[Code of Federal Regulations]
[Title 8, Volume 1]
[Revised as of January 1, 2003]
From the U.S. Government Printing Office via GPO Access
[CITE: 8CFR245a.18]

[Page 653-655]
 
                     TITLE 8--ALIENS AND NATIONALITY
 
CHAPTER I--IMMIGRATION AND NATURALIZATION SERVICE, DEPARTMENT OF JUSTICE
 
    PART 245a--ADJUSTMENT OF STATUS TO THAT OF PERSONS ADMITTED FOR LAWFUL TEMPORARY OR PERMANENT RESIDENT STATUS UNDER SECTION 245A OF THE IMMIGRATION AND 
NATIONALITY ACT--Table of Contents
 
   Subpart B--Legal Immigration Family Equity (LIFE) Act Legalization 
                               Provisions
 
Sec. 245a.18  Ineligibility and applicability of grounds of inadmissibility.

    (a) Ineligible aliens. (1) An alien who has been convicted of a 
felony or of three or misdemeanors committed in the United States is 
ineligible for adjustment to LPR status under this Subpart B; or
    (2) An alien who has assisted in the persecution of any person or 
persons on account of race, religion, nationality, membership in a 
particular social group, or political opinion is ineligible for 
adjustment of status under this Subpart B.
    (b) Grounds of inadmissibility not to be applied. Section 212(a)(5) 
of the Act (labor certification requirements) and section 212(a)(7)(A) 
of the Act (immigrants not in possession of valid visa and/or travel 
documents) shall not apply to applicants for adjustment to LPR status 
under this Subpart B.
    (c) Waiver of grounds of inadmissibility. Except as provided in 
paragraph (c)(2) of this section, the Service may waive any provision of 
section 212(a) of the Act only in the case of individual aliens for 
humanitarian purposes, to ensure family unity, or when the granting of 
such a waiver is otherwise in the public interest. If available, an 
applicant may apply for an individual waiver as provided in paragraph 
(c)(1) of this section without regard to section 241(a)(5) of the Act.

[[Page 654]]

    (1) Special rule for waiver of inadmissibility grounds for LIFE 
Legalization applicants under sections 212(a)(9)(A) and 212(a)(9)(C) of 
the Act. An applicant for adjustment of status under LIFE Legalization 
who is inadmissible under section 212(a)(9)(A) or 212(a)(9)(C) of the 
Act, may apply for a waiver of these grounds of inadmissibility while 
present in the United States, without regard to the normal requirement 
that a Form I-212, Application for Permission to Reapply for Admission 
into the United States After Deportation or Removal, be filed prior to 
embarking or re-embarking for travel to the United States, and without 
regard to the length of time since the alien's removal or deportation 
from the United States. Such an alien shall file Form I-690, Application 
for Waiver of Grounds of Excludability Under Sections 245A or 210 of the 
Immigration and Nationality Act, with the district director having 
jurisdiction over the applicant's case if the application for adjustment 
of status is pending at a local office, or with the Director of the 
Missouri Service Center. Approval of a waiver of inadmissibility under 
section 212(a)(9)(A) or section 212(a)(9)(C) of the Act does not cure a 
break in continuous residence resulting from a departure from the United 
States at any time during the period from January 1, 1982, and May 4, 
1988, if the alien was subject to a final exclusion or deportation order 
at the time of the departure.
    (2) Grounds of inadmissibility that may not be waived. 
Notwithstanding any other provisions of the Act, the following 
provisions of section 212(a) of the Act may not be waived by the 
Attorney General under paragraph (c) of this section:
    (i) Section 212(a)(2)(A)(i)(I) (crimes involving moral turpitude);
    (ii) Section 212(a)(2)(A)(i)(II) (controlled substance, except for 
so much of such paragraph as relates to a single offense of simple 
possession of 30 grams or less of marijuana);
    (iii) Section 212(a)(2)(B) (multiple criminal convictions);
    (iv) Section 212(a)(2)(C) (controlled substance traffickers);
    (v) Section 212(a)(3) (security and related grounds); and
    (vi) Section 212(a)(4) (public charge) except for an alien who is or 
was an aged, blind, or disabled individual (as defined in section 
1614(a)(1) of the Social Security Act). If a LIFE Legalization applicant 
is determined to be inadmissible under section 212(a)(4) of the Act, he 
or she may still be admissible under the Special Rule described under 
paragraph (d)(3) of this section.
    (d)(1) In determining whether an alien is ``likely to become a 
public charge'', financial responsibility of the alien is to be 
established by examining the totality of the alien's circumstance at the 
time of his or her application for adjustment. The existence or absence 
of a particular factor should never be the sole criteria for determining 
if an alien is likely to become a public charge. The determination of 
financial responsibility should be a prospective evaluation based on the 
alien's age, health, family status, assets, resources, education and 
skills.
    (2) An alien who has a consistent employment history that shows the 
ability to support himself or herself even though his or her income may 
be below the poverty level is not excludable under paragraph (c)(2)(vi) 
of this section. The alien's employment history need not be continuous 
in that it is uninterrupted. In applying the Special Rule, the Service 
will take into account an alien's employment history in the United 
States to include, but not be limited to, employment prior to and 
immediately following the enactment of IRCA on November 6, 1986. 
However, the Service will take into account that an alien may not have 
consistent employment history due to the fact that an eligible alien was 
in an unlawful status and was not authorized to work. Past acceptance of 
public cash assistance within a history of consistent employment will 
enter into this decision. The weight given in considering applicability 
of the public charge provisions will depend on many factors, but the 
length of time an applicant has received public cash assistance will 
constitute a significant factor. It is not necessary to file a waiver in 
order to apply the Special Rule for determination of public charge.
    (3) In order to establish that an alien is not inadmissible under 
paragraph

[[Page 655]]

(c)(2)(vi) of this section, an alien may file as much evidence available 
to him or her establishing that the alien is not likely to become a 
public charge. An alien may have filed on his or her behalf a Form I-
134, Affidavit of Support. The failure to submit Form I-134 shall not 
constitute an adverse factor.
    (e) Public cash assistance and criminal history verification. 
Declarations by an alien that he or she has not been the recipient of 
public cash assistance and/or has not had a criminal record are subject 
to a verification by the Service. The alien must agree to fully 
cooperate in the verification process. Failure to assist the Service in 
verifying information necessary for proper adjudication may result in 
denial of the application.

[66 FR 29673, June 1, 2001, as amended at 67 38351, June 4, 2002]