Any individual who seeks to immigrate or adjust status in the United States must be admissible. The conditions are defined under the Immigration and Nationality Act (INA).
Certain foreign citizens who are not eligible to immigrate to the United States because they are “inadmissible” can request a waiver (forgiveness) of inadmissibility. If the waiver is granted, then the individual can enter the United States or remain in the United States and apply for adjustment of status if already here.
Whether or not the U.S. government will grant a waiver is dependent on various factors and, in most cases, requires the individual to have a qualifying relative who is a U.S. Citizen or Lawful Permanent Resident.
Different grounds of inadmissibility have different waiver requirements, however, to make sure you meet the basic criteria to submit a waiver, the waiver itself will need to be carefully prepared and documented.
Reasons for Inadmissibility
The most common waivers of inadmissibility are waivers of unlawful presence, alien smuggling, fraud and misrepresentation, prior removal order, and 212(h) waiver of certain criminal grounds.
Unlawful Presence in the United States
A person who has been unlawfully present in the United States for more than 180 days but less than one year is inadmissible for three years. A person unlawfully present for one year or more is inadmissible for ten years. This bar is commonly referred to as the 3/10-year bar. If a person is in this situation, that person may be able to apply for a Provisional Unlawful Presence Waiver before leaving the United States for their immigrant visa interview.
To be eligible for an I-601A provisional unlawful presence waiver, you must:
- Be physically present in the United States.
- Provide biometrics.
- Be 17 years of age or older.
- Have an immigrant visa case pending with the Department of State (DOS).
- Demonstrate that refusal of your admission to the United States will cause extreme hardship to your U.S. citizen or Legal Permanent Resident spouse or parent.
- Be inadmissible because of a period of unlawful presence in the United States that was:
- More than 180 days, but less than 1 year, during a single stay (INA section 212(a)(9)(B)(i)(I)); or
- One year or more during a single stay (INA section 212(a)(9)(B)(i)(II)).
Fraud or Misrepresentation
A person who has fraudulently or willfully misrepresented a material fact in order to obtain an immigration benefit may be eligible for this waiver if the applicant can demonstrate that his/her U.S. citizen or Lawful Permanent Resident spouse or parent would be subjected to extreme hardship if the applicant is removed or denied a visa to immigrate to the United States.
Four medical conditions may make an applicant inadmissible on health-related grounds:
- A communicable disease of public health significance,
- Failure to show proof of required vaccinations,
- Physical or mental disorder with associated harmful behavior, and
- Drug abuse or addiction.
A person who has engaged in alien smuggling might be eligible for a waiver of inadmissibility if he or she meets the following requirements:
- The applicant is a lawful permanent resident or is applying for a family-based immigrant visa or fiance visa,
- The person, the applicant, helped to bring to the United States was his or her spouse, parent, or child at the time of entry, and
- The applicant shows that he/she deserves the waiver for humanitarian purposes, for reasons of family unity, or based on the public interest.
Likely to Become a Public Charge
Applying for waivers of grounds of inadmissibility is a complex process. It is critical that the application has supporting documentation that supports the claim for being granted a waiver.
Immigration Attorney Karla De La Rosa-King will evaluate your case carefully to determine if you require and qualify for a waiver of a ground(s) of inadmissibility. She can walk you through the process of applying for waivers and help you gather supporting documentation to prepare and file the application with the U.S. government.