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Eleventh Circuit Rules Waiver Must be with Adjustment

In a recent ruling by the Eleventh Circuit Federal Court of Appeals, the Court ruled that a person in removal proceedings who wishes to apply for a waiver of inadmissibility under Section 212(h) of the Immigration and Nationality Act, must do so in conjunction with an adjustment of status application. See, Poveda v. U.S. Att’y Gen.

Previously, the Eleventh Circuit was the only place in the United States where a person could apply for a waiver under 212(h), while already admitted into the United States without an adjustment of status application. See, Yeung v. INS.

The Poveda case now overturns the Yeung case. What this means is that anyone who is already present in the United States and who wishes to apply for a section 212(h) waiver, must have a way to also apply or re-apply for their green card in conjunction with the waiver. Many people who would otherwise meet the qualifications for this waiver will not be eligible because they do not have a manner in which to adjust status to green card holder.

We look for the Poveda case to eventually make its way to the U.S. Supreme Court.