What Can I Do If I am Barred from Getting A Green Card? Green Card Immigration Waivers Explained

1. What are Immigration Waivers?

Immigration waivers “forgive” certain grounds of ineligibility that would normally prevent an applicant from receiving an immigration benefit or visa. Waivers can be granted for temporary visas (For example, a B visa (Tourist visa), an E-2 Visa (Investor Visa), an H-1B (Specialty Worker) and also for Green Cards.

This article focuses on waivers that an applicant could apply for to allow the applicant to get a Green Card. For example a very popular possible waiver arises in the case of immediate relatives of United States citizens where an applicant who would otherwise be barred could apply for a waiver if they can prove that the denial of the waiver would cause extreme hardship to the US citizen relative. A waiver will be approved only if the applicant can provide that his/her U.S. citizen relative will experience extreme hardship in the United States if the applicant were to be deported. (The Government is not concerned about any hardship to the applicant) The applicant must also prove that the U.S. citizen would experience extreme hardship if the U.S. citizen relative went back to the home country with the applicant.

2. What are the ineligibility grounds?

There are many reasons why an individual is not permitted to obtain a green card and they are listed below:

  • Health-related: communicable disease of public significance; certain physical or mental disorder and behavior rendering applicant a threat to the property, safety and welfare of applicant and others; drug abuser or drug addict.
  • Criminal grounds: crimes involving moral turpitude; controlled substance violations; multiple criminal convictions; prostitution and commercialized vice; aggravated felonies, and others.
  • Security-related: espionage, sabotage, and terrorism; communist, totalitarian party and Nazi persecution; genocide, torture, extrajudicial killings; and others.
  • Likely to become a public charge (someone who cannot provide for themselves).
  • Failure to meet labor certification conditions.
  • Immigration violations: entry without inspection; aliens present without admission or parole; fraud or misrepresentation; smuggling; stowaways.
  • Lack of proper immigration and entry documentation.
  • Aliens previously removed and/or unlawfully present.
  • Miscellaneous grounds: practicing polygamists; international child abduction; unlawful voters; and others.
  • Other grounds: aliens who knowingly make a frivolous application; political killings; visa overstay; forced sterilizations and abortions; and others.

Most of the grounds of inadmissibility have an associated waiver that can be applied for and each waiver has its own substantive and procedural requirements. The best way to think of the inadmissibility grounds and waivers is that there is a reason why someone is barred from obtaining a green card and for most of these reasons the Government offers a potential waiver for relief. While waivers exist, they are discretionary and are very tough to get approved. If you are an immediate relative of a US citizen who is seeking to apply for a green card and you believe that one or more of these grounds apply to you, it is important to seek the advice of an immigration attorney to evaluate the best course of action for you and determine whether you qualify for a waiver.

3. Common Green Card Immigration Waivers

As discussed above, each reason that an individual is considered inadmissible has an associated waiver associated with it. A summary of the different types of waivers is listed below.

  • Waivers of Inadmissibility on Health-Related Grounds: This waiver is available for an applicant who is the spouse or unmarried child of a US citizen or permanent resident or an applicant that has a US citizen or permanent resident child. The waiver application (Form I-601) must be submitted with supporting documentation including proof of qualifying family relationship; copies of all medical reports, laboratory results, and evaluations regardless of whether they are connected to the communicable disease of public health significance; and a copy of the applicant’s medical examination (Form I-693, Form DS-2053 or Form DS-2054, and any related worksheets).
    • Waives inadmissibility based on a communicable disease of public health significance (includes Class A tuberculosis, gonorrhea, syphilis, leprosy, and others enumerated in 42 CFR 34.2(b)).
      o Allows an exemption from the vaccination requirement because vaccinations are against your religious beliefs or moral convictions. Applicant must oppose all forms of vaccinations based on sincere religious beliefs or moral convictions.
    • Waives inadmissibility based on a physical or mental disorder with associated harmful behavior. USCIS also requires a complete medical history and a report with details of any hospitalization, institutional care, or any other treatment applicant may have received in connection with the disorder; a record of the physician’s findings regarding applicant’s current physical condition; an evaluation of the mental or physical disorder, including a detailed prognosis of the possibility of the recurrence of harmful behavior; and a recommendation concerning treatment that is reasonably available in the United States.
    • Special Note on HIV: As of January 4, 2010, HIV infection is no longer defined as a communicable disease of public health significance according to HHS regulations. Therefore, HIV infection does not make an applicant ineligible if the application is adjudicated on or after January 4, 2010, even if the applicant filed the application before January 4, 2010.
  • Waivers for Inadmissibility on Criminal and Related Grounds: USCIS can waive certain criminal and related grounds of inadmissibility for applicants with a qualifying U.S. citizen, lawful permanent resident relative (spouse, son, daughter, parent), or fiancé/e who would experience extreme hardship if applicant were denied admission.
    • Examples of waivable crimes include:
      • Crimes involving moral turpitude (CIMT) are a broad range of crimes which typically involve intent to cause great bodily harm, defraud, or permanently deprive an owner of property (arson, assault with intent to cause great bodily harm, bribery, burglary, embezzlement, forgery, fraud, kidnapping, manslaughter, murder, perjury, rape, receipt of stolen goods, and others);
      • Single offense of simple possession of 30 grams or less of marijuana;
      • Two or more convictions, other than purely political ones, for which the sentences to confinement were a total of five years or more;
      • Prostitution;
      • Unlawful commercialized vice whether or not related to prostitution; and
      • Certain aliens involved in serious criminal activity who have asserted immunity from prosecution.
    • USCIS also requires a showing of proof of rehabilitation and that your admission to the United States will not be contrary to the national welfare, safety, or security; and that at least 15 years has passed since the conviction.
  • Waivers of Inadmissibility due to Fraudulent Misrepresentation: Applicant must show that denial of admission to or removal from the United States would result in extreme hardship to his or her qualifying relative and that a favorable exercise of discretion is warranted.
  • INA Section 245(i) Adjustment: Section 245(i) allows certain persons who were the beneficiary of a visa petition or labor certification application filed on or before April 30, 2001, who have an immigrant visa immediately available but entered without inspection or otherwise violated their status to apply for adjustment of status in the United States, with the payment of a $1,000 penalty.
  • 601A Provisional Unlawful Presence Waiver: Non-citizens who have stayed in the U.S. more than 180 days without proper documentation are not eligible to get a green card in the United States and must travel abroad and obtain an immigrant visa. The problem though is that when they go to the Consulate in their home country, they would be subject to either a 3 or 10 year bar for the overstay. Since March 4, 2013, immediate relatives (spouses, children and parents) of US citizens can apply for this waiver before they leave the United States for their consular interview, shortening the time US citizens are separated from eligible immediate relatives while those family members are obtaining immigrant visas. To be eligible the applicant must:
    • Be 17 years of age or older;
    • Be an immediate relative of a U.S. citizen (spouse, unmarried minor child, or parent);
    • Have an approved family petition;
    • Have a pending immigrant visa case with the Department of State (DOS) for the approved immediate relative petition and have paid the DOS immigrant visa processing fee (IV Fee).
    • Be able to demonstrate that refusal of applicant’s admission to the United States will cause extreme hardship to applicant’s U.S. citizen spouse or parent.
    • Be physically present in the United States to at the time of filing the waiver application and provide biometrics.
    • DOS did not initially act before January 3, 2013 to schedule an Immigrant Visa interview for the approved immediate relative petition upon which the provisional unlawful presence waiver application is based.
    • Meet all other requirements for the provisional unlawful presence waiver, as detailed in 8 CFR 212.7(e) and the Form I-601A and its instructions.
  • Find out more about the 601A Waiver by clicking here.

As you can see from this summary, the term “Extreme Hardship” is a key factor in determining eligibility for a waiver. See this term explained by clicking here.

The waiver application process is lengthy and complicated. If you are an immediate relative of a US citizen looking to apply for a waiver, it is important to seek the advice of an immigration attorney to evaluate the best course of action and present your case in the clearest and best possible light. For more practical information and legal advice contact Scott Legal, P.C. Call 212-223-2964 or email info@legalservicesincorporated.com for a consultation.


Angela Antonia Torregoza, Esq. is an Associate Attorney at Scott Legal, P.C. She can be reached at atorregoza@legalservicesincorporated.com or 646.527.7292 Ext. 140.


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