A memo from USCIS Chief Counsel Robert Divine states that a willful and unexcused failure to comply with NSEERS, commonly known as special registration, or the presence of any other ground of inadmissibility, would not justify the denial of an immigrant benefit petition separate from a request for a visa, admission or status.

The memo follows an April 2, 2004 Bill Yates memo that outlined the necessary compliance with NSEERS for an immigrant to be eligible for immigration benefits such as approval of visa petition. USCIS adjudicators routinely ask for proof of NSEERS registration in requests for additional evidence in all cases that they adjudicate and have erroneously denied petitions based on failure to register. However, the new Divine memo clearly states that even the willful and unexcused failure to comply with NSEERS cannot be used by USCIS in order to deny a benefit petition filed on behalf of that person, such as an I-130 family based petition, I-140 employment based petition or I-360 special immigrant petition. That is because the legal issue of whether a person is eligible for a benefit is narrower and different from the issue of whether such person is admissible to the United States.

The memo explains further that in immigrant and nonimmigrant applications, USCIS has limited discretion in adjudicating the case. For example, an I-130 family based immigrant visa application must be approved if a requisite family relationship exists between the petitioner and beneficiary. When the elements of the petitions are proven, USCIS must approve those petitions. A similar scenario applies to I-140, I-360 and I-526 applications as well as all non-immigrant visa applications.

However, whether a person later may be admitted into the U.S. as an immigrant or non-immigrant, or whether that person is qualified for change or extension of nonimmigrant status or other benefits, such as adjustment of status, may still require proof of NSEERS registration, because a willful and unexcused failure to register is a ground of inadmissibility. Therefore, examiners may notate on the visa approval that the beneficiary may have an apparent NSEERS violation or a possible ground of inadmissibility.

USCIS must also prove the “willful and unexcused” provision. If the person shows that he or she did not willfully violated the NSEERS provisions, he or she may be excused.

Written by Karen Weinstock, Managing attorney of Siskind Susser’s Atlanta, GA office, and Tovah R. Ackerman, Paralegal in the Atlanta, GA office.