Generally, waivers are filed in conjunction with immigrant and non-immigrant-based visa applications when someone is found to be inadmissible to the United States. Being considered inadmissible could be because of an individual’s criminal issues; certain misrepresentations to the U.S. Government in previous immigration applications; or due to prior immigration violations (overstaying the visa, receiving a removal/deportation order; etc.). Once found inadmissible, most likely an individual will not be issued a visa to come to the U.S. or might be refused admission to the U.S. at a port of entry. If the individual resides in the U.S. and has filed an application for lawful permanent residency (green card application), the application can be denied based on those violations as well. The law provides an opportunity for certain individuals to apply for specific waiver/s to cure those violations.
We represent our clients with the following waivers, or with a combination of one or more of those waivers as needed for the particular case.
Application for Waiver of Grounds of Inadmissibility
An individual who is ineligible to be admitted to the United States as an immigrant or to adjust status in the United States, must file this waiver of certain grounds of inadmissibility. Depending on the nature of the violation/s one must prove that a U.S. citizen or lawful permanent resident family member (spouse, parent, child, or daughter) would face extreme hardship if the applicant is denied a visa or an application.
An applicant with certain criminal issues can apply for such a waiver as well by showing:
- At least 15 years have passed since the criminal act
Application for Provisional Unlawful Presence Waiver
Certain immigrant visa applicants who are relatives of U.S., or lawful permanent residents may request a provisional waiver of the unlawful presence grounds of inadmissibility. The provisional unlawful presence waiver process allows those individuals who are statutorily eligible for an immigrant visa (immediate relatives, family-sponsored or employment-based immigrants as well as Diversity Visa selectees); who only need a waiver of inadmissibility for unlawful presence (more than 180 days of unlawful presence) to apply for that waiver in the United States, before departing from the United States to appear at a U.S. Embassy or Consulate for their immigrant visa interview.
- Be physically present in the United States to file your application and provide biometrics.
- Be 17 years of age or older.
- Be in the process of obtaining your immigrant visa, and have an immigrant visa case pending with Department of State (DOS) because you:
- Are the principal beneficiary of an approved Form I-130, Petition for Alien Relative; an approved Form I-140, Petition for Alien Worker; or an approved Form I-360, Petition for Amerasian, Widow(er), or Special Immigrant who has paid the immigrant visa processing fee;
- Have been selected by DOS to participate in the Diversity Visa (DV) Program (that is, you are a DV Program selectee);
- Are the spouse or child of a principal beneficiary of an approved immigrant visa petition who has paid the immigrant visa processing fee to DOS; or
- Are the spouse or child of a DV Program selectee (that is, you are a DV Program derivative)
- Be able to 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.
- Believe you are or will be inadmissible only 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
- 1 year or more during a single stay (INA section 212(a)(9)(B)(i)(II)).
Application for Permission to Reapply for Admission into the United States After Deportation or Removal
If an individual has a removal, or deportation order and is inadmissible, an applicant must ask for consent to reapply for admission to the United States before lawfully returning to the United States. Often this Application for Permission is used in conjunction with other waivers of inadmissibility as well.
Application By Refugee For Waiver of Grounds of Excludability
This waiver is established for a refugee or asylee who has been found inadmissible to the United States for reasons such as felony conviction or health conditions. The applicant seeking this waiver must demonstrate eligibility for the waiver on grounds of humanitarian reasons, family unity or national interest.
Application for Waiver of the Foreign Residence Requirement (under Section 212(e) of the Immigration and Nationality Act, as Amended)
This waiver is required for the J-1 and J-2 visas holders and their families, to apply for a waiver of the two-year foreign residence requirement.
Generally, an applicant must provide:
- A statement detailing the hardship or persecution that will occur upon return to one’s country of citizenship or nationality
- Copies of all Forms DS-2019/IAP-66, Certificate of Eligibility for Exchange Visitor Status, for all exchange programs in which the applicant or the applicant’s spouse participated (if applicable)
- A copy of Form I-94, Arrival-Departure Record
If an individual is applying for a waiver of the foreign residence requirement because the departure from the United States would impose exceptional hardship on the U.S. citizen or lawful permanent resident spouse or child, the applicant must provide the following
- Evidence of spouse’s or child’s U.S. citizenship or lawful permanent resident status
- Evidence of the relationship between applicant and spouse or child
- Evidence of legal termination of all prior marriages (if applicable)
Application for Advance Permission to Enter as a Nonimmigrant
INA § 212(d)(3)(A) provides the Attorney General with the authority to waive nearly all grounds of inadmissibility with respect to non-immigrant admissions. This waiver is usually presented by the applicant at an Embassy or Consular Post, except for Canadian citizens who can apply at a U.S. Port of entry for the waiver.
At our Firm we have extensive experience with the preparation and filing of successful waiver applications.