When Is a Waiver of Inadmissibility Available for a Green Card Applicant?
In some cases, a special application for legal forgiveness will overcome a bar to receiving lawful permanent residence.
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If the U.S. immigration authorities find you to be "inadmissible," you can be refused a U.S. green card, as discussed in the article, "Inadmissibility: When the U.S. Can Keep You Out." However, waivers of inadmissibility are available to certain foreign nationals. A waiver means that you ask the U.S. government to overlook or forgive the ground of inadmissibility and grant the green card (lawful permanent residence) despite it.
Section 212 of the Immigration and Nationality Act (I.N.A.) states which grounds of inadmissibility allow for waiver applications. 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 for a waiver and on what grounds -- and that you will have to submit not only a basic request, but many documents to prove that you meet the various requirements and deserve the waiver.
Waiver of Unlawful Presence in the U.S.
Unlawful presence may be the most common ground of inadmissibility for which waiver applications are filed, on behalf of applicants who will be attending their final immigrant visa/green card interview at a U.S. consulate. If you accumulated unlawful presence in the United States and are subject to the three-year or ten-year bar upon departure and attempted reentry, you may be qualified to file a waiver application if you have have a U.S. citizen or lawful permanent resident spouse, fiance, or parent who will experience “extreme” hardship if you are denied admission. You cannot apply for this waiver on the basis of having a U.S. citizen or lawful permanent resident child.
The most difficult part of submitting a waiver application for unlawful presence is demonstrating potential extreme hardship to your qualifying U.S. relative. Extreme hardship is not defined in the I.N.A., but it is generally understood to mean hardship that is greater than the normal hardship a qualifying relative can be expected to experience if you are denied admission. This vague definition means that there is no right or wrong answer. However, it also means that the officer reviewing your case has broad discretion in deciding whether or not your relative’s circumstances constitutes extreme hardship.
Consider introducing evidence of “mitigating” factors to your waiver application. Mitigating factors may turn an otherwise weak application into a successful one. These factors include children with the qualified relative, a genuine belief that you had been complying with immigration laws, and being admitted to the country when you were a young child.
You will also want to address any factors that can be deemed “aggravating.” These are factors that will weaken the overall strength of your application. They can include prior violations of immigration law or criminal charges, arrests, or convictions. They can also include factors that hint at marriage fraud. If your qualifying relative is from the same country as you or speaks your native language, these can also be viewed as aggravating factors. If you have any aggravating factors, be prepared to submit evidence that mitigates their seriousness. For example, if you have a criminal background, you will want to submit evidence that shows you completed programs or services for rehabilitation.
Procedurally, there are two possible routes for applying for this waiver. A select group of applicants, who are immediate relatives of U.S. citizens and can show extreme hardship to a U.S. citizen spouse or parent, can apply for a "provisional waiver" (or "stateside" waiver) on Form I-601A before departing the U.S. for their consular interview. (That reduces the risk that they'll be denied the waiver and be stuck outside the U.S. for three or ten years.) See Nolo’s articles on ”Who Is Eligible for Provisional Waiver of Three- or Ten-Year Time Bar” and ”How to Apply for Provisional Waiver of Three- or Ten-Year Time Bar” for details.
Applicants who don't qualify for a provisional stateside waiver (such as spouses of U.S. permanent residents and siblings of U.S. citizens) will need to apply for the traditional I-601 waiver, described in "How to Prepare Form I-601 to Request a Waiver of Inadmissibility."
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. You will not, however, be eligible for a waiver under any circumstances if you falsely claimed to be a U.S. citizen.Like unlawful presence waivers, you need to have a U.S. citizen or lawful permanent resident spouse, fiance, or parent to qualify for this application. You are also required to show that this qualifying relative will suffer extreme hardship if you are denied admission.
Extreme hardship, mitigating factors, and aggravating factors for a waiver application under this ground of inadmissibility are the same as for unlawful presence.
Waivers of Certain Criminal Grounds of Inadmissibility
If you were denied admission to the United States because of your criminal history, you may be eligible to file a waiver application. Section 212(h) of the I.N.A. identifies certain criminal grounds that allow for a waiver application. These 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 your criminal ground of inadmissibility allows a waiver application, you are eligible if one of the following applies to you:
- More than 15 years has passed since you committed the crime and applied for admission to the United States; or
- You have a U.S. citizen or lawful permanent resident spouse, fiance, child, or parent who will experience extreme hardship if you are denied admission.
If you are applying for a waiver based on the passage of 15 years, you will need to demonstrate that you are not a threat to U.S. safety, security, or welfare, and that you have rehabilitated. The officer will have discretion in deciding upon these factors. Your chances of success will be greater if you have not committed any other crimes in your home country during the 15-year period and you actively participated in and completed programs specific to rehabilitation.
If you are 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 only difference is that U.S. citizen or lawful permanent resident children count as qualifying relatives for criminal grounds of inadmissibility.
Seeking Legal Advice
If you are inadmissible to the United States based on one of the grounds of inadmissibility discussed here, it’s a good idea to consult with an immigration attorney to determine your eligibility for a waiver and help you prepare a convincing application.