INA §245(c)(6)
INA §245(c)(6) states that ordinary adjustment under §245(a) does not apply to a person who is deportable under INA §237(a)(4)(B), subject to the general statutory treatment of approved VAWA self-petitioners.
The central question is not simply whether USCIS uses the word “terrorism.” The government must identify how the applicant falls within §237(a)(4)(B), which itself incorporates specified provisions of INA §212(a)(3).
INA §237(a)(4)(B)
INA §237(a)(4)(B) provides that a person described in INA §212(a)(3)(B) or §212(a)(3)(F) is deportable.
The principal incorporated provisions concern:
- Terrorist activities and terrorism-related associations under §212(a)(3)(B); and
- Specified association with terrorist organizations under §212(a)(3)(F).
Terrorism-related inadmissibility grounds are unusually broad
INA §212(a)(3)(B) contains multiple categories of terrorism-related inadmissibility commonly referred to as TRIG.
Depending on the facts, the statute can reach:
- Commission of terrorist activity;
- Incitement;
- Preparation or planning;
- Gathering information on potential targets;
- Solicitation of funds;
- Solicitation of membership;
- Recruitment;
- Provision of material support;
- Representation of certain terrorist organizations;
- Membership in certain organizations;
- Endorsement or espousal of terrorist activity in specified circumstances; and
- Specified derivative family relationships.
Tier I, Tier II, and Tier III organizations
The INA recognizes different categories of organizations for terrorism-related purposes.
The analysis can involve:
- Organizations formally designated under federal law;
- Organizations separately designated through statutory procedures; and
- Undesignated groups of two or more persons that satisfy the statutory definition through their activities.
This makes the factual history of the organization, time period, region, subgroup, and applicant's knowledge particularly important.
Material support
Material-support allegations are among the most common and difficult TRIG issues.
Depending on the facts and statutory definitions, support can potentially include:
- Transportation;
- Funds;
- Transfer of property;
- Provision of lodging;
- Communications assistance;
- Documents;
- Weapons or ammunition;
- Training;
- Professional services;
- Other tangible or intangible assistance; and
- Assistance to an individual connected to a qualifying organization.
Knowledge and reasonable-knowledge issues
Some terrorism-related provisions contain knowledge or reasonable-knowledge elements.
A complete factual record may therefore need to establish:
- What the applicant knew at the time of the conduct;
- What information was reasonably available;
- How the organization publicly presented itself;
- Whether the organization had multiple lawful and unlawful functions;
- Whether the applicant knew the identity or affiliation of the recipient;
- When any terrorist activity became known; and
- Whether the applicant stopped activity after learning relevant facts.
Knowledge should ordinarily be analyzed at the time the alleged support, solicitation, membership, or association occurred rather than through hindsight based on later developments.
Duress does not automatically eliminate TRIG
Historically, terrorism-related provisions produced difficult results where support or activity occurred under coercion or duress.
DHS has exercised discretionary exemption authority for certain categories of conduct occurring under duress, but the availability of an exemption depends on:
- The precise TRIG ground;
- The organization involved;
- The nature of the activity;
- Whether a current exemption covers that conduct;
- Required disclosures;
- Any disqualifying conduct; and
- Whether the exemption is warranted as a matter of discretion.
Secretarial TRIG exemptions under INA §212(d)(3)(B)(i)
Congress authorizes the Secretary of Homeland Security and Secretary of State, in consultation with the Attorney General, to exercise discretionary exemption authority for certain terrorism-related inadmissibility provisions.
Over time, DHS has issued exemptions addressing specified situations such as:
- Certain activity performed under duress;
- Certain limited material support;
- Specified routine commercial transactions;
- Specified humanitarian assistance;
- Certain associations with qualifying undesignated organizations; and
- Other narrowly defined categories.
Why an ordinary Form I-601 may not solve the case
INA §212 contains numerous waiver provisions, but the common family-based waivers under INA §212(h) and §212(i) do not provide a general waiver of §212(a)(3)(B) terrorism-related inadmissibility.
Similarly, Form I-601 should not be treated as a universal mechanism for overcoming §245(c)(6).
Identify the exact statutory terrorism ground, determine whether the applicant is actually covered, determine whether an authorized TRIG exemption exists, and only then evaluate the remaining adjustment requirements.
INA §245(i) and §245(c)(6)
INA §245(i) operates notwithstanding subsections (a) and (c), so a qualifying grandfathered applicant may avoid certain ordinary §245(c) restrictions.
That does not ordinarily resolve a terrorism case because §245(i)(2)(A) separately requires the applicant to be admissible for permanent residence.
VAWA and the subsection (c) exception
INA §245(c) begins with an exception for an applicant with an approved petition for classification as a VAWA self-petitioner.
That statutory treatment can remove the subsection (c) bar itself.
Special immigrant juveniles and §245(c)(6)
SIJ adjustment is uniquely structured by INA §245(h) and 8 C.F.R. §245.1(e)(3).
The current regulation states that an SIJ applicant is subject only to the adjustment bar in INA §245(c)(6).
It further states that if the SIJ applicant is deportable based on terrorist activity or association under §237(a)(4)(B), there is no waiver or exemption to the §245(c)(6) adjustment bar itself.
The SIJ waiver provision also expressly excludes major security-related inadmissibility grounds, including INA §212(a)(3)(A), §212(a)(3)(B), and §212(a)(3)(C).
Evidence in a terrorism-related adjustment case
The factual record may require:
- Employment and business records;
- Contracts and invoices;
- Bank records;
- Transportation records;
- Communications;
- Organizational records;
- Government intelligence or public-designation records where available;
- Country-condition evidence;
- Evidence establishing when affiliations became publicly known;
- Applicant declarations;
- Witness declarations;
- Prior visa applications and interview records;
- Prior immigration filings;
- CBP or consular records;
- Law-enforcement records; and
- Evidence addressing knowledge, intent, coercion, or the commercial nature of the transaction.
Responding to a TRIG RFE or NOID
A response should require precision about the statutory theory.
The analysis should identify:
- The exact subsection of INA §212(a)(3)(B) or §212(a)(3)(F) allegedly implicated;
- The conduct USCIS says satisfies that subsection;
- The organization involved;
- The organization's statutory tier or qualifying activity;
- The applicant's knowledge or reasonable knowledge where relevant;
- Whether the alleged support was actually provided;
- Whether a statutory exclusion applies;
- Whether a current Secretarial exemption exists;
- Whether §237(a)(4)(B) is actually established; and
- Whether §245(c)(6) therefore applies.
The word “support,” “association,” or “terrorist organization” in a government notice should be mapped to the statutory elements before the applicant responds to the merits.
National-security concerns and adjustment discretion
If a statutory security bar applies, favorable discretion cannot overcome it.
If no statutory bar applies, USCIS may nevertheless consider national-security-related facts in the discretionary analysis where the adjustment category is discretionary.
Current USCIS policy treats certain support for or promotion of terrorist organizations or terrorist ideologies as an extremely serious negative discretionary consideration.
First decide statutory coverage. Only after statutory eligibility is established should the adjudicator weigh discretionary factors.
Frequently asked questions
Does INA §245(c)(6) require a terrorism conviction?
No. The bar cross-references statutory terrorism-related provisions that can apply without a criminal conviction.
Is material support limited to money or weapons?
No. The statutory concept can reach a broader range of assistance, depending on the facts and applicable definitions.
Does the organization have to be formally designated by the State Department?
No. The INA also recognizes qualifying undesignated, or Tier III, terrorist organizations.
Can I file Form I-601 to waive §245(c)(6)?
There is no general I-601 waiver for the terrorism-related adjustment bar. Certain TRIG grounds may be subject to specialized Secretarial exemption authority under INA §212(d)(3)(B)(i).
Does INA §245(i) fix a terrorism-related adjustment problem?
Not necessarily. Even if §245(i) bypasses a subsection (c) bar, the applicant must still establish admissibility, and unresolved INA §212(a)(3)(B) inadmissibility remains a separate obstacle.
Is §245(c)(6) especially important for SIJ adjustment?
Yes. Current regulations state that SIJ applicants are subject only to the §245(c)(6) adjustment bar and provide no waiver or exemption to that adjustment bar if it applies.