[Code of Federal Regulations]

[Title 8, Volume 1]

[Revised as of January 1, 2006]

From the U.S. Government Printing Office via GPO Access

[CITE: 8CFR245a.18]



[Page 591-593]

 

                     TITLE 8--ALIENS AND NATIONALITY

 

               CHAPTER I--DEPARTMENT OF HOMELAND SECURITY

 

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.

    (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



[[Page 592]]



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 (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.



[[Page 593]]



    (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]