Waivers

Certain foreign nationals may not be allowed to enter or obtain status in the United States because they are inadmissible. These foreign nationals may overcome the inadmissibility if they are eligible to apply for and receive a waiver. Due to the complexity of immigration law, there are many types of waivers available for specific immigration violations.  In case you are confused about the terms “deportation” and “removal”, please remember that for practical purposes these two terms are interchangeable — they mean the same thing. Deportation/removal is being sent of the US, typically to your country of origin.

We handle ALL waivers and can help counsel you as to when you should file a waiver, what type of waiver and what supporting documentation you need to help increase your chances of the waiver being granted. Here are the most common waivers we see in our practice however we experienced in all waivers.

waivers

601A WAIVERS

Under current law, many immigrants who enter the country without proper documentation cannot apply for residency (a “green card”) in the U.S. and instead must apply for their permanent residency abroad. If someone is in the United States without documentation for over a year and departs, this can result in a bar to returning for ten years. In order to return, the applicant would have to be granted a waiver of this bar before being allowed to re-enter the United States.

Under the 601A provisional waiver, an individual will know before they leave the U.S. whether the waiver is granted, and the wait outside is usually less than one month. The individual finalizes their lawful permanent residence at the U.S. consulate in their home country and returns legally as a lawful permanent resident of the United States.

WHO IS ELIGIBLE FOR THE 601A WAIVER?

Applicants who are the spouse or child  of a United States citizen (USC) or spouse of Lawful Permanent Resident (LPR) are eligible to apply. The applicant must be physically present in the United States, and not already have a scheduled interview at a U.S. consulate abroad. However, in order to be granted the waiver, the Applicant must demonstrate that the Applicant’s USC or LPR spouse or parent will suffer an extreme hardship if the waiver is not granted. Unfortunately, individuals whose only immediate relative is a U.S. citizen child over the age of 21 do not qualify for the 601A waiver.

Only those individuals whose sole immigration violation is unlawful entry are eligible to apply for the provisional waiver. Those who have criminal violations or other immigration problems, prior removal orders, or reentry after deportation will not be eligible.

212 WAIVERS

Permission to reapply for admission into the United States after deportation or removal, also known as “consent to reapply,” and is not technically a waiver.  Consent to reapply is a distinct remedy that permits a foreign national to seek admission after being ordered removed.  If you are ordered removed from the United States, you will be barred from re-entering the US for a certain period of time and must apply for waiver.

HOW TO APPLY FOR THE 212 WAIVER?

A successful I-212 application works a lot like a pardon does for a criminal conviction — US immigration authorities agree to lift the bar to re-entry and allow you to apply for a visa to re-enter the US.  The I-212 waiver is discretionary, meaning that US immigration authorities are not obligated to give you one no matter how persuasive your application is. Obviously, however, the more persuasive your application is, the better your chances are for receiving a waiver.

Some of the most important factors that the officer will take into account include:

  • The amount of time that has passed since you were deported (the longer the better);
  • Whether you have committed any criminal acts, either inside or outside the U.S.;
  • If your re-entry bar is based on a criminal act, whether there is evidence of rehabilitation;
  • How long you have resided in the US and how much of that time was in legal status;
  • Whether you have close family members residing in the U.S.;
  • Whether you have family responsibilities in the U.S.;
  • Whether the denial of your application will cause undue hardship to your US citizen or permanent resident relatives or yourself. The degree of hardship must be more than the usual degree of hardship that occurs when someone gets deported and is not allowed to return.;
  • If you have valuable professional or vocational skills, the degree of need for these skills in the U.S.;
  • Whether you have demonstrated good moral character, whether inside or outside the U.S.;
  • Whether allowing you to re-enter the US would harm the safety or welfare of the nation.;
  • Whether you are inadmissible for reasons other than the reasons that an I-212 waiver could cure (in other words, whether you would be inadmissible even if your I-212 waiver were to be granted).;
  • Whether you will be eligible for permanent residence soon after an I-212 waiver is granted.

212(h) Waiver for Criminal Convictions

Section 212(h) of the Immigration and Nationality Act provides a discretionary waiver for certain criminal grounds of inadmissibility like crimes involving moral turpitude, multiple criminal convictions, prostitution or an offense of simple possession of 30 grams or less of marijuana.  Certain grounds of inadmissibility may be waived in the case of an alien who demonstrates that his removal from the United States would result in extreme hardship to his United States citizen or lawful resident parent, spouse, son, or daughter.  In evaluating extreme hardship to a qualifying relative, factors to be considered include, but are not limited to:

  • whether the qualifying relative has family ties to this country;
  • the extent of the qualifying relative’s family ties outside the United States;
  • conditions in the country of removal;
  • financial impact of departure from this country; and
  • significant health conditions, particularly when tied to an unavailability of suitable medical care in the country to which the qualifying relative would relocate.