Overview/Description.

Noncitizens seeking to enter to live and work permanently in the United States are identified as Immigrants. An Immigrant can potentially apply in one of two ways. A Noncitizen living in the United States will apply for Legal Permanent Resident status to live in the United States by applying for a Green Card with the United States Citizenship and Immigration Service, (USCIS) while residing within the United States. Noncitizens residing abroad will apply for an Immigrant Visa with the Department of State which when approved will allow the Noncitizen to enter the United States permanently and will subsequent to entry receive the Green Card through the mail from USCIS.

All Noncitizens including Immigrants attempting entry and/or attempting to live in the United States have the burden to prove that they are not Inadmissible from being allowed entry into the United States. An Immigrant Applicant is considered to be Inadmissible and therefore barred from living in the United States if the Immigrant Applicant committed an act that violates Immigration Law. Further discussion about inadmissibility issues can be read by clicking here.

Fortunately, under certain circumstances, Immigrant Applicants who are considered inadmissible may be eligible to apply for a waiver when if approved will serve to remove/waive the ground of Inadmissibility allowing the Immigrant Applicant to live in the United States. Keep in mind that although many grounds of Inadmissibility may be waived by a waiver there are many grounds of inadmissibility that can never be waived like grounds of inadmissibility based on security related grounds such as espionage, sabotage, genocide, Nazi Persecution and most crimes related to controlled substances/drugs.

Requirements/Eligibility

There are a number of things that can make someone inadmissible when trying to get a Green Card (Eg. Family Based, EB-1, EB-2, EB-3, EB-5, etc.).  These are described below.

Waivable Inadmissibility Grounds for Immigrant Applicants.

Inadmissible Immigrant Applicants based on inadequate documentation or qualification.

  • Immigration ground exists only at the time of attempted entry into the United States meaning that Immigrant Applicant entering the United States without a valid unexpired Immigrant Visa may be waived only by a border patrol officer at a port of entry. This ground is not applicable to Immigrant Applicants applying for an Immigrant Visa.

Inadmissible Immigrant applicants based on medical grounds.

  • Immigrants Applicants who have a communicable disease are eligible for a waiver if they are:
    1. The spouse, unmarried son or daughter, or minor unmarried lawfully adopted child of a U.S. citizen, alien issued an immigrant visa, or alien who has been lawfully admitted for permanent residence; or
    2. The parent of a son or daughter who is a U.S. citizen, a lawfully admitted permanent resident alien, or an alien who has been issued an immigrant visa; or
    3. A Violence Against Women Act (VAWA) self-petitioner.
  • Immigrant Applicants failing to meet Vaccination Requirements are eligible for a waiver:
    1. If the Immigrant Applicant now receives vaccinations for missing required vaccinations the Immigrant could not previously provide documentation for.
    2. If the panel physician determines that required vaccinations would be medically inappropriate.
    3. If there is religious or moral objection to vaccination.
  • Immigrant Applicants with physical or mental disorders with associated harmful behavior including substance-related disorders which under certain conditions may have their condition waived at the discretion of the Department of Homeland Security under the advisement of Health and Human Services.

Inadmissible Immigrant applicants based on criminal activity, criminal convictions and related activities.

  • Immigrants with past violations including the conviction or admitting to committing a Crime Involving moral Turpitude are eligible for a waiver where:
    1. The Immigrant’s admission to the United States would not be contrary to the national welfare, safety and security of the United States and the applicant has been rehabilitated, and the activities occurred more than 15 years before the date of the visa application;
    2. The Immigrant is the spouse, parent, son or daughter of a U.S. citizen or legal permanent resident (LPR) and, in the opinion of DHS, not granting a waiver would result in extreme hardship to the U.S. citizen or LPR; or
    3. The Immigrant is a VAWA self-petitioner.
  • Immigrants with past violations involving controlled substance offenses are eligible for a waiver where the violation relates to a single offense of simple possession of 30 grams or less of marijuana and:
    1. The Immigrant’s admission to the United States would not be contrary to the national welfare, safety and security of the United States and the applicant has been rehabilitated, and the activities occurred more than 15 years before the date of the visa application;
    2. The Immigrant is the spouse, parent, son or daughter of a U.S. citizen or legal permanent resident (LPR) and, in the opinion of DHS, not granting a waiver would result in extreme hardship to the U.S. citizen or LPR; or
    3. The Immigrant is a VAWA self-petitioner.
  • Immigrants with multiple criminal convictions with aggregate sentences of 5 years or more are eligible for a waiver where:
    1. The Immigrant’s admission to the United States would not be contrary to the national welfare, safety and security of the United States and the applicant has been rehabilitated, and the activities occurred more than 15 years before the date of the visa application;
    2. The Immigrant is the spouse, parent, son or daughter of a U.S. citizen or legal permanent resident (LPR) and, in the opinion of DHS, not granting a waiver would result in extreme hardship to the U.S. citizen or LPR; or
    3. The Immigrant is a VAWA self-petitioner.
  • Immigrants with past conduct or intentions to commit acts of Commercialized Vice.
    1. The Immigrant’s admission to the United States would not be contrary to the national welfare, safety and security of the United States and the applicant has been rehabilitated, and the activities occurred more than 15 years before the date of the visa application;
    2. The Immigrant is the spouse, parent, son or daughter of a U.S. citizen or legal permanent resident (LPR) and, in the opinion of DHS, not granting a waiver would result in extreme hardship to the U.S. citizen or LPR; or
    3. The Immigrant is a VAWA self-petitioner.
  • Immigrants with past conduct or intentions to commit acts of Prostitution.
    1. The Immigrant’s admission to the United States would not be contrary to the national welfare, safety and security of the United States and the applicant has been rehabilitated.
    2. The Immigrant is the spouse, parent, son or daughter of a U.S. citizen or legal permanent resident (LPR) and, in the opinion of DHS, not granting a waiver would result in extreme hardship to the U.S. citizen or LPR; or
    3. The Immigrant is a VAWA self-petitioner.
  • Immigrants involved in serious criminal activity who have asserted immunity.
    1. The Immigrant’s admission to the United States would not be contrary to the national welfare, safety and security of the United States and the applicant has been rehabilitated.
    2. The Immigrant is the spouse, parent, son or daughter of a U.S. citizen or legal permanent resident (LPR) and, in the opinion of DHS, not granting a waiver would result in extreme hardship to the U.S. citizen or LPR; or
    3. The Immigrant is a VAWA self-petitioner.

Inadmissible Immigrant applicants based on Human Rights Violations.

  • Immigrants who have participated in Forced or Coercive Abortion or Sterilization only upon approval by the Secretary of State based on important national interest purposes.
  • Immigrants who have participated in Coercive Organ or Tissue Transplantation only upon approval by the Secretary of State based on important national interest purposes.

 

Inadmissible Immigrant applicants based on Public Charge Grounds.

  • Normally no waiver is available, but the ground of inadmissibility can be overcome by presenting evidence to convince that the inadmissibility no longer applies or by posting a bond.

Inadmissible Immigrant applicants based on Illegal Entry, Misrepresentation and Other Immigration Violations.

  • Immigrants who have Misrepresented a Material Fact have a waiver available if the Immigrant Applicant is:
    1. The spouse, son, or daughter of a U.S. citizen or LPR, but only if the qualifying relative would suffer extreme hardship if the waiver were not granted, or
    2. A VAWA self-petitioner and the alien can demonstrate extreme hardship to the alien, or the alien’s U.S. citizen or LPR relative.
  • Immigrants who have made a False Claim to United States Citizenship have no waivers but do have defenses and exceptions.
    1. An affirmative defense where the individual was under the age of 18 at the time of the claim and at that time lacked the capacity to understand and appreciate the nature and consequences of a false claim.
    2. As an Exception where each parent is or was a U.S. Citizen; the individual resided permanently in the United States prior to the age of 16 and the individual reasonably believed at the time of the violation that she was a U.S. Citizen.
  • Immigrants who have committed acts related to Smuggling noncitizens into the United States have a waiver available based on humanitarian purposes, to assure family unity, or when it is in the public interest if the Immigrant Applicant attempted to smuggle a spouse, parent, son, or daughter. The waiver is only available to Immigrant Applicants petitioned by Immediate Relatives; United States Citizen Parents; Legal Permanent Resident Spouses and Legal Permanent Resident Parents of unmarried sons or daughters.
  • Immigrants who are Subject to Civil Penalty based on acts related to forgery have a waiver available for Certain Permanent Residents who have been abroad temporarily and are not under and order of deportation or removal or Immigrant Applicants seeking to adjust status as relatives to immediate relatives where the fraud was committed to solely assist a spouse or child.

Inadmissible Immigrant applicants based on Previous Removal and Unlawful Presence in the United States.

  • Immigrants who have been Previously Removed technically do not have a waiver available, but the Department of Homeland Security may grant permission to reapply for admission to the United States which is like the function of a waiver.
  • Immigrants who have been Unlawfully Present in the United States available if the Immigrant Applicant is the spouse, son or daughter of a U.S. Citizen or Legal Permanent Resident if the refusal of admission would result in extreme hardship to the Citizen or Resident spouse or parent.
  • Immigrants who have been Unlawfully Present in the United States after Previous Immigration Violation has no waiver available, but the Department of Homeland Security may grant permission to reapply for admission to the United States after ten years have passed following the Immigrant Applicant’s last departure from the United States.

Inadmissible Immigrant applicants based on Miscellaneous Grounds.

  • Immigrants who were former Exchange Visitors cannot apply for a Green Card for a period of 2 years but can have this limitation waived by the Department of State if based on a no objection statement from the Immigrant’s country of origin or USCIS if based on hardship to a qualifying family member or persecution.

Application Process

Inadmissible Immigrant applicants based on Previous Removal and Unlawful Presence in the United States.

  • Immigrants who have been Previously Removed will file Immigration form I-212 Permission to Reapply for Admission to the United States which will be filed with USCIS.
  • Immigrants who have been Unlawfully Present in the United States depending if they are present in the United States or abroad will determine which form to file. If the Immigrant Applicant is present in the United States and will have to apply for the Green Card through Consular Processing, the Immigrant Applicant can file I-601A with USCIS. Once the waiver is approved, the Immigrant Applicant can request a Consular Interview Appointment for the final determination of his Immigrant Visa/Green Card case. If the Immigrant Applicant is abroad, the Immigrant Applicant will first attend the Consular Interview Appointment where the Consular Officer will confirm the ground of inadmissibility. After the interview the Immigrant Applicant will then file form I-601 with USCIS to attempt to waive the ground of inadmissibility. Once the waiver is approved, the Immigrant Applicant can request a second interview for final determination of the Immigrant Visa/Green Card application.
  • Immigrants who have been Unlawfully Present in the United States after Previous Immigration Violation will need to file form I-212 with USCIS after 10 years have passed after the last departure from the United States. This application cannot be filed under these circumstances while the Immigrant Applicant is present in the United States.

Inadmissible Immigrant applicants based on most medical grounds, criminal activity, criminal convictions, Misrepresentation and Other Immigration Violations.

  • Immigrant Applicants with one of these types of Inadmissibility grounds will need to attend the Consular first, where the officer will confirm the ground for inadmissibility and allow for the Immigrant Applicant to file form I-601 with USCIS.

Inadmissible Immigrant applicants based on Miscellaneous Grounds.

If the Immigrant is able to obtain an no objection letter/statement from a proper government authority from the Immigrant’s country of origin, the Immigrant files a waiver request with the Department of State using form DS-3035. If the Immigrant’s waiver request is based on hardship to a qualifying family member or potential persecution, the request is made to USCIS using form I-612.

How long does the Waiver last for?

Approval of the waiver will likely lead to approval of the Immigrant Visa/Green Card fulfilling the purpose of the waiver.

Other Considerations or Related Articles

Need for an Attorney

Because it is not always clear whether you may be subject to a finding of inadmissibility, it is important to consult with one of our experienced Immigration attorneys to help you determine whether you may be inadmissible requiring a waiver as well as helping you in filing the form with the appropriate Immigration Agency.

Find more information on various immigration topics discussed in our blog.

Common Questions & Answers

Find more information on various immigration topics discussed in our blog.

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