Waiver of Inadmissibility

There are different grounds of inadmissibility to the US. And there are waivers available for some grounds of inadmissibility. Some of the more common grounds of inadmissibility are:

• Unlawful presence;
• Immigration misrepresentation and document fraud;
• Criminal conviction;
• Terrorist grounds;
• Health grounds;
• False claim to US citizenship.

Inadmissibility is serious. It can prevent you from having your current visa renewed or it can keep you from being allowed to enter entering the US.

Inadmissibility Is Not The End Of The Story

A declaration of inadmissibility need not be the end. A capable, experienced immigration attorney like Gerald Goulder of Goulder Immigration Law Firm in Greensboro, North Carolina can evaluate your ground(s) for inadmissibility and, in many circumstances, assist in preparing a waiver application seeking a waiver of your inadmissibility ground(s). 
 In the right circumstances, attorney Goulder can demonstrate that a US citizen will suffer serious hardship if you are not granted the waiver. Alternatively, Mr. Goulder may be able to demonstrate that, despite the ground(s) of inadmissibility, a favorable grant of discretion for a waiver approval is appropriate based on positive “mitigating” factors in your life that deserve reconsideration.

Waiver Unlawful Presence Inadmissibility

Unlawful presence inadmissibility may be the most common ground of inadmissibility for which waiver applications are filed. 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 a US citizen or lawful permanent resident spouse, fiancée, 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 the required extreme hardship to your qualifying US relative. Extreme hardship is not defined in the immigration law, 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.

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. 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.

Waiver of Immigration Misrepresentation Inadmissibility
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, fiancée, 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.

Waiver of Certain Criminal Grounds of Inadmissibility
The immigration law allows for waivers of only certain criminal grounds. 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, fiancée, 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 US 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.

Form I-601 Waiver Procedure Vs. Form I-601A Waiver Procedure

Generally, a waiver of inadmissibility can only be submitted after the applicant has been denied an immigrant visa. Typically, this circumstance generally would arise at a US consulate—out of the US. However, there are circumstances where a waiver of inadmissibility is submitted during adjustment of status in the US.

Historically, one could only apply for a waiver of an unlawful presence ground of inadmissibility (Form I-601 Waiver) from outside the US after an immigrant visa interview at a U.S. Consulate or Embassy abroad. This process forced the foreign national applicant to wait outside the US for several months for a decision on the waiver. In addition, this process of applying for the waiver from outside the US required the foreign national seeking a waiver of unlawful presence to take a risk that s/he or would be unable to return to the US for a number of years if the waiver application was denied.

Beginning in 2013 a modified waiver process—the Form I-601A waiver—enabled obtaining a provisional stateside adjudication of the waiver application while remaining in the US and without having to depart the US—at least until obtaining the provisional determination on the waiver application.

The Form I-601A provisional stateside waiver process allows immigrant visa applicants who are immediate relatives of US citizens (spouses, children under age 21, and parents) to apply for this unlawful presence waiver in the United States, before departure for an immigrant visa appointment. Approval of this "stateside" waiver before departure minimizes the amount of time a foreign national is separated from family in the United States. The filing of the stateside unlawful presence waiver was initially limited to immediate relatives of US citizens who can show extreme hardship to a U.S. citizen spouse or U.S. citizen parent.

However, recently the Form I-601A provisional unlawful presence waiver process has been expanded to any foreign national statutorily eligible for the unlawful presence waiver and who has not yet had an immigrant visa interview scheduled. The list of individuals who may be considered a qualifying relative for the extreme hardship determination now includes lawful permanent resident spouses or parents. The goal of this expanded program is to encourage those foreign nationals to complete the immigrant visa process and minimize family separation.

Under the expanded Form I-601A provisional unlawful presence waiver process any foreign national who is seeking an immigrant visa abroad, and for whom a visa is available, may submit an application for a stateside waiver of unlawful presence before departure from the United States.

The waiver still requires a showing of extreme hardship to a qualifying relative if the waiver is not approved, but it allows any US citizen or permanent residence parent or spouse to be considered a qualifying relative. The Form I-601A provisional unlawful presence waiver process applies to all statutorily eligible immigrant visa applications, whether though family-based petitions or employment-based petitions.

The expansion of the stateside unlawful presence waiver is still limited to those foreign nationals whose sole issue regarding admissibility is unlawful presence.

Those foreign nationals with other grounds of inadmissibility, including fraud, criminal conduct, medical issues, etc. are not eligible for the Form I-601A provisional stateside waiver program (but may evaluate whether the Form I-601 waiver process (regular waiver process) may still apply to them.

Making a case for waiving your ground(s) for inadmissibility requires a persuasive lawyer able to marshal facts on your behalf and often the opinions of people who know you, including your doctor, social worker, counselor or financial planner.

Not every immigration lawyer has your best interests at heart. Unlike many immigration lawyers who work through secretaries and paralegals, Gerald Goulder, in North Carolina, works personally with every client. Having your immigration lawyer work directly with you is extremely important is preparing a good waiver of inadmissibility application.

Gerald Goulder is an experienced North Carolina immigration lawyer helping individuals and families in North Carolina and throughout the United States and around the world with waivers of inadmissibility and unlawful presence waivers. US immigration law is federal law. This enables Goulder Immigration Law Firm to assist individuals and companies throughout the U.S. and around the world.

For solutions to your waiver of inadmissibility circumstance call immigration attorney

Gerald Goulder at Goulder Immigration Law Firm (336) 808-1119 or ask him a question using this online email form:

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