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U.S. Immigration law explains how to forgive unlawful presence in order to get a green card through a process called the Provisional Unlawful Presence Waiver.  Section 212(a)(9)(B)(v) of the Immigration and Nationality Act (Act) provides two requirements:

  1. Refusal of admission to the U.S. would result in extreme hardship to a U.S. citizen (USC) or Lawful Permanent Resident (LPR) spouse or parent; AND
  2. A waiver is warranted as a matter of discretion.

In a prior article I discussed Extreme Hardship, in this article I want to describe what is meant by the second requirement “Favorable Discretion.”  U.S. Citizenship and Immigration Services (USCIS) will review all known factors, evidence, and circumstances, both favorable and unfavorable, in making a final decision.  The officer has to balance all the equities decide that your favorable factors outweigh your negative factors.

Obama's DACA Deferred Action Benefits Speech | New Jersey Immigration Lawyer | Immigration Law

What are some Positive Factors that support discretion?

Some positive factors include:

  1. Family ties in the U.S.;
  2. Long time living in the U.S. (particularly if you came to the U.S. as a minor);
  3. Evidence of extreme hardship;
  4. Service in the U.S. armed forces;
  5. History of stable employment;
  6. Ownership of property or business ties to the U.S.’
  7. Evidence of value or service to the community (organizations); and
  8. Evidence showing your good moral character.  For example, affidavits from family, friends, and responsible community representatives.

What are some Negative Factors that support denial of discretion?

Some Negative Factors include:

  1. What makes you inadmissible to the U.S.? (e.g., failure to show up to court, unlawful presence, etc.);
  2. Additional significant violations of U.S. immigration laws;
  3. Any criminal record and the nature of the crime;
  4. Don’t have close family ties;
  5. Prior fraud or false testimony in order to get an immigration benefit;
  6. Evidence of your bad character or immorality like willful failure to pay alimony, child support, or taxes.

It is your job to focus the officer on the positive factors and reduce the negative factors.  You never want to ignore the negative factors.  The officer won’t miss your criminal record, but you can minimize it.  For example, you show how you have changed since the DUI.  You can show how you have started to manage your alcohol addiction and how over time you have learned to face your problem.  You are now a pillar of your community, a family orientated person, and spiritual person.  In short, you hit bottom eight years ago you and turned your life around.  You have grown.  Now prove it.

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