, (v) has committed an offense identified in section 212(a)(2), unless since such offense the alien has been granted relief under section 212(h) or 240A(a), or (vi) is attempting to enter at a time or place other than as designated by immigration officers or has not been admitted to the United States after inspection and authorization by an immigration officer.

If either one of the six conditions apply, the returning green card holder is considered an applicant for admission and will be subject to less legal protection that he or she normally enjoys as a legal resident. A LPR is like a person who is returning home with a key (his green card) while an applicant for admission is like a visitor asking for permission to enter another person’s house. A visitor seeking admission but not a legal resident is subject to all the grounds of inadmissibility contained in the immigration statutes. When a legal resident is placed in removal proceedings, the government must first prove by clear, unequivocal, and convincing evidence that the grounds and basis for deportation are true before the person may be removed from the United States. The burden of proof is on the government to prove that the person is deportable. Similarly, to treat a returning resident as seeking admission to the United States, the Department of Homeland Security bears the burden of proving by clear and convincing evidence that a returning lawful permanent resident falls under one of the above six categories of individuals.

For example, in a recent Board of Immigration Appeal (BIA) case, Matter of Benno Rivens, decided October 19, 2011, the Board remanded the case to the Immigration Judge to analyze if the offenses committed by the respondent – a green card holder – constitute a crime involving turpitude (CIMT). (This falls under condition v above.) If the DHS meets its burden by proving by clear and convincing evidence that the respondent had committed a CIMT, then he would be treated as an applicant for admission. Further, since convictions of CIMTs are also grounds of inadmissibility, he would also not be allowed to be admitted to the United States and, consequently, he would lose his green card. On the other hand, if the government fails to meet it burden of proof, the respondent would be allowed to return to the United States as a lawful permanent resident.

Hence, before a legal resident travels outside of the United States, it is very important for him to determine whether or not he will be regarded as a returning resident or an applicant for admission upon his return. Sometimes, it may be wise for a legal resident not to depart the United States at all.

Third Circuit Appeal Court held section 245(i) does not overcome 10-year illegal presence bar

Tushar Mathur — Thu, 29 Sep 2011 04:04:00 +0000

Section 245(i) of the Immigration and Nationality Act allows certain foreigners in the United States who would not normally qualify to apply for adjustment of status in the U.S. to apply for a green card regardless of the manner they entered the U.S., working in the country without authorization, and failing to continuously maintain lawful status since entry. The LIFE Act amendment extended the filing deadline to April 30, 2001.

However, Congress also passed another piece of legislation which punishes foreigners who had stayed in the U.S. without lawful status. Section 301 of the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) of 1996 imposed two bars to admissibility for foreigners who were unlawfully present in the U.S. Individuals who have been unlawfully present in the U.S. for more than 180 but less than 365 days, and then depart from the U.S., are not eligible to return for the next three years. Similarly, foreign nationals who have been unlawfully present in the United States for more than 365 days, and then depart from the U.S., are inadmissible for the next ten years (the 10-year bar).

The question arises as to whether a person in the United States who is subject to the 10-year bar may still apply for a green card through adjustment of status by invoking section 245(i) as a defense. Recently, the 3rd Circuit Court of Appeal held that an Indian software engineer who is subject to the 10-year bar may not adjust her status under section 245(i). In the case of Cheruku v. Att’y Gen. of the U.S. decided on September 22, 2011, the 3rd Circuit analyzed the above issue and concluded that Congress does not intend section 245(i) to overcome the 10-year-bar to admission.

Cheruku is a software engineer from India who first entered the U.S. on a B-1 business visa in 1995. She stayed in the U.S. and was offered a job by a U.S. employer. Her employer filed a labor application and immigrant visa petition on her behalf, both of which were approved. Cheruku filed an I-485 adjustment of status application on December 21, 2001 to apply for lawful permanent residence status. While the I-485 was pending, she travelled outside of the U.S. and used her advance parole return to the U.S. in 2002. In 2004, her I-485 was denied based on the 10-year-bar. Both the Immigration Court and the Board of Immigration Appeal found her barred from applying for a green card. She petitioned the 3rd Circuit Court to review her case.

Adopting the reasoning of the BIA, the Third Circuit first acknowledges that Congress passed section 245(i) and the LIFE Act with the intention to waiver some general grounds of inadmissibility such as entry without inspection and overstaying of status. However, it also found the 10-year-bar contained in the IIRIRA was intended to punish the more culpable class of foreigners who was present illegally in the U.S., then departed or deported, and then reentered the U.S. The LIFE Act does not explicitly excuse this type of behavior. In fact, Congress requires that foreigners who are subject to the illegal presence bars must first apply for a waiver from outside of the U.S. to obtain permission to reenter the U.S. Cheruku actually was paroled into the U.S. by using her advance parole (AP) travel document. The advance parole document is an auxiliary benefit of the adjustment application. However, the document itself contains a conspicuous warning that using the AP to travel may trigger and does not overcome the illegal presence bar to admissibility. The 3rd Circuit Court found no difference between Cheruku and those who reentered the United States illegally.

It is interesting to note that other federal circuits have reached different conclusions on this issue. While the 10th Circuit also adopts the BIA approach and held that the 10-year bar trumps section 245(i), the 7th Circuit held the other way. This remains to be an unsettled area of the law, to say the least. Suffice to say that foreign nationals who have been unlawfully present in the U.S. should not travel outside of the U.S. if they intend to use section 245(i) to apply for lawful permanent residence status.

VAWA self-petitions can be filed by the victim between the ages of 21 and 25

Tushar Mathur — Thu, 08 Sep 2011 23:38:00 +0000

The USCIS has issued a policy memo dated September 6, 2011, to allow victims of abuse to file their self green card petitions even though they are over the age of 21 if it is filed before the age of 25. The Violence Against Women and Department of Justice Reauthorization Act of 2005 (VAWA 2005) amended section 204(a)(1)(D) of the Immigration and Nationality Act to allow continued eligibility for certain individuals to file a VAWA self-petition after the age of 21, if the abuse was at least one central reason for the filing delay.

It’s time to bring back Section 245(i)

Tushar Mathur — Mon, 02 May 2011 18:13:00 +0000

It may be hard to believe, but April 30 marked the 10th anniversary of the sunset date of Section 245(i) of the Immigration and nationality Act – a law that has changed the lives of tens of thousands of people in the United States by allowing them to be legalized through adjustment of status. In order for a foreign national to adjust their status to that of a lawful permanent resident, she must meet a number of conditions and requirements in the legal process called adjustment of status. Congress passed Section 245(i) to allow foreigners to adjust their status even though they did not meet all the conditions and requirements. For examples, foreigners who had worked without authorization or who had failed to maintain their legal status were not eligible to apply for adjustment of status before Section 245(i) was signed into law. Section 245(i) began effective on October 1, 1994 and was initially scheduled to expire on January 14, 1998. The LIFE Act amendment extended the deadline or “sunset date” to April 30, 2001. Eligible applicants must pay a penalty fee of $1000 in addition to the regular filing fees.

The significance of Section 245(i) is that a foreigner may preserve his eligibility by virtue of an immigrant visa petition filed on or before April 30, 2001, and use it to apply for adjustment in the future based on an unrelated immigrant visa petition. A large of number of applicants were able to take advantage of the law by means of an immigrant visa petition filed by a family member or an employer before the sunset date. They are considered “grandfathered” for 245(i) benefits. However, for those who missed the sunset date, they can only hope that 245(i) is extended again by Congress.

Over the past decade, there have been proposals to bring back 245(i) to life. For example, after a meeting between U.S. President, George W. Bush, and Mexican President, Vicente Fox, on March 22, 2002, the House of Representatives passed a bill extending section 245(i) to November 30, 2002. Unfortunately, none of these proposals was eventually passed by Congress and became law. There has been strong opposition to passing any law that would legalize a large of foreign nationals by the restrictionists. Their voice were particular strong during the last few years when the U.S. was suffering from one of the worst economic downturns since the Great Depression. In fact, since 2001, our immigration policy can be characterized as one of strong enforcement but not comprehensive reform. For instance, when Republicans controlled both House and Senate and also the White House, the 108th Congress passed the Real ID Act which added strong enforcement provisions in the law. In the more recent years, when Democrats controlled both the House and Senate, the situation did not change much. For example, when the Dream Act was proposed, it was welcome by almost all groups of political voices including many restrictionists. At the end, however, it still failed to pass the Senate.

The debate over our immigration policies will continue for years to come. The prospect of Congress adopting Comprehensive Immigration Reform (CIR) may not great in the next few years. The question remains: how do we deal with the millions of foreigners who are already living in the U.S. without legal status? We are certainly not ready to remove them on a massive scale. Some of them actually have extensive family ties here including USC spouses and children. Bringing back Section 245(i) may be a good compromise. On the one hand, it is not an amnesty that is opposed by the conservatives. It is only an extension of an existing provision of the law. The USCIS has both internal protocols and adjudication experience for processing 245(i) cases. It does not excuse criminal offenses or serious immigration violations. On the other, Section 245(i) fosters family relationships and generates additional revenues for the government – both are important to our country. It should not be too difficult for the legislators to explain the benefits of 245(i) to their constituents. Hence, after Section 245(i) has been sunset for 10 years, it may be the right time to bring it back.

Seattle Immigration Lawyer | Bribery of a Public Official is Not an Aggravated Felony Under INA

Tushar Mathur — Wed, 24 Nov 2010 14:12:00 +0000

As immigration attorneys and other immigration law watchers know, the definition of “aggravated felony” under the Immigration and Nationality Act (“INA”) is ever-changing. Last month was no exception. In a decision that represented a victory for the narrow definition crowd, the Board of Immigration Officials (“BIA”) recently ruled in favor of an Austrian lawful permanent resident who was convicted of bribery of a public official under federal law, for which he was sentenced to 36 months of imprisonment. Matter of Chrysanth George Gruenangerl, 25 I&N Dec. 351 (BIA 2010).

In September, an Immigration Judge (“IJ”) had found Mr. Gruenangerl removable as an alien convicted of an aggravated felony, specifically, because his offense related to “commercial bribery” under INA Sect. 101(a)(43)(R). Mr. Gruenangerl appealed, and the BIA ruled that bribery of a public official under 18 USC Sect. 201(b)(1)(A)(2006) is not an offense “relating to” commercial bribery and thus not an aggravated felony under the INA.

By way of background, according to the indictment, Mr. Gruenangerl had promised to pay a portion of a finder’s fee to a US Forest Service employee that he expected to receive for the sale of a new gondola at a ski resort, if the employee would tell the ski resort in a report that it needed to replace its gondola.

In its analysis of the crime charged, 18 USC Sect. 201(b)(1)(A), which prohibits “[b]ribery of public officials and witnesses,” the BIA found that “the essence of the offense is the corrupt intent to influence official action.” In contrast, it held that commercial bribery “focuses on influencing action in the private sector involving the breach of the duty of fidelity.”

The BIA actually disagreed with Mr. Gruenangerl’s argument that the Fifth Circuit (where his case arose) has taken a restrictive approach to the phrase “relating to” which would require that the offense he was charged with be described in the immigration statute as a crime of commercial bribery. In fact, the BIA pointed out that both it and the Fifth Circuit had consistently held the phrase has an expansive meaning, especially when used with a general term. Nonetheless, and no doubt to the government’s chagrin, the BIA did not find the phrase “relating to” so encompassing that it includes convictions under 18 USC Sect. 201 for bribery involving public officials in order to influence official action.

Citing Perrin v. United States, 444 US 37 (1979), the BIA pointed out that Congress’s decision to use only the narrow term “commercial bribery” in the immigration statute reflected its awareness that the generic definition of “bribery” included a broad range of conduct, including violations of State commercial bribery statutes.

Disagreeing with the IJ , the BIA held that Sect. 101(a)(43)(R) is a generic provision of the Act, which requires the categorical approach since it lacks specific circumstances on how the offender committed the crime on a specific occasion. Employing such an approach, the BIA found that Mr. Gruenangerl’s crime is not an aggravated felony because the criminal statute does not facially define an offense sufficiently related to commercial bribery.

The BIA also criticized the IJ for his use of the modified categorical approach, where he considered the facts of the case and determined that the alien’s purpose in committing the offense was to obtain financial gain and therefore was commercial in nature. The BIA held that given that the essence of the criminal statute here was the intent to influence official action, the alien’s particular purpose did not somehow transform the offense into one “relating to” commercial bribery of someone in the private sector.

Of course, Mr. Gruenangerl’s battle is not over. The BIA reversed the IJ’s finding of removability (based on aggravated felony) and remanded to determine whether he is removable as an alien convicted of a crime involving moral turpitude. (In dicta, the BIA said that the crime did involve moral turpitude, but the factual issue of whether he committed the offense within five years of the date he was admitted to the U.S. remained.)

What is Visa Waiver Program?

Tushar Mathur — Tue, 02 Mar 2010 11:11:11 +0000

The term Waiver stands for a kind of document provided to a person before a service is rendered by him. This waiver works as a security object for both the person as well as the provider.

‘Waiver’ holds the same significance in Visa Waiver Program too. Visa Waiver Program is a grant provided by the government of United States of America to the citizens of specific countries to travel United States for business or any other purpose for not more than 90 days without any Visa.

U.S. government has listed 34 countries under waiver program which are either the countries that possess higher economy or the developed countries.

A Pilot test of Visa Waiver Program was incorporated into Immigration and Nationality Act (INA) in year 1986 by the Immigration Reform and Control Act. This pilot program was made permanent on October 30, 2000 by a special Visa Waiver Permanent Program Act. Security of Visa Waiver Program was strengthened by the 9/11 Commission Act of 2007 which made the entry under this program more difficult.

The greatest advantage that a Visa Waiver Program can give is that any person that wishes to conduct his business in America can travel to United States without any visa.

Any individual applying for this program has to obtain an authorisation from the Electronic System for Travel Authorization (ESTA) before travelling. ESTA is an Automatic system that scrutinizes the eligibility of travellers wishing to visit United States under Visa Waiver Program. Application for the ESTA can be applied any time before your travel but it is highly recommended that its application should be submitted at the time of your travel plans.

Apart from the leverage that Visa Waiver Program provides, there are some issues to be taken care if you are applying for this program. You may not extend your status of being non-immigrant, if you are admitted once under this program. If you have violated any terms related to admission under this program then you cannot apply for the same anymore and in case if your admission is not accepted then you cannot take any judicial support for re-application.

Thus, if you fall under the privileged countries that come under Visa Waiver Program then you can surely apply for this facility that United States government provides.