One of the worst outcomes for immigrants applying for immigration relief is to be found inadmissible. There are many reasons that immigration authorities may make that determination, including criminal activity, health, fraud, misrepresentation, unlawful presence in the U.S., and more.
Since the reasons for being found inadmissible may be so broad, they’re confusing to hopeful immigrants. But, in certain circumstances, you can request a waiver if you’re found inadmissible during your immigration application process. The waiver process, however, can be complex and take time. Also, there are no guarantees that your waiver will be approved.
That’s why it’s essential to have an immigration attorney specializing in waivers. At Luque Law Firm, P.A., we have a high success rate in applying for waivers for our clients. Read on to learn more about the various types of waivers for immigration.
This waiver removes the “unlawful presence” bar for foreign nationals outside of the U.S.; it also waives the “fraud and misrepresentation” grounds of inadmissibility for foreign nationals inside or outside of the United States.
The I-601A waives the “unlawful presence” ground of inadmissibility for foreign nationals residing in the U.S. In an attempt to promote family unity, USCIS made the I-601A waiver available to allow foreign nationals to apply without requiring them to leave the country.
For both I-601 and I-601A waivers, the foreign national must have a spouse or parent who is a U.S. citizen or lawful permanent resident. In addition, the foreign national must be able to demonstrate that his/her U.S. citizen or lawful permanent resident spouse or parent would suffer “extreme hardship” if they cannot remain together or be united.
Extreme Hardship, Defined
USCIS officers will generally consider the following factors in determining whether extreme hardship has been met in any individual case:
- Both mental and physical health of the qualifying relative
- Financial hardships
- Educational hardships
- Hardships that may occur in the foreign national’s country of birth
- Family ties to the U.S.
- Qualifying relative’s family ties outside of the U.S.
- Any other hardships that may arise
Unlawful Presence, Defined
The USCIS determines that “unlawful presence” occurs when an individual is present in the U.S. after the expiration of their authorized period of stay (as indicated on their I-94) or is present in the U.S. after having entered without a visa or parole on or after April 1, 1997.
The I-212 waiver allows foreign nationals to apply for early readmission into the country after having been previously removed and before they have met their statutory period of stay outside of the United States.
USCIS exercises broad discretion when adjudicating this waiver, and weighs positive factors against negative factors. The following factors are heavily weighed:
- Basis for the deportation
- Recency of deportation
- The foreign national’s length of residence in the U.S., and status held during that presence
- Family responsibilities and ties to the U.S.
- The foreign national’s evidence of good moral character
- The foreign national’s criminal history or lack thereof
- Evidence of reformation and rehabilitation
- Hardship involving the applicant and others
- Need for the applicant’s services in the U.S.
- Whether the applicant has an approved immigrant or non-immigrant visa petition
- Eligibility for a waiver of other inadmissibility grounds
- Repeated violations of immigration laws, willful disregard of other laws
- Likelihood of becoming a public charge
- Absence of close family ties or hardships
- History of immigration fraud or misrepresentation
- Existence of other grounds of inadmissibility into the U.S.
212(h) Waiver for Criminal Convictions
The 212(h) waiver is used to waive certain grounds of inadmissibility regarding the following criminal grounds:
- Crimes involving moral turpitude
- Multiple criminal convictions
- Prostitution and commercial vice
- Certain aliens who have asserted immunity from prosecution
- An offense of simple possession of 30 grams or less of marijuana
These criminal grounds of inadmissibility may be waived in the case of an alien who demonstrates to the satisfaction of the Attorney General that:
- The activities for which he/she is inadmissible occurred more than fifteen years before the date of the foreign national’s application for a visa, admission, or adjustment of status;
- The admission would not be contrary to the national welfare, safety, or security of the U.S.; and
- The foreign national has been rehabilitated.
With regard to prostitution, the crime can be waived if the foreign national establishes to the satisfaction of the Attorney General that the foreign national’s admission would not be contrary to the national welfare, safety, or security of the U.S., and that the foreign national has been rehabilitated.
Other criminal grounds mentioned above may be waived in the case of a foreign national who demonstrates that his/her removal from the United States would result in “extreme hardship” to his/her U.S. citizen or Lawful Permanent Resident parent, spouse, son, or daughter.
Explore Your Options
As you can see, there’s a lot that goes into determining the appropriate waiver for which to apply and ensuring that you follow the process to the letter of the law. In general, you stand a better chance when you have an immigration lawyer specializing in waivers working on your behalf.
Whether your concern is related to an illegal entry or a past crime, we invite you to schedule a consultation and see if you qualify for a waiver.