Types of Waivers
There are a number of waivers available to certain individuals who cannot gain admission to the United States because of an aspect of their background. For example, you may be inadmissible because of a past fraud, criminal or immigration violation. Once you are rendered inadmissible, you will not be granted a visa to enter the United States. A waiver is usually the last chance for an immigrant to gain admission to come to the United States, or to stay in the United States if going through deportation. This article will touch on the most common waiver issues and provide tips to submit an effective application. However, these tips are meant only for your information. This article is sort of like a stunt on TV. It fulfills your curiosity but you should never try it at home. Get a seasoned immigration attorney on your waiver application.
Issues during the Waiver decision making process
There are different types of waivers, the requirements of which depend on the particular basis of the inadmissibility. For example, inadmissibilities based on criminal grounds and unlawful presence generally require the extreme hardship waiver. Extreme hardship is for the criminal inadmissibility that occurred less than 15 years ago. If the criminal inadmissibility is more than 15 years, then the applicant must show their rehabilitation and that their admission to the U.S. would not be contrary to the national welfare, The standard required for the waiver also depends on the serious nature of the inadmissibility. For instance, if a criminal inadmissibility is of a dangerous and violent nature, the standard heightens to exceptional and extremely unusual hardship to a U.S. citizen or LPR qualifying relative. This section will touch on different considerations and issues when applying for the waiver during immigrant visa or adjustment of status. For more foundational information about this topic, read more about the grounds of inadmissibility and waivers.
The Extreme Hardship Waiver
In cases where the extreme hardship waiver is applicable, the applicant (the inadmissible immigrant) must show that a qualifying U.S. citizen or Legal Permanent Resident (LPR) relative will experience extreme hardship if the applicant is not admitted or allowed to remain in the United States. Those who are qualifying relatives depend on the type of inadmissibility but most commonly includes the spouse, parent, son or daughter. Extreme Hardship waivers can be submitted during consular processing or the adjustment of status process or requested as relief during removal proceedings.
The waiver application usually comes after the consular officer finds an inadmissibility that needs to be waived before the immigrant can be granted the green card. In some cases, the applicant of the adjustment of status in the United States must include the inadmissibility waiver with the application. The I-601A Provisional waiver for unlawful presence, which requires extreme hardship of a qualifying relative, is one waiver that can be submitted before the consular processing. The provisional waiver can only be submitted when unlawful presence is the only basis for the inadmissibility. Therefore, it is very important to have an attorney evaluate your case to determine whether there is another basis of inadmissibility. For example, if you are unlawfully present in the United States and you gained admission in to the United States by using a fake passport and visa, you may also have misrepresentation and fraud as an inadmissibility. That would make you ineligible for the I-601A waiver.
Should your Qualifying Relative stay or go? Showing Extreme Hardship
The focus of the waiver is usually the qualifying relative’s extreme hardships if they must stay separated from you (the applicant), or go to the foreign country to remain with you. The waiver should show how an approved waiver will remedy the extreme hardship.The officer will look at credible evidence supporting the qualifying relative’s extreme hardship if they must remain in the United States separated from you or if they must move to the foreign country with you. If either or both circumstances will lead to extreme hardship and the favorable factors outweigh the unfavorable, the waiver is likely to be granted based on the the officer’s discretion.
Some attorneys take the approach of arguing that an extreme hardship will exist under both circumstances, staying in the U.S. without the you and going to the foreign country to stay united with you. However, this can spur a request for more evidence about which action the relative will choose if one circumstance clearly presents extreme hardship while the other circumstance does not. Therefore, one must carefully evaluate from a strategic perspective if it is more effective to show the most credible course of action that will cause the extreme hardship rather than arguing both scenarios. If both scenarios present circumstances of extreme hardship, then arguing both may be the best approach.
Don’t Forget the Officer’s Favorable exercise of discretion where the favorable factors outweigh the negatives.
Along with the evidence supporting extreme hardship, the applicant must present unfavorable factors and the favorable factors. For instance, in the case of a criminal ground of inadmissibility, the officer will consider favorable factors such as rehabilitation, the length of time you’ve been rehabilitated, community service, employment history, and evidence of good moral character. In such cases it is important to show why the favorable factors outweigh the unfavorable and unflattering factors. Keep in mind that unfavorable factors do not only include criminal offenses but may include tax problems, civil suits by creditors, restraining orders, and a history of child support delinquency. Therefore, evaluate every aspect of your life to identify both the good and the bad. Evaluate how it will affect the officer’s discretion.
Waivers for Willful Misrepresentation and Fraud
What is Willful misrepresentation and Fraud?
The waiver for the inadmissibility based on fraud or misrepresentation requires you to first identify whether the underlying actions have really culminated into these violations. Fraud is intentionally and knowingly making false representation of a material fact to a U.S. government official or consular officer who granted the immigration benefit as a result. Willful misrepresentation is the willful misrepresentation of a material fact to an U.S. government official or consular officer in order to obtain an immigration benefit. Once you are charged with either misrepresentation or fraud, you are also inadmissible or deportable. A waiver will cure these grounds. To be eligible for this waiver you must be the spouse or child of a U.S. citizen or Legal Permanent Resident. However, extreme hardship is not a statutory requirement of this type of waiver. Rather discretion means everything here.
It’s all about discretion
It’s helpful to think of discretion as the officer’s or judge’s view of you. In other words, would you appear in a favorable light to an immigration judge or officer, enough for them to grant you a waiver? An approval depends on the answer to this question. Therefore, it is important to shed a favorable light on yourself by explaining what happened, the level of remorse you have, how your circumstances may have played into the fraud or misrepresentation, how you’ve redeemed yourself, the family ties in the United States and how any form of deportation or refusal of an immigrant visa will affect those qualifying relatives, how you’ve built a life in the United States or how you can contribute to the welfare and growth of the United States, your education, your rehabilitation and any other positive aspects that paint a picture of your good character. While extreme hardship is not a requirements, it is still a must in regards to painting a whole picture for the judge or officer who will be exercising discretion. So remember, simply having a qualifying relative, a U.S. citizen or LPR spouse or child will not guarantee a waiver. You must earn it by showing why you deserve to have the waiver by showing the good person you are as well.
Waiver for the crime of prostitution or other criminal grounds that occurred more than 15 years ago.
If the crime was more than 15 years ago, you don’t have to show extreme hardship to a qualifying relative. You must only show rehabilitation and that your admission would not be contrary to the U.S. national welfare. Therefore, why waste time proving extreme hardship if you are approaching 15 years since the inadmissibility? For example, if you are at 14 years since the crime occurred, it may be easier to just wait for the 15 years to pass. Once you are over the 15 years since the inadmissibility occurred, you would have a lower standard to meet when applying for the waiver. However, if the crime is considered dangerous and violent, the standard will not only be extreme hardship but be elevated to exceptional and extremely unusual hardship to one or more qualifying U.S. citizen or LPR qualifying relatives, regardless of the amount of time that has passed.
Proving Exceptional and Extremely Unusual Hardship for a Dangerous and Violent Crime
Even if 15 years has passed since the crime, you’ll need to consider whether your crime falls within the purview of dangerous and violent. Crimes that fall within this purview include aggravated assault, assault with a firearm, sexual abuse, burglary of a dwelling, resisting arrest with violence, misdemeanors involving violence and aggravated felonies. These examples are not comprehensive. An attorney will need to review caselaw and the facts in your particular circumstances to determine whether the crime is dangerous and violent.
It may be best to discuss with an attorney a strategy to argue that the offense is not dangerous and violent, which would permit the lower standard of either (1) rehabilitation and not against national welfare if more than 15 years or (2) extreme hardship to a qualifying relative. However, you and your attorney must be ready to argue exceptional and extremely unusual hardship as a back up if the officer rejects the argument that the crime is not dangerous and violent.
Tips for Waiver preparation and filing
- Be consistent.
When preparing the waiver, be sure your waiver tells a consistent and chronological narrative about the basis of the inadmissibility, your family relationship with the qualifying relative, the extreme hardships you face and how waiving the inadmissibility will alleviate those difficult circumstances. Look out for contradictory facts. For example, you argue rehabilitation but yet you have a few misdemeanors on your record since the inadmissibility. Another contradiction, you claim your only basis of inadmissibility is unlawful presence, yet you entered with a fake passport.
2. Provide Evidence Evidence Evidence.
For each fact included in the waiver, make sure there is credible and strong evidence included in the waiver application to back it up. The officer can easily dismiss arguments if unsupported by evidence. For instance, your statement claiming rehabilitation should be backed by affidavits from friends, family, community leaders who can attest to your rehabilitation and you should include a certified police certificate from your country showing a clean record. If the extreme hardship of your qualifying relative is a serious chronic disease such as sickle cell, it is important to support such a claim with medical records and a doctor’s letter stating the diagnosis and any opinions about how your absence or their relocation to a foreign country will affect the qualifying relative’s health. If the qualifying relative is experiencing depression because of your absence, then a psychiatrist’s or psychologist report will be good evidence to support this extreme hardship. If your relative will experience extreme financial hardships, then include proof of any debts, loans, bills due and show proof about how relocation or your absence will negatively affect their finances. Just remember, if you don’t attach evidence, then the consequence could very well be a denial of the waiver.
3. Your Credibility is just as important as the Evidence.
Your waiver application is also a narrative about who you are. While not an interview, you should aim to gain the officer’s trust as they get to know you through the waiver application. Therefore, a statement that you are a great person should match with the evidence. If you make the statement but then there is evidence throughout the application that you have multiple character issues, you’ll lose credibility in the eyes of the officer. Therefore, don’t just provide evidence but make sure the evidence best reflects who you are. Be sure to explain how each piece of the story fits to tell your story. Be accountable by explaining the unflattering aspects of your history in an honest and straight forward way.
4. Present the waiver application in an organized manner.
Organize the forms, extreme hardship affidavits and evidence with the most important documents and strongest evidence at the top. Also try to organize it chronologically as well to match the timeline of your affidavit. Just as a story is organized for readers to easily follow the narrative, the same applies to the waiver. A coherent presentation will contribute to the goal of making the waiver compelling.
5. Include a legal brief, especially with a complicated waiver application.
I always include a brief in the waiver stating the law and legal authority which supports my clients’ position. This is where it is important to have an immigration attorney review your case, prepare the waiver and draft a convincing legal brief.
6. Make sure you use up to date immigration forms.
Immigration waiver forms, such as the I-601 and I-601A, must be current in order to be considered valid. Therefore, if the form used is outdated, then the entire waiver application will be rejected and sent back. This can be devastating when time is of the essence.
7. Include all inadmissibilities in the waiver application.
The waiver application will only cover inadmissibilities included in the application. Therefore, if you just request a waiver for unlawful presence but not for the misrepresentation, then you risk getting the waiver for unlawful presence but not the misrepresentation. This could become a real problem at the consular interview.
It has been no secret that the current administration has pushed for immigration policy that is more restrictive and hostile towards immigrants, especially immigrants with previous violations. You must be prepared to face a very stringent waiver decision process, where even the smallest discrepancy in the application can lead to a denial or request for more evidence. Be sure to consider these tips as you prepare to file a waiver and get an immigration attorney on your case!