Under the Nicaraguan Adjustment and Central American Relief Act or NACARA, certain Salvadorans, Guatemalans, Eastern Europeans, and members of the class action lawsuit known as ABC (American Baptist Churches v. Thornburgh) may still apply for an old, otherwise unavailable path to a green card known as Suspension of Deportation. Suspension of Deportation was a form of relief from removal that existed until 1996, allowing people to avoid deportation by showing seven years continual U.S. presence, good moral character, and the prospect of extreme hardship upon removal. If granted, NACARA Suspension of Deportation gives you lawful permanent resident status (a green card) in the United States.
In order to qualify for NACARA benefits, you must first confirm that you meet the country-specific deadlines set forth on the USCIS website. In addition to the cutoff dates for your particular country of origin, the following general eligibility rules apply to all NACARA Suspension of Deportation (also called “NACARA 203”) applications.
People with criminal records may, in some cases, be able to apply, but the eligibility standards are set higher, and are harder to meet.
General Eligibility Requirements for NACARA Suspension of Deportation
The basic requirements that apply to all applications for NACARA Suspension of Deportation will depend on whether or not you have a criminal record.
- Continuous physical presence (without a criminal record): You must be physically present in the United States for at least seven years immediately before you file your NACARA application. A “brief, casual, and innocent” visit abroad is not a concern; in other words, it wasn’t for unlawful purposes or because you were deported, and didn’t meaningfully interrupt your U.S. stay. A single trip of more than 90 days or several trips that add up to more than 180 days may, however, be a problem for your eligibility (in which case you’d definitely want to consult a lawyer in connection with your application).
- Continuous physical presence (with a criminal record): If you have a record that makes you deportable or inadmissible, then you will have to show ten years of continuous physical presence in the United States immediately before you submit your NACARA application. (Anyone with a criminal record should absolutely consult an immigration attorney before seeking U.S. immigration benefits.)
- Good moral character: You will also need to establish that you have been a person of good moral character during the period of continuous presence, namely seven years or ten years, depending on whether or not you have a criminal record. As long as you haven’t done anything wrong, such as commit a crime or fail to pay your taxes, this requirement shouldn’t be too hard to meet. For more information about this requirement, read, “When Proof of Good Moral Character Helps an Immigration Application - Or Doesn’t.”
- Extreme hardship (no criminal record): For ABC class members, Salvadorans and Guatemalans, the immigration officer will automatically assume that deportation from the United States will cause extreme hardship. However, an Eastern European applicant must actually show extreme hardship to himself or herself or to a U.S. relative. For a more detailed discussion of this requirement, see, “Proving ‘Extreme Hardship’ to a U.S. Relative for Immigration Purposes.”
- Exceptional and extremely unusual hardship (with criminal record): If you are deportable or inadmissible based on your criminal record, then you will have to prove that you or your family will suffer an exceedingly rare and unbelievably high degree of hardship if you are removed from the United States.
Who Is Blocked From Eligibility for NACARA Suspension of Deportation
You will not be able to qualify for NACARA Suspension of Deportation – and would risk removal by applying – if you fall into one of the following categories:
- Assisted in the persecution of other people: Persecution of others is a bar to U.S. asylum as well as NACARA.
- Have been convicted of an aggravated felony: Under U.S. immigration laws, certain criminal convictions fall into a category known “aggravated felonies” even if the criminal court never used that term, or perhaps called them misdemeanors. If you have a crime in your record that matches the immigration law definition of an aggravated felony, you will not be able to apply for NACARA. To learn more about whether you have a conviction that might fall into this category, look at “What’s an Aggravated Felony According to U.S. Immigration Law?” or consult an experienced immigration attorney.
- Have a final order of deportation or removal on record. If the immigration court has already ordered that you leave the U.S. (but you’re still here), normally the only way in which you could apply for NACARA Suspension is if you had a motion to reopen on file before September 11, 1998. In some rare cases, the Department of Homeland Security, “DHS”, may be willing to jointly request that the judge reopen your old deportation order. If you missed the filing deadline for the motion, you should consult with an immigration lawyer about whether to approach DHS about jointly asking the court to reopen your case.
Finally, you will need to persuade the judge or the immigration officer evaluating your application that you deserve this opportunity.
NACARA Suspension of Deportation: How to Apply
To apply for NACARA Suspension of Deportation, you will need to fill out USCIS Forms I-881 for yourself and for members of your family who meet the eligibility requirements, and pay the current filing fees. If your spouse, minor children, or unmarried adult sons or daughters all file together, you can take advantage of a discounted family fee. You will also need to gather the following documents to include with your application:
- Proof of nationality: You must prove that you are a citizen of one of the NACARA countries. Good evidence includes a copy of your birth certificate, passport, or naturalization certificate.
- Old asylum or TPS application: To qualify for NACARA Suspension of Deportation, you had to have applied for either asylum or TPS from El Salvador before a certain date. Attach a copy of that old application. If you don’t have it anymore, then submit a Freedom of Information Act request to USCIS to obtain a copy of your immigration file. (See How to Get a Copy of Your Immigration File (FOIA Requests).)
- ABC registration form: Also attach a copy of your ABC registration form, if you have it. However, USCIS will accept your credible testimony at the interview or in court about registration for ABC benefits, since the former INS lost many of the ABC registration forms.
- Date-of-entry evidence: You will need to establish that you arrived in the United States before the NACARA-specific cutoff date for your country of origin. The asylum officer or the Immigration Judge will likely accept the arrival date listed on your old asylum or TPS application. You may also submit letters from travel companions or travel records to establish your date of entry.
- Evidence of your continuous physical presence: This means proof that you have been in the U.S. for the full required seven years before the date you submit Form I-881. If you are inadmissible or deportable on criminal grounds, then you must show that you have been in the United States for ten years before filing the Form I-881. Brief visits abroad don’t hurt your continuous physical presence. However, USCIS will decide on a case-by-case basis whether a single trip of more than 90 days or various trips that add up to 180 days or more interrupted your continuous physical presence. Good documents include copies of bills, paychecks, leases, rent checks, school records, bank statements, taxes, Social Security records, and letters from friends and family.
- Hardship, good moral character, and other discretionary evidence: To make your case as strong as possible, it's good to submit as much evidence as you can showing that you are a responsible and deserving person. And if you have a criminal record that makes you deportable or inadmissible, then you absolutely must provide evidence that you or your U.S. relatives would suffer exceptional and extremely unusual hardship if you were deported. Get a lawyer's help if you can.
Once you submit your application, USCIS will send you a biometrics appointment for fingerprinting. The FBI and USCIS use your fingerprints to check your criminal and immigration records. If you think you might have an arrest history or convictions, see What to Expect at a USCIS Biometrics Appointment before sending out your application.