Inadmissibility Waivers.

Which Inadmissibility Grounds Have Waivers, Which Have Exceptions, and Which Have No Relief at All?

If you have unlawfully stayed in the United States for:

• More than 180 days but less than one year, you will have a three-year bar upon departure from the United States.
• More than one year, you will have a ten-year bar upon departure from the United States.

In some cases, it is possible to qualify for a waiver for a specific ground of inadmissibility. This includes, but is not limited to:

• A crime involving moral turpitude, subject to the eligibility requirements and limitations of INA § 212(h)
• A single offense of simple possession of 30 grams or less of marijuana
• Certain fraud or willful-misrepresentation grounds under INA § 212(a)(6)(C)(i), subject to the requirements of INA § 212(i)
• Marriage fraud or sponsorship fraud (among other violations)
• Certain other grounds

There are no available waivers for certain grounds of inadmissibility, such as some of the following criminal grounds:

• Multiple crimes involving moral turpitude
• Certain drug offenses, including (but not limited to) all drug trafficking offenses
• Any drug offense not subject to the 30 grams or less of marijuana exception, including (but not limited to) heroin offense (among others)
• A crime involving money laundering, or murder or criminal acts involving torture
• Certain other criminal grounds

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How Does USCIS Measure Extreme Hardship and Evaluate the Evidence?

The term “extreme hardship” does not have a single, fixed definition that applies in all cases. As a result, the standards for qualifying for an inadmissibility waiver can vary substantially from one case to another, and will also depend upon which waiver statute is being used to seek relief. We have listed some of the relevant factors that can affect the process below:

1. Your Qualifying Relative

The categories of qualifying relatives vary according to the inadmissibility ground in question and the applicable waiver statute. In order to successfully seek a waiver, you will need to demonstrate that your spouse, child, or other qualifying relative would suffer extreme hardship if you are denied admission or the ability to remain in the United States.

2. Your Qualifying Relative’s Medical and Psychological Health

The seriousness and the nature of your qualifying relative’s medical or psychological condition are among the factors that can contribute to a finding of extreme hardship. Factors that include the unavailability of necessary treatment in your home country can further bolster this showing.

3. Your Qualifying Relative’s Financial Condition

Your qualifying relative’s financial condition, his or her dependence on your income, debts, or other financial matters may be relevant in proving extreme hardship.

4. Relocation Conditions

The conditions of relocation to your home country are also critical. USCIS takes various factors into consideration when assessing whether your qualifying relative can realistically relocate to your country.

5. Other Psychological Factors

Other psychological factors may also be relevant, such as the age of your children, the quality of your qualifying relative’s ties to the United States, and the quality of your qualifying relative’s relationship to you.

6. Evidence of the Ground Triggering Inadmissibility and Discretionary Factors

When reviewing an application for an inadmissibility waiver, USCIS will also consider the evidence of the ground that triggered the individual’s inadmissibility. In doing so, USCIS will weigh the seriousness of the individual’s inadmissibility against any and all favorable discretionary factors the individual and his or her counsel present.

7. Documentation and Records

Along with medical records, financial documents, and affidavits from family members, a comprehensive waiver application should also include all necessary records, such as court records or administrative files, which address the individual’s inadmissibility.

What Must an I-601A Applicant Prove Before Leaving for Consular Processing?

If you are applying for an I-601A provisional unlawful-presence waiver, you will need to prove several things before you can leave the United States to undergo consular processing. This is entirely different from applying for the I-601 unlawful-presence waiver (which, as previously noted, requires that you leave the United States first). While the I-601A is generally considered to be an easier process, there are still requirements that I-601A applicants need to be aware of. With that said, these are some of the key requirements in the I-601A application process:

1. Form I-601A Application for Provisional Unlawful Presence Waiver

You will need to file Form I-601A with U.S. Citizenship and Immigration Services (USCIS) in the United States. Once your application is approved, USCIS will send you your approval notice, and then you will be eligible to leave the United States to undergo consular processing.

2. Consular Departure for Immigrant Visa Processing

Once you receive your I-601A approval notice, you will need to depart for immigrant-visa processing at a U.S. embassy or consulate. This is a standard part of the overall U.S. immigration process.

3. Reducing Family Separation

One of the primary benefits of the I-601A is that it allows applicants to secure waiver approval before they leave for consular processing. This significantly reduces the length of time an individual and their qualifying relative (spouse or parent) will be separated during the consular process.

4. Age 17 and Physical Presence in the United States

There are also some unique requirements for the I-601A process itself. These are not general requirements for all inadmissibility waivers, but they are requirements if you are seeking a provisional waiver. These include being at least 17 years old at the time of filing and being physically present in the United States at the time of filing.

5. Eligibility as an Immediate Relative or Family Preference Beneficiary

The I-601A is available not only to immediate relatives but also to certain family-preference beneficiaries.

6. Petition Approval and Visa Processing

Generally, before you can file for an I-601A provisional waiver, you will need to have an approved immigrant petition and an active, open immigrant-visa case at the National Visa Center.

Who Decides the Approval or Denial of an Inadmissibility Waiver, and What Consequences Can Follow a Prior Removal?

While all of the individuals discussed above have a significant role to play in the immigration process, their specific duties vary. Here is a more detailed explanation of how the process will unfold in each situation:

1. Form I-212 Application for Permission to Reapply

If you are subject to a prior removal order or deportation, you will need to file Form I-212. Form I-212 asks for permission to reapply for admission to the United States. When considering a Form I-212, the U.S. government will examine all of the facts and circumstances involved in your prior removal. Approval of an I-212 application is not a substitute for an inadmissibility waiver if another ground of inadmissibility requires one. If an I-212 application is approved, the individual still needs to prove he or she is eligible for admission or entitled to an inadmissibility waiver for any and all other grounds of inadmissibility.

2. Prior Removal or Deportation Consequences

Depending on the circumstances involved, a prior removal or deportation may result in a five-year, ten-year, twenty-year, or permanent bar to re-entering the United States.

3. USCIS Adjudicators and Consular Officers

While USCIS generally adjudicates Form I-601 and Form I-601A applications, some waiver applications are adjudicated by the Department of Justice’s Executive Office for Immigration Review, and consular officers ultimately determine whether to issue an immigrant visa to the applicant. This means that while a favorable decision on an inadmissibility waiver application is an absolutely vital step toward securing an immigrant visa, it is not, in and of itself, a guarantee of visa issuance.

4. Immigration Judges

Immigration judges can grant relief under certain circumstances during removal proceedings. This is different from the general inadmissibility waivers discussed above, and is instead related to removing grounds for the decision of removal. For this reason, it is imperative that you work with an immigration defense attorney who can evaluate all potential options on your behalf.

Talk to Spodek Law Group

Every case turns on its own facts, and general information is no substitute for advice about yours. Todd Spodek, managing partner of Spodek Law Group, and the firm's attorneys defend federal criminal and white collar matters nationwide. Reach the firm at 888 348 8028.