INTERNATIONAL TRAVEL AS A U NONIMMIGRANT
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CAN I TRAVEL ONCE MY U VISA IS APPROVED?
Once you receive the I-918 approval notice indicating you are in U nonimmigrant status, can you can travel outside of the United States?
Technically, individuals in U nonimmigrant status are eligible to apply for a U visa abroad at a U.S. consulate and may be able to use that visa to reenter the United States after a trip abroad. While theoretically possible, it would not be advisable.
There are also two serious concerns that would arise relating to unlawful presence bars and the continuous physical presence requirements for U nonimmigrants to be able to adjust status and obtain a green card after three years in U status.
UNLAWFUL PRESENCE BARS
There are also complications that arise from unlawful presence. If the U visa holder accrued unlawful presence, which most have, then departure from the United States will trigger a three- or ten-year bar making them inadmissible. Once a U nonimmigrant that is outside of the country has triggered a new ground of inadmissibility such as the unlawful presence, they will need to apply for a new waiver of inadmissibility on Form I-192 (any existing I-192 that was approved will only cover grounds of inadmissibility that existed at the time it was approved not grounds that were triggered after). They will be required to remain outside of the United States during the adjudication of the waiver.
Note: This is because they are outside the United States and reentering thus they must be admissible, otherwise new grounds of inadmissibility would not necessarily require a new waiver for purposes of adjustment of status.
CONTINUOUS PHYSICAL PRESENCE REQUIREMENTS FOR ADJUSTMENT OF STATUS IN THREE YEARS
Further it may create an obstacle to later eligibility to adjust status to become a legal permanent resident and get a green card. In order for U visa holders to apply for adjustment of status to lawful permanent residence, she must demonstrate continuous physical presence in the United States. The regulations state that “an alien shall be considered to have failed continuous physical presence…if the alien has departed from the United States for any period in excess of 90 days or for any periods in the aggregate of 180 days.”
Since it will almost certainly take more than 90 days to process the visa and/or waiver needed, the U visa holder will likely become ineligible for adjustment of status since they will have an interruption in their continuous physical presence.
GROUNDS OF INADMISSIBILITY TRIGGERED AFTER THE APPROVAL
U visa holders are not required to demonstrate their admissibility when applying to adjust their status pursuant to INA §245(m). When the U nonimmigrant applies to adjust status through INA §245(m), there is no need—and, actually, no mechanism—for USCIS to waive a ground of inadmissibility, and the existence of the unwaived ground of inadmissibility will not preclude them from adjusting status.
Any ground of inadmissibility may factor into USCIS’s determination as to whether discretion should be exercised in the applicant’s favor. Therefore, it is possible that a serious criminal issue or alike will ultimately end up preventing them from being able to adjust status just under a different legal ground.
Per the regulations, where new grounds of inadmissibility and other adverse factors are present at the adjustment stage, the applicant may “offset” them “by submitting supporting documentation establishing mitigating equities that the applicant wants USCIS to consider when determining whether or not a favorable exercise of discretion is appropriate.” See 8 CFR §245.24(d)(11). Depending on the nature and severity of the adverse factors, “the applicant may be required to clearly demonstrate that the denial of adjustment of status would result in exceptional and extremely usual hardship.” See 8 CFR §245.24(d)(11). [The regulations provide that “USCIS will generally not exercise its discretion favorably in cases where the applicant has committed or been convicted of a serious violent crime, a crime involving sexual abuse committed upon a child, or multiple drug-related crimes, or where there are security- or terrorism-related concerns.” Id.]
In that scenario, if trying to overcome new grounds of inadmissibility, you would want to try to tie the new ground of inadmissibility or other adverse factor(s) to the applicant’s victimization and/or cooperation with law enforcement. Though such a showing is not legally required, it can serve as a strong mitigating equity. Address and provide evidence of the humanitarian considerations and disruption to family unity that will result if USCIS denies the adjustment application.
REVISITING PRIOR GROUNDS OF INADMISSIBILITY & ADVERSE FACTORS ALREADY ADDRESSED
It has become increasingly common for USCIS to issue Requests for Evidence (RFEs) and Notices of Intent to Deny (NOIDs) and to deny U-based adjustment applications based on grounds of inadmissibility and/or other negative discretionary factors that the U visa holder previously disclosed and addressed in the underlying U visa petition. I would be wise to anticipate this.
In the adjustment of status context, the issue is no longer one of inadmissibility but of discretion. Even if the criminal history occurred before the U visa was granted, and even if a waiver was granted for the ground of inadmissibility, you still need to present evidence of discretion to overcome these negative factors at the adjustment stage.
You should decide on a case-by-case basis whether you may want to try arguing that USCIS is abusing its discretion and that they should not be relitigating these matters (in the event the adverse factors are particularly severe and may impact the outcome).
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