Waivers of Inadmissibility for Immigration Violations or Crimes
Certain conduct will make an immigrant ineligible for admission to the United States ("inadmissible"). An immigrant may be inadmissible for entry without inspection (EWI), a prior removal order, past unlawful presence, fraud or misrepresentation, having a civil penalty for use of false documents, conviction of or admission to certain crimes (including a crime involving moral turpitude (CIMT), a controlled substance offense, or multiple convictions with a sentence to 5 or more years), involvement in prostitution, certain health issues (including having a communicable disease, refusing vaccinations, or having a disorder with an associated harmful behavior), alien smuggling, and a variety of other less common reasons.
Fortunately, discretionary waivers exist to forgive many of these grounds of inadmissibility. The waivers for unlawful presence, fraud or misrepresentation, a crime of moral turpitude, or a minor marijuana offense usually require (1) the existence of a relationship to a qualifying U.S. citizen or permanent resident family member; (2) a showing that denial of the waiver would result in extreme hardship to the qualifying family member; and (3) a favorable exercise of discretion. Certain violent criminal offenses require a higher level of hardship, while some nonviolent crimes that occurred more than 15 years ago and some immigration violations do not require a showing of hardship.
Standard I-601 Inadmissibility Waiver Process
An immigrant may be found inadmissible either at the time of applying for permanent resident status or after obtaining that status when the permanent resident seeks readmission to the U.S. from abroad. Once an immigration or consular officer finds an immigrant inadmissible, the immigrant may apply for a waiver if eligible. An applicant for adjustment of status in the United States who knows he or she is inadmissible and eligible for a waiver, though, does not need to wait for the finding of inadmissibility and may file the waiver application along with the application to adjust status. Either way, the applicant uses Form I-601 in most cases (see also Form I-212 below). Approval of the waiver overcomes the ground of inadmissibility and permits the admission of the applicant so long as the applicant meets all of the other requirements to immigrate. Unfortunately, though, it often takes several months for USCIS to decide an I-601 and that can be a significant problem if the applicant is waiting for the decision outside of the U.S.
I-601A Provisional Waiver Process for Prior Unlawful Presence
An important recent development is the expansion of the I-601A provisional waiver process. That process allows applicants for an immigrant visa who are only inadmissible for departure from the U.S. after unlawful presence to obtain a decision on their waiver before they leave the U.S. This process is sometimes known as stateside processing. Stateside processing of an I-601A allows the immigrant to minimize the length of time he or she must be apart from his or her U.S. citizen or permanent resident family. It also gives the immigrant assurance that he or she will be allowed to return legally to his or her family--at least so long as no unexpected issues arise at the consulate. The process previously was available only to persons immigrating through a U.S. citizen spouse, parent, or child. Now it is open to all immigrant visa applicants who otherwise qualify for a waiver of unlawful presence.
Under stateside processing, the immigrant must first have a basis for immigrating. This may be either an approved family-based petition (I-130) or employment-based petition (I-140). It also includes selection for the diversity visa lottery, although our firm does not accept diversity visa cases. After approval of the immigrant petition, the immigrant files a Form I-601A with USCIS during the process of applying for an immigrant visa, but before leaving the U.S. USCIS will approve the I-601A if the immigrant demonstrates (1) extreme hardship to a U.S. citizen or permanent resident spouse or parent (hardship to children does not count directly), and (2) deservingness of a favorable exercise of discretion. Approval of the I-601A results in a "provisional" waiver, which means the waiver would be approved when the immigrant leaves the U.S., attends a visa interview, and a consular officer makes the final decision that no other ground of inadmissibility applies. The I-601A will be automatically revoked if the consular officer finds the applicant inadmissible on any other basis, so an applicant must obtain a thorough admissibility evaluation by an immigration attorney before attempting this process.
I-212 Permission to Reapply for Admission After Removal
Another common ground of inadmissibility exists for noncitizens who have been removed on a removal or deportation order. Removal makes a noncitizen ineligible to return to the U.S. for 5, 10, or 20 years, depending on the circumstances, or even for life if the person has an aggravated felony conviction. Before such a person reapplies for admission to the U.S., he or she must obtain an approved Form I-212. The decision on an I-212 is highly discretionary, and it requires the applicant to demonstrate that the reasons for permitting the applicant to return to the U.S. and any positive equities outweigh the reason for the removal order and any other misconduct.
Appeal of a Denied Waiver
If USCIS errs on the law or makes an unreasonable decision in a waiver case, Attorney Scott Mossman can assist you with appealing it to the Administrative Appeals Office (AAO). His successful AAO appeals include:
Note, these successful appeals are not a guarantee or assurance that USCIS will approve your waiver if you hire Scott. USCIS reviews each case individually according to its facts.