Navigating the complex world of U.S. immigration law can be challenging, especially when an individual is considered inadmissible due to various factors. Immigration waivers offer a path to overcome these obstacles and obtain the necessary immigration benefits.
Immigration waivers are designed to provide relief for those who have been deemed inadmissible to the United States for various reasons, such as unlawful presence, criminal convictions, or health-related grounds. By obtaining a waiver, individuals can overcome these barriers and pursue their desired immigration benefits, such as a Green Card, visa, or re-entry into the U.S. after deportation. Understanding the different types of waivers and the eligibility requirements is crucial for a successful application.
This comprehensive article provides an overview of immigration waivers, their importance, and how they can help individuals and families overcome inadmissibility issues for U.S. immigration process.
Types of Immigration Waivers
There are several types of immigration waivers available, each addressing specific grounds of inadmissibility for nonimmigrant visas, immigrant visas, and green card applicants. Understanding the different waivers and their eligibility requirements is crucial in determining the appropriate waiver for your immigration situation. Some of the most common immigration waivers include:
I-601 Waiver (Waiver of Grounds of Inadmissibility)
This waiver is for individuals who are inadmissible due to unlawful presence, certain criminal convictions, immigration fraud or misrepresentation, and some health-related grounds. Applicants must demonstrate that their U.S. citizen or lawful permanent resident (LPR/Green Card holder) spouse, parent, or child would suffer extreme hardship if they were not allowed to enter or remain in the U.S.
The I-601 Waiver is also used for both Immigrant and Nonimmigrant Visa Applicants going through Consular Processing abroad. After the Officer has found them inadmissible at the time of their Consular Interview, they may be able to submit Form I-601 to U.S. Citizenship and Immigration Services (USCIS) for the processing of their waiver. Their waiver will need to get approved before they go back for a second interview to get the U.S. Visa.
I-601A Provisional Waiver (Provisional Unlawful Presence Waiver)
The I-601A waiver allows certain immediate relatives of U.S. citizens to apply for a provisional waiver of the unlawful presence ground of inadmissibility while still in the United States. This waiver aims to shorten the time families are separated during the immigrant visa application process. The applicant must prove that their U.S. citizen spouse or parent would face extreme hardship if the waiver is not granted.
The Provisional Unlawful Presence Waiver may be available to individuals who need to leave the United States to apply for an Immigrant Visa from abroad because they are not eligible to apply for a Green Card in the United States (typically because they do not have a lawful entry). They may need this waiver because when they leave the United States, these individuals could set off a bar to return for a certain period of time because they accumulated unlawful presence after their unlawful entry. In this case, they can apply for the special I-601A Provisional Waiver to forgive their unlawful presence prior to leaving the country so that they do not get stuck outside of the United States for a long period of time. If this was not available, they would have to submit an I-601 application after they left and would need to wait a long time outside of the United States for the processing of the waiver application. This could be extremely hard on their family members who remain in the United States. For this reason, a special I-601A Provisional Waiver was created to help these individuals return home more quickly. This is also why this waiver is commonly referred to as a Hardship Waiver.
The overall application process for the I-1601A Waiver is different than other waivers. First, the applicant must have an approved I-130 Petition and to have started the Immigrant Visa application process by paying the government fees online. With the approved I-130 and Immigrant Visa Fee Receipts (Including the Affidavit of Support) they can apply for the I-601A waiver. Once the I-601A application is approved, the applicant can pick back up with the Immigrant Visa application to continue the processing of their overall case.
I-602 Waiver (Application by Refugee for Waiver of Inadmissibility Grounds)
The I-602 waiver, or the Application by Refugee for Waiver of Grounds of Excludability, is used by refugees who are applying for adjustment of status to Green Card and need a waiver for certain grounds of inadmissibility that apply to them.
For example, if a person is applying for a Green Card based on Asylee Status, they will need to use Form I-602, Application by Refugee for Waiver of Inadmissibility Grounds. Otherwise, Green Card applicants generally use Form I-601 to apply for an Immigration Waiver with their Adjustment of Status Application.
I-212 Waiver (Application for Permission to Reapply for Admission)
The I-212 waiver is for individuals who have been previously removed or deported from the U.S. and wish to reapply for admission. This waiver allows them to apply for re-entry before the required time outside the U.S. has passed. Factors such as the applicant’s reasons for removal, length of time since removal, and evidence of reformation are considered when adjudicating the waiver.
This application is not technically an immigration waiver, but it acts in the same way. It can be filed together with a I-601 Waiver application.
J-1 Waiver (Waiver of the Two-Year Home-Country Physical Presence Requirement)
Certain J-1 exchange visitors are subject to a two-year home-country physical presence requirement. The J-1 waiver allows eligible applicants to waive this requirement under specific circumstances, such as a no-objection statement from the home country, a request by a U.S. government agency, or the demonstration of exceptional hardship or persecution.
K Nonimmigrant Visa Waiver (I-751 Waiver)
This waiver is for individuals who have obtained conditional resident status through marriage to a U.S. citizen but are unable to file a joint petition (Form I-751) to remove the conditions on their residence due to divorce, death of the spouse, or other qualifying circumstances. The applicant must provide evidence to support their eligibility for the waiver and demonstrate that they entered the marriage in good faith.
K Visa Waiver
The K visa waiver is for individuals who have entered the United States on a K-1 fiancé visa or K-3 spouse visa and are now unable to adjust their status to a lawful permanent resident due to certain inadmissibility grounds. The waiver allows these individuals to overcome the inadmissibility issues and continue with the adjustment of status process.
T and U Nonimmigrant Status Waivers (I-192 Waiver)
These waivers are for victims of human trafficking (T nonimmigrant status) and certain crimes (U nonimmigrant status) who are eligible for their respective statuses. Both T and U visa applicants can use Form I-192, Application for Advance Permission to Enter as a Nonimmigrant, to request a waiver of certain grounds of inadmissibility that may otherwise prevent them from obtaining their respective statuses. To be eligible for these waivers, the applicant must demonstrate that it is in the public interest to waive the specific grounds of inadmissibility.
Eligible applicants can submit this waiver application along with their Form I-918, U Nonimmigrant Application or Form I-914, T Nonimmigrant Application.
The I-192 Application for Advance Permission to Enter as a Nonimmigrant can get confused with the Form I-912 Application for a Fee Waiver. A Fee Waiver allows individuals to apply for an immigration benefit such as work card, green card, or U.S. citizenship without having to pay the government fees. The Fee Waiver is available for certain applicants such as VAWA Self-Petitioners, U Nonimmigrants, T Nonimmigrants, and more. A Fee Waiver may be available to cover the government filing fees for the I-192 Waiver.
I-360 Special Immigrant Juvenile (SIJ) Waiver
This waiver is available for children who have been abused, neglected, or abandoned by one or both of their parents and are eligible for SIJ classification. The waiver allows the waiver of certain grounds of inadmissibility that may otherwise prevent the applicant from obtaining lawful permanent resident status.
Nicaraguan Adjustment and Central American Relief Act (NACARA) Waiver
This waiver is available for certain nationals of Nicaragua, Cuba, El Salvador, Guatemala, and former Soviet-bloc countries who are eligible for suspension of deportation or special rule cancellation of removal under NACARA. The waiver allows the waiver of certain grounds of inadmissibility that may otherwise prevent the applicant from obtaining lawful permanent resident status.
Waiver of Rights, Privileges, Exemptions, and Immunities (I-508 Waiver)
The I-508 Waiver is for certain nonimmigrant employees of foreign governments or international organizations who seek to adjust their status to that of a lawful permanent resident. By filing Form I-508, the applicant waives rights, privileges, exemptions, and immunities associated with their nonimmigrant status. This waiver is necessary for such individuals to obtain a Green Card and become lawful permanent residents, as it ensures they are subject to U.S. laws and taxes, like any other resident.
Waiver for Foreign Medical Graduates (Conrad 30 Waiver)
Foreign Medical Graduates who have received medical training in the United States under a J-1 visa are subject to a two-year home residency requirement. However, they can apply for a waiver of this requirement if they agree to work in a medically underserved area in the United States for a minimum of three years. This waiver, known as the Conrad 30 Waiver, is granted on a state-by-state basis and is limited to 30 waivers per state annually.
These are just a few examples of the various immigration waivers available. Each waiver has its own set of eligibility criteria, application procedures, and required documentation. It is essential to consult with an experienced immigration attorney to determine the best course of action based on your specific circumstances.
Eligibility for Immigration Waivers
Eligibility criteria for immigration waivers vary depending on the type of waiver sought. However, some general requirements apply to most waivers. These requirements typically include:
- Qualifying Family Relationship: For many waivers, particularly the I-601 and I-601A waivers, applicants must have a qualifying family relationship with a U.S. citizen or lawful permanent resident (LPR/Green Card holder) spouse, parent, or child. This relative is often referred to as the “qualifying relative.”
- Extreme Hardship: In many waiver applications, the applicant must demonstrate that their qualifying relative would suffer extreme hardship if the waiver is not granted. Extreme hardship goes beyond the typical challenges faced by separated families and may include factors such as financial, medical, emotional, educational, and cultural considerations.
- Good Moral Character: Waiver applicants are generally expected to show good moral character, meaning they have not engaged in criminal activities, fraud, or other immoral conduct that would make them ineligible for the waiver.
- Rehabilitation and Reformation: For some waivers, particularly the I-212 waiver, applicants must provide evidence of rehabilitation and reformation since their removal or deportation. This may include demonstrating stable employment, community involvement, or other positive changes in their lives.
- Other Requirements Specific to the Waiver Type: Each waiver type has unique eligibility criteria that must be met. For example, J-1 waiver applicants must satisfy specific grounds for the waiver, such as obtaining a no-objection statement from their home country or demonstrating persecution.
It is essential to carefully review the eligibility criteria for the specific waiver you are seeking and consult with an experienced immigration lawyer to ensure you meet all necessary requirements.
Application Process for Immigration Waivers
The application process for immigration waivers can be complex and varies depending on the type of waiver you are seeking. Here, we outline the general steps involved in applying for most immigration waivers. Keep in mind that the application process may differ depending on the specific waiver you are seeking.
- Determine the Appropriate Waiver: First, you must identify the specific waiver that applies to your situation, such as the I-601, I-601A, I-212, or J-1 waiver.
- Gather Supporting Documents: Collect all necessary documents to support your waiver application, including evidence of your qualifying relationship, extreme hardship to the qualifying relative, and any other documents relevant to your specific waiver type.
- Complete the Waiver Application Form: Fill out the appropriate waiver application form accurately and completely. For instance, complete Form I-601 for the I-601 waiver, Form I-601A for the I-601A waiver, and Form I-212 for the I-212 waiver. Ensure all information is consistent with other immigration forms you have submitted.
- Draft a Personal Statement and Hardship Letter: Prepare a personal statement detailing your situation, the reasons for seeking the waiver, and any other relevant information. Additionally, draft a hardship letter explaining the extreme hardship your qualifying relative would face if the waiver is not granted.
- Compile Your Waiver Application Package: Assemble your completed waiver application form, supporting documents, personal statement, hardship letter, and any additional required materials into a well-organized application package.
- Submit Your Waiver Application: File your waiver application with the appropriate U.S. Citizenship and Immigration Services (USCIS) office, U.S. Department of State, or another relevant agency, depending on the waiver type. Be sure to pay any necessary filing fees.
- Attend an Interview or Biometrics Appointment (if required): Some waiver applications may require an in-person interview or biometrics appointment. Attend any scheduled appointments and provide any additional documentation requested by the immigration authorities.
- Await the Decision: After submitting your waiver application, wait for the decision from the relevant agency. Processing times can vary widely depending on the waiver type and the agency’s workload.
Keep in mind that the application process may differ depending on the specific waiver you are seeking. It is crucial to consult with an experienced immigration lawyer to ensure you follow the appropriate steps for your immigration situation.
Timeline for an Immigration Waiver to get Approved
It can take a significant amount of time to get an Immigration Waiver approved when it is submitted on its own to U.S. Citizenship and Immigration Services (USCIS). The current processing time for an I-601 Waiver of Inadmissibility with USCIS is over a year. It is even longer for the I-601A Provisional Waiver for Unlawful Presence. This I-601A hardship waiver is currently taking over two years to get approved by USCIS. This makes the U.S. immigration process even longer than it already is for typical applicants.
The I-212 Waiver application to come back to the United States after a Removal Order is also taking over a year at this time. Individuals may be able to submit the I-212 application and I-601 application together to save some time.
Applicants can submit their I-601 waiver when they submit their adjustment of status application. However, submitting the waiver application early on in the process is typically not possible for U.S. Visa applicants from abroad. Instead, they must wait until the Immigration Officer finds them inadmissible at the time of their Visa Interview.
Immigration Waivers Cost
The cost of the I-601, I-212, and I-192 are all $930.00 when submitting these applications to U.S. Citizenship and Immigration Services (USCIS). If you are submitting two applications together such as the I-601 and the I-212, you will have to pay both filing fees. That would be $930.00 for each application. There is a different government fee for the I-192 application if submitting it with CBP (U.S. Custom and Border Patrol).
Depending on the type of underlying application, you may be able to apply for a fee waiver to waive the government fee. If the fee waiver is approved by USCIS, then you do not have to pay anything for the waiver application.
When you want to apply for a fee waiver for any USCIS application, you can submit the I-912 Fee Waiver form along with the application for which you do not want to pay the government fees. If the fee waiver is not approved, USCIS will reject your application and you may need to resubmit it with the government fees or fix the problem USCIS had with your fee waiver application to send it again.
The cost of the I-601A application is different. The cost of the I-601A hardship waiver is $715.00, including the biometrics fee that goes along with the application.
Immigration Waivers for Humanitarian Based Immigration Applicants
The waiver provisions for humanitarian-based immigration applicants tend to be more generous than general immigration waivers available to other applicants. There are special waiver provisions specific to VAWA Green Card Applicants and large waiver provisions for U Visa, T Visa, and TPS applicants.
Violence Against Women Act (VAWA) Waiver
There are many waivers specifically designed for VAWA green card applicants. These are special VAWA waivers that were created for VAWA Self-Petitioners to qualify for a green card since they typically would not qualify under the general immigration waivers that require circumstances inapplicable to VAWA applicants. One of the biggest VAWA specific waivers is the VAWA waiver for the permanent unlawful presence bar found in INA 212(a)(9)(C). This is a special waiver because it is not available to other family based green card applicants.
How Does VAWA Forgive the Permanent Bar?
Under INA 212(a)(9)(C), a person is inadmissible or ineligible for a green card if they left the United States after staying in the country for over a year without lawful status or after being ordered removed from the country and then snuck back or tried to sneak back in without permission. The VAWA waiver forgives this offense if the VAWA applicant can show that there is a connection between the abuse for which they are applying for VAWA and the act of committing this immigration offense.
How Do You Qualify for a VAWA Waiver for Criminal or Fraud Offenses?
A VAWA Green Card Self-Petitioner may also be eligible for a waiver of certain criminal grounds of inadmissibility simply by being VAWA Self-Petitioners. These criminal grounds include crimes of moral turpitude, prostitution, two criminal convictions that result in a sentence of five years or more, and possession of 30 grams or less of marijuana.
Additionally, there is a special waiver for fraud or misrepresentation for VAWA self-petitioners. Under INA 212(a)(6)(C), a person is inadmissible or ineligible for a green card if they tried to get a visa, entry to the United States, or gain other certain benefits through the use of fraud or misrepresentation. A VAWA Self-Petitioner can get this act forgiven if they can show they will suffer extreme hardship or that a particular parent or child will suffer extreme hardship if the waiver is not approved.
What Immigration Offenses Can be Waived for U Visa and T Visa Applicants?
The waivers available for U and T Visa applicants forgive most inadmissibility offenses. A U Visa or T Visa applicant may be eligible to get a waiver to forgive aggravated felonies, fraud or misrepresentation, unlawful entries to the United States, and more through the U Visa and T Visa waiver provisions.
A U Visa applicant will want to show that it is in the best interest of the United States to grant them a waiver. This could be because the applicant is such a great person and asset to the country or because they have family members with lawful status who really need them to stay in the United States. The eligibility factors may be specific to each case but in general, the applicant will need to convince the U.S. that they should be forgiven for their certain offense in order to be granted a U Visa.
There may be an additional requirement to get a waiver approved for T Visa applicants depending on the offense. T Visa applicants may be required to show that there is a connection between the offense they committed and the act of trafficking of which they are a victim to qualify for a waiver in order to be granted a T Visa.
What Immigration Waivers are available for Other Humanitarian Applications?
TPS, NACARA, and SIJS applicants can also apply for a waiver under more generous waiver provisions than those for the general public. NACARA applicants can get a waiver for the permanent unlawful presence bar found in INA section 212(a)(9)(C) referring to when a person departs the United States after being in the United States for over a year or after being ordered removed and then returns to the United States without being admitted or paroled (i.e. unlawfully).
TPS and SIJS (Special Immigrant Juvenile Status) applicants can get most inadmissibility offenses waived through the waiver provisions specific to those applicants. For other applicants, they will have to meet the waiver requirements available for general applicants. Usually, the general waiver requirements require showing extreme hardship to certain family members. The eligibility requirements for each waiver are specific to the act or offense the applicant is seeking to get forgiven by the government.
Immigration Waivers for General Green Card or U.S. Visa Applicants
There are a few different categories of general immigration waivers for Green Card and U.S. Visa applicants. First, there are waivers for medical issues. Then there are waivers for criminal acts, fraud or misrepresentation, and other immigration violations such as alien smuggling. Lastly, there are special applications to forgive the specific immigration offenses of unlawful presence or prior removal orders.
Which Crimes can be Waived to Get a U.S. Visa or Green Card?
A waiver of inadmissibility may be available for the following criminal inadmissibility grounds: a crime involving moral turpitude (INA 212(a)(2)(A)(i)(I)); a controlled substance violation related to a single offense of simple possession of 30 grams or less of marijuana; two or more convictions for which the sentences to confinement added up to five years or more (INA 212(a)(2)(B)); prostitution (INA 212(a)(D)); unlawful commercialized vice; and certain individuals involved in serious criminal activity who have asserted immunity from prosecution.
A person may also apply for a waiver if they are subject of a final order for a violation under INA 274C for document fraud or if they were a member of a totalitarian party and they meet certain requirements applicable to these waivers.
Who Qualifies for an Immigration Waiver for Criminal Offenses?
To be eligible for a USCIS waiver of these criminal grounds of inadmissibility, there are different eligibility requirements under which you may qualify.
- 15 Years Clean: You may be eligible for a waiver of the criminal inadmissibility offenses listed above if you can show that 15 years have passed since the activity or event and that you have been rehabilitated and are no longer a threat or concern to the U.S. government or the security of its citizens.
- Extreme Hardship: An applicant for a green card or immigrant visa can overcome the criminal grounds of inadmissibility when they can show that their U.S. citizen or Lawful Permanent Resident spouse, son, daughter, or parent (or K visa petitioner) would suffer extreme hardship if their application is denied. This particular type of waiver may be referred to as a hardship waiver. USCIS considers several factors when determining whether an applicant has shown extreme hardship to the particular family member.
- Prostitution: If you have committed the offense of prostitution, you may be eligible for an immigration waiver of this offense if you can show that you are only inadmissible because of your participation in the act of prostitution and you have now been rehabilitated. This means that you are no longer engaged in prostitution or will not engage in prostitution in the future. This includes procuring others for prostitution or receiving the proceeds of prostitution. You will also need to show that your admission or entry to the United States is not a concern for the U.S. government.
How to Ask Forgiveness for Crimes through an Immigration Waiver?
Regardless of the eligibility category a person falls under to qualify for the waiver of criminal offenses, all applicants will use the same Form I-601 to apply for the waiver and ask for forgiveness of the criminal offense. They will need to submit documents specific to the eligibility category under which they are applying. Under all of these categories, it is wise to submit documents to USCIS showing how the applicant is a good moral person and not a threat to society.
Can you Waive the Medical Exam Required for a U.S. Visa or Green Card?
It is not possible to waive the medical exam required for U.S. Visa and Green Card applicants. However, if you fail the medical exam for your green card or U.S. visa, you may be eligible for a waiver to overcome the medical issue.
When applying for a Green Card or Immigrant Visa, a person is required to undergo a medical exam to check for communicable diseases, mental disorders associated with dangerous behavior, drug abuse or addiction, and vaccinations. Certain communicable diseases, mental disorders, and drug abuse could make someone inadmissible or ineligible for a green card in addition to a person not having the required vaccinations to come to the United States.
What happens if you Fail the Immigration Medical Exam?
If certain issues arise during your medical exam, you may be able to apply for a waiver to overcome the problem and obtain a green card. To be eligible for an immigration waiver under the medical grounds of inadmissibility, a person must meet certain requirements depending on the medical issue.
For communicable diseases, an applicant may be eligible for a waiver if they can show that they are a certain relative of a United States citizen, Lawful Permanent Resident, or Immigrant Visa Holder. If a person is ineligible for a green card based on a mental disorder that poses a danger to themselves or others, they may be eligible for a waiver at the discretion of the U.S. government.
A waiver is also available to individuals who do not meet the vaccination requirements of the United States government if they can show that the specific vaccination goes against their religious beliefs or if the doctor certifies that the vaccination is not medically appropriate for the particular applicant.
How to Apply for a Medical Related Waiver?
When submitting an application for these medical grounds of inadmissibility, it is best to check the Form I-601 Instructions to see what USCIS requires for each type of waiver application. For example, the Form I-601 has specific instructions for applicants seeking a waiver of a mental disorder associated with dangerous behavior. USCIS will want to see a full medical report providing details of the disorder, treatment, and likelihood of harm.
Is There a Waiver for Lying to an Immigration Officer?
When a person lies to an Immigration Officer in order to come to the United States, then that person has committed the immigration offense of fraud or misrepresentation and will need to get a waiver of forgiveness before they will be eligible for a Green Card or U.S. Visa.
Under INA 212(a)(6)(C), a person is inadmissible or ineligible for a green card when they try to come to the United States or apply for other immigration benefits through the use of fraud or by willfully misrepresenting a fact that could make them ineligible for that benefit if they told the truth. An example of this offense is when someone uses a false foreign passport or travel document to come to the United States.
However, the waiver for fraud or misrepresentation does not cover the offense of lying about being a United States citizen. This is considered a bad act in immigration law for which there is not a general waiver. If a person says they are a United States citizen or uses a false U.S. passport to come to the United States, there is not a general waiver available for them and they cannot use the fraud or misrepresentation waiver to forgive this offense. There is only a limited exception to this rule for certain individuals.
There is another fraudulent offense for which the general waiver for fraud or misrepresentation will not cover and that is the offense of marriage fraud. This is when a couple lies about the true nature of their relationship in order to get a Marriage Green Card or U.S. Visa. The fraud waiver may not help such individuals because this offense comes with an additional penalty beyond simply making someone inadmissible.
If the government determines that a person has committed marriage fraud to get an I-130 Petition approved or if they entered into a marriage for the purpose of evading the immigration laws of the United States, that person will be prohibited from getting any I-130 Petition approved in the future. There is not a general waiver of inadmissibility available to overcome this penalty. However, there may be a waiver of deportability available for this offense for certain qualifying individuals.
Who Qualifies for an Immigration Waiver for Fraud or Misrepresentation?
To qualify for an immigration waiver for fraud or misrepresentation, an applicant must show that they have a United States citizen or Lawful Permanent Resident spouse or parent who would suffer extreme hardship if their application for a Green Card or U.S. Visa is denied. This is considered a hardship waiver because the waiver applicant must prove extreme hardship to their U.S. citizen or Lawful Permanent family member.
How do you Apply for an Immigration Wavier for Fraud or Misrepresentation?
Applicants seeking a waiver for fraud or misrepresentation will need to apply for forgiveness through the Form I-601, Application for Waiver of Grounds of Inadmissibility. The USCIS form instructions give some guidance on the type of documentation that the applicant needs to submit in support of their waiver application such as the items listed above.
The Waiver application can be submitted at the time of the Green Card application or later on in the application process. Sometimes, accusations of fraud arise at the time of the Green Card or U.S. Visa Interview. If the applicant cannot properly defend the absence of fraud in their immigration history, they may need to submit the I-601 Waiver application at that time in order to avoid the denial of their Green Card or U.S. Visa.
Is there a Waiver to Forgive Helping Someone Cross the Border Illegally?
If an individual assisted only a spouse, parent, son, or daughter to enter the United States illegally, they may be able to apply for a waiver to forgive this offense. This waiver requires that the applicant show that the waiver should be approved for humanitarian reason, for the purpose of family unity, or for other reasons that are in the interest of the public.
This basically means that to qualify for a waiver of alien smuggling (INA 212(a)(6)(E)), the applicant should show that there is a compelling reason to approve the waiver based on their particular circumstances and that the applicant is good person who is not a threat to the safety of the United States.
Applicants for this waiver will use Form I-601 and should follow the specific instructions listed for this particular waiver.
Is there a Waiver for Illegal Entry to the United States?
A lawful entry is a general requirement to apply for a Green Card from within the United States and there is not a waiver for this requirement. However, you may be eligible for a special exception to this rule based on particular circumstances.
Some Green Card applicants are exempt from this rule because they are applying under a special humanitarian-based category or they have qualified through other special provisions such as the parole in place program or through INA 245(i) which relates to prior family or employment petitions.
What Happens if You Stay in the United States Illegally?
When a person stays in the United States illegally, they may accumulate something called “unlawful presence.” If a person acquires a certain amount of unlawful presence and then leaves the United States, they may set of a bar or three or ten years to returning to the United States.
There is a waiver for unlawful presence as long as the person did depart the United States after accumulating a year of unlawful presence (when added up all together) or after they were ordered removed from the United States and attempt to return to the United States without being inspected and admitted or paroled.
How do you Qualify for a Waiver of Unlawful Presence?
The waiver for unlawful presence requires that an applicant show that their U.S. citizen or Lawful Permanent Resident Spouse or Parent will suffer extreme hardship if the waiver is not approved. This is another extreme hardship waiver.
How do you Apply for a Waiver of Unlawful Presence?
A person seeking to apply for a waiver of unlawful presence can use Form I-601 if they are applying from outside of the United States after their U.S. visa interview. There is another process for individuals who are currently in the United States and who have not yet set off the 3- or 10-year bar but will do so when they leave the U.S. to attend their Visa Interview abroad. For these individuals, there is something called an I-601A Provisional Waiver of Unlawful Presence.
The I-601A waiver is called a provisional waiver because a person receives it prior to departing the United States and setting of the 3- and 10-year bars. The provisional waiver is approved on a conditional basis. If your Immigrant Visa is approved, the waiver is valid indefinitely. If your Immigrant Visa is denied or the Consular Officer determines that you are ineligible for the Immigration Visa based on additional offenses, then your provisional waiver can be revoked.
How do you Qualify for the Provisional Waiver of Unlawful Presence?
In order to qualify for the I-601A Provisional Waiver of unlawful presence, you must be physically present in the United States, at least 17 years old, and have an Immigration Visa case pending with the Department of States based on an approved I-130, I-140, or I-360 Petition. This means you should have paid your Immigrant Visa fees.
Diversity Visa applicants and derivative family members (spouses and children) of approved immigrant visa petitions may also be eligible to apply for the provisional waiver if they meet the other requirements as listed above.
A person can qualify for an I-601A waiver when they meet these requirements along with showing extreme hardship to their United State citizen or Lawful Permanent Resident Spouse or Parent.
Is there a Waiver for a Prior Removal Order?
There may not be a waiver for prior removal orders, but there is a way to ask permission to come back to the United States before the punishment for a removal order is complete. When someone is ordered removed from the United States, they are not allowed to come back to the United States for a certain period of time. This is the “punishment” or consequence of a removal order.
In order to come back to the United States, the person must wait out the punishment period or apply for special permission to return to the United States. This request to come back to the United States is similar to applying for a waiver. Applicant’s must show that there are compelling reasons to allow them to come back after being ordered removed and will only be allowed back during this “punishment period” if the government approves their special request for readmission.
The punishment period for a removal order differs according to the type of removal. If a person was ordered removed as an arriving alien, the punishment period is 5 years to return to the United States. For other individuals who have only been ordered removed one time, the punishment period is 10 years. If a person has been ordered removed more than once, the punishment period is 20 years. When a person was ordered removed after being convicted of an aggravated felony, they are permanently ineligible to return to the United States unless they get permission to come back through this process.
The application asking to return to the United States after a removal order is called I-212, Application for Permission to Reapply for Admission into the United States. The I-212 application can be submitted prior to leaving the United States for individuals with a removal order who will be leaving the U.S. to apply for an Immigrant Visa abroad. The I-212 application can also be submitted after the Immigrant Visa Interview when a Consular Officer determines that it is required to be admitted to the United States.
Sometimes, individuals may not realize they have a removal order or they may think they have a removal order when in fact they do not have one in their record. This can occur when a person is apprehended at the border and goes through a process that they do not fully understand. Sometimes, a person can be refused entry at the border and sent back to their home country, but this is not a removal order. Other times, individuals may go through a formal removal proceeding really quickly at the border and not fully realize the consequences of the procedure.
An experienced immigration lawyer can help individuals understand what happened in their immigration history and help applicants obtain their records when the facts are not fully known. Speaking to an immigration lawyer before submitting an I-212 application could save time and the cost associated with the application process.
Proving Extreme Hardship
Extreme hardship is a key factor in many immigration waiver applications. It refers to the severe and exceptional difficulties that a qualifying U.S. citizen or lawful permanent resident (LPR) relative would experience if the waiver applicant were denied admission to the United States or if the qualifying relative had to relocate to the applicant’s home country. Demonstrating extreme hardship is crucial for the approval of many waiver applications, as it shows the U.S. immigration authorities that the consequences of denying the waiver would be significantly detrimental to the qualifying relative.
Factors Considered in Assessing Extreme Hardship:
When evaluating extreme hardship waiver application, U.S. Citizenship and Immigration Services (USCIS) consider various factors, including but not limited to:
- Financial impact on the qualifying relative, such as loss of employment, inability to find a job, or significant reduction in income
- Emotional and psychological impact, including separation from family and loved ones, and the stress of adjusting to a new country or culture
- Medical issues and access to necessary healthcare, particularly if the qualifying relative or their dependents have ongoing medical needs or require specialized treatment
- Educational opportunities and potential impact on the qualifying relative’s or their dependents’ educational progress
- Living conditions and safety concerns in the applicant’s home country, including political instability, crime, or other threats to personal safety
The government considers all of these factors together when determining if an applicant has proven extreme hardship to get a waiver approved. Applicants will want to submit a lot of documentation to prove hardship in relation to multiple factors in order to get their waiver application approved.
Providing Evidence of Extreme Hardship:
To demonstrate extreme hardship, the waiver applicant must provide strong evidence supporting their claims. This evidence may include:
- Financial records, such as bank statements, tax returns, or pay stubs
- Personal Affidavits of the Applicant and the U.S. citizen or Lawful Permanent Resident Family member attesting to the hardship they would experience if the waiver is not approved
- Medical records documenting the qualifying relative’s or their dependents’ health conditions and required treatment
- Letters from psychologists or therapists detailing the emotional and psychological impact on the qualifying relative
- School records or transcripts for the qualifying relative or their dependents
- Country condition reports, news articles, or expert testimony about the safety and living conditions in the applicant’s home country
- Evidence of Employment or Business Ownership
- Proof of Memberships in community groups, organizations, or religious communities
- Birth, marriage, and adoption certificates related to family ties in the United States
- Any other documents related to a family’s particular hardship
Applicant’s can show family ties to the United States by submitting proof of family in the United States through birth certificates, U.S. passports, and other items showing residence such as school records, taxes, and other documents. Financial records are helpful to prove extreme hardship but they generally will not make a person eligible for a hardship waiver on their own. In fact, a hardship waiver application should be full of many different types of documents related to family ties, medical concerns, or country conditions.
It is possible that one factor alone could rise to the level of extreme hardship. This may be the case if the U.S. citizen or Lawful Permanent Resident is a person with a disability and reliant on the healthcare system of the United States. Extreme hardship may also arise when the U.S. citizen or Lawful Permanent Resident is the primary caretaker of an individual with a disability.
Another situation that may rise to the level of extreme hardship is when the U.S. citizen or Lawful Permanent Resident is a member of the U.S. military and the denial of the applicant’s waiver would cause both psychological and emotional harm that adds to the stress that is already involved in military service. USCIS favors U.S. military members and seeks to assist them with the approval of the hardship waiver when hardship is shown in this way.
These are examples of when someone might qualify for a hardship waiver based on one extreme factor. However, USCIS does consider all relevant factors when reviewing a hardship waiver. Applicants should back up any claim of extreme hardship with documentation.
Importance of a Well-Documented Hardship Letter:
A well-documented hardship letter is essential in establishing extreme hardship. The letter should clearly explain the unique circumstances and challenges the qualifying relative would face if the waiver is not granted, providing a compelling narrative supported by the evidence collected.
Given the importance of demonstrating extreme hardship in many waiver applications, it is strongly recommended to consult with an experienced immigration lawyer who can help you prepare a persuasive and well-documented case.
Common Challenges and Issues
Applying for an immigration waiver can be a complex and challenging process. Applicants may encounter various issues and obstacles while preparing their waiver applications. Some common challenges include:
Proving Extreme Hardship:
As mentioned earlier, demonstrating extreme hardship is a critical aspect of many waiver applications. Applicants must provide strong evidence to prove that their qualifying relative would face severe difficulties if the waiver is not granted. Assembling the necessary documentation and presenting a compelling case can be difficult, particularly for individuals who are unfamiliar with the immigration process.
Some applicants may face multiple grounds of inadmissibility, which can complicate the waiver process. In such cases, it may be necessary to apply for multiple waivers or submit additional evidence to address each inadmissibility issue. Understanding which waivers to apply for and how to satisfy the specific requirements for each can be a daunting task.
Timeliness and Completeness of the Application:
Submitting a timely and complete waiver application is essential for a successful outcome. Incomplete applications or missing documentation can result in delays, requests for additional evidence, or even denial of the waiver. Ensuring that all necessary forms and supporting documents are submitted in a timely manner is crucial.
Navigating the Immigration Process:
The U.S. immigration system can be complex and confusing, particularly for those who are unfamiliar with its intricacies. Navigating the waiver application process, understanding eligibility requirements, and staying up-to-date with changing immigration policies can be challenging.
For some applicants, language barriers can present additional challenges when preparing their waiver applications. Ensuring that all documents are translated accurately and submitted in the required format is essential to avoid potential misunderstandings or delays.
Given these challenges and the high stakes involved, it is strongly recommended that individuals seeking an immigration waiver consult with an experienced immigration lawyer. A knowledgeable immigration attorney can help navigate the complexities of the waiver process, address potential issues, and improve the chances of a successful outcome.
How an Immigration Lawyer Can Help with Waivers
Navigating the immigration waiver process can be complex and challenging, especially for individuals who are not well-versed in U.S. immigration law. An experienced immigration waiver lawyer can provide valuable assistance throughout the waiver application process, offering support and guidance in several ways:
- Assessing Eligibility: An immigration lawyer can help you determine if you are eligible for a waiver and identify which specific waiver may be appropriate for your situation. They can also advise you on the potential consequences of applying for a waiver and help you weigh the pros and cons of pursuing this path.
- Gathering and Preparing Documentation: A crucial aspect of the waiver application process is collecting and submitting the necessary documentation to support your case. An immigration lawyer can help you identify the required documents, ensure they are properly prepared and translated (if needed), and present them in the most persuasive manner.
- Demonstrating Extreme Hardship: Proving extreme hardship to a qualifying relative is often a critical component of many waiver applications. An immigration lawyer can assist you in gathering compelling evidence to demonstrate extreme hardship and craft a persuasive narrative that supports your case.
- Preparing and Filing the Application: An immigration lawyer can guide you through the process of completing and submitting the waiver application, ensuring that it is accurate, thorough, and submitted in a timely manner. They can also help you avoid common mistakes and pitfalls that can lead to delays or denials.
- Representing You in Immigration Proceedings: If necessary, an immigration lawyer can represent you in immigration court or other proceedings related to your waiver application. They can advocate on your behalf, answer questions from immigration officials, and present a strong case for the approval of your waiver.
- Staying Updated on Immigration Law and Policy: Immigration laws and policies are constantly changing, and an experienced immigration lawyer will be well-informed about the latest developments. They can help you stay current with any changes that may impact your waiver application and ensure that your case is handled in accordance with the most up-to-date regulations and guidelines.
By enlisting the help of an immigration attorney, you can significantly improve your chances of successfully obtaining an immigration waiver. Their expertise and guidance can be invaluable in navigating the complexities of the waiver process and overcoming any challenges that may arise.
If you’re facing inadmissibility issues and need assistance with an immigration waiver, don’t hesitate to contact Glenn Immigration Law Firm in Atlanta. Our experienced team is here to guide you through the complex waiver process and help you apply for a Green Card, visa, or other immigration situations. Schedule an immigration consultation with our dedicated immigration professionals today and let us provide the support you need for a successful outcome.
Immigration Waivers FAQs
In this section, we will answer some frequently asked questions about immigration waivers to provide you with a better understanding of the waiver process and what it entails.
Can I apply for a waiver if I have been deported or removed from the U.S.?
In some cases, yes. Individuals who have been deported or removed from the U.S. may be eligible for an I-212 waiver, which allows them to apply for permission to reapply for admission into the United States. Eligibility for this waiver depends on various factors, including the reason for removal, the amount of time spent outside the U.S., and the applicant’s ties to the United States.
Can an immigration waiver be denied, and if so, can I appeal the decision?
Yes, immigration waivers can be denied if the applicant does not meet the eligibility criteria or fails to demonstrate that they deserve the waiver. If your waiver application is denied, you may have the option to appeal the decision or file a motion to reconsider or reopen the case.
Can I apply for multiple waivers at the same time?
Yes, you can apply for multiple waivers simultaneously if you have different grounds of inadmissibility that need to be addressed. Each waiver application should be submitted separately, and you must meet the eligibility criteria for each waiver.
Is it possible to apply for a waiver after a visa denial?
Yes, if your visa application has been denied due to inadmissibility grounds, you may be eligible to apply for a waiver to overcome the denial.
Can a waiver application be withdrawn after it has been submitted?
Yes, you can withdraw your waiver application at any time before a decision is made by USCIS. To withdraw your application, you must submit a written request to the USCIS office processing your case. Keep in mind that withdrawing your application may affect your immigration status and future applications.
How can I check the status of my waiver application?
You can check the status of your immigration waiver application online through the USCIS Case Status Online system. You will need your receipt number, which can be found on the receipt notice sent to you by USCIS after filing your application.
What happens if my waiver application is approved?
If your waiver application is approved, the grounds of inadmissibility that were preventing you from obtaining a visa or adjusting your status will be waived. You can then proceed with your visa application or adjustment of status process, as applicable.
If my waiver is approved, will I automatically receive a visa or green card?
No, the approval of a waiver does not guarantee that you will receive a visa or green card. The waiver only eliminates the specific grounds of inadmissibility that were affecting your case. You will still need to complete the remaining steps in the visa or green card application process and meet all other eligibility requirements.
Can a previously approved waiver be revoked?
In rare cases, a previously approved waiver can be revoked if USCIS discovers new information or evidence that would make the applicant ineligible for the waiver. Additionally, a waiver may be revoked if the applicant fails to comply with the terms and conditions of the waiver or if there are any changes in the applicant’s circumstances that would affect their eligibility for the waiver.
How long is an approved waiver valid?
The validity period of an approved waiver can vary depending on the type of waiver and the specific circumstances of your case. Some waivers are valid indefinitely, while others may have a specific time limit. It’s essential to carefully review the approval notice from USCIS to understand the validity period and any conditions associated with your waiver.
Can a waiver be extended or renewed?
Some waivers can be extended or renewed, while others cannot. If your waiver has a specific validity period, you may need to reapply for a new waiver before the current one expires.
Does a waiver guarantee admission to the United States?
No, an approved waiver does not guarantee admission to the United States. When you arrive at a U.S. port of entry, Customs and Border Protection (CBP) officers will determine your admissibility. Having an approved waiver can help overcome specific inadmissibility grounds, but CBP officers may still deny admission based on other factors.
Can a waiver help me avoid removal proceedings?
An approved waiver can potentially help you avoid removal proceedings if it addresses the grounds of inadmissibility that led to the initiation of removal proceedings. However, each case is unique, and there is no guarantee that a waiver will prevent removal.
Can I work while my waiver application is pending?
In some cases, you may be eligible to apply for employment authorization while your waiver application is pending. This depends on the specific circumstances of your case and the type of waiver you are applying for.
The information provided in this article is for general informational purposes only and should not be construed as legal advice or a substitute for legal counsel. Immigration laws and regulations are complex and subject to change. Each individual’s situation is unique, and the outcome of any immigration case depends on various factors. We strongly recommend consulting with an experienced immigration attorney for specific guidance regarding your case.