Waivers of Inadmissibility: How We Can Help

“Inadmissible to the United States” is one of the most terrifying phrases a prospective immigrant can hear. Fortunately, that phrase does not have to spell the end of your immigration journey. There are various waivers of inadmissibility that, if granted, will allow you to continue the process of obtaining your visa or green card so you can remain in the U.S.

In this article, you will learn about those waivers of inadmissibility, along with the eligibility requirements and application processes for each one.

Table of Contents

1. What Is Inadmissibility?
2. What are the Grounds for Inadmissibility?
3. Immigration Waivers of Inadmissibility
4. Standard I-601 Inadmissibility Waiver Process
5. I-601A Provisional Waiver Process for Prior Unlawful Presence
6. I-212 Permission to Reapply for Admission After Removal
7. Un-waivable Bars to Re-Entry
8. Let Us Help You Today

Need Help? Speak with an Immigration Attorney

Are you running into roadblocks in your efforts to obtain an immigrant visa or green card? We will assist you in pursuing your immigration waivers of inadmissibility. Call 303-688-0944 today to begin your case assessment. If you prefer to speak with us in Spanish, call 720-359-2442. Si gustaria hablar con nosotros en Español, por favor llamenos al 720-359-2442.

What is Inadmissibility?

Being deemed inadmissible simply means that you are not legally permitted to enter the United States. If you committed certain violations, you may be barred from applying for a green card from within the United States. You also may be prohibited from re-entering the U.S. if you leave.

Penalties for breaking U.S. immigration law can be harsh and long-term. Typically, you will be forced to leave the U.S. before you can even begin the application process for permanent residency. In many scenarios, you could be barred from returning to the U.S. for years.

What are the Grounds for Inadmissibility?

The grounds for inadmissibility are set forth in the Immigration and Nationality Act. Common categories of inadmissibility include:

• health
• criminal activity
• national security concerns
• public charge (meaning you are likely to rely on public assistance)
• lack of labor certification (if required)
• fraud and misrepresentation
• prior removals
• unlawful presence in the United States

Immigration Waivers of Inadmissibility

Many grounds of inadmissibility allow applicants to apply for certain waivers of inadmissibility. One way to look at these waivers is the U.S. government is essentially “forgiving” the reason for your inadmissibility.

Receiving one of these waivers does not guarantee a successful visa or green card application. Without one, however, your chances of lawfully residing in the United States become virtually nonexistent.

Standard I-601 Inadmissibility Waiver Process

The I-601 Application for Waiver of Grounds of Inadmissibility can be used to overcome various barriers to receiving a green card or visa.

These waivers of inadmissibility may be an option for you if:

1. your spouse, fiancé, or parent is a U.S. citizen or legal resident, and
2. you have been denied a green card based on certain grounds of inadmissibility.

Form I-601 Waiver Application

In your application, you must address the basis for your inadmissibility and provide sufficient proof that denial will result in extreme hardship for your “qualifying relative.”

What is a Qualifying Relative?

A qualifying relative must be:

• A U.S. citizen or legal resident
• Your spouse or parent if you have been denied for unlawful presence or misrepresentation
• Your spouse, parent, or child if you have been denied admissibility based on criminal history
• Your fiancée, if he or she is a U.S. citizen

You Must Show Extreme Hardship

A major element in obtaining immigration waivers of inadmissibility is providing proof of the extreme hardship that you, your family, or your qualifying relative will suffer if your visa or green card is denied.

Factors that may constitute an extreme hardship include:

• your age, both at entry and at the time of application
• your family ties to the United States
• your family ties outside the United States
• the conditions in the country you will be deported to, and the extent of your ties to that country
• the financial impact of leaving the U.S.
• significant health conditions, particularly when suitable medical care is unavailable in the country to which you will return
• the possibility of other means of adjustment of status or future entry into the U.S.

source: In re Pilch , 21 I. & N. Dec. 627 (B.I.A. December 3, 1996)

Ineligibility for I-601 Waiver

There are some circumstances that may bar you from filing for an I-601 waiver, although other options for entry may be possible.

Some of the reasons you can be disqualified from receiving a waiver:

• You were in the U.S. unlawfully for more than one year, left, and then reentered without inspection.
• You have previously and falsely claimed that you were a U.S. citizen, unless you can show that the claim was unintentional or that you had a reasonable basis for your claim.
• You were, or appear to be, a member of a criminal gang (such as having gang tattoos).
• You were convicted of a drug-related crime after age 18 unless it was for possession of fewer than 30 grams of marijuana.
• You failed to attend a removal hearing and have been in the U.S. for at least five years.
• Immigration officials determined you were in a “sham” marriage (a marriage of convenience to help you get your green card).
• You filed a frivolous asylum claim.

I-601A Provisional Waiver Process for Prior Unlawful Presence

Often called the “provisional” or “stateside” waiver, Form 601-A allows people immigrating as relatives of U.S. citizens and permanent residents, diversity visa lottery winners, and immigrant visa applicants in other categories to apply for a waiver of their unlawful-presence inadmissibility before leaving the United States.

This is usually a far better option than leaving the U.S. to attend your consular interview and applying for the waiver afterward. In that scenario, you risk trapping yourself outside the U.S. if your waiver is denied.

Unlawful Presence

You can only use the I-601A provisional waiver if you have been deemed inadmissible on the grounds of unlawful presence.

Unlawful presence is the period of time when you are in the United States without being admitted or paroled, or when you are not in a “period of stay authorized by the Secretary.”

You may be barred from being admitted to the United States for:

• three years if you unlawfully stayed in the U.S. for more than 180 days but less than one year and you left before removal proceedings began.
• 10 years if you unlawfully stayed in the U.S. for one year or more. This is regardless of whether you left before, during, or after removal proceedings.
• permanently if you reenter or try to reenter the U.S. without being admitted or paroled after aggregating more than one year of unlawful presence during one or more stays.

8 U.S Code Services § 1182

Who is Eligible to Use the I-601A Form?

You can only use the I-601A provisional waiver if you meet all the following criteria:

• You are eligible for an immigrant visa to the U.S.
• You are physically present in the U.S. at the time of submitting your Form I-601A.
• You are at least 17 years old.
• You are otherwise admissible to the United States.
• You can supply evidence showing that your U.S. citizen spouse or parent will suffer extreme hardship if you are not granted the waiver and green card.

How the I-601A Application Works

So, an initial family-based petition or self-petition (on Form I-130 or I-360) has been submitted to and approved by the U.S. Citizenship and Immigration Services (USCIS). Now you will hear from the National Visa Center about the next steps and required processing fees. At this point, you should let the center know that you plan to submit a provisional waiver request to USCIS.

Submitting the Form

You will then submit the provisional waiver application to USCIS on Form I-601A, with the accompanying documents and fee. There is a $630 fee for submitting Form I-601A, plus $85 for biometric services if you are younger than 79 years old.

“Biometric services” simply means that USCIS will record your fingerprints and take photos of you. They will then run this information through the FBI database to check for any criminal records.

Tell Your Story in Your Form

Ideally, you should include a personal statement laying out your situation. This is your chance to describe the extreme hardship that your documents are meant to prove.

After You Have Submitted Your I-601A Form

Once your form is submitted, the USCIS will alert the National Visa Center once it approves your provisional waiver application.

Your case then moves forward. You can now leave the United States for your consular interview knowing that (if everything else is in order) you have a good chance of being approved for an immigrant visa and green card.

What You Should Realize

You can still be found inadmissible for a green card for a variety of other reasons, including:

• committing certain crimes or fraud
• violating U.S. immigration laws
• having a communicable health problem
• appearing likely to become a public charge (need government assistance)

You cannot use a provisional waiver to address any of these issues. And you cannot get a provisional waiver if you are inadmissible for any reason other than unlawful presence.

Instead, you must seek a traditional waiver of inadmissibility (on Form I-601) and attend your consular interview before you can apply for a waiver request.

If Your I-601A Is Denied

If the U.S. Citizenship and Immigration Services denies your provisional waiver application, you can decide your next move while still living with family in the U.S.

You cannot appeal an I-601A denial. However, you are allowed to try again before the consular case has been closed.

I-212 Permission to Reapply for Admission After Removal

After deportation, you are barred from reentering the U.S. for a certain period of time. This means that even if you apply for a visa at a US. embassy or consulate overseas, and your visa application is approved, you will still be barred from re-entering the U.S. Being granted a visa does not overcome the bar to re-entry.

One solution to this problem is to request forgiveness by submitting an I-212 application. These waivers of inadmissibility operate similarly to a pardon for a criminal conviction. U.S. immigration authorities will agree to lift the bar to re-entry and allow you to apply for a visa to re-enter the U.S.

The “Double Bar” Issue

As stated above, your deportation will result in your being barred from re-entering the U.S. However, there is a second bar based on certain conduct that could render you inadmissible to the U.S. This could result in a separate barrier to your re-entry.

You could overcome this bar by applying for a Form I-601 or Form I-601A waiver, depending on the reason for your inadmissibility. Still, both your I-601A and I-212 applications must be approved before you are eligible to even apply for a visa to enter the U.S.

This is because the I-212 waiver is designed to remove barriers based on deportation. Meanwhile, the I-601A waivers were designed to remove barriers based on conduct that led to your deportation in the first place.

What Else Should You Know About the I-212 Waiver?

The I-212 waiver is discretionary. This means an immigration judge is not obligated to give you one. Therefore, the more thorough your application is, the better your chances are of being granted the waiver.

Here are some factors the judge will consider when deciding whether to grant you an I-212 waiver:

• The amount of time that has passed since you were deported (the longer the better)
• Whether you have committed any crimes, either inside or outside the U.S.
• If your re-entry bar is based on a criminal act and whether there is evidence of rehabilitation.
• How long you have lived in the U.S. and how much of that time was in legal status.
• Whether you have close family members living in the U.S.
• Whether you have family responsibilities in the U.S.
• Whether the denial of your application will cause undue hardship to your U.S. citizen or permanent resident relatives, your employer, or yourself. The degree of hardship must be greater than the usual degree of hardship that occurs when someone gets deported and is not allowed to return.
• If you have valuable professional or vocational skills and there is demand for these skills in the U.S.
• Whether you have demonstrated good moral character.
• Whether allowing you to re-enter the U.S. would harm the safety or welfare of the nation.
• Whether you will still be inadmissible even if your I-212 waiver is granted.
• Whether you will be eligible for permanent residence soon after an I-212 waiver is granted.
• Your economic status, especially if you will likely rely on public assistance to survive.
• Whether you worked illegally while in the U.S.

Back Up Your Application with Evidence

Your chances of having your I-212 waiver granted will increase dramatically if you provide documentation to support your application.

Here are some examples of how to boost your application with supporting documents:

• Proof that you would be eligible for a U.S. visa if your I-212 application were approved
• Notarized affidavits from credible witnesses attesting to your good moral character or unusual hardships that you, your family, or your employer may face if you are not readmitted
• Evidence of family members residing in the U.S., such as certified copies of birth and marriage certificates
• Medical records or psychological evaluations if relevant to your case
• Evidence of the financial impact of separation from your family in the U.S
• Police clearance reports that show you have not committed any crimes, or at least that enough time has passed since you committed a crime to indicate evidence of rehabilitation
• Other evidence of rehabilitation if you have ever been convicted of a crime inside or outside the U.S.
• Employment records
• Professional qualifications
• Tax returns
• Media reports on the conditions of the country where you and your family would have to return if your I-212 waiver application were denied

Un-waivable Bars to Re-Entry

Unfortunately, you may find yourself in a situation where you will not be able to return to the U.S. during your period of inadmissibility — even by filing any of the waivers of inadmissibility mentioned in this article.

Here are some examples of such situations:

• You did not show up for your deportation hearing.
• You falsely claimed to be a U.S. citizen.
• You are trying to re-enter the U.S. within 10 years of your first deportation or within 20 years of your second deportation.
• You have been convicted of an aggravated felony.
• You participated in polygamy (the practice of marrying multiple spouses).
• You previously submitted a frivolous application for asylum.
• You previously renounced your U.S. citizenship for tax avoidance purposes.

Find Out if a Colorado Immigration Attorney Can Help You

Being labeled “inadmissible” to the United States can feel dehumanizing and alienating. The immigration attorneys at Robinson & Henry are intimately familiar with the different waivers of inadmissibility and how they apply in unique situations. Our team will thoroughly review your situation before we decide which waiver you should pursue. We will be your greatest ally throughout the entire application process. Call 303-688-0944 today to begin your case assessment. If you prefer to speak with us in Spanish, call 720-359-2442. Si gustaria hablar con nosotros en Español, por favor llamenos al 720-359-2442.