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.
PRIOR REMOVAL OR DEPORTATION INA §212(a)(9)(A)
If you’ve been removed expeditiously or you are subject to an order of removal, you are subject to a bar of 5 years and 10 years respectively. If you are seeking to return to the United States within the time period for which you are barred, then you’ll first need to apply for permission to reapply for admission. If there are other underlying grounds of inadmissibility other than unlawful presence, then an additional waiver application would also be required for those grounds.
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. If you are outside of the United States, then you’ll need the extreme hardship waiver. 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. If you are already outside of the United States, then the extreme hardship waiver on the Form I-601 would be required before a consular officer could grant the immigrant visa.
ILLEGAL ENTRY AFTER A PREVIOUS REMOVAL OR UNLAWFUL PRESENCE OF MORE THAN ONE YEAR INA §212(a)(9)(C)
If you’ve been deported or unlawfully present in the U.S. for at least one year, you depart the U.S. and then return again without inspection, then you must wait at at least 10 years outside of the United States before applying for permission to reapply for admission. There are only a few exceptions to this rule. It is important to note that this statutory provision is very complex. For example, multiple instances of unlawful presence of a few months each could still be totaled in the aggregate. If the few months in different instances adds up to more than one year, such instances of unlawful presence in the aggregate will trigger this provision.
In such a case, you would need to wait for 10 years before applying for permission to reapply for admission and also submit a waiver application for other applicable grounds of inadmissibility. For example, an extreme hardship waiver for the unlawful presence.
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.