Waiver Applications
WAIVER APPLICATIONS
There are two types of waivers available under Section 212(d)(3)(A) of the Immigration and Nationality Act (INA).
INA Section 212(d)(3)(A)(i) provides a waiver for inadmissible foreign nationals who apply for a visa at a U.S. consulate abroad, whereas INA Section 212(d)(3)(A)(ii) provides a waiver for inadmissible foreign nationals seeking admission without a visa directly at the port of entry.
INA does not indicate the standards for the exercise of discretion. The Board of Immigration Appeals (BIA) in Matter of Hranka, 16 I.&N. Dec. 491 (BIA 1978), held that there is no requirement that the reasons for entering the United States be “compelling” and, instead, articulated a balancing test. Specifically, in adjudicating INA Section 212(d)(3)(A) waivers for discretionary permission to enter the United States, the BIA articulated the following three factors to be considered:
- The risk of harm to society if the applicant is admitted.
- The seriousness of the applicant’s immigration or criminal law violations.
- The nature of the applicant’s reasons for wishing to enter the United States.
Each consular post (for (d)(3)(A)(i) waivers) and each port of entry (for (d)(3)(A)(ii) waivers) has its own procedures for accepting waiver applications. Ports of entry often designate certain days and times during which waivers will be accepted.
Under INA Section 212(a)(9)(B), a person who has accrued more than 180 days of “unlawful presence” in the United States is subject to a 3-year bar to readmission that is triggered upon departure from the United States. A person who has accrued one year or more of unlawful presence will trigger a 10-year bar to readmission.
Generally, individuals who have an approved immigrant visa petition (Form I-130) but entered or remain in the United States without inspection, admission, or parole are ineligible to adjust status to lawful permanent resident (LPR) without departing the United States. Instead, such individuals must leave the United States and apply for an immigrant visa at a U.S. embassy or consulate abroad. However, as described above, departure may trigger a 3- or 10-year bar to readmission. The 3- or 10-year bar to readmission may be waived if the applicant can demonstrate that the refusal of their admission would cause “extreme hardship” to a U.S. citizen or LPR spouse or parent.
The provisional waiver process allows an applicant who knows they will be subject to the 3- or 10-year bar upon departure to apply for “provisional” approval of an unlawful presence waiver before departing the United States for the immigrant visa interview. Assuming there are no other eligibility or admissibility issues, an approved provisional waiver should permit a consular officer to issue an immigrant visa without undue delays.
An individual who is ineligible to be admitted to the United States as an immigrant or to adjust status in the United States, as well as certain nonimmigrant applicants who are inadmissible, must file an application to seek a waiver of certain grounds of inadmissibility.
Applicants for adjustment of status and applicants for immigrant visas use the Application for Waiver of Grounds of Inadmissibility (Form 1-601) to request a waiver of the following grounds of inadmissibility.
| Inadmissibility Section of the INA | Description of Related Ground |
|---|---|
| 212 (a)(1) | Health-related grounds |
| 212 (a)(2) | Criminal and related grounds |
| 212 (a)(3)(D) | Membership in a totalitarian Party |
| 212 (a)(6)(C) | Fraud/misrepresentation |
| 212 (a)(6)(E) | Smugglers |
| 212 (a)(6)(F) | Subject to civil penalty |
| 212 (a)(9)(B) | Unlawful presence (in the United States for at least 180 days, beginning on or after April 1, 1997, followed by departure from the United States. |
For waiver under INA Section 212(h) for certain criminal grounds of inadmissibility or Section 212(i) for immigration fraud or misrepresentation, the applicant should have a U.S. Citizen, Lawful Permanent Resident (LPR) relative (spouse, son, daughter, parent), or K visa petitioner. Further, the applicant must prove that the denial of the waiver application will cause extreme hardship to the qualifying relative(s).
Note that only a U.S. Citizen, LPR spouse or parent, or K visa petitioner can qualify as a qualifying relative for applicants seeking a waiver for fraud/misrepresentation for a material fact.
If Form I-601 is approved, the granted waiver will apply only to the grounds of inadmissibility and to the crimes, incidents, events, or conditions included in the application. Except in a few limited circumstances, if an applicant is granted a waiver of grounds of inadmissibility in connection with an immigrant visa or adjustment of status application, the waiver remains valid indefinitely.
Frequently Asked Questions
What is the difference between being “inadmissible” and “removable”?
Inadmissibility applies to individuals seeking entry or adjustment of status, preventing them from being lawfully admitted. Removability applies to those already in the U.S. who have committed an act that makes them subject to deportation.
What is meant by a "crime involving moral turpitude" (CIMT)?
A CIMT is a crime that involves conduct considered inherently base, vile, or depraved, contrary to the accepted rules of morality. The definition is complex and interpretations can vary, which can make an attorney’s analysis and defense crucial.
Is there a deadline for filing for asylum?
Yes, asylum applications must generally be filed within one year of your last entry into the United States. There are limited exceptions to this rule for changed country conditions or extraordinary personal circumstances
What is the difference between asylum and protection under the Convention Against Torture (CAT)?
Asylum requires that persecution be on account of one of several protected grounds, including race, religion, and political opinion. CAT protection does not require one of these protected grounds but requires you to show that it is “more likely than not” you would be tortured by or with the acquiescence of a government.
My home country was just designated for Temporary Protected Status (TPS). What should I do?
Register for TPS during the initial registration period announced by the Secretary of Homeland Security. This generally involves submitting an application and demonstrating continuous residence in the U.S. since a specified date. Missing this registration window can make you ineligible for this protection.
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