Waivers of Inadmissibility and Non-Immigrant Waivers
Waivers of Inadmissibility
If you have a criminal conviction or have broken the immigration laws in the past, you may be “inadmissible” to the United States – in other words, ineligible for a visa or green card. Some common grounds of inadmissibility include:
- Unlawful presence in the U.S.
- Criminal convictions or illegal activity.
- Fraud or misrepresentation. This could include lying to an immigration official; using a fake document or a document that belonged to someone else; or putting incorrect information on an immigration form.
- Prior deportation, whether deported at the border or ordered deported by an immigration judge.
If you are inadmissible, depending on the circumstances of your case, you may be eligible for a waiver of inadmissibility. A waiver is like a pardon of the crime or immigration violation that makes you ineligible for your visa or green card. If your waiver is approved, you will be able to come to the U.S. on a temporary visa or with a green card even though something in your past makes you inadmissible to the United States.
If you are inadmissible and you are seeking to come to the U.S. permanently with a green card, whether you are applying for the green card based on a family relationship or through employment, you will need an immigrant waiver. The following grounds of inadmissibility can be waived:
What is “unlawful presence”?
Simply put, “unlawful presence” means time spent living in the U.S. without the government’s permission. If you have more than one year of unlawful presence and then you leave the U.S. – even if you are returning to your home country in order to apply for your visa – you will trigger something called the “ten-year bar.” That means you will not be able to return to the U.S. for 10 years from the date of your departure, unless you can win an unlawful presence waiver. If you have more than six months of unlawful presence and then depart from the U.S., you will trigger a three-year bar, and will not be able to return to the U.S. for three years from the date of your departure, unless you can win a waiver.
Many people who apply for unlawful presence waivers are married to U.S. citizens, but because they entered the U.S. without permission, they are required to leave the U.S. in order to apply for their marriage-based green cards. When they leave the U.S. to attend their visa interviews at the U.S. consulate in their home countries, if they have already spent more than six months or a year living in the country illegally, they trigger the 3-year or 10-year bar when they depart. That means they need an unlawful presence waiver in order to get their green cards.
What are the requirements for the unlawful presence waiver?
To win an unlawful presence waiver, commonly called an “I-601” waiver, the applicant must show that he or she has a spouse or parent who is a U.S. citizen or permanent resident, and that the family member would suffer “extreme hardship” if the waiver is denied. “Extreme hardship” means more hardship than a family would ordinarily experience as a result of separation. In deciding whether the qualifying relative will suffer extreme hardship, an immigration officer will look at how the qualifying relative would be affected if the waiver applicant cannot return to the U.S. and if the qualifying relative has to move to the applicant’s home country in order to keep the family together. It is absolutely critical to document all of the hardship factors using the right types of evidence, and the attorneys at Lisa Green & Associates can help you to develop and organize the strongest documents for your waiver application.
Certain Criminal Convictions or Illegal Activity
Which convictions and illegal activities can be waived?
- A single “crime of moral turpitude.” There is not a clear and easy definition of the term “crime of moral turpitude,” and you will need to speak to an experienced immigration lawyer to determine whether your conviction falls within this category. Generally, crimes involving theft, fraud, deceit, and serious bodily injury can be considered crimes of moral turpitude.
- Multiple criminal convictions. If you have two criminal convictions of any type and you were sentenced to a total of five years in jail or prison for those two convictions.
- If you have engaged in prostitution or have otherwise been involved in prostitution during the 10 years before you are applying for your visa.
- A single conviction for possession of 30 grams or less of marijuana.
What are the requirements for the waiver?
To qualify for a waiver, the applicant must show that:
- The criminal activity occurred at least 15 years before the date of application for a visa, that the applicant would not pose a danger to the safety or security of the U.S., and that the applicant has been rehabilitated (meaning is no longer involved in criminal activity); OR
- If the illegal activity was prostitution, that the applicant would not pose a danger to the safety or security of the U.S., and that the applicant has been rehabilitated (meaning is no longer involved in prostitution); OR
- The applicant has a spouse or parent who is a U.S. citizen or permanent resident, and that the family member would suffer extreme hardship (discussed above) if the waiver is not approved.
Fraud or Misrepresentation
If you have ever lied to an immigration official; used a fake document (such as a green card) or a document that belonged to someone else; or put incorrect information on an immigration form that you completed, you may be inadmissible due to fraud or misrepresentation.
Some types of fraud and misrepresentation can be waived. To qualify for this waiver, the applicant must have a spouse or parent who is a U.S. citizen or permanent resident, and show that the family member would suffer extreme hardship (discussed above) if the waiver is not approved.
If you have been deported and have remained outside the U.S. since your deportation, you may be eligible for a waiver of your prior deportation. In deciding the waiver, the immigration officer will consider:
- The applicant’s moral character;
- How long ago the deportation took place;
- The need for the applicant’s services in the U.S.;
- Whether the applicant knew about the deportation order;
- How long the applicant had been in the U.S. before the deportation.
Are there immigration violations and criminal convictions that cannot be waived?
Unfortunately, there are many types of immigration violations and criminal convictions that cannot be excused by an immigrant waiver. Some common inadmissibility grounds that cannot be waived include:
- False claims to U.S. citizenship. If you have ever told anyone that you were a U.S. citizen for any reason – for example, when you filled out paperwork at a new job, or in order to enter the U.S.
- The “permanent bar.” Unlike the ten-year and three-year unlawful presence bars discussed above, the “permanent bar” cannot be waived. The only solution is returning to your home country, remaining there for ten years, and then applying for permission to return to the U.S. The permanent bar applies if:
- You have been unlawfully present in the U.S. for more than one year total, left the U.S., and come back or tried to come back without permission OR
- You have been deported and then have come back or tried to come back to the U.S.
The attorneys at Lisa Green & Associates always check very carefully for problems that cannot be solved with a waiver. Many people who do not consult with an immigration attorney before applying for a visa leave the U.S. only to learn from the consulate that they will never be able to return to the U.S., or that they will not be able to return to the U.S. for a long time. Do not make this mistake – consult with an immigration lawyer before you begin the visa process!
Important Change in Immigrant Waiver Processing
There has been a very positive change in the way that immigrant waiver applications are processed. For many years, people applying for immigrant visas from outside the U.S. had to attend their visa interviews, receive a denial, and then submit their waiver applications while outside the U.S. They then had to wait outside the U.S. until their waivers were approved. This entire process could take many months.
Provisional Waiver Processing
People who are eligible to use the provisional waiver processing program can now submit their waiver applications to USCIS before they leave the U.S. for their visa interviews, rather than after they have departed from the U.S. and been denied their visas. The major advantage is that provisional waiver applicants know before departing from the U.S. that their waivers have been approved, rather than leaving the U.S. and wondering whether they will be able to come back. Another major advantage is that the provisional waiver process dramatically decreases the length of family separation. If the waiver application is approved, the applicant still has to leave the U.S. in order to receive his or her immigrant visa, but will be gone for only several days rather than several months. You may be eligible to use the provisional waiver process if:
- You are applying for an immigrant visa as an “immediate relative.” Spouses and children of United States citizens are immediate relatives; spouses and children of permanent residents are not immediate relatives.
- You are physically present in the United States.
- You need a waiver only for unlawful presence. If you need an additional waiver for another ground of inadmissibility, you must use the “traditional” processing system, which means that you have to leave the U.S. and apply for a visa before you can submit your waiver application.
- You are not in removal (deportation) proceedings.
If you are seeking to apply for a non-immigrant visa — such as a tourist visa, or an L, H, E, O, or P visa — but you are inadmissible, you may be eligible to apply for a non-immigrant waiver. Non-immigrant waivers are available for almost any ground of inadmissibility, except political and security grounds, and those relating to membership in the Nazi party and genocide. This is a major difference between immigrant and non-immigrant waivers: Immigrant waivers are available for only certain specific grounds of inadmissibility, but non-immigrant waivers are available for almost any ground of inadmissibility, including the permanent bar and false claims to U.S. citizenship.
An applicant for a non-immigrant waiver does not have to have a qualifying relative, and does not have to demonstrate extreme hardship. Instead, in deciding whether to grant a non-immigrant waiver, the Department of Homeland Security will consider three factors:
- The risk of harm to society if the applicant is admitted;
- The seriousness of the applicant’s criminal or immigration law violation; and
- The applicant’s reason for seeking entry.
The non-immigrant waiver process is different depending on your country of origin and also the type of visa you are seeking. Consult with an attorney at Lisa Green & Associates to learn more about the steps for obtaining a non-immigrant waiver.