When is a Waiver of Inadmissibility required for a Green Card Applicant?

If you are found "inadmissible," you can be refused U.S. lawful permanent residence (a green card). However, waivers of inadmissibility are available to certain foreign nationals. A waiver means that you ask the U.S. government to overlook or forgive the ground of inadmissibility and grant the green card or other benefit despite it.

Waiver of Unlawful Presence in the U.S.

Unlawful presence is generally be the most common ground of inadmissibility for which people file waiver applications. If you accumulated unlawful presence in the United States and are subject to the 3 or 10-year bar, you may be able to file an I601, Waiver of Grounds of Admissibility. You must have have a U.S. citizen or lawful permanent resident spouse, fiancé, or parent who would experience "extreme" hardship if you were denied admission. You cannot apply for this waiver on the basis of having a U.S. citizen or lawful permanent resident child. The application is ordinarily filed at an immigrant visa interview at an overseas U.S. consulate.

An I-601A, Application for Provisional Unlawful Presence Waiver, is filed in the U.S. for someone whoknow they must conular process but would be subject to the 3 or 10-year bar from re-entering the U.S.. The advantage to this waiver is you can submit the application from within the U.S., before leaving for their consular interview, as long as you are already living the United States. Thus you avoid the risk of being barred from return based on your unlawful presence. Those who can submit it include spouses and children of permanent residents, siblings of U.S. citizens, and adult and married children of U.S. citizens. But unlawful presence must be the only ground of inadmissibility for which you need a waiver; if there are others, you're back to using the I-601 waiver.

Extreme hardship is not defined in the law itself, but is understood to mean hardship greater than what a qualifying relative could be expected to experience if you were denied admission to the United States. This vague definition means that there is no right or wrong answer. However, it also means that the officer reviewing your case has broad discretion in deciding whether or not your relative's circumstances constitutes extreme hardship. The more specific unusual situations you can show, the better.

Waiver of Immigration Misrepresentation

Another common ground of inadmissibility that allows for a waiver application is having secured an immigration benefit through fraud or misrepresentation. You will not, however, be eligible for a waiver under any circumstances if you falsely claimed to be a U.S. citizen. Like unlawful presence waivers, you need to have a U.S. citizen or lawful permanent resident spouse, fiancé, or parent in order to qualify for this application. You are also required to show that this qualifying relative will suffer extreme hardship if you are denied admission. Extreme hardship, mitigating factors, and aggravating factors for a waiver application under this ground of inadmissibility are the same as for unlawful presence.

Waivers of Certain Criminal Grounds of Inadmissibility

If you were denied admission to the United States because of your criminal history, you may be eligible to file a waiver application. Certain prior criminal acts allow for a waiver application, including crimes of moral turpitude, prostitution, and a single offense of possession of 30 grams or less of marijuana. Waivers are not allowed for murder, torture, aggravated felonies or for violations of any other law regarding controlled substances. If your criminal ground of inadmissibility allows a waiver application, you are eligible if one of the following applies to you:

  • You have a U.S. citizen or lawful permanent resident spouse, fiancé, child, or parent who will experience extreme hardship if you are denied admission; or

  • More than 15 years has passed since you committed the crime and applied for admission to the United States.

If you are applying based on the hardship to a qualifying relative, the factors will be the same as those for waivers of unlawful presence and misrepresentation. The only difference is that U.S. citizen or lawful permanent resident children count as qualifying relatives for criminal grounds of inadmissibility.

If you are applying for a waiver based on the passage of 15 years, you will need to demonstrate that you are not a threat to U.S. safety, security, or welfare, and that you have rehabilitated. The officer will have discretion in deciding upon these factors. Your chances of success will be greater if you have not committed any other crimes in your home country during the 15-year period and you actively participated in and completed programs specific to rehabilitation.

Waivers for Inadmissible due to a Health Condition

You can apply for an I-601 waiver if you are inadmissible due to a health condition, but you will need to prove that your condition does not harm anyone. You need to submit documents detailing your medical history and the outlook of your condition. There must also be a physician willing to treat the condition.

Waiver for Multiple Grounds of Inadmissibility

You can still apply for an I-601 waiver if you have multiple grounds of inadmissibility, but you will have to give complete documentation and provide good reasons for approval of the waiver.

Extreme Hardship Factors

Examples of some factors that may constitute an extreme hardship include:

  • The relative has to leave the U.S. to be with you;

  • You need medical treatment on a continual basis (e.g., for a brain tumor or multiple sclerosis);

  • Your home country is embroiled in a civil war or constant political upheavals;

  • You are the primary caretaker for an elderly, disabled or seriously and chronically ill relative;

  • Your education would be significantly interrupted or terminated;

  • You would lose or be denied significant employment opportunities if denied; and/or

  • You are the primary caregiver for your children from a prior relationship and who have an emotional attachment to you.

Each waiver application must be analyzed individually to determine the probability of success. No two waiver applications are the same.

Types of Applicants That Cannot Seek a Waiver at All

The waiver application process is not available to all applicants, including people who are inadmissible because:

  • Have a history of drug abuse or addiction;

  • Involved in drug trafficking;

  • Committed drug or controlled substance violations more serious than a single offense of simple possession of 30 grams or less of marijuana;

  • Convicted of or admitted committing or conspiracy to commit murder, torture;

  • Foreign government officials who have committed particularly severe violations of religious freedom;

  • Human trafficking (including family members who benefitted financially);

  • Unlawfully present in the U.S. or were ordered removed and reentered or attempted to reenter the U.S. illegally;

  • Suspected of entering the U.S. to commit espionage, sabotage, or violations of U.S. laws prohibiting export of particular goods, technology, or sensitive information;

  • Members, supporters, or otherwise affiliated or active with a terrorist organization;

  • Participated in Nazi German acts of genocide or persecution;

  • Committed torture or extrajudicial killing;

  • Involved in political killings;

  • Participated in recruitment or use of child soldiers;

  • Likely to become "public charges," (dependent on need-based government assistance);

  • Failed to attend a removal proceeding (immigration court hearing) within the five years before submitting the green card application;

  • Abused a student visa;

  • Permanently ineligible for U.S. citizenship;

  • Departed from or remained outside the U.S. to avoid serving in the Armed Forces in a time of war or national emergency;

  • Practicing polygamy (married to more than one spouse at a time);

  • Committed international child abduction;

  • Former U.S. citizens who renounced citizenship to avoid paying U.S. taxes;

  • Submitted a frivolous (baseless) application for asylum;

  • Involved in confiscating the property of U.S. nationals; or

  • made a false claim to U.S. citizenship or voted unlawfully.

212(d)(3) Waiver (Nonimmigrant Waiver)

The 212(d)(3) waiver is a nonimmigrant waiver that allows individuals who are inadmissible to the U.S. to enter on a temporary basis with nonimmigrant (temporary) visas. This waiver is associated with specific nonimmigrant visas, such as tourist visas (B-1/B-2), student visas (J-1), or work visas (H-1B). It is discretionary and typically requires demonstrating a legitimate purpose for entering the U.S., such as tourism, business meetings, medical treatment, or family visits.

Seeking Legal Advice

Only an experienced U.S. immigration attorney can give you a full, personal analysis of your likely eligibility for a waiver of inadmissibility or green card. If you are inadmissible to the United States based on one of the grounds of inadmissibility discussed here, the attorney can help determine your eligibility for a waiver and prepare a convincing application.

Waiver involving Prior Deportations

If you have previously been deported and you are seeking to re-enter the United States, you will need a waiver which you apply for on Form I-212 (typically called an “I-212” waiver).

Each deportation order carries with it a particular amount of time that you have to remain outside the United States, for example an expedited removal order bans you from re-entering the United States for 5 years, and a removal order bans you from re-entering the United States for 10 years. Similarly, if you have a conviction for a crime considered to be an aggravated felony, you are banned from re-entering for 20 years. If you want to re-enter the United States prior to the time period that you are banned from the United States, you will need the I-212 waiver and to be eligible to obtain a green card or a nonimmigrant waiver. This is separate from the I-601 waiver discussed above.

Some applicants may qualify to apply for such waiver with the USCIS, such as immigrant visa applicants who do not require an I-601 waiver, or applicants for adjustment of status. Canadians can apply for the same at a Port of Entry.

Applying to enter the United States with an I-212 waiver (and potentially other waivers) can be very complicated and time-consuming if you are not aware of everything you need when applying.mTypically, I-212 waiver applications should include proof of the following:

  • The basis for deportation;

  • Recency of deportation;

  • Length of residence in the U.S prior to deportation;

  • Evidence of good oral character of the applicant;

  • Respect for law and order;

  • Evidence of reformation and rehabilitation;

  • Family responsibilities of applicant;

  • Inadmissibility to the U.S. under other sections of law;

  • Hardship involved to himself and others; and

  • The need for your services (employment) in the U.S.


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