Immigration And Waivers

Immigration Hardship Waivers

Immigration hardship waivers are an important part of the US Immigration system: in many cases, they help to receive forgiveness for an immigration violation or a bar to a visa or green card. At the law office of Alena Shautsova, NYC Immigrant waiver attorneys help clients to determine their eligibility, prepare the filings and address any procedural considerations related to US immigrant waiver.

Some of the waivers require an application form and a fee, some do not. For many waivers, extreme hardship to a qualifying relative is needed to be shown. As a rule, a qualifying relative would be a person’s US citizen or lawful permanent resident spouse or parent. In the US, often, the same immigration form is used to waive various grounds of inadmissibility. So, for example, a form I 601 can be used to waive immigration fraud and/or health conditions resulting in inadmissibility. Please note that there is no waiver for 214(b) inadmissibility for non-immigrant visas where a person is accused of not having enough ties with his/her home country and having immigrant rather non-immigrant intent. At times, a person does not need a waiver when applying for one status (like TPS), but he/she will need a waiver when will be applying for a different status. To find out if a waiver is available and if a person qualifies for it takes time, a complete review of Immigration file and criminal file where applicable, experience and knowledge. For various grounds of inadmissibility and waivers, please see this chart.

How to Prove Extreme Hardship for Immigration Waiver

Many waivers require that an applicant proves extreme hardship to a qualifying relative, who is often a spouse or parent holding US citizenship status or green card status. At the Law Office of Alena Shautsova, we help people to submit qualifying applications, improving chances of the waiver approval. Read more on how to provide hardship for a waiver here.

I601 Immigration Hardship Waiver

I 601 is a US Immigration form that is required to be filed when a person is charged with inadmissibility based on certain grounds. For each ground, there are its own qualifications as to who can apply and who qualifying relatives can be, and also other limitations. This form is used by an applicant for an adjustment of status, an immigrant visa (at times, only family-based!), or K or V visa, TPS applicants, etc. It can be used to waive:

• Health-related grounds of inadmissibility (INA section 212(a)(1)): this waiver helps those who were found to have a communicable disease, dangerous physical or mental disorders, if you are seeking a waiver of the vaccination requirements, etc. Generally, there is no waiver for those who were found to have a drug addiction or drug abuse. A drug abuse determination is done by a civil surgeon according to the strict guidelines. Only if a person can prove that his/her addition is in remission, will be the person be able to overcome this inadmissibility charge.
• Some criminal grounds of inadmissibility (INA section 212(a)(2)): please note that for most controlled -substance-related offenses there is no immigrant waiver!
• Immigration fraud and misrepresentation (INA section 212(a)(6)(c)): for example, if one was found to present untruthful information at the entry (fraudulent visa, passport (but not a US passport!), or during immigration filings for a visa or green card (false employment or marriage documents, etc. Please note that there is no waiver for marriage fraud 204(c) ground, but in a certain limited situation, a person may qualify for a non-immigrant waiver or 237(a)(1)(h) waiver
• Immigrant membership in totalitarian party (INA section 212(a)(3))
• Alien smuggler (INA section 212(a)(6)(E)): this waiver is available only to those who are sponsored by close family members (not brothers or sisters!) and the persons one tried to smuggle were a spouse, parent, son or daughter only. An Immigration Judge may grant this waiver as well.
• Being subject to civil penalty (INA section 212(a)(6)(F))
• The 3-year or 10-year bar due to previous unlawful presence in the United States (INA section 212(a)(9)(B)): this is one of the most common grounds of inadmissibility. See also I601A Provisional waiver.

At times, rather than naming a form that is used to file for a waiver, lawyers, USCIS officers, and people will use the section of the law that provides for the waiver.

(!) 212(h) waiver: Section 1182(h) permits federal immigration authorities, in the exercise of their discretion, to excuse the commission of designated criminal offenses or other misconduct that would otherwise prevent noncitizens from entering or remaining in the United States. Noncitizens eligible to receive a waiver include 1) those whose activities causing them to be inadmissible occurred more than fifteen years earlier, who has since been rehabilitated and are not a threat to the nation’s welfare, safety, or security; 2) those who have a U.S. citizen or LPR qualifying relative who would suffer extreme hardship if the §1182(h) waiver were denied; or 3) certain victims of domestic violence who are eligible for LPR status on that basis. See §1182(h)(1)(A), (B), and (C). The final test for such a waiver is discretion: does a person deserve it or not? US Immigration form I 601 will be used to file for this waiver. A great fact about this waiver is that it can be used for certain aggravated felonies by certain LPR or non-immigrants. For 212(h) VAWA applicants, please read here.

(!) 212(d)(3) waiver: this is a very broad waiver for non-immigrant visa applicants. It can help at times even with permanent bar issues, controlled substance-related offenses where an immigrant wavier is not available, etc. There is no application fee to file for it and there is not form to be submitted. It is usually submitted at the time of the interview by the visa applicant. It can be submitted at the border for those who do not need a visa to enter the US. Read more on this amazing waiver here.

(!) 237 (a)(1)(H) waiver: this waiver waives removal of immigrants who were inadmissible at the time of admission or AOS due to fraud, misrepresentation. There should be a qualifying relative such as USC/LPR spouse, parent, son or daughter. This waiver is available for those who already received an immigrant visa or green card, but there was fraud at that stage and now it was uncovered. For example, it is available for those who were married but entered the US as unmarried children/sons/daughters of US parents and also those who did not qualify for their employment immigrant visas and those who committed marriage/fiancé fraud but were able to get the green card/immigrant visa…. Importantly, hardship is a factor but not a requirement to receive this waiver! More on this waiver in connection with marriage fraud

A VAWA self-petitioner is also eligible but does not need to have a USC/LPR family member and need not be an LPR at the time she asserts the waiver. A conditional resident whose I 751 was denied to marriage fraud can apply for this waiver!

(!) 212(k) waiver: this waiver is suitable to waive defects in immigrant visas that were not the fault of the visa applicant/holder: improper classification symbol, change in classification, where a visa was improperly issued in general but not due to fraud! The applicant has to show that he/she did not know of an issue involved and why she/he was unable to learn of the inadmissibility by exercising reasonable diligence prior to traveling to the US.

(!) I 212 waiver for those inadmissible under 212(a)(9)(A)(iii) and 212(a)(9)(C)(ii) (the correct name should be permitted to reapply for admission): is used to get a waiver after prior removal or deportation that those did not serve the appropriate bar time would need. If a person was removed from the US pursuant to an expedited removal order or a “regular” (by the judge) removal/deportation order, he/she cannot enter the US for 5, 10 or at times 20 years! But a person can apply for a waiver after departure, or in certain situations even prior to departure from the US. Practically speaking, the waiver usually will be filed after a U.S. consul found a person to be inadmissible at the immigrant visa interview. However, those who are in the US with removal orders and who will be seeking an I 601A waiver as well will file the waiver in the US. Matter of Tin, 14 I&N Dec. 371 (RC 1974) provides a non-exclusive list of factors that are relevant in determining whether an alien is eligible for an inadmissibility waiver under I-212. These factors include: (1) The basis for deportation; (2) Recency of deportation; (3) Length of residence in the U.S. (can only be a positive factor if residence was legal); (4) Moral character of the applicant; (5) Her respect for law and order; (6) Evidence of reformation and rehabilitation; (7) Family responsibilities of applicant; (8) Inadmissibility to the U.S. under other sections of law; (9) Hardship involved to himself and others; (10) The need for her services (employment) in the U.S. To apply for this waiver, a form I 212 is used by all, except for VAWA applicants who apply for a permanent bar waiver special provision. These applicants will use a form I 601.

(!) 212(d)(14) waiver for U visa applicants: an applicant for a U visa has a very generous waiver available which may waive almost all grounds of inadmissibility, it permits a waiver “if the Secretary of Homeland Security considers it to be in the public or national interest.”. The INA § 212(d)(14) waiver is only barred for people who were involved in Nazi persecution, genocide, torture, or extrajudicial killing.

Please note that there can be a waiver available for non-immigrant visas such as U visa, or T visa. A solution to one’s immigration issue can be unexpected: a person inadmissible under 204(c ) for marriage fraud with no immigrant wavier, may qualify for a U visa where a general, broad fraud waiver is available!

Finally, US Immigration laws and its interpretation are constantly changing. This article provides just general information and is not legal advice. Before filing for a waiver, one should consult with an attorney! To reserve a consultation, please call 917-885-2261.