So now that you know you are inadmissible, it’s time to talk Waivers

Many times when there is a denial in the case, it is due to an inadmissibility. To learn more about grounds of inadmissibility, check out my previous post. See “You should know: Are you barred from coming to the U.S.?

So in a nutshell, if you are inadmissible, you’ll likely need a waiver, unless you are not eligible for one. Certain individuals cannot get a waiver, such as a person who committed murder or torture, drug traffickers and those who falsely claimed U.S. citizenship. It is important to verify your eligibility for a waiver before spending your time, money and hopes on the waiver.

There are different types of waivers which correspond to the specific inadmissibilities. Applying for a waiver will not guarantee that it will be granted, but at this stage of the game, it is very important to consult an attorney who will prepare an effective, persuasive and well prepared waiver. The Attorney will assist you through the waiver process. The Immigration attorney will provide you with a checklist and guidance on all the evidence needed to support the approval of the waiver and provide an additional brief with relevant statutory and case authority to support your approval. Below are available waivers and the requirements of each waiver.

A. The Waiver for Health Related Grounds of Inadmissibility: Submit the I-601 Form.

I. A waiver is available for the following grounds of inadmissibility:

  1. Certain Communicable Diseases
  2. Lack of Required Vaccinations
  3. Certain Physical and Mental Health Disorders
  4. Drug and/or Alcohol Abuse

II. Who is eligible for the waiver

There is no qualifying relationship required for applicants who have physical or mental disorders associated with harmful behavior and for those seeking immigrant visas who lack the required vaccinations. However, to qualify for a waiver in regards to communicable diseases, the inadmissible applicant must be the spouse, parent, child, unmarried son or daughter, or minor unmarried lawfully adopted child of:

  1. A U.S. citizen,
  2. A person lawfully admitted for permanent residence, or
  3. A person who has been issued an immigrant visa.
  4. Eligible for classification as a self-petitioning spouse or child.
  5. The fiancé(e) of a U.S. citizen or the fiancé(e)’s child.

III. Requirements of the waiver 

  1. Certain Communicable Diseases: The officer must consult with the Center for Disease Control (CDC) to determine whether or not a waiver should be granted (as a matter of discretion). In certain cases, the waiver may be granted if a bond is paid as well. This usually comes at the recommendation of the CDC. The officer forwards the waiver application (Form I-601) with the medical records and medical exam report. A favorable response from the CDC, is usually enough for the officer to grant a discretionary waiver. Unlike the other waivers which are discussed below, the applicant is not required to show proof of hardship to a U.S. qualifying relative. However, it is important that relevant information regarding the health related condition is included to support a favorable grant of the waiver.

I find the following table at on the USCIS site provides great insight into the decision process of the officer when it comes to health-related inadmissibility waivers:

Step-by-Step Checklist
Step 1 Check for qualifying relationship to determine whether the applicant is eligible for the waiver.
Step 2 Gather the necessary documentation for CDC review.
Step 3 Send documentation to CDC.
Step 4 Review CDC response.
Step 5 Analyze whether the waiver should be granted as a matter of discretion.
Step 6 Inform CDC of waiver decision.

2. Lack of Required Vaccinations: The officer will review the medical exam to determine whether the applicant lacks required vaccinations. If the officer determines that the applicant has not met the requirement for certain vaccinations, he/she will determine whether the applicant is eligible for a type of waiver. There are three waivers that the officer will look at whether or not:

  • The applicant has received the required vaccination or has shown proof of the required vaccinations by the date of the officer’s decision;
  • The civil surgeon or panel physician certifies that such vaccination would not be appropriate because of medical reasons which are, the vaccine is not age appropriate, the vaccine is contraindicated, there is an insufficient time interval to complete the vaccination series; or  It is not the flu season, or the vaccine for the specific flu strain is no longer available;or
  • The requirement of such a vaccination would be contrary to the applicant’s religious beliefs or moral convictions.

The first two waiver are called “blanket waivers” and don’t require an I-601 waiver form. Blanket waivers are also available for vaccine shortages but depends the CDC’s verification that there is a vaccination shortage. The third waiver based on religious beliefs or moral convictions require an application, a fee and additional evidence. The granting of the waiver depends on whether the applicant establishes that the vaccination requirements would be contrary to his or her religious beliefs or moral convictions. The CDC does not need to review this waiver application based on moral convictions or religious beliefs. Rather, the immigration officer has to consider evidence that supports certain factors such as:

  • The applicant must be opposed to all vaccinations in any form.
  • The objection must be based on religious beliefs or moral convictions.
  • The religious belief or moral conviction must be sincere.

Evidence which supports the above factors include, but are not limited to, a sworn affidavit from the applicant and affidavit from members of the congregation or individuals that are aware of the applicant’s beliefs.

3.  Certain Physical and Mental Health Disorders

This does not require a qualifying relationship as does the communicable disease. However the officer must consult with the CDC to determine whether such a waiver for the physical or mental health disorders should be granted. If the CDC responds with a recommendation to grant the waiver, the officer will likely grant the discretionary waiver. Keep in mind that the officer may set a condition for the applicant to pay a bond or seek medical care upon admission to the United States.

4. Drug and/or Alcohol Abuse

Technically, there is no waiver available for a current drug or alcohol abuser. If the medical examination shows drug or alcohol use, the applicant will likely be labeled a drug or alcohol abuser, rendering them inadmissible. However, if the applicant stops abusing drugs or alcohol and can prove remission through a new medical examination, they will be eligible for a waiver due to being in remission.

B. The Waiver for Criminal Grounds of Inadmissibility: Submit the I-601 Form.

I. A waiver is available for the following grounds of inadmissibility:

  1. Crimes involving moral turpitude
  2. Aliens who are convicted, or who conspire or attempt to commit a crime involving moral turpitude
  3. Aliens who are convicted, or who conspire or attempt to violate a regulation or law of the United States or a Foreign Country relating to 30g or less of marijuana
  4. Aliens who have multiple criminal convictions for which the aggregate sentence is 5 years or more
  5. Aliens involved in prostitution and commercialized vice
  6. Aliens involved in criminal activity who have asserted immunity from prosecution (and then skipped town).
  7. Immigrant membership in totalitarian party

II. Who is eligible for the waiver

Generally, there are three ways that an applicant can be eligible for a waiver.

  1. The conviction for the crime occurred more than 15 years before the date of the application; the applicant’s admission to the United States would not be contrary to the national welfare, safety, or security; and the applicant has been rehabilitated; or
  2. The applicant is the spouse, parent, son, or daughter to the U.S. citizen or LPR if, in the opinion of the Secretary of Homeland Security, refusing the waiver would result in extreme hardship to the U.S. citizen or LPR; or
  3. If the applicant is a VAWA self-petitioner.

There is no waiver available to those who have conspired or attempted crimes of murder or torture. The waiver is also only available to those who commit controlled substance (drug) violations with possession being 30 grams or less. Also, no waiver is available to drug traffickers, their spouse and children who knowingly benefited from the trafficking.

III. Requirements of the waiver

Once the officer determines eligibility, the officer will instruct the applicant to submit an I-601 waiver (and possibly an I-212 application) to the USCIS. The applicant must show evidence that the crime occurred more than 15 years ago, their rehabilitation and that they would not be a threat to national security and welfare; or proof of extreme hardship to a qualifying relative (certain U.S. citizen or Legal Permanent Resident (LPR) relatives).

The USCIS created a chart (below) with the factors considered and supporting evidence to  support extreme hardship to the qualifying relative:

Factors and Considerations for Extreme Hardship
Considerations
Family Ties and Impact

•Qualifying relative’s ties to family members living in the United States, including age, status, and length of residence of any children.

•Responsibility for the care of any family members in the United States, particularlychildren, elderly adults, and disabled adults.

•The qualifying relative’s ties, including family ties, to the country of relocation, if any.

•Nature of relationship between the applicant and the qualifying relative, including any facts about the particular relationship that would either aggravate or lessen the hardship resulting from separation.

•Qualifying relative’s age.

•Length of qualifying relative’s residence in the United States.

•Length of qualifying relative’s prior residence in the country of relocation, if any.

•Prior or current military service of qualifying relative.

•Impact on the cognitive, social, or emotional well-being of a qualifying relative who is left to replace the applicant as caregiver for someone else, or impact on the qualifying relative (for example, child or parent) for whom such care is required.

Social and Cultural Impact

•Loss of access to the U.S. courts and the criminal justice system, including the loss of opportunity to request or provide testimony in criminal investigations or prosecutions; to participate in proceedings to enforce labor, employment, or civil rights laws; to participate in family law proceedings, victim’s compensation proceedings, or other civil proceedings; or to obtain court orders regarding protection, child support, maintenance, child custody, or visitation.

•Fear of persecution or societal discrimination.

•Prior grant of U nonimmigrant status.

•Existence of laws and social practices in thecountry of relocation that would punish the qualifying relative because he or she has been in the United States or is perceived to have Western values.

•Access or lack of access to social institutions and structures (official and unofficial) for support, guidance, or protection.

•Social ostracism or stigma based on characteristics such as gender, gender identity, sexual orientation, religion, race, national origin, ethnicity, citizenship, age, political opinion, marital status, or disability.

•Qualifying relative’s community ties in the United States and in the country of relocation.

•Extent to which the qualifying relative has integrated into U.S. culture, including language, skills, and acculturation.

•Extent to which the qualifying relative would have difficulty integrating into the country of relocation, including understanding and adopting social norms and established customs, including gender roles and ethical or moral codes.

•Difficulty and expense of travel/communication to maintain ties between qualifying relative and applicant, if the qualifying relative does not relocate.

•Qualifying relative’s present inability to communicate in the language of the country of relocation, as well as the time and difficulty that learning that language would entail.

•Availability and quality of educational opportunities for qualifying relative (and children, if any) in the country of relocation.

•Availability and quality of job training, including technical or vocational opportunities, for qualifying relative (and children, if any) in the country of relocation.

Economic Impact

•Economic impact of applicant’s departure on the qualifying relative, including the applicant’s or qualifying relative’s ability to obtain employment in the country of relocation.

•Economic impact resulting from the sale of a home, business, or other asset.

•Economic impact resulting from the termination of a professional practice.

•Decline in the standard of living, including due to significant unemployment, underemployment, or other lack of economic opportunity in the country of relocation.

•Ability to recoup losses, or repay student loan debt.

•Cost of extraordinary needs, such as special education or training for children.

•Cost of care for family members, including children and elderly, sick, or disabled parents.

Health Conditions
& Care•Health conditions and the availability and quality of any required medical treatment in the country to which the applicant would be returned, including length and cost of treatment.•Psychological impact on the qualifying relative due to either separation from the applicant or departure from the United States, including separation from other family members living in the United States.•Psychological impact on the qualifying relative due to the suffering of the applicant.•Prior trauma suffered by the qualifying relative that may aggravate the psychological impact of separation or relocation, including trauma evidenced by prior grants of asylum, refugee status, or other forms of humanitarian protection.
Country Conditions

•Conditions in the country of relocation, including civil unrest or generalized levels of violence, current U.S. military operations in the country, active U.S. economic sanctions against the country, ability of country to address significant crime, environmental catastrophes like flooding or earthquakes, and other socio-economic or political conditions that jeopardize safe repatriation or lead to reasonable fear of physical harm.

•Temporary Protected Status (TPS) designation.

•Danger Pay for U.S. government workersstationed in the country of nationality.

•Withdrawal of Peace Corps from the country of nationality for security reasons.

•DOS Travel Warnings or Alerts, whether or not they constitute a particularly significant factor.

C. The Waiver for Immigration Violations: Misrepresentation, Fraud, prior removal and/or Unlawful Presence: Submitting the I-601 Form.​

I. A waiver is available for the following grounds of inadmissibility:

  1. Immigration fraud or misrepresentation, excluding false claims to U.S. citizens
  2. Smugglers (only if smuggled spouse, parent, son or daughter) and being subject of civil penalty
  3. The 3-year or 10-year bar for being unlawfully present in the United States
  4. Certain grounds of inadmissibility, if filed by an applicant for TPS
    Aliens previously removed and unlawfully present after previous immigration violations, if filed by a NACARA or HRIFA adjustment applicant
  5. Unlawfully present after previous immigration violations, if filed by a VAWA self-petitioner

II. Who is eligible for the waiver

The following individuals qualify for the waiver:

  1. If the applicant is the spouse, son, or daughter of a U.S. citizen or an LPR; or
  2. A VAWA self-petitioner who shows that their qualifying relative would experience extreme hardship.

III. Requirements of the waiver

The applicant has to show they deserve favorable discretion of the adjudicator based on certain factors.

D. Filing the I-601A Provisional Waiver if Unlawful Presence is the only Ground of Inadmissibility: Submitting the I-601A Provisional Waiver.

I. A waiver is available for the following ground:

  1. Unlawful presence only; and
  2. Only if the applicant is present in the United States.

If there are other grounds of inadmissibility, then the applicant cannot file the I-601A Provisional Waiver, but may still be able to file the I-601 waiver.

II. Who is eligible for the waiver

The waiver is available to anyone who can apply for an immigrant visa, which means immediate relatives, family-sponsored or employment-based immigrants and Diversity Visa selectees are all eligible.

III. Requirements of the waiver

The applicant must prove extreme hardship (see USCIS table in section B.III) to the qualifying relative but can apply in the United States and wait for the approval of the provisional waiver before going to the embassy in their home country for the immigrant visa application.

E. Filing the I-212 Waiver: When to submit in conjunction with the I-601 Waiver.

Under certain circumstances, the immigrant applicant must also apply for the I-212 waiver, Permission to Reapply for Admission, if they are still within the barred period after being deported. This waiver does not waive the inadmissibility and is only used as a basis to grant a previously removed immigrants permission to reapply for re-entry. It accords no right to re-enter the US. Therefore, in order to become admissible, the immigrant usually has to submit a waiver for the ground of inadmissibility. The I-212 waiver is usually submitted with the I-601 waiver as well.

An I-212 waiver must be submitted under the following circumstances:

  1. At any time, if the applicant committed an Aggravated Felony (for Immigration purposes).
  2. At any time, if barred for life for fraud and misrepresentation.
  3. Within ten years after the date of the applicant’s departure from the United States, if the applicant unlawfully stayed in the United States for an aggregated one year or more and then left, or was ordered removed from the United States, and then attempted to reenter illegally.
  4. Within five years after the applicant’s departure from the United States, if the applicant was an arriving alien and was removed shortly after arrival.
  5. Within Ten years after the applicant’s departure from the United States, if the applicant entered the U.S. and was later placed in removal proceedings, or if the applicant left the U.S. willingly but before removal proceedings were concluded.
  6. Within Twenty years after the applicant’s departure from the United States, if the applicant was removed from the U.S. on more than one occasion.

NOTE: As always this is for informational purposes only and is not legal advice. Consult an attorney for advice regarding your particular circumstances.

 

 

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