Aggravated Felonies

(C)  Inadmissibility and Adjustment of Status.  All grounds of inadmissibility are waivable except the terrorist grounds.[366]  In its proposed regulation for the “T” trafficking visa, the agency proposed that a waiver for criminal grounds of inadmissibility not caused by the trafficking would be decided on an “exceptional case” standard, although this standard does not appear in the statute.[367]  Advocates recommend contesting this standard as ultra vires to the statute.

Individuals granted “U” visas may apply for permanent residence after three years.  Permanent residence will be granted for humanitarian, family unity or public interest purposes.  The applicant must have maintained continuous presence in the U.S. during that time, and must not have unreasonably refused to participate in an investigation or prosecution.[368]  At that time the spouse and children of the crime victim (and parents of a child victim) may be granted visas if the Attorney General considers it necessary to avoid extreme hardship, even if these parties did not obtain a nonimmigrant “U” visa.  Only 10,000 non-immigrant “U” visas may be granted each year.  This limitation applies to principal applicants, and not to spouses, children or parents of the applicant.[369]  There does not appear to be an explicit limit to the number of “U” visa holders who can adjust to permanent residence each year.

[366] INA § 212(d)(13), 8 U.S.C. § 1182(d)(13) provides:  “The Attorney General shall determine whether a ground of inadmissibility exists with respect to a nonimmigrant described in § 101(a)(15)(U). The Attorney General, in the Attorney General’s discretion, may waive the application of subsection (a) (other than paragraph (3)(E)) in the case of a nonimmigrant described in § 101(a)(15)(U), if the Attorney General considers it to be in the public or national interest to do so.”

[367] INA § 212(d)(3), 8 U.S.C. § 1182(d)(3).

[368] INA § 245(l)(1) [El one], 8 U.S.C. § 1255(l)(1).

[369] INA § 214(o)(2), 8 U.S.C. § 1184(o)(2).