A waiver is, in effect, forgiveness for either a ground of inadmissibility or deportability. There are situations where a person who is seeking admission into the United States is not allowed to do so unless a waiver is granted. For example, a person may have committed visa fraud, helped aliens to enter the US without inspection, have been in the United States unlawfully for a period of time, or have committed criminal offenses. Or, a person may already be in the United States, but should have been found to be inadmissible. In other words, they were wrongfully admitted to the United States and can be put into removal proceedings. A waiver would be filed using Form I-601 Waiver with a supporting brief and other documentation in an attempt to excuse the immigration problem. Some grounds of inadmissibility cannot be waived, and they will not be allowed to immigrate with a visa through a family petition.
Even if a waiver is available, the USCIS is not required to grant the waiver. It is a matter of discretion, and the immigration Service may look to the hardship of the applicant or close relatives who would suffer if the waiver is denied, and the good moral character of the applicant.
Below, we have set out the most used waivers in immigration situations.
WAIVERS FOR MISREPRESENTATION
If a person lies to a US officer in order to be admitted, a waiver may be applied for under certain conditions, which are:
1) The applicant is the spouse, son or daughter of a US citizen or lawful permanent resident, and
2) The US citizen or lawful permanent resident relative would suffer extreme hardship if the waiver is denied.
An example of this type of fraud may include use of a fake passport from the applicant’s home country.
If the person misrepresented his or her marital status in order to gain admission and be admitted faster than would normally be the case, a waiver of deportability may be granted if the person can demonstrate the applicant is:
1) The spouse, parent, son or daughter of a US citizen or lawful permanent resident, and
2) Was in possession of an immigrant visa and otherwise admissible at the time of admission to the US, or
3) Is self-petitioning under the Violence Against Women Act (VAWA), even without the above qualifying relatives.
WAIVERS FOR CRIMES
Waivers may be granted when certain crimes are committed, including a crime involving:
1) Moral turpitude
3) One conviction of possession of 30 grams or less of marijuana, or
4) Total sentences of five years for two or more convictions.
In order to qualify for the waiver, the applicant must have a qualifying relative, and show that extreme would result, the admission would not hurt national welfare or safety, and rehabilitation, or that the person is a self-petitioner under VAWA. Also, for lawful permanent residents or former lawful permanent residents (residents who were out of the country but are now returning), the person must show residence in the US continuously for seven years preceding the date of initiation of removal proceedings, and no conviction for an aggravated felony.
This waiver is typically referred to as a 212(h) waiver, and is applied for using an I-601 Waiver in conjunction with an application for adjustment of status to permanent residence (“green card”). In some cases, however, an application for this waiver does not require an application for adjustment of status.
WAIVERS FOR ALIEN SMUGGLING
Knowingly helping an alien enter or try to enter the US without inspection makes the applicant inadmissible, but a waiver is possible for:
1) Returning permanent residents and for people who apply for immigration based on family petitions, except for those applying through brothers and sisters, and
2) Persons who were present in the US on May 5, 1988, were eligible for the “Family Unity” program, are immediate relatives or second preference beneficiaries, and are applying for Family Unity or immigration through a family petition.
A person who entered the US and prior to their date of entry, at the time of entry or within five
years of the date of any entry knowingly helped someone to illegally enter the US is deportable, but may apply for a waiver as well.
WAIVERS FOR DOCUMENT FRAUD
Document fraud waivers are granted for humanitarian reasons to insure family unity. This type of waiver is not needed unless an administrative law judge issues a final order concluding that the person committed document fraud under the Immigration and Nationality Act (INA) §274C. To be eligible for the waiver, the offense must have been solely to assist the noncitizen’s spouse or child. An example would be where a person bought a fake document such as a permanent residence card and then completed an I-9 for employment. If the person later marries a US citizen, a waiver for document fraud may be requested IF there is an order under § 274C.
WAVERS FOR UNLAWFUL PRESENCE
Unlawful presence in the United States may trigger a bar to returning once the person leaves the country. Typically, a person who is in the US for 6 months to a year unlawfully, may be subject to a three year bar, while a person in the US for a year or longer unlawfully may be subject to a ten year bar. This is a complex area of the law as there are actions which may “toll” the running of time, and there are special provisions for self-petitioning battered spouses, U and T visa recipients and Special Immigrant Juveniles.
An I-601 waiver filed for unlawful presence may be granted to a noncitizen who is the spouse, son or daughter of a US citizen or lawful permanent resident upon a showing that refusing admission to the noncitizen would result in extreme hardship to the US citizen or lawful permanent resident.
In some cases, although a waiver may be available, it will not be granted until ten years after the person’s last departure from the US. This would be the case where a person has lived in the US for more than a year, then left and returned illegally again. This could result in being permanently barred, except for the possibility of a waiver of inadmissibility after ten years.
MEDICAL CONDITION WAIVERS
Section 212(a)(1)(A)(i) of the Immigration and Nationality Act (the Act), bars the admission to the United States any foreign national who has been diagnosed with certain specific illnesses. Persons who have a communicable disease that make them inadmissible can apply for a waiver under the following conditions:
1) The person is the spouse, unmarried son or daughter, or the minor lawfully adopted child of a US citizen, a lawful permanent resident or a noncitizen who has been issued an immigrant visa, or
2) The person has a son or daughter who is a US citizen or lawful permanent resident of who has been issued an immigrant visa, or
3) The person is a VAWA self-petitioner.
Failure to provide evidence of vaccinations, and mental or physical conditions posing a threat to others may also necessitate a waiver. However, as of Jan. 4, 2010, having HIV infection will no longer make a foreign national inadmissible to the United States. The Department of Health and Human Services (HHS), on Nov. 2, 2009, published a final rule in the Federal Register, removing Human Immunodeficiency Virus (HIV) infection from the from the list of illnesses that make a foreign national inadmissible. This rule takes effect on Jan 4, 2010. As of Jan. 4, 2010, therefore, having HIV infection will no longer make a foreign national inadmissible to the United States thus eliminating the need for an I-601 waiver.