IMMIGRATION BARS AND INADMISSIBILITY WAIVERS
Some individuals are not eligible to be admitted to the United States as an immigrant or to adjust status in the United States. The INA §212(a) identifies a long list of grounds of inadmissibility. If the issue the foreign national faces is not found in INA §212, then it’s not a ground of inadmissibility. Before the issue of admissibility or inadmissibility can be addressed, the applicant must demonstrate that he or she is eligible for visa classification. If an applicant is not eligible for a certain visa no issue of inadmissibility exists. Once the applicant is eligible for a visa or adjustment of status the appropriate waiver could be considered.
Waivers for non-immigrant visas
Under § 212(d)(3) of the INA the U.S. Department of Homeland Security has authority to waive most grounds of inadmissibility for aliens applying for non-immigrant visas and immigrant visas. A three-prong test for determining eligibility for the non-immigrant 212(d)(3) waiver was defined in Matter of Hranka:
- the risk of harm to society if the applicant is admitted.
- the seriousness of the applicant’s prior immigration or criminal law violations
- the nature of the applicant’s reasons for wishing to enter the U.S.
Interestingly, this is the only waiver available to applicants convicted of an aggravated felony.
Waivers for immigrant visas or adjustment of Status
Health-related grounds of inadmissibility (INA sec 212(a)(1))
Individuals with certain communicable diseases of significant public interest, individuals with certain physical and mental conditions, and individuals who failed to obtain the required vaccination or proof of same are inadmissible on health-related grounds. Many waivers of inadmissibility for Immigrant Visas are available for individuals applying for immigrant visas and for permanent residents in deportation and removal proceedings.
Immigration Fraud and Misrepresentation (INA sec 212(a)(6)(c))
There are two sections of law which allow a foreign national to apply for a waiver of inadmissibility where he or she is ultimately applying for an immigrant visa or permanent residence and he is charged with fraud or misrepresentation under INA § 212(a)(6)(C)(iii). INA § 212(i) could be used when an immigrant who is the spouse, son, or daughter of a United States citizen or permanent resident, if he can demonstrate that the refusal of admission to the United States of such immigrant alien would result in extreme hardship to the citizen or lawfully resident spouse or parent of such an alien. INA §237(a)(1)(H) was designed to protect family unity. U.S. born citizens are not considered qualifying relatives. Waiver is not available if the fraud was committed more than ten years ago.
Waivers of Crime-Related Grounds of Inadmisibility (INA sec 212(a)(2))
Crimes committed by a foreign national or U.S. permanent resident can render the person inadmissible or deportable. However, a waiver is available to foreign nationals convicted of:
- A simple possession of 30 grams or less of marijuana;
- Crimes of moral turpitude;
- Crimes more than 15 years old.
False Claims to U.S. Citizenship
The false claim to citizenship is ground of inadmissibility, INA § 212(a)(6)(C)(ii), applies to any foreign national who, falsely represents himself or herself to be a U.S.citizen for any purpose or benefit under the INA or any other federal or state law. To trigger this ground of inadmissibility, it must be made knowingly. There is no waiver available. The affirmative defense to this ground where: 1) the individual was under the age of 18 when the false claim was made, and 2) at that time he or she lacked the capacity to understand the nature and consequences of the false claim. The burden is on the non-citizen to establish these elements clearly and beyond doubt. If the individual can prove that the false claim was not for “any purpose or benefit under INA or any other state or federal law” then might not be be charged with inadmissibility. There is distinction between the terms “U.S. national” and “U.S. Citizen.” An individual who owes his sole allegiance to the United States, including all U.S. citizens, and including some individuals who are not U.S. citizens is a U.S. National. A U.S. Citizen is an individual born in the United States, or whose parent is a U.S. citizen, former alien who has been naturalized as a U.S. citizen.
Alien Smuggling (INA sec 212(a)(6)(E))
In order to be found inadmissible under INA 212(a)(6)(E) provision the “smuggler” must act “knowingly” to encourage, induce, or assist an illegal alien to enter the United States. Therefore, belief that the alien was entitled to enter legally, although mistaken, would be a defense to inadmissibility for a suspected “smuggler.” Often times, immigrants are trying to bring their own relatives, for example children, and they still could be found inadmissible as smugglers. The examples of actions that could be considered “smuggling:”
- offering an alien a job knowing that the alien will come to the US illegally to accept the job
- involving physically bringing an alien into the US illegally
- knowingly making false oral or written statements on behalf of a visa applicant, including a family member.
There is a waiver available (INA 212(d)(11)) if and only if the person who was smuggled was the alien’s child (or stepchild), spouse, or parent at the time the smuggling occurred. If the person was the alien’s fiancé(e), sibling, best friend, niece/nephew, grandchild, or any other person, it is a lifetime bar with no waiver. The standard of waiver approval is “in the interest of family unity or for humanitarian concerns”, not “extreme hardship.”
Unlawful Presence Waivers : the 3 year and 10 year bar (INA sec 212(a)(9)(B))
Rule 212(a)(9)(B): a person who is unlawfully present in the United States for more than 180 consecutive days after their authorized stay, but less than a year, who voluntarily leaves the United States, may be barred from re-entering for three years from the date of the person’s departure or removal. A person who has been unlawfully present in the United States for one year or more may be barred for 10 years from the date of the person’s departure or removal from the United States. If the immigrant is a spouse of a U.S. citizen or lawful permanent resident, or has a U.S. citizen or LPR parent, a waiver may be available for 3 & 10 year bars but not for the permanent bar. Foreign nationals have to establish the extreme hardship to the qualifying relative if he/she is not admitted. Unfortunately there is no waiver available to parents of the U.S. citizens, thus, hardship to a U.S. citizen child is irrelevant. No waiver for unlawful presence is required for refugees.
Entry without inspection, Unlawful Presence or Removal – “9C”
If a person has been unlawfully present for more than a year after April 1, 1997, leaves, and subsequently enters or attempts to enter without being inspected, the person is not only inadmissible under INA §212(a)(9)(C)(i)(l), but is ineligible to apply for a waiver for ten years from the date of next departure. Similarly, if the person has been removed or departs under an outstanding order for removal including prior to April 1, 1997, and subsequently enters or attempts to enter without inspection after April 1, 1997, the person is inadmissible under INA §212(a)(9)(C)(i)(ll) and ineligible to apply for a waiver for ten years from the date of next departure. Most of the unlawful presence exceptions apply to “9C,” the one exception that does not apply is time accumulated as a minor. Even a child who is unlawfully present more than a year who departs and re-enters without inspection will be found inadmissible under 9C. After the person spends ten years outside the US, he or she is still inadmissible, but becomes eligible to apply for a waiver.
The I-601 A Provisional Waiver allows certain immediate relatives of U.S. citizens to apply for a provisional waiver of the unlawful presence ground of inadmissibility while still in the United States if they can demonstrate that being separated from their U.S. citizen spouse or parent would cause that U.S. citizen relative “extreme hardship”. This waiver allows persons who entered the U.S. without inspection to file for a waiver without a risk of leaving the country. Immediate relatives of U.S. citizens who are eligible for the new provisional unlawful presence waiver should apply for a waiver using the existing process by filing a Form I-601, Application for Waiver of Grounds of Inadmissibility.
At the conclusion of the exchange visit, J Visa holders are expected to return to their home countries to use their newly acquired skills and expertise. Some exchange visitors are subject to a two year home residency requirement. This requires the visitor to return to his or her home country, or country of last permanent residence prior to coming to the United States, for two years before he or she can obtain certain other nonimmigrant visas, apply for an immigrant visa, or apply for an adjustment of status to lawful permanent resident. This requirement may also be waived in certain situations. A two-year home requirement may be eligible for waiver if :
(a)Departure from the U.S. would impose exceptional hardship on a U.S. citizen or resident spouse or child;
(b) foreign national obtains a “no-objection letter statement from his or her foreign country regarding the decision not to return home”
(c) U.S. federal agency other than Department of State requests a waiver.
After I have obtained non-immigrant waiver will I have any problems to come back?
The waiver gives you the right to board a US-bound flight from an overseas departure point but it by no means guarantees your admission once you land and present yourself for inspection to the CBP officer at the US airport or POE. While your case will be considered with some sympathy due to the consulate having granted you a waiver, you will still be thoroughly questioned and to be admitted must convince the officer of your intent to depart after a temporary visit.
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