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Waivers of excludability

People with histories of criminal activities, previous immigration law violations, certain medical and other problems, will be denied entry or a lawful permanent residence, unless special permission is granted. This special permission is called a waiver. They are several  kinds and types of waivers.

8  CFR §212.7 (e): Unlawful presence waiver.

For people who cannot adjust (change their status into that of a lawful permanent resident without leaving) and have to change their immigrant status in the US, leaving the United States triggers the “unlawful presence” grounds of inadmissibility. If you have accumulated unlawful presence in the United States for six months or more after the age of 18  (either by overstaying your permission to be here or by entering illegally) and you have to exit the United States in order to obtain your immigrant status at the US consulate, you need to obtain the waiver before you leave for your appointment.

Since March 4, 2013, applicants have been able to file what is called the “provisional waiver” application and get it approved prior to exiting the United States. This was a huge change from the previous law, which did not allow the applicants to file the application for waiver prior to departing the United States. The fee for the waiver is $630 and for applicants under the age of 79 there is an additional fee of $85 for fingerprinting.

In order to qualify for the waiver, you must have an approved visa petition. If you are in deportation (“removal”) proceedings in immigration court, you need to file a motion with the court to administratively close your case. In order to get the waiver you have to show extreme hardship to your United States citizen or lawful permanent resident spouse or parents. You will have to attach documents proving the family relationship and the hardship. Economic hardship by itself is usually insufficient to establish extreme hardship. The fingerprints requirement means that your name and fingerprints will be run through the FBI database. If criminal and/or previous immigration violations are discovered, the waiver will be denied.

Immigration & Nationality Act § 212 (a)(9)(A)(iii): Permission to reapply.

The “permission to reapply” waiver is for persons who have been previously ordered deported and therefore they are excludable and now have basis to immigrate based on, for example, family petition by a united States citizen spouse.  Many times this waiver is filed in conjunction with another waiver, if you have other reasons for being excludable, for example, fraud. There are rules as to where the waivers are filed.

Immigration &Nationality Act § 212 (i): Fraud waiver.

Section 212(a)(6)(C)(i) of the Immigration & Nationality Act (INA) states that foreign nationals, who by fraud or willfully misrepresenting a material fact, seek to procure (or have sought to procure or have procured) a visa, other documentation, or admission into the United States or other immigration benefit are inadmissible. In order to be inadmissable, there has to have been a false statement of a material fact made to a U.S. Government official, for the purpose of obtaining a benefit under U.S. immigration law. A misrepresentation is considered material if it causes the Government not to investigate an area that could be damaging to the applicant.

The waiver is typically filed in conjunction with an application for adjustment of status or with an application for an immigrant visa or fiancé visa. Like most waivers, the applicant has to have a “qualifying relative” who will suffer extreme hardship if the applicant is denied the visa or the adjustment of status.  The qualifying relatives for this waiver are US citizen or permanent resident spouse, sons and daughters and fiance.

Immigration & Nationality Act § 212 (a)(6)(C)(ii): False claim to US citizenship.

There is no waiver for false claims of U.S. Citizenship made after September 30, 1996, when the law took effect. False claim to citizenship can cause people who otherwise don’t have any blemish on their moral character to lose their green card and be deported. Signing a voter registration form is a claim of U.S. Citizen. Therefore, there is no waiver for a non-citizen who registers to vote.

Immigration & Nationality Act § 212 (a)(6)(E)(ii): Alien smuggling waiver.

You can be accused of alien smuggling if you assisted someone to enter illegally either physically or by helping them financially to get someone to smuggle them. In certain circumstances, a person who has engaged in alien smuggling may be eligible for a waiver of inadmissibility, allowing the person to obtain immigration benefit, or to avoid deportation (removal).

The requirements are: The person must be a lawful permanent resident (a “green card” holder) or is  applying for a family-based immigrant visa or fiance visa. This means that the waiver is not available for any other type of petition, such as one for an employment-based visa, a student visa, or a visitors’ visa. You can apply for a waiver if the individual you  helped bring to the United States was your spouse at the time the smuggling took place,  parent, son, or daughter at the time of entry. Also, the applicant for the waiver must prove that he or she deserves the waiver, either for humanitarian purposes, to assure family unity, or because it is otherwise in the public interest.

Immigration & Nationality Act § 212 (h): Waiver from crime based inadmissibility grounds.

This waiver is highly technical and it contains certain exclusions. The waiver is used to waive inadmissibility grounds due to crimes involving moral turpitude, engaging in prostitution, single conviction for simple possession or being under the influence of 30 dr. or less of marijuana, conviction of two or more offenses of any kind with an aggregate sentence imposed of at lease five years and asserting immunity against prosecution of a serious crime. Like other waivers, this waiver requires the existence of “qualifying relatives” which are United States or lawful permanent resident parents or children. The waiver is available to VAWA self petitioners.  This waiver is highly technical and you need to make sure that your attorney is throughly familiar with it.

Immigration & Nationality Act § 237 (a)(1)(H): Another Fraud waiver.

This waiver is very effective if you fit within the class of persons who can use it. The reason it is so effective is that you do not need to demonstrate extreme hardship. It is used by persons who previously immigrated while failing to disclose information that would have prevented them from immigrating. If the person was qualified otherwise to immigrate, but for the misrepresentation, this waiver can be used.