Waivers of inadmissibility
What is a “waiver of inadmissibility”?
Anyone who seeks to obtain a visa or residence must be “admissible”. Law lists individuals who are ineligible by law to enter the U.S. If you are inadmissible (ineligible), you cannot get a visa or a green card unless you are granted waiver or exception. A waiver (i.e., “forgiveness”) of inadmissibility is an official determination by the U.S. government (Government) to allow an otherwise ineligible person to enter the U.S.
What are the grounds of inadmissibility?
It depends, but it could be narrowed down to 3 categories: criminal records (crimes), misrepresentations to Government in previous immigration applications, and prior immigration violations.
What does constitute “crimes”?
“Crimes involving moral turpitude” - offenses involving violence, theft, fraud, and other forms of dishonesty, etc. Even though an offense is not a crime involving moral turpitude, you could be inadmissible if you are convicted of two or more offenses for which the aggregate sentence exceeds 5 years of imprisonment. A conviction for violating any law relating to a controlled substance (drug offense) is another example of a crime that results in inadmissibility. But there is some good news. Where an individual is inadmissible for a crime involving moral turpitude or a single offense involving less than 30 grams of marijuana, a waiver of inadmissibility is available.
What is “misrepresentation”?
Making false statements could be considered misrepresentation. At the same time, you can be rendered inadmissible only if misrepresentation is material. The law makes a person inadmissible if the false statement was relevant and determinative of a question of eligibility. For instance, lying about the color of your eyes is not material when you apply for R visa. But lying about your membership in the religious denomination is. Again, there is some good news. If the individual did make a material misrepresentation, a waiver may be available.
What are “prior immigration violations”?
A good example would be a situation when you overstayed or illegally entered the U.S.
Where can I apply for a waiver?
It usually happens outside of the U.S. because the law generally prohibits the foreign national from applying for adjustment of status in the U.S. if the individual entered illegally. A good example would be when a foreign national marries a U.S. citizen - that person proceeds abroad, triggering the 10-year bar and, thus, requiring a waiver of inadmissibility in order to immigrate and obtain U.S. lawful permanent residency. On the other hand, the law is being changed and, as of the beginning of 2019, the provisional unlawful presence waiver process allows those individuals who only need a waiver of inadmissibility for unlawful presence to apply for that waiver in the U.S. before they depart for their immigrant visa interview.
What am I required to prove to get a waiver?
It depends, but generally you need to demonstrate that (1) “qualifying relative” would suffer extreme hardship if you were denied the visa and (2) you deserve the waiver.
Who is “qualifying relative”?
It depends on the ground of inadmissibility. Inadmissibility resulting from conviction for crimes involving moral turpitude may be waived if the applicant is the spouse, parent, son or daughter of U.S. citizen or lawful permanent resident. However, for inadmissibility resulting from fraud and unlawful presence, the law allows to consider hardship to a spouse or parent of the applicant.
What is “extreme hardship”?
The term is ambiguous but relevant factors include serious health issues requiring treatment in the U.S., presence of family ties in the U.S. and the home country, significant financial issues, psychological and emotional issues, conditions in the country of relocation, a history of psychological issues or past negative experiences, social and community ties, inability to practice one’s religion or profession, and so forth.
What does it mean to “deserve a waiver"?
It basically means that Government has broad discretion either to grant or deny the waiver. It is your responsibility to present a good case in order to succeed.
Is it free?
Unfortunately, no. The fee is $930.
What do I need to file?
Where can I find more information?
Here.
MVDG Law can help you to go through this process. If you need our help or would like us to evaluate your case, please contact us.