Waivers of Inadmissibility

Under the Immigration and Nationality Act there are many enumerated reasons a person can be found to be inadmissible to the United States. INA §212(a) Grounds of inadmissibility prevent a person from obtaining lawful permanent residence and from obtaining non-immigrant visas. Some of these grounds of inadmissibility can be waiver under specific circumstances described in the particular waiver.

Before applying for immigration status an experienced attorney will review your situation to help identify any potential grounds of inadmissibility and whether a waiver is available. Waivers of inadmissibility generally may not be filed as stand alone applications. Please schedule an appointment to discuss your individual case with one of our immigration attorneys.

Below is a list of some of the most common and most important types of waivers, as well as a general outline of the basic requirements.

Policy to Know

A person who commits two or more offenses for which the aggregate sentences to confinement were more than 5 years is inadmissible. INA §212(a)(2)(B). Additionally a person who is involved or has been involved in prostitution, or other commercialized vices, is inadmissible. INA §212(a)(2)(D). A person who has been convicted of an offense relating to controlled substances in inadmissible. INA §212(a)(2)(A)(i)(II). Multiple criminal convictions, prostitution and other commercialized vices, and a controlled substance offense that is merely possession of marijuana under 30 grams may be waiver under INA §212(h).

 

The requirements for a waiver under INA §212(h) are:

 

  1. Be the Spouse, Son or Daughter, or Parent of a United States Citizen or Lawful Permanent Resident; and
  2. Demonstrate that refusal of admission would result in extreme hardship to the qualifying relative.

 

or

 

  1. The criminal activity occurred more than 15 years before the application for admission;
  2. Admission would not be contrary to national welfare, safety, or security; and
  3. The applicant has been rehabilitated.

 

or

 

  1. The applicant is inadmissible only for engaging in prostitution;
  2. Admission would not be contrary to national welfare; and
  3. The applicant has been rehabilitated.

 

Note: A higher level of hardship, extreme and exceptionally unusual, is required for a grant of waivers under INA §212(h) in the case of violent and dangerous crimes. Matter of Jean, 23 I&N Dec. 373 (A.G. 2002). 8 CFR §212.7(d).

A person who has been unlawfully present in the United States for more than 180 days but less than one year is inadmissible for three years. A person unlawfully present for one year or more is inadmissible for ten years. This bar is commonly referred to as the 3/10 year bar. In some circumstances this waiver may be applied for before applying for residence by applying for a provisional waiver. INA §212(a)(9)(B). However, a waiver is available under INA §212(a)(9)(B)(v).

 

The requirements for a waiver under INA §212(a)(9)(B)(v) are:

 

  1. Be the spouse or son or daughter of a United States citizen or Lawful Permanent Resident; and
  2. Demonstrate that refusal of admission would result in extreme hardship to the qualifying relative.

A person who was removed through summary exclusion proceedings or through removal proceedings initiated upon the person’s arrival in the United States is inadmissible for five years. INA §212(a)(9)(A)(i). A person who is ordered removed after a deportation hearing or who departs the United States while an order of removal was outstanding is inadmissible for ten years. INA §212(a)(9)(A)(ii). A person who is removed two or more times, or who is removed after conviction of an aggravated felony is inadmissible for twenty years. INA §212(a)(9)(A)(ii). However, a waiver is available under INA §212(a)(9)(A).

 

Note: A person subject to inadmissibility under INA §212(a)(9)(C) may not apply for a permission to reapply until after ten years have passed.

 

The requirements for a waiver under INA §212(a)(9)(A) are:

 

  1. Demonstrate that USCIS should exercise favorable discretion.

 

There are no requirements such as demonstrating extreme hardship to qualifying relatives. Factors to be considered in exercise of discretion include: the basis for deportation; recency of deportation; family ties in the United States; hardship to relatives; hardship to the applicant; and reformation or rehabilitation.

A person who used fraud or committed a material misrepresentation in procuring or attempting to procure an immigration benefit in inadmissible. This bar does not have a time expiration and will exist for life after the fraud or misrepresentation. INA §212(a)(6)(C)(i). However, a waiver is available under INA §212(i).

 

The requirements for a waiver under INA §212(i) are:

 

  1. Be the spouse or son or daughter of a United States citizen or Lawful Permanent Resident; and
  2. Demonstrate that refusal of admission would result in extreme hardship to the qualifying relative.

The grounds of inadmissibility under INA §212 apply to any application for immigration status. This includes applications for lawful permanent residence through consular processing or through adjustment of status as well as applications for non-immigrant visas. Grounds of inadmissibility may be waived in connection with applications for non-immigrant visas under INA §212(d)(3)

 

The requirements for a waiver under INA §212(d)(3) are:

 

  1. Demonstrate that the consulate officer should exercise favorable discretion.

 

There are no prerequisites for this waiver or requirements to demonstrate hardship to a qualifying family member. This waiver is not available for inadmissibility under INA §212(a)(2)(C) relating to drug trafficking; INA §212(a)(3)(A) relating to security grounds; INA §212(a)(3)(B) relating to terrorist activities; INA §212(a)(3)(C)

A person who has committed a crime that may be described as a crime involving moral turpitude is inadmissible. This bar does not have a time expiration and will exist for life after the crime was committed, however the requirements for the waiver may be different if the offense occurred more than fifteen years prior to the application for admission. INA §212(a)(2)(A)(i)(I). Some crimes involving moral turpitude will not require a waiver if the offense falls under the petty offense or the juvenile offense exceptions. INA §212(a)(2)(A)(ii). However, a waiver is available under INA §212(h).

The requirements for a waiver under INA §212(h) are:

  1. Be the Spouse, Son or Daughter, or Parent of a United States Citizen or Lawful Permanent Resident; and
  2. Demonstrate that refusal of admission would result in extreme hardship to the qualifying relative.

or

  1. The criminal activity occurred more than 15 years before the application for admission;
  2. Admission would not be contrary to national welfare, safety, or security; and
  3. The applicant has been rehabilitated.

Note: A higher level of hardship, extreme and exceptionally unusual, is required for a grant of waivers under INA §212(h) in the case of violent and dangerous crimes. Matter of Jean, 23 I&N Dec. 373 (A.G. 2002). 8 CFR §212.7(d).

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