Types of Waivers
People who are inadmissible should work with an attorney to determine whether a waiver is available to “forgive” them of the crime or incident. Waivers are discretionary. Below are some of waivers that are available to people who may be inadmissible:
1. Health-related waivers are available for people with a communicable disease, people who have failed to obtain certain vaccinations and people with mental or physical disorders (under Sections 212(a)(1) and 212(g)(2))
2. Waiver for fraudulent misrepresentation is available under Section 212(a)(6)
3. Waiver for falsely claiming to be a U.S. citizen is only available under certain circumstances:
Parents are U.S. citizens, the person permanently resided in the U.S. before age 16, and the person reasonably believed at the time of misrepresentation that he/she is a U.S. citizen; or
The false claim was not made for “any purpose or benefit under INA or any other federal or state law;” or
The foreign national claimed to be a U.S. national rather than a U.S. Citizen
4. Waiver for crime-related grounds are available under Section 212(h) to people seeking adjustment of status or an immigrant visa abroad. Waivers are available for people convicted of the following types of crimes:
crimes involving moral turpitude
a single offense of simple possession of 30 grams or less of marijuana
crimes committed by someone who has immunity
Three types of waivers are available for crime-related grounds of inadmissibility:
15-Year Waiver – in cases where the crime occurred more that 15 years prior to the application for a visa, admission or adjustment of status; the applicant has been rehabilitated and the admission is not contrary to the national welfare, safety or security of the U.S. This waiver does not require a qualifying relative or a showing of extreme hardship to a qualifying relative.
Hardship Waiver – in cases where the denial of admission would result in extreme hardship to a “qualifying relative” (U.S. citizen or Lawful Permanent Resident spouse, children or parent).
Battered Spouse or Child Waiver – available to certain spouses and children of U.S. citizens and Lawful Permanent Residents.
5. Nonimmigrant visa waivers are available to foreign nationals abroad who are inadmissible, and they are applying for a visa at a U.S. consulate or at a port of entry (under Section 212(d)(3)). The Government considers three factors to determine a person’s eligibility for this waiver:
the risk of harm to society if the person is admitted;
the seriousness of the offense; and
the nature of the person’s reasons for wanting to enter the U.S.
6. Waiver for Refugees and Asylums under Section 209(c)
7. Waiver for old convictions is available under Section 212(c) in certain rare cases where a person cannot obtain other relief because of an aggravated felony or for other reasons.
8. Unlawful Presence waiver is available to waive the 3 and 10 year bars facing foreign nations who have overstayed in the U.S. This waiver is only available to people who are the spouse, son or daughter of a U.S. citizen or Lawful Permanent Resident. The foreign national must also show extreme hardship to their qualifying relative if they are not admitted to the U.S.
Violent or Dangerous Crimes
There is a limited availability of a 212(h) waiver for people who have committed violent or dangerous crimes. They must meet one of the above waiver eligibility and must show extraordinary circumstances (e.g., national security or foreign policy consideration or exceptional and extremely unusual hardship).
No Waiver Available
A waiver is not available to people who have committed murder, torture, espionage, terrorist activities, unlawful voting, polygamy, child abduction, public charge and other serious crimes.
Other waivers and defenses are available. The Law Office of LaToya N. McBean can work with you if your visa petition has been denied or if any of the categories of inadmissibility apply to you. The Government is looking for certain eligibility requirements and very specific information in a waiver request. Our office can prepare a solid waiver package for those who are eligible for a waiver.
Call us at 1(718) 301-9732 or click here to schedule your consultation.