If you are found inadmissible to the United States you may be eligible for a waiver. A waiver is a type of “forgiveness” granted to certain individuals who cannot enter or remain in the U.S. because of having entered illegally, overstayed, or having committed fraud, misrepresentation or a crime. Not all grounds of inadmissibility can be waived.
Waivers for certain visa applicants
The INA 212(d)(3) Waiver is available for certain non-immigrants seeking to enter the U.S. on a temporary basis eg. students, tourists or workers. This waiver must be tied to the application for the non-immigrant visa. Though discretionary, there are certain criteria that will be evaluated in the decision whether to approve this application, namely:
- The risk of harm to the society if the applicant is admitted
- The seriousness of the applicant’s previous immigration violations or criminal convictions
- The applicant’s reasons for wishing to enter the United States
Furthermore, rehabilitation is a factor and the applicant is encouraged to show proof that he/she has been rehabilitated and is a contributing member of society. This may be hard to prove for those with an extensive criminal background.
Waivers for Immigrants and those applying for permanent resident cards
Waivers are also available for immigrants – those intending to reside in the United States. For these waivers, the applicant normally has to show:
- That 15 years have passed since the activity or crime (that made him/her inadmissible), that he/she has been rehabilitated and that admission will not be contrary to the United States’ security, national welfare or safety, or
- That a qualifying family member who is a U.S. Citizen or permanent resident would experience extreme hardship if admission is denied. (Note- a qualifying family member is generally a spouse, parent or child), or
- The applicant is a Violence Against Women Act (VAWA) self-petitioner
What is extreme hardship?
Extreme hardship is more than the hardship that is suffered emotionally and financially when one is separated from a family member.
Furthermore, it is important that the evidence supports hardship to the family member and not to the applicant. This hardship can be as a result of the family member having to remain in the U.S. without the applicant, or having to reside in the applicant’s home country.
Factors that may show extreme hardship include, but are not limited to: economic hardship that will be experienced if the applicant is not allowed to remain, poor employment and educational opportunities for the qualifying family member in the applicant’s home country, medical needs that will not be sufficiently met, the family member’s ties to the United States and whether he/she has relatives or has maintained certain ties to the applicant’s home country, and the social and other country conditions of the applicant’s home country.
Evidence may be presented in the form of letters, affidavits, reports and records.
Provisional Unlawful Presence Waivers
Previously those wanting to apply for a waiver would have to leave the United States and apply for reentry and the waiver abroad. This process resulted in families being separated for months or even years. As of March 2013, those who are in the United States and ineligible to adjust status to that of a permanent resident because of having entered illegally or overstayed, can now seek to obtain lawful status by completing a large portion of the waiver application while remaining in the U.S. The applicant must be physically present in the U.S and be the beneficiary of an approved immediate relative (I-130 or I-360) petition classifying him/her as an immediate relative of a U.S. Citizen.
Only those who have certain qualifying relatives (U.S. Citizen spouse or parent) are eligible to apply. The applicant must show extreme hardship to the qualifying relative and must also show why he/she warrants a favorable exercise of discretion.
Furthermore, while the process begins in the United States, if provisionally approved, the applicant must leave the U.S. to attend an immigrant visa interview abroad. It is important to know that though the application may be approved, it is only provisional, and later obtained facts by the consulate may lead to a denial.
Waivers are discretionary.
It is important that applications are made with great attention to detail and sufficient supporting evidence. Allow an experienced waiver attorney to assist with your Application. Contact us for a consultation.