Noncitizens seeking to enter the United States to live and work permanently 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 Services (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. The noncitizen will, subsequent to entry, receive the green card from USCIS in the mail.

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,” meaning that they are 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. For further discussion about inadmissibility issues, click here.

Fortunately, under certain circumstances, immigrant applicants who are considered inadmissible may be eligible to apply for a waiver. If approved, the waiver will serve to remove or waive the ground of inadmissibility, thus allowing the immigrant applicant to live in the United States. Keep in mind that although many grounds of inadmissibility may be waived, there are many grounds of inadmissibility that can never be waived. These include grounds of inadmissibility based on security related grounds (such as espionage or sabotage), genocide, Nazi persecution, and most crimes related to controlled substances and drugs.

There are a number of things that can make someone inadmissible when trying to get a green card (e.g. 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

• An 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 immigration ground exists only at the time of attempted entry into the United States and is not applicable to immigrant applicants who are 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” (CIMT), 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, 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 and, in the opinion of the Department of Homeland Security (DHS), not granting a waiver would result in extreme hardship to the U.S. citizen or legal permanent resident; 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, 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 and, in the opinion of DHS, not granting a waiver would result in extreme hardship to the U.S. citizen or legal permanent resident; 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, 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 and, in the opinion of DHS, not granting a waiver would result in extreme hardship to the U.S. citizen or legal permanent resident; or
  3. The immigrant is a VAWA self-petitioner.
• Immigrants with past conduct or intentions to commit acts of “commercialized vice” 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, 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 and, in the opinion of DHS, not granting a waiver would result in extreme hardship to the U.S. citizen or legal permanent resident; or
  3. The immigrant is a VAWA self-petitioner.
• Immigrants with past conduct or intentions to commit acts of prostitution 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;
  2. The immigrant is the spouse, parent, son, or daughter of a U.S. citizen or legal permanent resident and, in the opinion of DHS, not granting a waiver would result in extreme hardship to the U.S. citizen or legal permanent resident; or
  3. The immigrant is a VAWA self-petitioner.
• Immigrants involved in serious criminal activity who have asserted immunity 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;
  2. The immigrant is the spouse, parent, son, or daughter of a U.S. citizen or legal permanent resident and, in the opinion of DHS, not granting a waiver would result in extreme hardship to the U.S. citizen or legal permanent resident; 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 may receive a waiver only upon approval by the Secretary of State based on important national interest purposes.
• Immigrants who have participated in coercive organ or tissue transplantation may receive a waiver 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 posting a bond or presenting convincing evidence that the inadmissibility no longer applies.

Inadmissible Immigrant Applicants Based on Illegal Entry, Misrepresentation, and Other Immigration Violations

• Immigrants who have misrepresented a material fact are eligible for a waiver if the immigrant applicant is:
  1. The spouse, son, or daughter of a U.S. citizen or legal permanent resident, 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 legal permanent resident relative.
• Immigrants who have made a false claim of U.S. citizenship have no waivers but do have defenses and exceptions:
  1. An affirmative defense is available 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. An exception can be made 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; U.S. 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 an order of deportation or removal, or for immigrant applicants seeking to adjust status as 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. This is similar to the function of a waiver.
• Immigrants who have been unlawfully present in the United States have a waiver 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 a previous immigration violation have 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 by USCIS if based on persecution or hardship to a qualifying family member.

Inadmissible Immigrant Applicants Based on Previous Removal and Unlawful Presence in the United States

• Immigrants who have been previously removed will file with USCIS immigration form I-212, Permission to Reapply for Admission to the United States.
• For those immigrants who have been unlawfully present in the United States, the form filed will depend on whether they are abroad or present in the United States. If the immigrant applicant is present in the United States, they will have to apply for the green card through consular processing and would file form I-601A with USCIS. Once the waiver is approved, the immigrant applicant can request a consular interview appointment for the final determination of their immigrant visa/green card case. If the immigrant applicant is abroad, they will first attend the consular interview appointment, during which 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 a 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 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 interview appointment 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 a no-objection letter/statement from a proper government authority from the immigrant’s country of origin, the immigrant will then file a waiver request with the Department of State using form DS-3035. If the immigrant’s waiver request is based on potential persecution or hardship to a qualifying family member, the request is made to USCIS using form I-612.

Approval of the waiver will likely lead to approval of the immigrant visa or green card, thus fulfilling the purpose of the waiver.

It is not always clear whether you may be subject to a finding of inadmissibility. As a result, it is important to consult with one of our experienced immigration attorneys, who can help you determine whether you may be inadmissible and would thus need a waiver. We can also help you file the form with the appropriate immigration agency.

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

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

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

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