If you’ve been told that you are inadmissible based on fraud, misrepresentation or immigration violations, you may be eligible for a waiver to gain admission to the United States. It is worth exploring this option.
A Breakdown of the Inadmissibility Grounds and Waivers
You’ll likely need a waiver if you’ve committed the following types of offenses:
FRAUD AND/OR MISREPRESENTATION
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 a U.S. government official or consular officer in order to obtain an immigration benefit. Once you’ve been 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.
The sole requirement of this waiver is the exercise of favorable discretion of the officer. The officer will look at the totality of your circumstances and determine whether you are deserving of a waiver. This involves looking at your history, your U.S. relatives, factors that may have played into the fraud or misrepresentation and any other relevant facts.
There is no waiver available for individuals who are applying for permanent resident or an immigrant visa and who have smuggled their spouse, parent, son, or daughter at the time of entry into the United States. There is no waiver available for smugglers who tried to smuggle other people. For example, there is no waiver available if you smuggled other types of relatives such as aunts, uncles, cousins, nieces or nephews. If eligible for the waiver on the basis that you smuggled immediate relatives listed above, then you can apply for the waiver on the Form I-601, showing that the waiver should be granted for humanitarian purposes, to assure family unity, or because it is otherwise in the public interest.
If you’ve overstayed your lawful status or crossed without inspection or admission and an exception to the unlawful presence bar does not apply, you’ll need a waiver. Living in the U.S. without legal status will cause you to accrue unlawful presence. Unlawful presence over a certain amount of time will cause you to become inadmissible and barred for a certain amount of time. Below is a table Summary showing the period of time barred based on length of unlawful presence.
|Time Barred||Length of Unlawful Presence|
|3 years||More than 180 days but less than 1 year of unlawful presence during a single stay and before the commencement of removal proceedings|
|10 years||Accrued one year or more of unlawful presence during a single stay before, during, or after removal proceedings|
|Permanent||Accrued more than one year of unlawful presence in the aggregate during one or more stays in the United States after reentry or an attempt to reenter without inspection.|
If you are outside of the United States, then you’ll need the extreme hardship waiver. If you were also deported or removed, you may also need to submit an I-212 application for permission to reapply for admission.
If you are already in the United States without status, then you should consult an attorney to explore whether the I-601A provisional waiver would be applicable to you.
To be eligible for the Unlawful Presence Provisional Waiver you must be in the U.S. and have a U.S. citizen or Legal Permanent Resident (LPR) spouse or parent who will suffer extreme hardship if you are not permitted to enter the United States.
It is important to consult an immigration attorney to prepare the waiver. At ST Law, I use my advanced knowledge of the legal requirements as well as my experience with waivers to prepare a good waiver application to increase the chance of success in each case.