az2014

Ive lost count how many of Ian's posts you've corrected recently

scrubbedexpat099

You can do one in Country.

S Folinsky

Adjustment of status is "as if" one is applying for a visa. There are exceptions to that general rule. But generally, section 212(a) [the grounds of inadmissabilty] apply to adjustments.

karenkaren1

hmmm I guess ill have to hope,wait and see if i212 (assuming he gets this) will be enough to see us through to the end goal as he definitely doesn't qualify for i601. I'm bracing myself for a long uncertain journey!

crg

I-212 is an application for permission to apply for admission after being ordered removed or a few other major violations. It's similar to a waiver.

Section 212 of the INA is list of inadmissibilities/ineligibilities, exceptions and waivers. That can be confusing, but they are very different. You don't need a Form I-212. He may be inadmissible under section 212.

shiversaint

I'm in agreement, I think he'll need another I-601.

This is a quote from the form instructions:

I've underlined the bits he'd get caught on - in essence he's ineligible to adjust status based on a criminal inadmissibility. That's why he'd need a waiver.

S Folinsky

The numerology in immigration can get a tad confusing at times. The convention in reference to the statute is to use section numbers from the Immigration & Nationality Act. (There are also parallel citations to "8 US Code." But those will rarely be used). Then each form has its own number.

So, by way of example, an application under section 245 of the Act is made on Form I-485. So, it is not uncommon to see 245 and 485 used interchangeably.

Form I-212 is the application to return after removal/deportation. Section 212(a) of the Act is the list of grounds of inadmissibility. The form used to apply for most waivers is form I-601.

Now, since there is no section 485 in the Act, usage of the two numbers is in the "no harm, no foul" territory. 212 is a different matter.

It is confusing, even to us who deal with the system on a constant basis.

karenkaren1

and so presumably he would never be able to get a green card?

shiversaint

How have you concluded he's inadmissible due to unlawful presence? Has that been decided already?

I traveled on an ESTA in a very similar circumstance and was only found inadmissible on the basis of the drug conviction.

He would only be inadmissible on the basis of 212(a)(9)(B)(v) if he had stayed in the US for more than 180 days in a continuous stint and then left (incidentally he would also have a ban of some sort, too). He does not contravene this part of Section 212 INA, unless you've omitted something about the length of time he has been in the states.

Only then would he need an I-601 that demonstrated extreme hardship for a USC dependent. (well, there are probably some other cases but drugs isn't one of them, and I'm guessing this is the case you're looking at)

As far as I can tell, he only needs an I-601 for his criminal inadmissibility. As I said in an earlier post, although needing another I-601 for AoJ, he's still eligible for a GC as his drug conviction was minor enough, which is lucky.

karenkaren1

ok, thank you for clarifying. He has never been in the US for longer than a 3 wk stint. We are literally 'just' dealing with his original conviction of possession in the early 90s (and subsequent trips to USA using ESTA which I was fearing could result in 'unlawful presence')

shiversaint

Ok. In which case, for a waiver of Section 212(h) which is where marijuana falls, these are the criteria:

1. The criminal activity occurred more than 15 years before the application for admission;

2. Admission would not be contrary to national welfare, safety, or security; and

3. The applicant has been rehabilitated.

Having a USC dependent and demonstrating extreme hardship is another method, but versus the above, much harder to show in most cases. Given the circumstances you've described you should be fine. He obviously needs to remain clean as a whistle from now on though!

karenkaren1

thank you. The irony is, he's as straight-laced as they come! he hadn't even thought about this for over 2 decades until it just came to light....
hopefully after we get past this, I can teach my kids about the possible consequences of a small mistake when you are young and having fun!!
It is crazy to me the list of crimes that are eligible for the petty exception rule that in my opinion are much worse than being caught with a spliff....

S Folinsky

I suggest you reread the section. It's been some time since read 212(h), but that subsection applies to prostitution grounds of inadmissibility. The cross-reference makes it difficult to read and engender confusion.

S Folinsky

The immigration laws are behind the times when it comes to drug offenses.

karenkaren1

agreed!