What Is a “Waiver of Inadmissibility”?
Anyone who seeks to enter the United States or obtain residence must be admissible to the U.S. This means that the person seeking admission may not be among any of the classes of individuals deemed ineligible by law to enter the U.S.
Under the immigration laws, certain acts can result in a person being inadmissible to the U.S., either in temporary categories, or as a permanent resident.
Some common grounds of inadmissibility are related to:
- A criminal record
- Immigration offenses (such as visa fraud, prior removal or deportation, alien smuggling, or unlawful presence)
- Public charge
- And restrictions placed on a visa, such as J-1 visa holders subject to the two-year home country physical presence requirement
Can I Come to the U.S. Even if I Have Been Found Inadmissible?
If you have been found inadmissible due to one or more of the above grounds of inadmissibility, you may be eligible to file a “waiver of inadmissibility” (commonly referred to as a “waiver”) so that you may come to the U.S. (NOTE: for those whose ONLY ground of inadmissibility is “unlawful presence”, the new I-601A Provisional Waiver may be available).
What Are Some Common Grounds of Inadmissibility?
The most common grounds of inadmissibility that allow for and require waivers fall into three categories: criminal activities, misrepresentations to the U.S. government in previous immigration applications, illegal entry and prior immigration violations.
What Crimes Result Inadmissibility?
The most common grounds of criminal inadmissibility result from a conviction for a “crime involving moral turpitude” or a conviction for violating any law relating to a controlled substance. A crime involving moral turpitude (CIMT) is a generic term that may encompass many different offenses.
In general, it relates to offenses involving:
- And other forms of dishonesty
Before applying for any waiver, our experienced immigration attorney conducts a thorough analysis to ensure that you are, in fact, inadmissible. Sometimes, we have learned that U.S. immigration authorities often find offenses to be CIMT when the law is clear that they are not.
In addition, any individual convicted of two or more offenses for which the aggregate sentence exceeds five years of imprisonment, regardless of whether the offenses involved moral turpitude, is likewise inadmissible. Finally, it is important to note that an individual may also be inadmissible for admitting that he or she committed a CIMT or an offense relating to a controlled substance.
In other words, a conviction is not required to establish inadmissibility if the immigrant admits having committed the offense to an immigration official. There are strict rules about when such an admission can cause inadmissibility and the government routinely fails or refuses to follow them.
However, where an individual is inadmissible for a CIMT or a single offense involving less than 30 grams of marijuana, a waiver of inadmissibility is available.
What Kinds of Misrepresentations Cause Inadmissibility?
An individual can be rendered inadmissible for committing fraud or making a material misrepresentation when seeking an immigration benefit. But not all false statements qualify as material misrepresentations. The law makes a person inadmissible if the false statement was relevant and determinative of a question of eligibility.
For example, if an individual lied about having a bachelor’s degree when applying for an H-1B visa, which requires applicants to have at least a bachelor’s degree, that individual will almost certainly have made a material misrepresentation. However, if the same individual claimed that he weighed 180lbs when he actually weighed 210 lbs, that falsehood would not be material and would not create inadmissibility.
The Supreme Court in the case, Maslenjak v. United States, No. 16-309 rejected the government’s position that it could revoke the citizenship of Americans who made even trivial misstatements in their naturalization proceedings. At the Law Office of Yovanna Vargas, we will carefully examine the record to determine whether fraud was committed or a misrepresentation made before determining that a waiver is needed. If the individual did make a material misrepresentation, a waiver may be available.
What Types of Immigration Violations Create Inadmissibility?
An individual will be inadmissible for a period of three years if he or she is unlawfully present in the U.S. for more than 180 days but less than one year and departs the U.S. prior to the initiation of removal proceedings. An individual will be inadmissible for a period of ten years if he or she is unlawfully present in the U.S. for more than 365 days and then departs the U.S.
These are the so-called “3 and 10 year bars.” Unlawful presence includes all time in the U.S. after entry without inspection, time after the expiration of non-immigrant status, and time after the entry of a removal order. But there are exceptions and exclusions to unlawful presence and, before seeking a waiver, we will review the dates to make sure that a waiver is, in fact, required.
So… What Do You Need To Get a Waiver?
Waivers are perhaps one of the most complex and confusing areas of immigration law. Understanding the waiver process is difficult in itself, but knowing how to submit a successful waiver is even more difficult. Furthermore, USCIS is not required to grant an application for a waiver, it has the discretion to grant the waiver.
With an immigration lawyer on your side, the likelihood of your waiver application being successful increases dramatically.
The person must submit evidence to convince USCIS that it should grant the waiver. The supporting documentation is the most important aspect of a waiver submission. The supporting documentation must prove, at a minimum, that a “qualifying relative” of the inadmissible alien would suffer “extreme hardship” if the alien is unable to live in the U.S.
Who Is a Qualifying Relative?
The immigration statute defines which relatives are relevant for each ground of inadmissibility. Oddly, the Immigration and Nationality Act (“INA”) is the most generous when it comes to waivers for crimes. INA §212(h) provides that inadmissibility resulting from conviction for a crime or crimes involving moral turpitude may be waived if the applicant is the spouse, parent, son or daughter of a U.S. citizen or lawful permanent resident.
However, for inadmissibility resulting from fraud and unlawful presence, the INA only allows adjudicators to consider hardship to a spouse or parent of the applicant. In other words, applicants for waivers due to fraud or unlawful presence cannot rely upon hardship that denial of their visa would visit on their children.
What Does Extreme Hardship Mean?
Extreme hardship is an undefined and amorphous term. As a starting point, it is meant to signify greater hardship than would typically be expected when an individual is separated from close family members. There is no magic formula. Each case is different and preparation of a successful waiver application requires time and attention to understand the client’s past experience, present circumstances, hopes, fears, and motivations.
At the Law Office of Yovanna Vargas, we will take the time to get to know you and your family and develop potential arguments. Factors that often are highly relevant include serious health issues requiring treatment in the U.S., presence of family ties in the U.S. and the home country, significant financial issues, psychological and emotional issues, conditions in the country of relocation, a history of psychological issues or past negative experiences, social and community ties, inability to practice one’s religion or profession, and so forth. These are but a few examples, and we have learned that every case has its own nuances and that there is no single formula for a successful case.
As mentioned previously, the immigration authorities have broad discretion either to grant or deny the waiver. In exercising its discretion, USCIS will weigh the seriousness of the ground of inadmissibility and any other factors relating to the desirability or undesirability of allowing the applicant to reside in the U.S.
Attorney Vargas will perform a searching inquiry of the facts and a rigorous analysis of the law to determine if you are, in fact, inadmissible. If so, she will walk you through the waiver application process and explain the choices, options, and risks with you. We will take the time to get to know you and provide you with an honest assessment of whether we believe you will be granted a waiver.
Is a Waiver Right for Me?
Consulting with an immigration lawyer is the best way to determine if a waiver is right for you. Attorney Vargas has extensive experience in obtaining waivers of inadmissibility for our clients. Like many other areas of immigration law, the preparation of a successful waiver depends upon our ability to tell your story and the extreme hardship of your qualifying relative(s). At the Law Office Of Yovanna Vargas, we take the time and interest to learn about you, your family, and those factors that will make up a successful waiver application.
If you are abroad and ineligible for an immigrant or nonimmigrant visa because of inadmissibility grounds, we can help you apply for a waiver with Form I-601 Application for Waiver of Grounds of Inadmissibility. We are with you from the preparation and filing of your application to its adjudication by CIS and any appeals or motions to reopen or reconsider that may be necessary. If you have been removed, we can help you reapply for entry with an I-212 Application for Permission to Reapply for Admission.
The Provisional Waiver, I-601A
Immediate relatives seeking legal permanent residency are required to return to their home country for their immigrant visa interview as part of the consular immigrant visa process. A provisional waiver (I-601A and DS-260) will allow you to remain in the U.S. with your family while a decision on your waiver application is pending, greatly reducing the amount of time you would otherwise be required to remain outside the U.S.
To be eligible to apply for a provisional waiver, an applicant must meet the following conditions:
- Be an immediate relative of a U.S. Citizen or LPR (spouse, child, parent);
- Be the beneficiary of an approved immediate relative petition;
- Be 17 years of age or older and present in the U.S. at the time of filing the application for a provisional waiver; and
- Show extreme hardship to the U.S. citizen spouse or parent.
Get Help With Your Waiver Application From an Experienced Texas Immigration Attorney
A regular waiver of inadmissibility or a provisional waiver is by no means automatic; it takes a thorough knowledge of the system and the ability to prepare a solid, persuasive case to convince the government to grant you a waiver. Make the most of your chances for success by seeking help from an experienced Texas immigration lawyer with a record of success obtaining waivers for people in positions like your own.