How To Waive the 10-Year Bar to Admissibility

How To Waive the 10-Year Bar to Admissibility

Individuals with a criminal record over 10 years old may face barriers when trying to enter the United States. However, it is possible to apply for a waiver of the 10-year bar to admissibility. This waiver allows people to obtain visas and green cards despite having old convictions. Here is an overview of the process.

What is the 10-Year Bar?

Under section 212(a)(2)(A) of the Immigration and Nationality Act (INA), individuals are inadmissible to the U.S. if they have a conviction for a crime involving moral turpitude (CIMT) or an aggravated felony. However, the bar to admissibility only applies if:

  • The crime was committed within 10 years of the person applying for admission, or
  • The person spent more than 180 days in jail for the CIMT during the 10 years prior to applying for admission.

After 10 years, the conviction is no longer a bar to admissibility. However, U.S. Citizenship and Immigration Services (USCIS) can still use the conviction as a discretionary factor to deny immigration applications.

Qualifying for a Waiver

Those subject to the 10-year bar may apply for a waiver to overcome it. The main waiver is available to people who have a U.S. citizen or lawful permanent resident (LPR) relative and can prove that refusing admission would cause extreme hardship. Common qualifying relatives include:

  • U.S. citizen or LPR spouses
  • U.S. citizen or LPR parents
  • U.S. citizen children over 21

Factors considered in extreme hardship determinations include (via LawInfo):

  • Health problems requiring long-term treatment in the U.S.
  • Financial loss from job opportunities or business interests in the U.S.
  • Loss of access to U.S. health services and educational programs
  • Other impacts on quality of life

People can also qualify for a waiver by proving that refusing admission would cause extreme hardship to themselves. Factors considered include (via FindLaw):

  • Age and personal circumstances
  • Serious health issues and unavailability of treatment in home country
  • Financial loss due to job opportunities and business/property interests in the U.S.

Filing the Waiver

Those seeking LPR status can file a waiver application concurrently with their visa petition. The forms required include (via r/immigration):

  • I-601 for the waiver
  • I-212 if the person departed the U.S. after accruing unlawful presence or being deported
  • G-325A biographic form

Those already in the U.S. can also file an I-601 waiver to overcome the 10-year bar for LPR adjustment of status. People outside the country must go through consular processing.

The waiver application must include evidence about (via Quora):

  • The conviction itself
  • Rehabilitation efforts and good moral character
  • The qualifying relationship
  • The extreme hardship the relative would face

While USCIS sometimes requests additional documentation, submitting everything up front can help avoid delays.

After Filing

Most I-601 waiver decisions take 6 to 12 months. Approval rates are around 50%, but having an experienced immigration lawyer improves the odds. If approved, the person can proceed with getting their green card. If denied, they must restart consular processing or leave the United States.

In some cases, people denied due to insufficient evidence can provide more documentation and request reconsideration. However, second chances are rare.

Avoiding Pitfalls

Those with criminal records should be careful about leaving the U.S. Doing so can trigger the 10-year bar countdown. Additionally, people who depart after living in the U.S. illegally may face a 3-10 year ban themselves.

Anyone considering consular processing should first consult with an attorney about whether they qualify for a waiver. Entering the waiver process without proper vetting can lead to denial and being barred for years.

Getting Legal Advice

The documentation and qualifying criteria for 10-year bar waivers can be complex. Working with an experienced immigration attorney is highly recommended to avoid mistakes and present the strongest case possible. They can also advise on related matters like obtaining any required court dispositions.

With proper preparation, evidence, and legal support, many people are able to overcome the 10-year bar to admissibility. This provides the chance to reunite with family or pursue business interests in the United States despite past mistakes.