An Application for a Waiver of Inadmissibility is an application for legal entry to the United States made by an individual who is otherwise inadmissible on one or more grounds. The application is submitted to U.S. Citizenship and Immigration Services (USCIS), a Bureau of the U.S. Department of Homeland Security (DHS).There are several circumstances under which illegal entrants and immigration violators may apply for a Waiver of Inadmissibility (grounds):
- Persons who enter the U.S. without being admitted or paroled at a port of entry or who overstay a valid visa, or the period of authorized stay expires.
- If the applicant is inadmissible because they have been unlawfully present in the United States for more than 180 days (3-year bar) or one year (10-year bar) and have voluntarily left the United States (including voluntary departure), they may apply for a Waiver of Ground of Inadmissibility on Form I-601.
- Persons who knowingly or willfully made misrepresentations or committed fraud in order to obtain an immigration benefit or benefit under the INA, may apply for a Waiver of Ground of Inadmissibility on Form I-601
- Persons previously deported or given expedited removal must also file Form I-212, Application for Permission to Reapply for Admission (if eligible).
- Persons unlawfully present in the United States for an aggregate period of one (1) year who have exited the United States and re-entered without inspection (EWI) are not eligible to file Form I-601 to waive their unlawful presence.
- An applicant’s petition may be approved if they are the spouse, parent, unmarried son or daughter, or the minor unmarried lawfully adopted child of a U.S. citizen or legal permanent resident, or of an alien who has been issued an immigrant visa, or the fiancé(e) of a U.S. citizen or the fiancé(e)’s child.
TYPES OF WAIVERS
INADMISSIBILITY WAIVERFOR AN INTENDING IMMIGRANT (601 WAIVER)
Green card applicants (and those applying for a K-1 or K-3 visa) who are denied the visa either when applying at a U.S. Embassy or Consulate abroad or when adjusting status in the U.S. will be given the chance to file a 601 waiver if their ground of inadmissibility may be waived.
Typical grounds of inadmissibility that can be waived with a 601 waiver include a 212(a)(9) bar for a visa overstay (or for entering without inspection EWI). The overstay waiver can be used for both the 3 year bar (visa overstay of less than a year but more than six months) and a 10 year bar (visa overstay of more than a year).
Certain criminal grounds of inadmissibility that can be waived with a 601 waiver, pursuant to INA 212(h), including some crimes involving moral turpitude (CIMT) and multiple criminal convictions.
In applying for this waiver, the USCIS balances the prior act or acts that make the person inadmissible to the U.S. against the hardship that may be caused to the qualifying relative/s by their absence. With this, the more severe the reasons for inadmissibility are, the more extreme the hardship to the qualifying relative/s must be.
Common Grounds of Inadmissibility
Some of the grounds of inadmissibility for the immigrant includes: having committed certain crimes, committed fraud in order to avail of an immigration benefit (example: a tourist visa to enter the U.S. to get married), appearing likely to become a public liability (receive and need government assistance), or having stayed in the U.S. unlawfully for a period more than six months. It should be noted that not all grounds of inadmissibility can be waived.
Qualifying Relationships for an Extreme Hardship Waiver
Save in cases where an immigrant would face persecution upon departure from the U.S., any hardship that the immigrant would go through if refused a green card is ignored by the immigration laws. With this, the immigrant would most likely be granted a waiver if proved that one or all of the following qualified relatives, who are either U.S. citizens or lawful permanent residents would face extreme hardships with the refusal of a green card upon the immigrant:
- Son or daughter
How Bad Should “Extreme” Hardship” Be?
While inevitably, an immigrant refused a green card would have to face family separation and financial inconvenience; this alone does not constitute extreme hardship– after all, countless of immigrants whose green cards or immigration benefits are denied face the same consequences. For “hardship” to qualify as “extreme hardship”, the immigrant must prove that what he/she will have to experience given the denial of a green card is worse than that faced by others in the same circumstance.
For instance, the issues like when the qualifying family member/s of the immigrant would face health or medical hardship if separated from the latter, or if the qualifying relative had to relocate along with the immigrant to the home country and suffer the effects of relocation such as language or cultural barriers, the likelihood of physical harm, loss of educational and job opportunities, and so on.
Evidence To Show Extreme Hardship
Simply claiming that the qualified relative/s will face “extreme hardship” will not hold water to grant one a Waiver; thus, the need to provide documentary evidence to support the claim for seeking a waiver.
- Affidavits from professionals or friends who knows your situation
- Police and other reports showing conditions in your home country
- Medical reports and records, and descriptions of the availability of treatment and medical care in the country in which you would have to relocate (as supported by a medical professional’s statement);
- Other evidence showing the unique impact of separation or relocation on your family.
Once the petition for a waiver is approved, the applicant’s application for their immigration benefit such as permanent residence status or immigrant visa can be approved as well. If the immigrant is already in the U.S., he/she may file the I-601application concurrently with the I-485 Adjustment of Status application.
INADMISSIBILITY WAIVER FOR A TEMPORARY WORKER OR VISITOR (212(D)(3) WAIVER
Non-immigrants are subject to the same grounds of inadmissibility, non-immigrants do not file their waiver on form I-601. Instead, they file a 212(d)(3) nonimmigrant waiver either at a US Embassy or Consulate abroad or with a port of entry in the United States, depending on the situation. The 212(d)(3) waiver will either be filed informally or on form I-192.
Section 212(d)(3) applies to individuals seeking entry for a temporary purpose–such as B-1/B-2 visitors, F or J students, H-1B or L-1 workers, or E-2 investors, who are subject to one or more ground(s) of inadmissibility.
These grounds for inadmissibility include, but not limited to:
- prior immigration fraud
- certain criminal activity
- history of deportation
- health related grounds
This waiver applied to virtually all grounds of inadmissibility, except certain security-related grounds. As this waiver only applies to nonimmigrant visitors only, those who are permanently immigrating to the United States based on petitions from family members, fiances, and employers are not eligible for the Section 212(d)(3) Waiver.
Unlike many applications decided by the Department of State officers in Embassies and Consulates overseas, the grant of nonimmigrant waiver of inadmissibility is within the discretion of the Department of Homeland Security (DHS). The DHS officers employ a set of criteria as prescribed by the Board of Immigration Appeals (BIA) in its decision in the Matter of Hranka when considering the Section 212(D)(3) waivers.
What Is the Matter of Hranka or Non-Immigrant Waiver?
Section 212(d)(3) of the Immigration and Naturalization Act (INA) states that a person looking to enter the U.S. as a nonimmigrant but ineligible for a nonimmigrant visa or inadmissible may still be admitted to the U.S. at the discretion of U.S. immigration authorities.
In a nutshell, this section of the law allows U.S. immigration to waive inadmissibility grounds and admit the foreign national to the country.
Section 212(d)(3) is known as the Hranka waiver because of an immigration court case, Matter of Hranka. This landmark case outlined the three legal factors that must be looked into and considered by the immigration authorities in deciding whether to grant the waiver:
- the risk of harm to society if a waiver applicant is admitted to the U.S.
- the seriousness of an applicant’s prior criminal or immigration violations, if any, and
- the nature of the applicant’s reason for wishing to enter the U.S.
Important to Note:
- The applicant’s reason for applying for a visa need not be “compelling”. For instance, an applicant merely wanting to enter the U.S. for social visits is not disqualified for the waiver. The waiver also does not require an urgent humanitarian need for the visa in order to grant one.
- U.S. Immigration authorities have the discretion in deciding whether or not to grant the waiver, and the applicant has no way to appeal or challenge the decision in case denied.
- The huge degree of discretion granted to the U.S. Immigration authorities in granting a visa under the non-immigrant waiver allows them to easily approve a visa, giving foreign nationals who are deemed inadmissible the chance to obtain a visa despite the burden of their inadmissibility.
Immigration officers undertake a balancing of these factors when determining whether or not the applicant should be banned from the U.S. either temporarily, or in some cases, forever. While the Matter of Hranka did not include rehabilitation as a criterion, a close reading of the case will show that if the ground for inadmissibility is due to past crimes, proof of rehabilitation may help the waiver applicant.
Applying for the Section 212(d)(3) Waiver
There are two possible means to apply for this waiver:
- An applicant who has not yet been granted a visa may directly request a Hranka waiver from consular officers at the time of applying for a visa at a U.S. consular post.
- An applicant who already has a valid visa but is inadmissible to the U.S. can apply for the waiver at a U.S. port of entry using Form I-192, Application for Advance Permission to Enter as Nonimmigrant.
For both these processes, the applicant must be able to prove that he/she positively satisfies the three legal factors from the Matter of Hranka, establishing his/her eligibility for the visa. First, the applicant must prove that he/she does not pose a risk of harm to the U.S. society; second, that the applicant must prove that any prior criminal or immigration violations are not of serious nature; and third, that the applicant has some valid reason for wishing to enter the United States that is not contrary to the inadmissibility grounds as discussed.
Since the Hranka waiver is available only for the non-immigrant visas to the U.S., the applicant must also show that he/she intend to leave the U.S. after the period granted under the visa, and that he/she has the intention of returning to his/her country of origin.
An applicant must also submit a brief, or legal arugument, outlining the applicable law and the reasons why the specific case satisfies the law behind Hranka.
DEPORTATION WAIVER (I-212)
Depending on the length of time that has passed, a prior deportation order may make a person inadmissible, a deportation waiver is usually filed on form I-212 for all applicants, whether they are applying for the deportation waiver along with an immigrant visa or nonimmigrant visa.
Individuals who are previously deported from the United States are inadmissible to the country, and may not be re-admitted to the U.S. for a specified period of time, unless they apply for an are granted permission to reapply for admission.
This Permission to Reapply for Admission is applied for by submitting Form I-212, along with the appropriate supporting documentation and filing fee. Permission to Reapply for Admission is granted in the form of a I-212 waiver.
Who are Eligible for this Waiver?
- Aliens previously removed subject to an order of removal entered by anImmigration Judge;
- Aliens who fail to timely depart under an order of voluntary departure issued by an Immigration Judge, whose voluntary departure is converted to an order of removal; and
- Aliens who have been subject to an order of expedited removal issued by CBP
Important to Note: If a non-citizen timely left the U.S. pursuant to an order of voluntary departure, he/she does NOT need to apply for permission to reapply for admission.
Individuals may apply for an I-212 waiver concurrently with an immigrant or nonimmigrant visa application. Canadians, and other visa-exempt individuals, may also apply for an I-212 waiver.
In most instances, an alien seeking permission to reapply for admission will also need to file an additional waiver application based on a specific ground of inadmissibility, along with the required documents under the waiver applied for.
For instance, an individual who has been removed from the United States after an Immigration Judge has made a finding of fraud under INA 212(a)(6)(C)(i), which imposes a lifetime bar to entering the U.S., will have to apply for an I-212 waiver application and either an I-601 waiver application (if the individual is applying for an immigrant visa) or an I-192 waiver application (if the individual is applying for a nonimmigrant visa). If the I-212 application is granted, the prior removal will be waived. If the I-601 or I-192 application is granted, the fraud committed as a ground of inadmissibility will be waived as well.
A grant of an application to reapply for admission waives the inadmissibility resulting from prior removal. For example, an alien who receives an I-212 waiver permission to reapply and re-enters legally cannot thereafter be deported again from the U.S. for the same act/s which were the basis of the alien’s previous deportation or removal from the U.S.
Specific Time Periods Barring Re-Admission:
- Aliens ordered removed in an expedited removal proceeding
- Aliens removed through removal proceedings initiated upon the alien’s arrival in the
- Aliens otherwise ordered removed after a removal hearing before an Immigration
- Aliens who departed the U.S. while an order of removal was outstanding
- Aliens ordered removed more than once
Important to Note: Aliens who have been convicted of an aggravated felony will require an I-212 waiver for life.
Requirements for an I-212 waiver
Unlike other waivers, there are no prerequisites such as a qualifying family member for an I-212 waiver as much as there are no specific statutory standards to be met too. Applications for this waver are considered on a case-by-case basis, with all relevant factors considered.
Case law has set forth a list of “all pertinent circumstances relating to the applicant” that are usually considered in determining whether an alien qualifies for an I-212 waiver. These include, but are not limited to:
- The basis for deportation
- Recency of deportation
- Length of residence in the U.S.
- Moral character of the applicant
- His respect for law and order
- Evidence of reformation and rehabilitation
- Family responsibilities of applicant
- Inadmissibility to the U.S. under other sections of law
- Hardship involved to himself and others
- The need for his services in the U.S.
The intent behind I-212 waivers is to give a previously deported alien a second chance. An I-212 waiver is a form of remedial relief rather than a punitive provision or statute
Applying for an I-212 Waiver:
Immigrant visa applicants who also require Form I-601: file Forms I-212 and I-601 concurrently with the U.S. Department of State at the immigrant visa interview at the U.S. Consulate with jurisdiction over the applicant’s place of residence. The consular officer will then forward the waiver application forms to the appropriate USCIS officer with jurisdiction over the area within which the consul is located.
Immigrant visa applicants who do not require Form I-601: file Form I-212 with the USCIS field office having jurisdiction over the place where removal proceedings were held. The same field office has the jurisdiction to adjudicate the Form I-212 waiver application.
Nonimmigrants: submit Form I-212 to the U.S Consulate with jurisdiction over the alien’s place of residence. The consular officer willforward recommendation for consent to reapply for admission and visa issuance to the CBP Admissibility Review Office (“ARO”) for a decision.
Visa-exempt applicants/Canadians: file Form I-212 with CBP at a U.S. Port of Entry (“POE”) or other designated preclearance office, who will then forward the application to the ARO for adjudication.
Applicants for Adjustment of Status file Form I-212 with the USCIS office having jurisdiction over the adjustment application, which is the same office to adjudicate the application.
The J1 cultural exchange visa program allows nonimmigrants to live and work in the United States for a short period of time (usually 12 – 18 months) in order to experience the American way of life and share their knowledge with fellow countrymen when they return home. Thus, as a general rule, J1 visa holders must return to their home country for at least 2 years after the J1 program ends.
However, certain individuals can apply for a J1 waiver, which would eliminate the 2 year foreign residency requirement and allow them to remain in or return to the US.
Foreign nationals who are subject to the two-year foreign residency limit of Section 212(e) of the Immigration and Nationality Act (INA), may be able to waive this two-year period if they meet certain conditions. The USCIS will grant a waiver following a favorable recommendation from the Department of State (DOS).
There is a four-step process to obtaining a DOS recommendation:
- The foreign applicant submits a Data Sheet to the DOS Waiver Review Division with two stamped self-addressed envelopes and the appropriate fee.
- DOS sends the case number and instruction sheet for the waiver to the applicant. The instruction sheet will depend upon the type of waiver indicated on the Data Sheet.
- For persecution and hardship waivers, the next step is filing Form I-612 (Application for Waiver of the Foreign Residency Requirement) with USCIS. If the USCIS grants the I-612, it then transmits the information to the DOS. For the other categories, the next step is an application to the agency or to the foreign government.
- DOS reviews the application and forwards the recommendation to USCIS with a copy to the applicant and J-1 Sponsor. If the USCIS grants the persecution or hardship waiver it then forwards the information to the Waiver Review Division of DOS which shall make a recommendation after reviewing the “Program, policy, and foreign relations aspects of the case.”
“No Objection” Letter
The foreign residency limit may be waived, provided that the foreign national’s home country government issues a “no objection” letter for the U.S. State Department. This letter must indicate that the foreign national government does not object to the two-year foreign residency being waived.
An exception to this requirement though is that this is generally not available for medical interns or residents who are in the U.S. for a medical training.
Interested Government Agency Request (IGA)
A U.S. Federal Government Agency may be an Interested Government Agency as it has vested interest in the foreign national remaining in the U.S., such as when the latter is working on a project or as he/she is of interest to the agency, with his/her role or function crucial to the agency’s operation, program, or functioning.
The IGA may request that the U.S. State Department waive the Foreign Residency Requirement. It is likewise required that both the U.S. State Department and the USCIS must concur to agree with the waiver as well.
Threat of Persecution
A foreign nation subject to the foreign residency requirement may establish that he/she will suffer persecution upon return to the home country, resulting to the waiver of the residency requirement.
The threat of persecution needs to be based on one of the following three (3) grounds:
- Religion; or
- Political Opinion.
Important to Note:: The foreign national has the burden to prove that they “will be subject to persecution” upon return to his/her home country, without the need to prove prior persecution.
If complying with the Foreign Residency Requirements imposes exceptional hardship on the alien’s spouse or child, and the spouse or child is a U.S. citizen or permanent U.S. resident, the Foreign Residency Requirement may be waived.
Designated State Health Agency Request (for Physicians only)
A U.S. State Health Agency or its equivalent may request a waiver on the behalf of medical doctors who have been offered a full-time job with a health care facility serving in an area with a lack of qualified medical professionals.
In order to qualify for the waiver, the foreign national must agree in writing to work at the facility for forty (40) hours per week, for a minimum of three (3) years and must begin work at the health care facility within ninety (90) days of the approval of the waiver.
God forbid, if someone is charged with misrepresentation or fraud, they face a lifetime bar UNLESS they win the INA 212(i) Fraud Waiver.
Any alien who was procured a visa, benefit or admission into the United States by fraud or willfully misrepresenting a material fact (such as using another name or lying about marital status) is inadmissible, under section 212(a)(6)(C)(i) of the Immigration and Nationality Act (INA).
However, there is a waiver of inadmissibility or removal (deportation) of such an alien:
- if the alien is the spouse or son or daughter of a U.S. citizen or lawful permanent resident, and
- if the alien can establish to the satisfaction of the Attorney General (Department of Homeland Security) or the Immigration Judge (in removal/deportation proceedings) that extreme hardship would result to the citizen or lawfully resident spouse or parent of such an alien.
This waiver allows the alien to remain in the United States and keep his/her lawful permanent residence, or adjust to lawful permanent resident status.
This waiver is also available to a battered spouse or battered child, who has been granted classification as self-petitioner (under section 204(a)(1)(A)(iii) or (iv), or section 204(a)(1)(B)(ii) or (iii) of INA), if the alien can demonstrate extreme hardship to himself or herself, or to the alien’s U.S. citizen or lawful permanent resident or qualified parent or child.
Factors Determining “Extreme Hardship” for the Waiver:
The Board of Immigration Appeals (BIA) delineated the factors to be considered in determining extreme hardship to the U.S. citizen or lawful permanent resident, in Matter of Cervantes:
- family ties of the qualifying relative in the United States;
- family ties of the qualifying relative outside the United States;
- country conditions in the alien’s home country;
- ties of the qualifying relative to the alien’s home country;
- financial impact to qualifying relative of alien’s departure from the United States;
- health conditions of qualifying relative or even the alien as it affects financial capacity to support qualifying relative;
- unavailability of adequate medical care facilities in alien’s home country or country of relocation.
Important to Note: If the section 212(i) waiver application (Form I-601)is filed with the Immigration Judge in removal or deportation proceedings, marriage to a U.S. citizen or lawful permanent resident only after removal proceedings have begun, would be considered with the central purpose of such a waiver being to promote family unification.
Waiver Under INA Section 237(a)(1)(H):
his other section of the INA also authorizes the waiver of removal of any alien who is inadmissible under INA section 212(a)(6)C)(i) due to fraudulent procurement of visas or other documentation.
The grant of this waiver lies in the discretion of the Attorney General (Department of Homeland Security) or the Immigration Judge (in removal proceedings), if the alien:
- is the spouse, parent, or son or daughter of a U.S. citizen or a lawful permanent resident;and
- was in possession of an immigrant visa or equivalent document and was otherwise admissible except for INA Sections 212(a)(5)(A) and (a)(7)(A), as a direct result of the fraud or misrepresentation.
This waiver is also available to a spouse or child battered or subjected to extreme cruelty by a U.S. citizen spouse (INA section 204(a)(1)(A)(iii) or (iv), or by a lawful permanent resident spouse (INA section 204(a)(1)(B)(ii) or (iii)), and eligible for self-petition (Form I-130).
This waiver section states that: “A waiver of removal for fraud or misrepresentation granted under this subparagraph (INA section 237(a)(1)(H)) shall also operate to waive removal based on the grounds of inadmissibility at admission directly resulting from such fraud or misrepresentation.”; thus, this waiver (INA section 237(a)(1)(H)) seems to be more inclusive than the INA section (212)(i) waiver.
Factors to be Considered In INA Section 237(a)(1)(H) Waiver:
Some of the favorable factors to be considered in the grant of this waiver include:
- family ties of the alien in the United States;
- length of residence of the alien in the United States;
- hardship to the alien and/or the family in case of removal/deportation;
- alien’s employment history;
- property or business ties;
- service and value of the alien to the American community; and
- alien’s good moral character.
The adverse or negative factors that may be considered in adjudicating the waiver application include:
- the nature and underlying circumstances of the fraud or misrepresentation;
- the nature and recency of the alien’s criminal arrest(s)/conviction(s); and
- bad moral character or undesirability of the alien as a lawful permanent.
Important to Note: In the final analysis, marriage to, or family relationship with, a U.S. citizen or lawful permanent resident may result in a waiver of inadmissibility and/or removal/deportation due to fraud or misrepresentation.
There are some situations where there is no waiver available. These include:
- Criminal offenses: murder, torture or conspiracy to commit murder or torture, a previously admitted lawful permanent resident who committed an aggravated felony after becoming a lawful permanent resident;
- Security related grounds: terrorist activity;
- Document fraud;
- Frivolous Asylum application.
You Need an Immigration Attorney for Your Waivers
The determination of your eligibility for Waivers imply a careful consideration of your circumstances, along with the necessary compliance with the documentary requirements to establish your eligibility for the waiver applied for. With this, ample familiarity with the documentary requirements, plus the processes in applying for a waiver is needed– and with this, you need the expert assistance of an immigration lawyer.
Immigration attorneys from The Gambacorta Law Office have worked on immigration cases for years– from the application of visas to petition for waivers. We take pride in our immense familiarity with the bureaucratic procedures and processes, allowing us to take the most efficient and effective routes for our clients every time.
On top of this, we offer individualized immigration assistance for our clients.
At The Gambacorta Law Office, we understand how each client’s circumstances are just as unique– thus, calling for unique legal assistance as well.
We work passionately towards helping our clients obtain favourable results for their immigration petitions and applications.
Get in touch with us today to know more about how we can help you with your Waiver applications!