WAIVERS + INADMISSIBILITY

What is a waiver?

There are many types of waivers in immigration law. Waivers are generally needed when a noncitizen is or will be “inadmissible” to the United States. Inadmissible means that the noncitizen has done something that makes them ineligible for the immigration benefit (such as an immigrant visa) that they are seeking. The waiver is an attempt to overcome that inadmissibility so that the noncitizen can get the immigration benefit.

Different types of waivers are available for different kinds of inadmissibilities. The most common waivers are for unlawful presence. Many undocumented noncitizens have entered the United States illegally, or, without inspection (EWI). For many, even those married to United States citizens, the unlawful entry means they must leave the U.S. and apply for their immigrant visa in their home country. They cannot change their status here inside the U.S.. The process of applying for a visa outside the United States at a person’s home consulate is called consular processing.

Once the noncitizen leaves the U.S., he or she will trigger an inadmissibility “bar” for having been unlawfully present, which prevents the person from getting a visa for a certain period of time. For certain applicants whose only inadmissibility will be unlawful presence (ie. no immigration fraud, no “permanent bar,” no “smuggling” issue, and no convictions for crimes involving moral turpitude) there is an I-601A provisional waiver that can be applied for while the applicant spouse remains in the U.S. If approved, the applicant can leave the U.S. with near certainty of returning quickly. For other applicants, the standard I-601 process requires departing the U.S. to trigger the bar, and then submitting the I-601 waiver.

For many types of waivers including those for unlawful presence, the applicant must demonstrate that a qualifying relative will suffer extreme hardship were the noncitizen not allowed to re-enter the United States. USCIS determines whether the qualifying relative has met the burden to show that he or she will suffer extreme hardship in the absence of the noncitizen. Demonstrating “extreme hardship” is a critical part of this process. There are other types of waivers that only require the applicant to show that there are family unity and humanitarian factors present.

There are also waivers for certain crimes, deportation, for misrepresentation (lying or providing false information to get an immigration benefit) and for health-related or mental disorders. The availability and type of waiver often depends on the type of visa sought (ie. immigrant visa to come live with a spouse or a visitor’s visa for a short trip) and also the type of inadmissibility. Many waivers require proving extreme hardship to a qualifying relative. There are certain types of inadmissibilities that do not provide any sort of waiver. The most common example of this is a false claim to U.S. citizenship (particularly if committed by an adult).

There are also harsh bans for people who have re-entered the country without inspection after deportation or previous unlawful presence, and for people who have missed an immigration court hearing.

Our attorneys are well-qualified to discuss your inadmissibility matter and provide you a professional opinion on what steps are available to fix your immigration status. We can also help you analyze all the relevant facts in your case and draw out the most important hardship factors. We will help you create the strongest hardship case possible. Arrange a consultation today. 

Waivers of inadmissibility have been a major focus of Atty. Fernandez’ practice:

“The first waiver I created was for my then-husband in 2006. I have since represented scores of families in different types of waivers in many different types of cases since 2011. One of my favorite parts of my work as an attorney is working with clients to obtain excellent evidence, write thoughtful and impactful statements, and presenting the evidence in a way to efficiently demonstrate hardship. My research skills, excellent writing ability, and capacity to develop creative arguments help me put together strong waiver packages for my clients.”

- Attorney Laura Fernandez