NACARA 203: Eligibility to Apply with the USCIS

NACARA 203: Eligibility to Apply with the USCIS

Can I apply for NACARA 203 relief with the USCIS?

You can apply for NACARA 203 relief with the USCIS only if you have not been convicted of an aggravated felony as defined in section 101(a)(43) of the Immigration and Nationality Act, you are not subject to an outstanding final order of deportation or removal, you are not in exclusion proceedings, and you are one of the following (see chart of eligibility to apply with the USCIS):

1. A Guatemalan ABC-registered class member who filed for asylum on or before January 3, 1995, and the USCIS has not issued a final decision on that asylum application.

2. A Salvadoran ABC-registered class member who filed for asylum on or before February 16, 1996, and the USCIS has not issued a final decision on that asylum application. 

   (Note: Under the terms of the ABC settlement agreement, the INS (now USCIS) sent Notice 5 to all Salvadorans who registered for ABC benefits by filing for Temporary Protected Status (TPS).  Notice 5 informed Salvadorans who applied for TPS of the deadline for filing their ABC asylum applications.  If a Salvadoran who applied for TPS establishes that he or she was not properly sent Notice 5 back in 1995, then that person has 90 days from the date Notice 5 is properly issued to file an asylum application under the terms of the ABC settlement agreement.)

3. A Guatemalan or Salvadoran who filed an application for asylum on or before April 1, 1990, and the USCIS has not issued a final decision on that asylum application.

4. An individual who entered the United States on or before December 31, 1990, filed for asylum on or before December 31, 1991, and was a former Soviet bloc national at the time of filing, and the USCIS has not issued a final decision on that asylum application.

5. A NACARA qualified family member and either 1) the USCIS has granted your parent or spouse suspension of deportation or cancellation of removal, or 2) your parent or spouse has a NACARA application pending with the USCIS.  In addition, if you are in deportation or removal proceedings, those proceedings must be administratively closed or have been continued on while on appeal before you can file a NACARA application with the USCIS.

All other individuals who are eligible to apply for NACARA 203 relief can only file their NACARA applications with the Immigration Court after they are placed in proceedings before an Immigration Judge.

If I have never been in deportation or removal proceedings before an immigration judge and I am eligible to apply for NACARA 203 relief, will I be allowed to file my NACARA 203 application with the USCIS?

Only certain individuals are eligible to file their applications for NACARA 203 relief with the USCIS.  Some individuals who are not presently in deportation or removal proceedings are not eligible to file their NACARA applications with the USCIS. 

Examples of persons who are not eligible to file their NACARA applications with the USCIS on their own:

1. A Guatemalan or Salvadoran ABC class member who registered for benefits under the settlement agreement, but did not file an asylum application by the required ABC deadline (Guatemalans - by January 3, 1995; Salvadorans - by February 16, 1996, or 90 days after Notice 5 is issued).

2. A Guatemalan or Salvadoran ABC class member who registered for benefits under the settlement agreement and filed his/her asylum application by the required deadline, but has already been interviewed and received a final decision on that application under the terms of the settlement agreement. 

3. A Guatemalan or Salvadoran national who applied for asylum with the USCIS on or before April 1, 1990, but has already been issued a final decision on that asylum application by the USCIS.

4. A national of one of the former Soviet Bloc countries who entered the United States and filed for asylum with the USCIS by the required dates under NACARA, but has already been issued a final decision on that asylum application by the USCIS.

5. An individual who is eligible to apply on the basis of being a qualified family member and whose spouse or parent has been granted NACARA 203 relief by an immigration judge or the Board of Immigration Appeals not by the USCIS.

If you fall into one of the above categories, you will only be eligible to file your NACARA application with the USCIS if your parent or spouse is also NACARA-eligible, has filed a NACARA application with the USCIS, and that application is still pending or has been approved by the USCIS.

If you are not eligible to file your application for NACARA 203 relief with the USCIS, you can only file your NACARA application with the Immigration Court if you are placed into deportation or removal proceedings.

If I am eligible to apply for NACARA 203 relief, but cannot apply with the USCIS, how do I apply?
If you are not eligible to file for NACARA 203 relief with the USCIS, you can only apply if you are placed in deportation or removal proceedings before an immigration judge.  If you are not presently in such proceedings, the USCIS must first determine that you are residing in the United States illegally and issue charging documents before you can be placed in removal proceedings before an immigration judge.  To be issued a charging document, you may go to your local USCIS district office and request charging documents to place you in removal proceedings. The USCIS district office may exercise prosecutorial discretion and choose not to issue the charging documents you are requesting, depending on the resources of that office.  The charging document will tell you when you should appear in front of the immigration judge and the judge will explain the forms of relief available to you.  If suspension of deportation or cancellation of removal under section 203 of NACARA is an available form of relief, the judge will explain the application process to you.

If you would like further information on applying for NACARA relief through the courts, you should speak with someone experienced with immigration matters.

What is the difference between applying with the USCIS and with an immigration judge?
There is no difference in the eligibility standards applied by the USCIS and an immigration judge.  Prior to publication of the regulations implementing section 203 of NACARA (effective June 21, 1999), only an immigration judge or the Board of Immigration Appeals could adjudicate a request for suspension of deportation or special rule cancellation of removal.  The Attorney General decided to give USCIS asylum officers authority to adjudicate certain applications for NACARA 203 relief because most of the eligible individuals have asylum applications pending with the USCIS, including most of the approximately 240,000 registered ABC class members.  Allowing these individuals and their qualified family members to apply for relief under section 203 while their asylum applications are pending with the USCIS Asylum Program provides an efficient method for resolving most of the claims at an earlier stage in the administrative process. 

The relief offered by the Immigration Court and the Asylum Program is the same.  However, the process for applying in Immigration Court is different from the process for applying with the USCIS, and the required fee is different.  Individuals who apply in Immigration Court must complete the NACARA 203 application - Form I-881, Application for Suspension of Deportation or Special Rule Cancellation of Removal and give the required documents to both the Immigration Court and the USCIS District Counsel.  The clerk of the Immigration Court can provide information outlining all the documents that must be completed, and which ones need to be given to the Immigration Court and the USCIS District Counsel.  The fee for applying in Immigration Court is $100.  No more than $100 will be charged whenever applications are filed by two or more individuals in the same proceedings in Immigration Court.

The same application, Form I-881, is used to apply for NACARA 203 relief with the USCIS, but the fee is higher. Read more on how to apply with the USCIS.

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