what is a Waiver and when is it necessary?

The US government maintains a long list of reasons why a person may be denied entry to the US, or may be denied a green card. These include, but are not limited to, grounds related to communicable diseases or refusal of vaccinations, certain criminal convictions, potential threats to US national security, illegal entry or presence in the US, and committing fraud on an immigration application. In many cases it is possible to overcome such grounds of inadmissibility by filing an application for a waiver of inadmissibility. Some of the more common grounds of inadmissibility allowing for a waiver application are discussed below. Note that many of them contain very specific requirements as to who can apply and on what grounds, and the applicant is required to submit extensive evidence demonstrating that they meet the various requirements and deserve the waiver.

 

Waiver of Unlawful Presence in the United states

Any foreign national who is present in the US without a valid visa or other travel document is considered to be unlawfully present in the country. Any foreign national who is unlawfully present in the country for more than 180 days, but less than one year, and departs the US, is barred from returning for a period of three years from the date of departure. Additionally, any foreign national who is unlawfully present in the US for more than one year, and departs the US, is barred from returning for a period of ten years from the date of departure. These are known as the three- and ten-year bars. A select few individuals are excluded from the three- and ten-year bars, such as minors and asylees. 

Unlawful presence may be the most common ground of inadmissibility for which inadmissibility waiver applications are filed. Under current law, beneficiaries of alien relative petitions who are not eligible to adjust status in the US must travel abroad and obtain an immigrant visa via the US consulate in their native country. If the beneficiary's departure triggers the three- or ten-year bar, the beneficiary must obtain a waiver of inadmissibility before they can return to the US.

Under the traditional waiver process, the beneficiary cannot apply for the waiver until after they appear for their immigrant visa interview abroad, and a consular officer determines that a waiver is required. To qualify for a waiver, the beneficiary must have a US citizen or lawful permanent resident spouse or parent, and must show that their qualifying relative would suffer "extreme" hardship if they are not allowed to return to the US (please note that US citizen and lawful permanent resident children are not qualifying relatives for this waiver). Because waivers are discretionary, there is an inherent risk with the traditional waiver process that the waiver will be denied, and the applicant will be unable to return to the US. 

As of March 4, 2013, certain beneficiaries of alien relative petitions can apply for an unlawful presence waiver in the US, before they depart for their immigrant visa interview abroad. To qualify for this provisional unlawful presence waiver, the beneficiary must be the immediate relative of a US citizen (spouse, child under 21, or parent), and must demonstrate that denial of the waiver will result in “extreme” hardship to their US citizen spouse or parent (again, he or she cannot qualify for this waiver based on hardship to a US citizen or lawful permanent resident child).

The most difficult part of these waiver applications is demonstrating extreme hardship to the qualifying relative. Extreme hardship is generally understood to mean a greater hardship than the normal hardship an individual in the same situation can be expected to experience. This vague definition means that there is no right or wrong answer. However, it also means that the officer reviewing the case has broad discretion in deciding whether or not the foreign national’s circumstances constitute extreme hardship. 

 

Waiver of Immigration Misrepresentation 

Another common ground of inadmissibility that allows for a waiver application is having secured an immigration benefit through fraud or misrepresentation. The foreign national will not, however, be eligible for a waiver under any circumstances if they falsely claimed to be a US citizen. To qualify for this waiver, the foreign national must have a US citizen or lawful permanent resident spouse or parent, and must show that this qualifying relative will suffer extreme hardship if they are denied a waiver. The applicant cannot qualify for this waiver based on hardship to a US citizen or lawful permanent resident child.

 

Waivers of Certain Criminal Grounds of Inadmissibility

If a foreign national is denied admission to the US, or a green card, because of their criminal history, they may be eligible to file a waiver application. Criminal grounds that allow for a waiver application include crimes of moral turpitude, prostitution, and a single offense of possession of 30 grams or less of marijuana. Waivers are not allowed for murder, torture, aggravated felonies, or for violations of any other law regarding controlled substances. If the foreign national’s criminal ground of inadmissibility allows for a waiver application, they are eligible if one of the following applies:

  • More than 15 years has passed since they committed the crime; or
  • They have a US citizen or lawful permanent resident spouse, child, or parent who will experience extreme hardship if they are not granted a waiver.

If applying for a waiver based on the passage of 15 years, the foreign national will have to demonstrate that they are not a threat to US safety, security, or welfare, and that they have rehabilitated. The officer will have discretion in deciding upon these factors. The chances of success will be greater if the foreign national has not committed any other crimes during the 15-year period, and they actively participated in and completed programs specific to rehabilitation. If applying based on the hardship to a qualifying relative, the factors will be the same as those for waivers of unlawful presence and misrepresentation. The biggest difference is that US citizen and lawful permanent resident children are qualifying relatives for this waiver.