BIA holds that it lacks jurisdiction over waivers of inadmissibility for U nonimmigrants

In its recent decision in Matter of Khan, 26 I&N Dec. 797 (BIA 2016), the Board of Immigration Appeals (BIA) held that an Immigration Judge does not have jurisdiction to consider a waiver of inadmissibility under section 212(d)(14) of the Immigration and Nationality Act (INA) for an applicant for U nonimmigrant status. The BIA held that the U.S. Citizenship and Immigration Service (USCIS) holds exclusive jurisdiction over both the application for U nonimmigrant status and the waiver of inadmissibility for U nonimmigrants under INA § 212(d)(14).

U nonimmigrant status or the so-called “U Visa”

Certain noncitizen crime victims living in the United States are eligible to receive U nonimmigrant status in the United States (commonly referred to as a “U visa”). In order to qualify, the person must demonstrate that he or she has been a victim of a qualifying crime in the United States; has been helpful to the investigation, prosecution or detection of such crime as demonstrated by a signed U nonimmigrant certification by a participating law enforcement agency; and has suffered either physical or emotional harm due to his or her victimization.

If the person’s application for U nonimmigrant status is approved by USCIS, he or she will hold U nonimmigrant status in the United States and receive employment authorization for four years. After three years, he or she may be eligible to apply for lawful permanent residence (a green card) in the United States.

An application for U nonimmigrant status made by submitted a Form I-918 Application for U nonimmigrant status along with a signed I-918 Supplement B by the relevant law enforcement agency (usually the police department or District Attorney’s office involved in investigating or prosecuting the criminal case) with the USCIS Vermont Service Center.

Noncitizens in the United States who meet the basic requirements for U nonimmigrant status may apply for the U status regardless of whether they are in immigration removal (deportation) proceedings.

Grounds of inadmissibility (ineligibility) for nonimmigrants

Many people who meet the basic requirements for U nonimmigrant status are “inadmissible” to the United States. A person can be inadmissible to the United States for many reasons, including (but certainly not limited to) having entered the United States without legal documents and inspection, for having committed certain crimes, being a threat to national security, on health related grounds or for having committed immigration fraud. A person who is inadmissible to the United States will also require a waiver of inadmissibility in order to have his or her U nonimmigrant petition granted. In order to receive the waiver of inadmissibility, the applicant must establish that it is in the national public interest that he or she receive the waiver of inadmissibility. A special waiver of inadmissibility is available for applicants for U nonimmigrant status under INA § 212(d)(14). An application for a waiver of inadmissibility is submitted on Form I-192.

U nonimmigrant status as a defense to deportation

Often times, a person who has been placed in immigration removal proceedings is eligible to request U nonimmigrant status as a defense against his or her removal from the United States. However, the Immigration Judge is not permitted to consider the application for U nonimmigrant status. This is because when it enacted the U nonimmigrant status, the U.S. Congress provided exclusive jurisdiction over the U nonimmigrant application to the USCIS. Therefore, when a person who is in immigration removal proceedings wishes to apply for U nonimmigrant status as a defense against his or her deportation, he or she must request that the Immigration Judge continue their removal case for many months in order to allow a separate agency – USCIS to decide whether or not the application for U nonimmigrant status should be granted.

Only USCIS can consider the waiver of inadmissibility for a U nonimmigrant applicant

In Matter of Khan, the BIA again confirmed USCIS has exclusive jurisdiction over the U nonimmigrant petition and that the Immigration Judge does not have any authority to consider or adjudicate an application for U nonimmigrant status. The BIA also held that the Immigration Judge does not have any jurisdiction to consider a waiver of inadmissibility for a U nonimmigrant applicant. The Board held that USCIS also retains exclusive jurisdiction over the I-192 waiver of inadmissibility.

Thus, with its decision, the BIA has clarified and confirmed that only USCIS may consider both the U nonimmigrant petition and the associated waiver of inadmissibility under INA § 212(d)(14). The Board’s decision is important because prior BIA case law and Seventh Circuit case law suggested that an Immigration Judge may have concurrent jurisdiction over the waiver for U nonimmigrants, thus enabling the Immigration Judge to decide whether a waiver of inadmissibility was warranted while allowing USCIS to rule on the application for U nonimmigrant status. The BIA’s decision in Matter of Khan forecloses that strategy. Under Matter of Khan, only USCIS can adjudicate both the U nonimmigrant petition and the associated waiver of inadmissibility.

For more information on U nonimmigrant status (U visa), waivers of inadmissibility for U nonimmigrants or the decision in Matter of Khan, please contact Kolko & Associates, P.C.