Waivers of Inadmissibility

Certain classes of individuals are ineligible by law to enter the United States without a waiver, or an exception. A waiver of inadmissibility given by the United States government permits an otherwise ineligible person to enter the country.

Inadmissibility is typically based on:

  • prior immigration violations
  • misrepresentations to the United States government in previous immigration applications
  • criminal records

Waivers are complex and numerous, so it is best to consult an attorney when applying.
An applicant generally qualifies for a waiver if he or she:

  • has a qualifying relative;
  • that relative would suffer extreme hardship if the applicant were denied the visa, and
  • the applicant deserves the waiver.
TYPES OF WAIVERS IN THE REMOVAL CONTEXT

There are numerous types of waivers, including:

  • Nonimmigrant visa waivers
    • Applies to those who are eligible for the nonimmigrant visa classification
    • Applies to substantive grounds of inadmissibility, not procedural
  • Mental or physical disorders
    • Not applicable to applicants who are drug abusers or addicts
  • Fraudulent misrepresentation
    • The primary rationale for this waiver is to maintain family unity.
    • Only available if the foreign national is the spouse, son, or daughter of a United States citizen or lawful permanent resident.
  • False claims to U.S. citizenship
    • A foreign national who falsely represents him- or herself as a United States citizen in order to obtain a benefit under the Immigration and Nationality Act or any other federal or state law is generally inadmissible. There are exceptions, however, such as if the person permanently resided in the United States before the age of 16.
  • Criminal and related grounds
    • A waiver may be available to foreign nationals convicted of a single offense of simple possession of 30 grams or less of marijuana, multiple convictions, prostitution, crimes involving moral turpitude (except murder or acts involving torture), or crimes committed by an applicant who has asserted immunity.
  • Foreign residence for J-Visa holders
    • The foreign residence requirement was created to promote U.S. foreign policy interests in educational programs, and to assist developing countries by ensuring the individuals who studied in the United States would use their education to support the development of their home country.
  • Lack of documentation/technical difficulties
    • A foreign national who is inadmissible because he or she does not have a labor certification, or whose immigrant visa was not issued in accordance with the law, may obtain a waiver if they otherwise are eligible and did not know, or could not have known through reasonable diligence, of the inadmissibility at the time of entry into the United States.
  • Unlawful presence
    • The three- and ten-year bars in the case of a foreign national who is the spouse, son, or daughter of a United States citizen or lawful permanent resident can be waived, if the foreign national can establish extreme hardship to the qualifying relative is he or she is not admitted.
WAIVERS OF TEMPORARY AND PERMANENT BARS

Non-citizens who stayed unlawfully in the United States are penalized and prevented from returning to the country for three years or ten years, depending on how long they stayed unlawfully in the country. These are referred to as the “time bars,” or the “three-year and ten-year bars.” Individuals who returned to the country illegally or attempted to return to the country illegally after living in the United States unlawfully for more than a year are permanently barred from the country. Certain relatives of United States citizens who have spent their time in the country unlawfully can have these temporary and permanent bars waived, or legally forgiven, in order to qualify for permanent residence. Individuals are eligible for waivers if they can show that their spouse or parent in the United States will suffer extreme hardship if they do not receive a waiver.

PERMISSION TO REAPPLY FOR ADMISSION

An alien who is inadmissible under section 212(a)(9)(A) or (C) of the Immigration and Nationality Act (INA) can file Form I-212 (c) to obtain “consent to reapply for admission” that is required before the alien can lawfully return to the United States. “Consent to reapply” is also called “permission to reapply.”