People subject to deportation before April 1997 may apply for a suspension of deportation by filing Form EOIR-40 under former § 244 of the Immigration and Nationality Act (INA) or Form I-881 for aliens applying under the Nicaraguan Adjustment and Central American Relief Act (NACARA).
Generally, to be eligible for a suspension of deportation and a change of status to lawful permanent resident under § 244, the alien must:
- Have been physically present in the United States for a continuous period of seven years
- Have been a person of good moral character
- Prove that deportation will result in an extreme or, in some cases, an exceptional or extremely unusual hardship to the alien or the alien's immediate family members who are US citizens or lawful permanent residents
The physical presence requirement is reduced to three years for abused spouses and children and is extended to 10 years for aliens who have committed certain serious crimes. Military members who served honorably on active duty for at least 24 months are not required to meet the physical presence requirement.
An alien is not eligible for a Form EOIR-40 suspension of deportation if he or she:
- Entered the United States as a crewman after June 30, 1964
- Was a nonimmigrant exchange alien other than to receive graduate medical education
- Was subject to deportation as an alien who assisted Nazi persecution or engaged in genocide
Prior to filing the application, the alien must provide biometric and biographic information to the U.S. Citizenship and Immigration Services (USCIS). The application and certain required supporting documents must then be filed with U.S. Immigration and Customs Enforcement (ICE). The granting of the application is at the discretion of an immigration judge.
An alien who provides false information may be subject to criminal prosecution and civil penalties.
Generally, an alien subject to deportation may be eligible for a suspension of deportation or special rule cancellation of removal under § 203 of NACARA. To be eligible, the alien must:
- Be a national of El Salvador or Guatemala
- Entered the United States by the end of 1990 and applied for asylum by the end of 1991, and when he or she applied for asylum, was a national of the (former) Soviet Union or any of its republics, Poland, Czechosolvakia, Romania, Hungary, Bulgaria, Albania, East Germany, Yugoslavia or any state of the former Yugoslavia
- Be the spouse or unmarried child of one of the above-described nationals
- Not have been convicted of an aggravated felony or committed security violations
Under certain circumstances, the alien may also be required to be physically present for 10 years, establish good moral character and exceptional or extremely unusual hardship on immediate family members who are U.S. citizens or lawful permanent residents.
Applications and any required supporting documents must be filed with USCIS or an immigration court.
Applicants who file with USCIS will be interviewed by an asylum officer and must admit to being inadmissible or deportable before the suspension can be granted. If the suspension is granted, the alien's status is adjusted to that of a lawful permanent resident. If the suspension is denied, the alien will be placed in removal proceedings.
An applicant who provides false information may be subject to criminal prosecution and civil penalties.