Waivers of Inadmissibility

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Waivers of Inadmissibility

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When a person is not eligible to be admitted into the United States and receive a visa under the Immigration and Nationality Act (INA), under certain circumstances, he or she may be able to gain lawful admission into the United States if they are eligible to file Form I-601, Applications for Waiver of Ground of Inadmissibility.

Under the Immigration and Nationality Act (INA), Section 212, the general classes of aliens who are ineligible to receive visas and aliens ineligible for admission are enumerated. Common grounds for inadmissibility include:

  • Health-related grounds (e.g. someone with a physical or mental disorder that poses a risk to the health and safety of others);
  • Crimes of moral turpitude;
  • Multiple criminal convictions;
  • Drug trafficking;
  • Prostitution;
  • Human trafficking;
  • Money laundering;
  • Engagement in terrorist activities;
  • Membership in a totalitarian party;
  • Immigration fraud;
  • Misrepresentation;
  • Alien smuggling;
  • Certain aliens previously removed; and
  • Illegal entry and other immigration violations.

Waivers for immigrant visas are available for certain grounds of inadmissibility and typically require that the applicant have either a lawful permanent resident or a spouse or a child who will suffer extreme hardship if the applicant is not permitted into the United States to help them. Inadmissibility waivers are available in the Form I-601, Application for Waiver of Ground of Inadmissibility.

In order for the individual to obtain the waiver, the applicant will need to demonstrate that his or her inadmissibility would cause a qualifying relative to suffer extreme hardship. Those qualifying relatives must be the waiver applicant's permanent resident spouse, their parent, or in some cases their child. It's important to note that the extreme hardship must be established for the qualifying relative, not the waiver applicant.

What supportive evidence do I need?

In order for someone to obtain a waiver, all claims for extreme hardship on behalf of the qualifying relative must be adequately supported by evidence. The evidence of extreme hardship, aside from the applicant's explanation, must include relevant supportive items such as medical or financial reports. Family separation is not necessarily enough, nor is financial inconvenience; therefore, these and other factors shall be considered carefully. Such factors that will be taken into consideration that as extreme hardship include:

  • Health issues - Whether they involve ongoing or specialized treatment, the availability of such treatment in the applicant's home country, the duration of the treatment, and whether the condition is long or short-term.
  • Financial issues – Decline in the standard of living, future employability, the termination of a professional practice, the costs and care of family members, the costs of special education etc.
  • Education – The loss of the opportunity of higher education, the requirement to be educated in a foreign language etc.
  • Personal ties – Separation from spouse or children, the ages of the involved parties, the length of residence, community ties in the United States, and close relatives living in the United States.

Special factors may be taken into consideration as well such as cultural, language, religious or ethnic issues. As well as valid fears of physical harm, social ostracism, or persecution.

As of June 4, 2012, USCIS implemented a significant change to the filing process for waiver applicants located outside of the United States. Today, those seeking to waive an inadmissibility ground should no longer apply for a waiver at a foreign location, but should instead file a request directly to the USCIS by mailing the application to a UCSIS Lockbox facility in the United States.

These changes affects filings for Form 1-601, Application for Waiver of Grounds of Inadmissibility, Form I-212, Application for Permission to Reapply for Admission into the United States After Deportation or Removal (when filed with the Form I-601), and Form I-290B. It is the USCIS that renders a decision on waiver applications after it considers all hardship factors set forth by the applicant. Therefore, in order to have the best chances of having your waiver approved, you should submit the Form-I-601 with as much supportive documentation as possible.

For those individuals who have been removed or deported from the United States, or who left the United States voluntarily after their deportation order expired, and who seek readmission, will be required to file Form I-212, Application for Permission to Reapply for Admission into the U.S. After Deportation or Removal.

If you have been denied admission into the United States or deported and wish to return to the United States, we urge you to contact a Fort Lauderdale immigration attorney from Guerra Sáenz, PL for legal advice. Having an experienced and qualified attorney by your side can give you the greatest chances of achieving the outcome you desire with your waiver application; we are here to guide you every step of the way and to take the complexity, confusion and mystery out of the application process.

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