INADMISSIBILITY AND WAIVERS
Reasons why a person may not be granted a visa,
plus rules and options for waivers.
Individuals who find themselves inadmissible to the U.S., may be able to apply for a waiver, and depending on the circumstances of the case this will waive the particular ground of inadmissibility and facilitate reentry to America. Grounds of removal from the United States are divided into two different categories under the Immigration and Nationality Act (INA):
- Grounds of Inadmissibility under section 212(a); and,
- Grounds of Deportation under section 237(a)(1)(A).
Although there are several areas of overlap between the above two sections of law, the main differences lie in the applicability of each section. In simple terms, the grounds of inadmissibility are applied to persons who are seeking admission and not yet admitted to America; compared to grounds of deportation, which are relevant when the individual has been admitted to the U.S. but who are now deportable based upon some violation of law.
Below is a brief introduction into the grounds of inadmissibility which may prevent an individual entering, remaining or adjusting their status in America.
These grounds are:
a) Inadmissibility due to certain health reasons,
- Such as communicable diseases of public health, as set out in the INA 42 CFR 34.2(b) including Class A tuberculosis, chancroid, gonorrhea, granuloma inguinale, lymphogranuloma venereum, syphilis, leprosy, etc.
- Individuals that have physical or mental disorders associated with harmful behaviors that pose, have posed, or will pose a threat to your safety, property, or welfare and that of others.
- Applicants for permanent resident who wish to secure an exemption of a vaccination requirement either based on religious belief or moral convictions may obtain a waiver.
b) Inadmissibility due to certain criminal reasons.
c) Inadmissibility due to national security reasons.
d) Inadmissibility due to alien smuggling.
e) Inadmissibility due to the likelihood of becoming a public charge.
f) Inadmissibility due to lack of labor certification.
g) Inadmissibility due to fraud or misrepresentation.
h) Inadmissibility due to prior removals and, or unlawful presence.
i) Inadmissibility due to membership of a totalitarian party.
j) Inadmissibility due to a civil penalty.
k) Inadmissibility due to miscellaneous grounds.
WHAT WAIVERS ARE AVAILABLE?
There are many types of waivers that are available to persons who find themselves inadmissible or deportable, and as the law surrounding such is quite complex, it is very important that a person seeks out professional advice prior to requesting a waiver. We have been assisting people in the U.S. and beyond apply for the following waiver(s) for over two decades and have been very successful in obtaining such waivers for our clients:
a. I-601 WAIVER
This is a general all-purpose waiver, which can be utilized to waive many past offenses, misrepresentation, fraud, unlawful presence, and other grounds of inadmissibility. An individual may apply for this waiver, if they have United States Citizen (USC) or Lawful Permanent Resident (LPR/Green Card) Spouse or Parent, and that relative will suffer ‘Extreme Hardship’. In certain cases, a USC fiancé(e) may also be a qualifying relative under sections, 9 FAM 41.81 N9.1
and 8 CFR 212.7(a)(1)(i).
b. I-601A PROVISIONAL WAIVER
Certain immigrant visa applicants who are relatives of U.S. citizens or lawful permanent residents may use this application to request a provisional waiver of the unlawful presence grounds of inadmissibility under Immigration and Nationality Act section 212 (a)(9)(B), before departing the United States to appear at a U.S. embassy or consulate for a visa interview.
The following requirements need to be met in order to apply for a I-601A waiver:
a) The Applicant needs to be physically present in America.
b) There needs to be an approved relative or employment petition, or certain other designated categories, for example be classified as a ‘Special Immigrant’ (which includes but not limited to, a Special Immigrant Juvenile (SIJ), a woman or man, who is a victim of abuse under the Violence Against Women Act (VAMA).
c) You are inadmissible because you have accumulated ‘Unlawful Presence’.
d) Have a qualifying relative who would suffer extreme hardship if the waiver were not granted.
If any of the following apply to a person’s case, they may not be eligible to apply for an I-601A waiver:
- The Applicant is under the age of 17 years of age.
- The Applicant is inadmissible for any other reason other than unlawful presence.
- The Applicant was or is in immigration court proceedings which have not been terminated, have a final order of removal in place, or were deported previously.
- If the Applicant has had was a visa interview scheduled at a U.S. Consulate before January 3, 2013, they are not eligible to apply for a provisional waiver.
- If there is a permanent bar in place against the Applicant.
To obtain a hardship waiver, the Applicant is required to prove that a ‘qualifying relative’ (‘QR’) will suffer ‘extreme hardship’ if they are not allowed to enter or remain in America. Although different immigration waivers have different definitions of who is a qualifying relative, in all cases the spouse of an Applicant who suffers extreme hardship will suffice. A U.S. citizen fiancé(e) can also be a QR, depending on the specific grounds of admissibility that are charged, but in referring to I-601 waivers, a QR could be a ‘U.S. Citizen or Legal Permanent Resident (green card holder) Spouse or Parent’. There may be an argument for some consideration to be given to others, for example children, but normally the extreme hardship they would incur will generally not be given much weight and it will only be considered if the hardship affects one or more of the QR’s.
The QR does not need to be the individual who filed the visa petition for you. For example, if your husband files a relative petition, a Q.R. can be your mother. Moreover, you can have more than one qualifying relationship and the hardship will be taken in the aggregate in order to determine extreme hardship. Consequently, no single hardship, taken in isolation, needs to rise to the level of extreme. Extreme hardship can occur if family members remain in the U.S. while the Applicant remains outside of the country, or if both were to reside in the home country, the family member may be subject to ostracism, discrimination, or persecution, or may not have access to necessary medical treatment. It should be noted that the natural consequences of separation/relocation may not be enough to reach the level of extreme hardship, so it is vital that we meet with all relevant parties to investigate the particular circumstances of your case.
Under current guidelines provided to immigration and consular officers, any factor that an Applicant puts forward should be considered when deciding a waiver. However, the following are some favorable considerations that we will investigate and with our client’s assistant document as much as possible:
- The age of the Applicant, both at the time of entry to the U.S. and at the time when the application is made.
- The age, number, and immigration status of the Applicant’s children and their ability to speak the native language and their respective abilities to adjust to life in the country they shall be returning to.
- The health condition of the Applicant and of their children, spouse, or parents. The Applicant can also raise the availability or quality of medical care in the country the qualifying relatives may be relocating to, or the care they may lose, if the waiver is not approved.
- The Applicant’s ability to obtain gainful employment in the country they will be removed to.
- The Applicant’s length of residence in America.
- The existence of other family members who are or will be legally residing in America.
- The financial impact of the Applicant’s departure.
- How the departure of the Applicant may adversely affect educational opportunities of the QR.
- The psychological impact of the Applicant’s removal on the QR.
- The current political and economic conditions in the country to which the Applicant will be removed to.
- The lack of family to the country to which the Applicant will be repatriated to;
- Contributions and ties to a community in America, including the degree of integration into society, any volunteer work and, or other positive equities.
- Any previously lawful immigration in America should be addressed.
- Any applications for relief that the Applicant may have, for example, adjustment of status based on a family petition.
‘Unlawful presence’ is the time a person stayed in America, without being ‘admitted’ or ‘paroled’ or when the ‘period of stay authorized by the Secretary of the DHS expired’. Individuals who have been found inadmissible to America, can apply for Consent to Renter (‘CTR’), if they have been removed and wish to return. If this is not obtained by the individual, they will have to remain outside of the U.S. for the relevant period of time.
The circumstances and relevant periods of time that an individual maybe bared are as follows:
a) A Five-Year Bar is applicable, but an individual may apply for a waiver:
- If you have been through ‘Expedited Removal’, or,
- Been in front of an Immigration Judge as an ‘Arriving Alien’; or,
- You were a lawful permanent resident with criminal convictions and you were put into removal proceedings after your entry into America.
b) A Ten-Year Bar is applicable, but an individual may apply for a waiver:
- You were ordered removed by an Immigration Judge, not as an ‘arriving alien’;
- You failed to leave the U.S., during the period allowable under ‘voluntary departure’.
- You left the U.S. on your own, whilst been in immigration court proceedings; or,
- You left the U.S. with a removal in effect.
c) A Twenty-year bar is applicable, but an individual may apply for a waiver:
- You have been removed from the U.S. on more than one occasion.
d) A Permanent bar is applicable, but an individual may apply for a waiver after ten years:
- After removal from the U.S., because you were convicted of an ‘aggravated felony’, for example, a theft offence with a sentence in excess of twelve-month, fraud causing a loss over ten thousand dollars, etc.
- You were deported and then re-entered, or tried to re-enter the U.S.; or,
- You reentered or tried to re-enter the U.S., after previously having been in the U.S. unlawfully for a total of more than a year.
People who were wrongfully admitted to the U.S. due to a misrepresentation of fact at the time of admission may be able to apply for a waiver.
Moreover, a waiver may also be applied for when a person by fraud or willful misrepresentation of a material fact, ‘seeks to procure, has sought to procure, or in fact has procured any benefit under the INA’ by fraud or willful misrepresentation of a material fact. In connection with a visa application, INA 212(a)(6)(C)(i), requires that three elements to be satisfied:
- The misrepresentation was made by the visa applicant.
- The misrepresenting was willfully made; and
- This misrepresentation was material in nature.
Under 212(d)(3) of the INA, the U.S. Attorney General has a discretionary power to waive the majority of the grounds of inadmissibility for non-immigrants who wish to travel to America for a temporary period of time (for example, individuals who wish to come to study, travel or even work). It is not available to persons who wish to adjust their status or to become a naturalized citizen. The maximum time that maybe given to a waiver recipient is five years but in reality, is far less.
Although this waiver is quite broad it does not waive offenses connected to espionage, sabotage, genocide, or persons who were involved in Nazi persecution, but it may be of benefit to persons who have previously been barred from the U.S., or have criminal convictions, unlawful presence, fraud or misrepresentation issues.
When determining to grant this waiver the USCIS/AG will look to:
- Is there any risk of harm to America if the non-immigrant is given this waiver?
- The seriousness of the non-immigrant’s prior criminal, and, or immigration violations.
- Any valid reasons why the non-immigrant wishes to enter America, and these reasons do not have to reach the standard of compelling, for example the extreme hardship standard.
The final thing to note in relation to this waiver, is that it will not interrupt the absence requirement that some individuals may face, for example, the 5, 10 or 20 year bars, that affects a person’s ability to obtain an immigrant visa and the need to wait out this period. Thus, a person may return to the U.S. during their bar, which will be essentially unaffected. Persons who have previously removed from the U.S. and are subject to a bar will also need to file a consent to reenter.
CriminAl History and Immigration
Depending on a person’s criminal history, a person may be eligible to apply for a 212(h) waiver, and we encourage you to contact us if you have any questions on such. The following is a very quick look at how your criminal history may make you inadmissible.
Immigration authorities can hold your criminal history against you even if you were not convicted. Thus, it is very important that we review not just your disposition from the court, but also your rap sheet, charge sheet, etc. We can assist you to obtain this from the state court that processed your criminal case, but if you were arrested in different states, or do not know what state you were arrested in, we can obtain a F.B.I. rap sheet; although a state level record is preferred as they are more precise. Moreover, it does not matter if the offense occurred many years ago, or if it occurred in another country, as these can also be looked at and held against you.
CRIMES INVOLVING MORAL TURPITUDE
Committing an offense or even an ‘admission’ to committing a ‘crime involving moral turpitude’ (CMT), will make you inadmissible to America.
There are two narrow exceptions to this rule:
- Petty offense exception.
- The juvenile exception.
Committing an offense or even an ‘admission’ to committing a drug offense, will make you inadmissible to America. However, even if there is a ‘reason to believe’ that you have been trafficking in drugs or financially benefited from trafficking in drugs in any manner, even if such trafficking was done by a spouse or a parent this will also raise the issue of inadmissibility and affect your chances to obtain a visa.
MULTIPLE CRIMINAL CONVICTIONS
If you have two offenses of any type, and the combined sentences (including the suspended), are in excess of five years, you will have an inadmissible issue.
There are also crimes and some aggravated offenses that can make you inadmissible, some of which, may include, money laundering, human trafficking, prostitution etc.
THE THREE-PART TEST ON WAIVER ELIGIBILITY
Normally we will apply a three-part test to determine if an Applicant can obtain a waiver of inadmissibility.
1. FOR SERIOUS CRIMES
This waiver is unavailable to an individual who has:
a. Been convicted, or admitted to any drug offense, except a single offense of thirty grams or less of marijuana (it is of no consequence that the possession/use of marijuana has been legalized by some states), or,
b. Been convicted or admitted to murder or torture of a person, either in the U.S. or in another country.
2. LAWFUL PERMANENT RESIDENT
If you were a lawful permanent resident (you previously held a green card), you are unable to obtain a waiver if,
a. You ever committed an offense classified as an aggravated felony, or,
b. You did not continuously live in the U.S., for seven years prior to the start of your removal proceedings.
Taking into consideration ‘1 and 2’ and if the individual is eligible to apply for a visa, there is still a requirement to show one of the following:
i. Criminal history must have occurred more than fifteen years ago;
ii. The ground of inadmissibility was due to a prostitution offense(s),
iii. By granting this waiver,
- your return would not be detrimental to the interests of the U.S. and that you have been in fact rehabilitated; or,
- By not granting this waiver and not allowing you to return to the U.S., this creates an ‘extreme hardship’ to a husband, wife, parent, son or daughter who are either American citizens or lawful permanent residents.
iv. You are classified as a ‘battered spouse’ under VAWA.
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