What is a Waiver of Inadmissibility for Immigration?
- a criminal conviction
- immigration fraud or misrepresentation
- unlawful presence (3 or 10 year bar)
In most cases, inadmissibility waiver is sought by filing Form I-601. The government has the discretion to forgive past immigration or criminal violations so you can get a green card, either in the United States when you seek to adjust your status, or from abroad when you try to obtain an immigrant visa (green card). Waivers add an extra hurdle you have to overcome to get a green card, but if you present a very strong case, you can be forgiven and given a green card.
If you were previously deported or removed from the United States, and want to return to the United States through consular processing during the time you are still require to remain abroad (in most cases, 10 years from the date of deportation or removal, but sometimes 20 years), you may be required to file a separate waiver for permission to re-enter the United States, by filing Form I-212.
Depending on the situation, you may need both the I-601 AND I-212 waivers.
When do I need to file an Inadmissibility Waiver?
You may need a waiver:
- with adjustment of status process in the United States (with Form I-485)
- when doing consular processing from abroad, or
- in removal proceedings in immigration court when pursuing a green card (with Form I-485)
If you need a waiver with adjustment of status process with USCIS, it’s best to apply for the waiver with the green card application, so that everything is decided together.
If you need to apply for a waiver while consular processing, generally, you’ll be asked to submit the waiver after the immigrant visa interview and after a consular officer has made an inadmissibility finding, and you must wait to file the waiver until it is requested.
If a waiver is required in immigration court, you’ll file the waiver once inadmissibility or removability is established and you seek adjustment of status as relief from removal.
Almost all waivers require a showing of “extreme hardship” to either a US citizen or green card holder spouse or parent(s). Some waivers (not all) allow for showing “extreme hardships” to US citizen or green card holder children. Certain waivers may also require a heightened standard of “exceptional and extremely unusual” hardships, for example, in a case involving a violent or dangerous crime. Some people may need only one waiver, while others may need multiple waivers for multiple inadmissibility grounds (such as a criminal conviction AND immigration fraud). Waivers are case-specific, so you should discuss your situation with a qualified immigration attorney to see what waiver(s) you may need and whether you qualify for a waiver.
What can be waived withan I-601 Waiver?
Criminal Convictions (INA § 212(a)(2)(A) waivers)
Most criminal conviction waivers are sought under INA §212(h) by filing Form I-601. Some common convictions that require an I-601 waiver include (but not limited to):
- crime(s) involving moral turpitude (except torture or murder)
- drug offense involving simple possession of 30 grams or less of marijuana for personal use
- prostitution conviction
- multiple criminal convictions.
People with convictions for aggravated felonies or most drug or trafficking convictions (except simple possession of less than 30 grams of marijuana) generally do not qualify for a waiver and will generally not be able to get a green card. Additionally, if you have a conviction for a “violent” or “dangerous” crime, you have to show a higher standard of hardships to your qualifying relative(s). For INA §212(h) waivers, hardships can be shown to a spouse, parent(s), or children who are U.S. citizens or green card holders.
If you succeed on getting the waiver, it only waives the inadmissibility ground thereby allowing you to get the green card. A waiver does nt “get rid” of the actual conviction. So if and when you apply for citizenship later, you must still disclose your conviction on the naturalization application.
It is extremely important to discuss your criminal conviction(s) with an immigration lawyer to see whether your conviction is even a “conviction” under immigration law and whether you need a waiver to get a green card. Laws are changing constantly and with new decisions regularly issued by the Board of Immigration Appeals and/or federal courts, your need for a waiver, or eligibility for a criminal conviction waiver may be affected depending on the law at the time you begin your green card process.
If you are about to plead guilty to any criminal charges, and you are not a United States citizen, it is advisable that you speak with an immigration lawyer to see what impact a criminal conviction may have on your immigration status, including ability to get a green card, keep your green card, and to become a U.S. citizen.
Immigration Fraud or Misrepresentation Waiver (INA §212(a)(6)(C)(i) waivers)
Just like criminal conviction waivers, the government can also forgive immigration fraud or misrepresentation through a waiver. Waiver for fraud or misrepresentation falls under INA §212(i) and can be sought by filing Form I-601.
The most common reasons for needing a waiver of inadmissibility for fraud or misrepresentation include (but are not limited to):
- using a fake visa or passport to enter the United States
- lying or providing false information on any immigration application, including on tourist or other immigration benefit applications
If you came to the United States using a fraudulent visa or passport, you will need a waiver of inadmissibility when applying for a green card. Even if you came using false entry documents, it would be helpful if you still have those documents or copies of them, since they will help to show the entry that was done through “inspection” by an immigration official, even though the passport or visa did not really belong to you. If you cannot show that entry, it becomes
extremely difficult to show you were “inspected and admitted” to the United States, which is a requirement for seeking a green card (unless you qualify for adjustment of status under INA §245(i), which doesn’t require you to show “inspection,” if you are a beneficiary of a petition filed for you on or before April 30, 2001).
If you made any misrepresentations on any immigration benefits applications, note that the misrepresentation must be “material” for a waiver to be needed. If you made any misrepresentations for any immigration benefit, you should discuss with an immigration lawyer whether the misrepresentation was “material” and whether you actually require a waiver.
Unlike the INA §212(h) waiver mentioned above for criminal convictions, a waiver under INA §212(i) for fraud or misrepresentation does not allow consideration of “extreme hardships” to U.S. citizen or green card holder children of the waiver applicant. Only “extreme hardships” to U.S. citizen parent(s) or spouse are considered for the 212(i) waiver. This is why it is important to discuss your situation with an immigration lawyer, who can help tie the hardships to the children with the hardships to the qualifying relative(s)
Do I need a waiver if I have Unlawful Presence in the United States?
Unlawful Presence Waiver (3, 10, or permanent bars)
If you are applying for a green card from abroad, and if you were previously unlawfully present in the United States, you may be required to seek a waiver of unlawful presence.
For unlawful presence after April 1, 1997, you are inadmissible for unlawful presence and will require a waiver if any of these apply:
- If you were unlawfully present in the United States for more than 180 days but less than a year and then departed the United States
- If you were unlawfully present in the United States for more than one year and then departed the United States.
- If you reenter or try to reenter the United States without being admitted or paroled after having accrued more than one year of unlawful presence in the aggregate during one or more stays in the United States (typically referred to as the “permanent bar”)
Departure from the United States after having unlawful presence of more than 180 days but less than a year, triggers a 3-year re-entry bar, unless a waiver is granted. Departure after unlawful presence of more than a year triggers a 10-year re-entry bar, unless a waiver is granted. If you are subject to the “permanent” bar, you must remain outside of the United States for atleast 10 years from the date of your departure from the United States before you can even apply for a waiver.
What is an I-601A Provisional Waiver used for?
Certain individuals may qualify for a provisional waiver of unlawful presence, through the filing of Form I-601A while still in the United States. This waiver is unique, in that you can wait in the United States for the waiver to be approved prior to departing for a consulate interview if you are not eligible to adjust your status in the United States, but would trigger either the 3-year or 10-year bar if you left the country to consular process. If approved, the I-601A waiver is conditional upon your departure from the United States. It significantly cuts down the time you have to wait abroad, which you would have to do otherwise if you needed to file Form I-601 from abroad to waive the unlawful presence bars.
I-601A waiver is ONLY available if the sole ground of inadmissibility is unlawful presence and the applicant is not able to get a green card in the United States and would have to leave the country to consular process, which departure would trigger either the 3-year or 10-year bar. If you are inadmissible for ANY other reasons besides unlawful presence (for example, immigration fraud or criminal conviction), you cannot benefit from Form I-601A and must apply for an I-601 waiver from abroad to waiver the unlawful presence and any other inadmissibility grounds.
What is the I-212 Waiver and when is it needed?
Waiver of Previous Deportation or Removal (Form I-212)
If you were previously deported or removed from the United States and want to return to the United States before the deportation bar (usually 10 years, but sometimes 20 years, depending on your specific case) has expired from the date of your deportation, you may need a waiver of that physical deportation, which is sought by filing Form I-212.
If you wait outside the United States for the entire duration of you bar (either 10 or 20 years, depending on what bar you have), you may not need the I-212 waiver when seeking to return lawfully to the United States after that time has passed.
But, if you are subject to the “permanent bar” mentioned above, you will not be eligible to file the I-212 waiver while you are in the United States, and will be required to wait outside of the United States for atleast 10 years from the date of your departure before applying for the waiver. The reason why this is referred to as the “permanent bar” is because while in other situations you do not need the I-212 waiver if you wait out the time bar out of the United States, if you are subject to the permanent bar, you will ALWAYS need the I-212 waiver before being able to return to the United States, no matter how many years you wait abroad.
What do I need to do to succeed in a waiver?
Waivers are case-specific, so it is impossible to compare one person’s waiver application to the next person’s. Typically, in a waiver package, you should have good evidence of:
- detailed affidavits of hardships from U.S. citizen qualifying relatives, discussing what hardships they will suffer if you are not granted the waiver
- evidence of your positive equities in the United States
- rehabilitation if there was criminal history
- support letters from family, friends, co-workers talking about your good qualities and character
- psychological evaluation report from a qualified expert discussing the impact your deportation would have on your qualifying relative(s)
- any medical records of your qualifying relatives, if they are not likely to receive good medical care in your country if they have to go there with you if you are deported
Waivers require attention to detail if you want to succeed. Taking the time to prepare thorough documentation of hardships will give you the best chance to succeed. This is why it is critical to work with an experienced immigration attorney if and when you need an immigration waiver.
I love doing I-601, I-601A, and I-212 waivers! Over the 20 years I have practiced immigration law, I have done hundreds of waiver cases and have honed my skills in preparing the best possible waiver packages for clients that have led to successful results.
I work closely with my clients and their qualifying relatives to gather as much hardship evidence as possible, so that they have the best chance of success. I have seen almost all of my clients who won their waiver go on to become US citizens, because either I represented them on their citizenship cases years after they won their waivers and became green card holders, or they contacted me to share the news about their citizenship! As an immigration lawyer, nothing makes me happier than to be able to keep hard working families together in this country. A need for a waiver is a threat to a family unit being able to stay together, so it is always important to work with an attorney when navigating the waiver process!
Contact me if you or someone you know needs an immigration waiver, or if you don’t know whether you need a waiver with your green card application!