Has a lawyer or Immigration official told you that you need a waiver?
Has your online research made you think you might need one?
What types of cases and circumstances require waivers?
Anyone applying for their Green Card must be “admissible” to be eligible. (We will only be discussing “immigrant visa waivers,” not “non-immigrant visa waivers.”) If you are found “inadmissible,” it means you are ineligible for a Green Card, unless you obtain a “waiver.” A waiver is an application which, if approved, can waive or pardon a ground of inadmissibility. Not all grounds of inadmissibility have a waiver available – some, like a false claim to being a U.S. Citizen, can never be overcome. Luckily, though, many grounds of inadmissibility do have a waiver available.
What circumstances can make you inadmissible? The list is quite long, but here are some of the more common ones:
Unlawful Presence (INA §212 (a)(9)(B))
A person who stays in the U.S. without permission for more than six months may be inadmissible (barred from the U.S.) for 3 or 10 years. You are here without permission if you entered illegally or if you came on a visa but then overstayed the time given to you to stay. There are exceptions to this rule for minors (under 18), people whose last status was an F-1 Student, people who had certain applications pending (like a change of status or Adjustment of Status), people with a grant of TPS or DACA, and others.
This ground of inadmissibility is only triggered (applied to a person) when the individual leaves the U.S. (which is one reason it’s very important to speak to a qualified immigration attorney before leaving the U.S. if you’re out of status).
Someone who has this ground of inadmissibility may be eligible for an I-601A Waiver or an I-601 Waiver. Otherwise they must leave the country and wait 3 or 10 years before they become admissible again.
Fraud or Misrepresentation (INA §212 (a)(6)(C)(i))
A person is inadmissible under this section of the law when they present fraudulent immigration documents (like a fake visa, fake foreign passport of fake Green Card) at the border, when they lie to an immigration official to get a visa, Green Card or other immigration benefit, and when they enter the U.S. as a tourist when they have the intention to work or live in the U.S., among many other circumstances.
A misrepresentation must be made WILFULLY (with intent) and it must be MATERIAL (relevant to the decision being made). We often have clients who have entered on a fake foreign passport or one belonging to someone else. It is important to understand that this causes the individual to be inadmissible, but this inadmissibility can be waived, and it is NOT the same as someone who has entered illegally without an inspection by an immigration official.
Someone who is inadmissible for fraud or misrepresentation will be barred from the U.S. for the rest of their life, unless they obtain an approval of an I-601 waiver. People who have committed fraud/made a misrepresentation are not eligible for an I-601A Provisional Waiver.
Smuggling (INA §212 (a)(6)(E))
While most forms of smuggling or aiding someone in entering the United State illegally will make you permanently inadmissible, there is one small exception. If you smuggled your child, spouse or parent, you may apply for a waiver.
Prior Deportation or Removal Order (INA §212 (a)(9)(A), INA 212 (a)(9)(C))
Anyone who has been deported or removed (either by an Immigration Judge or by Border Patrol) is inadmissible for between 5 and 20 years. If you receive Voluntary Departure from an Immigration Judge and do not depart by the deadline given, your Voluntary Departure order automatically turns into a Removal Order, and you will be subject to this bar.
There are more serious consequences for those who either:
- Were deported/removed by the government, or
- Were ordered removed/deported, and then left the U.S. at any time after the order was entered or
- Were in the U.S. without permission for more than one year
- Re-entered the U.S. illegally (the consequences may be different if you entered through an immigration check point with fraudulent documents). Double check this
For these unlucky individuals, there is a lifetime bar to re-entering the U.S. However, after remaining outside of the U.S. for ten years, these individuals may apply for an I-212 Waiver.
Medical Grounds (INA §212 (a)(1))
The most common causes of a medical ground of inadmissibility are:
- Active Tuberculosis
- Alcohol or drug abuse
- Mental illness that poses a public safety concern
- Lack of vaccinations (often for medical or religious reasons)
There are certain waivers available for medical grounds of inadmissibility, and others (like drug use) will expire after a certain number of years.
*Note: While HIV used to be a medical ground of inadmissibility, it was removed in 2010
Crimes (INA §212 (a)(2))
There are many crimes that can make you inadmissible to the United States, either temporarily or permanently. They include:
- Crimes Involving Moral Turpitude such as murder, rape, child abuse, robbery or fraud
- Most drug crimes
- Prostitution or hiring a prostitute
- Being part of a gang
- Convictions for two or more crimes (other than purely political ones) for which the prison sentences totaled at least five years
Some crimes can be waived by a waiver, while other cannot. This is one of the most complex areas of law, where a crime in one state may make you inadmissible but in another state will not.