NACARA 203: Eligibility to Apply with USCIS

Who Is Eligible to Apply for NACARA 203 Relief?

To be eligible to apply for NACARA 203 relief, an individual must not have been convicted of an aggravated felony and must fall within one of the following groups:

A.  A Guatemalan national who:

  1. first entered the United States on or before October 1, 1990 (ABC class member); and
  2. registered for ABC benefits on or before December 31, 1991; and
  3. has not been apprehended at time of entry after December 19, 1990.

B.  A Salvadoran national who:

  1. first entered the United States on or before September 19, 1990 (ABC class member); and
  2. registered for ABC benefits on or before October 31, 1991 (either directly or by applying for Temporary Protected Status – TPS); and
  3. has not been apprehended at time of entry after December 19, 1990.

C.  A Guatemalan or Salvadoran national who filed an application for asylum on or before April 1, 1990.

D.  An individual who:

  1. entered the United States on or before December 31, 1990; and
  2. applied for asylum on or before December 31, 1991; and
  3. at the time of filing the application was a national of one of the former Soviet bloc countries, which are the Soviet Union, Russia, any republic of the former Soviet Union, Albania, Bulgaria, Czechoslovakia, East Germany, Estonia, Hungary, Latvia, Lithuania, Poland, Romania, Yugoslavia, or any state of the former Yugoslavia.

E.  A “qualified family member” of an individual in one of the above categories. A qualified family member is the spouse, child, unmarried son, or unmarried daughter of an individual described in paragraph (A), (B), (C) or (D) above who has been granted suspension of deportation or cancellation of removal. The relationship of the qualified family member to the spouse or parent must exist at the time that the spouse or parent is granted suspension of deportation or cancellation of removal. An unmarried son or unmarried daughter who is 21 years of age or older at the time the parent is granted the relief must also have entered the United States on or before October 1, 1990.

F.  An alien who was issued an Order to Show Cause or was in deportation proceedings before April 1, 1997, and who applied for suspension of deportation under section 244(a)(3) of the INA, as in effect prior to April 1, 1997, (applies to someone who has been battered or subjected to extreme cruelty by a spouse or parent who is a US citizen or lawful permanent resident (LPR) or who is the parent of a child of a US citizen or LPR who has been battered or subjected to extreme cruelty by a US citizen or LPR).

NOTE:  If you believe you fall within this category, you should consult an immigration attorney or accredited representative to help you assess where to file your application. Generally, only the Immigration Court has jurisdiction to adjudicate applications for persons in this category.

G.  An alien who was the spouse or child of an individual described in paragraph (A), (B), (C), or (D) and the spouse, child or child of the spouse has been battered or subjected to extreme cruelty by an individual described in paragraph (A), (B), (C), or (D). The spousal or parental relationship must have existed at the time the individual described in paragraph (A), (B), (C), or (D) had a decision made on the application for suspension of deportation or cancellation of removal, filed the application, registered for ABC benefits, applied for TPS, or applied for asylum.

NOTE:  If you believe you fall within this category, you should consult an immigration attorney or accredited representative to help you assess where to file your application. Generally, only the
Immigration Court has jurisdiction to adjudicate applications for persons in this category.

What if I am subject to an outstanding final order of deportation or removal?

If you are described in paragraph (A), (B), (C), (D), or (E) above, but you have received a final order of deportation or removal, you must have filed a motion to reopen with the Executive Office for Immigration Review by September 11, 1998. If you did not file a motion to reopen by that date, you should consult an immigration attorney or accredited representative to determine if it is still possible to file a late motion to reopen. If you do not believe you are still subject to the final order of deportation or removal, you should consult an immigration attorney or accredited representative to help you assess whether you may be eligible to apply for NACARA 203 relief.

How do I qualify to be granted suspension of deportation or special rule cancellation of removal under NACARA 203?

After you determine that you are eligible to apply for NACARA 203 relief, you must also establish that you are eligible to be granted NACARA 203 relief. If you are described in paragraph (A), (B), (C), (D), or (E) in the section “Who Is Eligible to Apply for NACARA 203 Relief?” you must also establish:

  1. seven years of continuous physical presence in the United States; and
  2. good moral character during those seven years; and
  3. that your deportation or removal would result in extreme hardship to you or to your spouse, child, or parent who is a U.S. citizen or lawful permanent resident; and
  4. you merit a favorable exercise of discretion.

NOTE:   If you have been convicted of certain crimes, you may still be eligible to apply under a heightened standard, depending on the type of crime committed. If you have applied with the USCIS and you are subject to the heightened standard, USCIS will refer your NACARA application to the Immigration Court for a decision. The heightened standard includes, among other requirements, a longer continuous physical presence in the United States (10 years) and a higher degree of hardship if you are removed or deported. Anyone convicted at any time of a crime defined as an aggravated felony under section 101(a)(43) of the Immigration and Nationality Act is not eligible to apply.
 
If you are described in paragraph (F) or (G) in the section “Who Is Eligible to Apply for NACARA 203 Relief?" you must establish:

  1. three years of continuous physical presence in the United States; and
  2. good moral character during those three years; and
  3. that your deportation or removal would result in extreme hardship to you or to your spouse, child, or parent who is a U.S. citizen or lawful permanent resident; and
  4. you merit a favorable exercise of discretion.

Who has the burden of proof?

The applicant has the burden of establishing the requirements described above. However, if you are an individual who is eligible to apply for NACARA 203 relief because you are either 1) a Guatemalan or Salvadoran ABC-registered class member or 2) a Guatemalan or Salvadoran who applied for asylum by April 1, 1990, you will be presumed to meet the extreme hardship requirement, unless evidence in the record establishes that neither you nor any qualified relative would experience extreme hardship if you are removed from the United States.

If I am eligible to file for NACARA 203 relief as a Qualified Family Member, do I have to prove all the elements required to establish eligibility for suspension of deportation or special rule cancellation of removal?

Yes. A spouse, child, unmarried son or unmarried daughter of someone granted NACARA 203 relief must submit his or her own NACARA application. To be granted NACARA 203 relief as a qualified family member you must establish:

  1. seven years of continuous physical presence in the United States; and
  2. good moral character during those seven years; and
  3. your deportation or removal would result in extreme hardship to you or to your spouse, child or parent who is a U.S. citizen or lawful permanent resident ; and
  4. you merit a favorable exercise of discretion.

NOTE:  If you have been convicted of certain crimes, you may still be eligible to apply under a heightened standard, depending on the type of crime committed. If you have applied with USCIS and you are subject to the heightened standard, USCIS will refer your NACARA application to the Immigration Court for a decision. The heightened standard includes, among other requirements, a longer continuous physical presence in the United States (10 years) and a higher degree of hardship if you are removed or deported. Anyone convicted at any time of a crime defined as an aggravated felony under section 101(a)(43) of the Immigration and Nationality Act is not eligible to apply.

Individuals who have been convicted of an aggravated felony as defined in section 101(a)(43) of the Immigration and Nationality Act are not eligible to apply for NACARA 203 relief. Individuals subject to an outstanding final order of deportation or removal are not eligible to apply for NACARA 203 relief unless they are first granted a motion to reopen proceedings in Immigration Court.

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