Waivers of Inadmissibility

When a person is applying for a U.S. immigrant or nonimmigrant visa, certain things can make that applicant “inadmissible” and therefore ineligible for a visa. These are typically things in the person’s background – such as prior criminal history or immigration violations in the United States – that are known to U.S. immigration authorities and that will inevitably come up when the person is either applying for a visa abroad to come to the U.S. or applying for adjustment of status within the U.S.

Fortunately, U.S. immigration law provides for certain types of waivers which a visa applicant found to be inadmissible can apply for in order for the U.S. government to “waive” their inadmissibility. If you qualify for a waiver, an immigration attorney can prepare your application and, if your waiver is granted, your ground of inadmissibility will be forgiven and you can then be issued the visa you were seeking.

One very common type of inadmissibility for people who entered the U.S. illegally (or who entered legally but then remained in the U.S. longer than permitted) is that they are subject to a 3- or 10-year bar for unlawful presence in the United States.

For example, someone accumulated more than one year
of unlawful presence will be subjected to a 10-year bar upon leaving the United States. This means that they cannot legally return to the United States for at least ten years. The only way to be able to return to the U.S. before the 10-year bar expires is to apply for an unlawful presence waiver, typically applied for by filing Form I-601A (if the person is in the U.S. and expects to trigger the 10-year bar upon traveling abroad to apply for an immigrant visa at a U.S. consulate) or by filing Form I-601 if the person had already left the U.S.

Other common types of inadmissibility are convictions for certain crimes covered under INA section 212(a) and having committed fraud or misrepresentation to obtain an immigration benefit.

Inadmissibility due to crimes and/or due to fraud or misrepresentation can possibly be waived pursuant to INA section 212(h) and INA section 212(i), respectively. But before applying for any waiver it is very important to determine that the potential applicant meets the eligibility requirements. For example, some crimes (such as all drug crimes, with the exception of a single conviction for possession of 30 grams or less of marijuana) cannot be waived at all. Furthermore, most inadmissibility waiver applications (with the exception of those filed by VAWA self-petitioners) require that the applicant have a qualifying relative and that they submit documentary evidence to prove that the qualifying relative (or, if a VAWA self-petitioner, the applicant himself/herself) will suffer extreme hardship if the applicant’s visa is denied.

Therefore, any visa applicant who suspects they may be inadmissible (or who has already been found to be inadmissible) would be well advised to speak to an experienced immigration attorney who will determine their eligibility for a waiver and who will help build a strong case that will demonstrate extreme hardship to the applicant’s qualifying relative. Attorney Hiram J. Malaret has many years of experience working with clients who have been able to apply for different types of waivers of inadmissibility, had their waivers granted, and been able to successfully obtain their U.S. visas.