Waivers of Inadmissibility

 

Waivers of Inadmissibility

Individuals who are subject to a ground of inadmissibility under U.S. immigration law are ineligible for most immigration benefits during the period of inadmissibility.  In many cases, a waiver of inadmissibility is available, which if granted, will allow the individual to obtain the immigration benefit they are seeking much sooner.  Ms. Ziemba has assisted many foreign nationals obtain waivers of inadmissibility.  If you would like more information on how our office can assist you in obtaining a waiver of inadmissibility, please contact us for an appointment.  For information on some of the most common waivers of inadmissibility, please select a tab below.  

 

Waivers of Crimes 

Under §212(h) of the Immigration and Nationality Act, non-citizens seeking permanent resident status in the United States who are inadmissible as a result of being convicted of or admitting to the commission of certain crimes may seek a waiver of inadmissibility.  A waiver may be granted to those found to be inadmissible on account of:

* A crime involving moral turpitude

*  Multiple criminal convictions

*  Controlled substance violation if it involved a single offense related to simple possession of 30 grams or less of marijuana

*   Prostitution and commercialized vice(e.g. gambling);or  

*  Involvement in a serious criminal activity and having asserted immunity from prosecution.

 

A foreign national subject to these criminal grounds of inadmissibility may apply for a waiver under the following three circumstances:

1.  The individual is inadmissible based on activities related to prostitution and commercialized vice or the activities for which the applicant is inadmissible occurred more than 15 years before the date of the visa application or application for adjustment of status and the applicant can demonstrate that s/he has been rehabilitated and his/her admission to the United States would not be contrary to the national welfare, safety or security;

2.  The applicant is the spouse, parent, son or daughter of a United States citizen or lawful permanent resident (LPR) and the applicant can demonstrate that his or her U.S. citizen or LPR  spouse, child, or parent would suffer extreme hardship if the waiver is not granted; or

3.  The applicant is a VAWA self-petitioner (i.e. battered spouse or child of a U.S. citizen or lawful permanent resident)

 

This waiver is not available to the following individuals:

1.  An alien who has been convicted of( or who has admitted committing acts that constitute) murder or criminal acts involving torture, or an attempt or conspiracy to commit murder or a criminal act involving torture.

2.  An alien who was previously granted permanent residence if either since the date of such admission the alien has been convicted of an aggravated felony or the alien has not lawfully resided continuously in the United States for a period of not less than 7 years immediately preceding the date of initiation of proceedings to remove the alien from the United States

 

Extreme hardship is not defined in the Immigration and Nationality Act, but is hardship greater than what would normally be expected when family members are separated from one another.  Factors that will be considered in determining extreme hardship include, but are not limited to the following:

♦  The qualifying U.S. citizen or lawful permanent resident’s family ties within and outside of the United States, particularly within the country of relocation;
♦  The emotional and psychological impact of separation on the U.S. citizen or Lawful Permanent Resident relative;

♦  The political, economic, and social conditions in the country of relocation;

♦  The financial and professional effect removal would have on the U.S. citizen relative;
♦  Any significant health conditions or developmental issues, particularly when tied to the unavailability of suitable medical care, educational, or therapeutic assistance in the country of relocation;
♦  The U.S. citizen’s ability to raise children in the country of relocation and other quality of life factors; and
♦  The U.S. citizen’s age, length of residence in the United States, health, technical skills, employability, and other factors.
 

 
An applicant for a waiver under 212(h) must also show that s/he deserves a favorable exercise of discretion.  Factors that will be considered in determining whether an applicant deserves to be granted the waiver include proof of rehabilitation, length of residence in the United States, community ties and involvement in community activities, and the age and health of the applicant. 

 

Waivers of inadmissibility are difficult to obtain and it is very important to put together a strong application packet with substantial documentation of the hardship and positive discretionary factors.  If you would like more information on how Ziemba Law Firm can assist you with a waiver of inadmissibility, please contact us at (704) 602-0042 for an appointment.  

 

Unlawful Presence Waiver

Individuals who are inadmissible to the United States due to previous periods of unlawful presence (Click here to see information about Unlawful Presence Grounds of Inadmissibility) may qualify for a waiver under certain circumstances.  An individual who is subject to either the 3 or 10 year bars due to unlawful presence may obtain a waiver of this ground of inadmissibility if s/he can demonstrate that a denial of admission to the United States would result in extreme hardship to the applicant’s U.S. citizen or lawful permanent resident spouse or parent and that s/he deserves a favorable exercise of discretion.    U.S. citizen or lawful permanent resident children are not qualifying relatives for purposes of eligibility for a waiver of unlawful presence.  Extreme hardship to a U.S. citizen or lawful permanent resident child is only relevant in so far as one can demonstrate such hardship to the child contributes to the extreme hardship a qualifying spouse or parent would suffer as a result of a refusal to admit the applicant into the United States.    

 

Extreme hardship is not defined in the Immigration and Nationality Act, but is hardship greater than what would normally be expected when family members are separated from one another.  Factors that will be considered in determining extreme hardship include, but are not limited to the following:

♦  The qualifying U.S. citizen or lawful permanent resident’s family ties within and outside of the United States, particularly within the country of relocation;
♦  The emotional and psychological impact of separation on the U.S. citizen or Lawful Permanent Resident relative;
♦  The political, economic, and social conditions in the country of relocation;
♦  The financial and professional impact on the U.S. citizen relative;
♦  Any significant health conditions or developmental issues, particularly when tied to the unavailability of suitable medical care, educational, or therapeutic assistance in the country of relocation
♦  The U.S. citizen’s ability to raise children in the country of relocation and other quality of life factors; and
♦  The U.S. citizen’s age, length of residence in the United States, health, technical skills, employability, and other factors.

Factors that will be considered in determining whether an applicant deserves to be granted the waiver include proof of rehabilitation, length of residence in the United States, community ties and involvement in community activities, and the age and health of the applicant.  

 

Process for Applying for an Unlawful Presence Waiver

An individual who qualifies to apply for residency through adjustment of status in the United States should submit an I-601 application for a waiver with the supporting documentation to the U.S. Citizenship and Immigration Services simultaneously with his/her I-485 application for adjustment of status.  Most applicants for lawful permanent residency who require an unlawful presence waiver do not qualify to apply for adjustment of status and must apply for permanent residency through a U.S. consulate abroad.  Until recently, anyone who needed an unlawful presence waiver was first required to depart the United States and would then submit the I-601 application packet to the U.S. consular official after an initial interview with the consulate.  The applicant would then be required to wait in his/her home country, in some cases over a year, until U.S. Citizenship and Immigration Services made a decision on whether to approve or deny the waiver.

 

As of March 4, 2013, certain immediate relatives (i.e. spouses, children, and parents of U.S. citizens) can apply for an unlawful presence waiver prior to leaving the United States for the consular interview and can wait in the United States while the waiver application is pending.  This process is known as a provisional waiver.   

 

In order to qualify for the provisional waiver, you must meet the following requirements:

  1. Be a spouse, child or parent of a U.S. citizen;

  2. Have an approved I-130 petition for alien relative;

  3. Have a pending application for an immigrant visa(i.e. permanent residency) with the Department of State and have paid the immigrant visa processing fee;

  4. Be able to demonstrate that refusal of your admission to the United States would result in extreme hardship to your U.S. citizen spouse or parent;

  5. Be physically present in the United States to file your application for the provisional waiver and provide biometrics(i.e. fingerprints and photos);

  6. Not have been scheduled for an immigrant visa interview before January 3, 2013;

  7. Not be subject to other grounds of inadmissibility other than unlawful presence; and

  8. If in removal proceedings, your removal proceedings must have been administratively closed and remain closed at the time of filing for the provisional waiver

 

If you do not meet ALL of the above requirements, you will not qualify for the provisional waiver and will need to file your I-601 waiver application with the consular officer after completing your immigrant visa interview.  

 

Waivers of inadmissibility are difficult to obtain and it is very important to put together a strong application packet with substantial documentation of the hardship and positive discretionary factors.  If you would like more information on how Ziemba Law Firm can assist you with a waiver of inadmissibility, please contact us at (704) 602-0042 for an appointment.  

 

 

Fraud Waiver

An individual who is inadmissible because s/he previously obtained or attempted to obtain an immigration benefit by fraud or misrepresentation may qualify for a waiver of inadmissibility if s/he can demonstrate that a denial of admission to the United States would result in extreme hardship to the applicant’s U.S. citizen or lawful permanent resident spouse or parent and that the s/he deserves a favorable exercise of discretion.    U.S. citizen or lawful permanent resident children are not qualifying relatives for purposes of eligibility for a fraud/misrepresentation waiver.  Extreme hardship to a U.S. citizen or lawful permanent resident child is only relevant in so far as one can demonstrate such hardship to the child contributes to the extreme hardship a qualifying spouse or parent would suffer as a result of a refusal to admit the applicant into the United States.    

 

Extreme hardship is not defined in the Immigration and Nationality Act, but is hardship greater than what would normally be expected when family members are separated from one another.  Factors that will be considered in determining extreme hardship include, but are not limited to the following:

 
♦  The qualifying U.S. citizen or lawful permanent resident’s family ties within and outside of the United States, particularly within the country of relocation;
♦  The emotional and psychological impact of separation on the U.S. citizen or Lawful Permanent Resident relative;
♦  The political, economic, and social conditions in the country of relocation;
♦  The financial and professional impact on the U.S. citizen relative;
♦  Any significant health conditions or developmental issues, particularly when tied to the unavailability of suitable medical care, educational, or therapeutic assistance in the country of relocation
♦  The U.S. citizen’s ability to raise children in the country of relocation and other quality of life factors; and
♦  The U.S. citizen’s age, length of residence in the United States, health, technical skills, employability, and other factors.

 

Factors that will be considered in determining whether an applicant deserves to be granted the waiver include proof of rehabilitation, length of residence in the United States, community ties and involvement in community activities, and the age and health of the applicant.  

 

Waivers of inadmissibility are difficult to obtain and it is very important to put together a strong application packet with substantial documentation of the hardship and positive discretionary factors.  If you would like more information on how Ziemba Law Firm can assist you with a waiver of inadmissibility, please contact us at (704) 602-0042 for an appointment.