- Update September 2013: Dree Collopy’s article “I-601A Provisional Waivers: A Practitioner’s Guide for Preserving Family Unity”, Immigration Briefings, June 2013.
Benach Collopy attorneys have extensive experience in obtaining waivers of inadmissibility for our clients. Like many other areas of immigration law, the preparation of a successful waiver depends upon our ability to tell your story. At Benach Collopy, we take the time and interest to learn about you, your family, and those factors that will make up a successful waiver application. And then, we tell your story.
What is a “Waiver of Inadmissibility”?
Anyone who seeks to enter the United States or obtain residence must be admissible to the U.S. This means that the person seeking admission may not be among any of the classes of individuals deemed ineligible by law to enter the U.S. Ineligibility to be admitted to the U.S. is known as inadmissibility. U.S immigration law provides that certain classes of individuals may not be admitted without a waiver, or an exception. A waiver of inadmissibility is an official determination by the U.S. government to allow an otherwise ineligible person to enter the United States.
What are some common grounds of inadmissibility?
The most common grounds of inadmissibility that allow for and require waivers fall into three categories: criminal records, misrepresentations to the U.S. government in previous immigration applications, and prior immigration violations.
What crimes result inadmissibility?
The most common grounds of criminal inadmissibility result from a conviction for a “crime involving moral turpitude” or a conviction for violating any law relating to a controlled substance. A crime involving moral turpitude is a generic term that may encompass many different offenses. In general, it relates to offenses involving violence, theft, fraud. and other forms of dishonesty. Before applying for any waiver, Benach Collopy attorneys conduct a thorough analysis to ensure that you are, in fact, inadmissible. It should come as no surprise to learn that U.S. immigration authorities often find offenses to be crimes involving moral turpitude when the law is clear that they are not.
In addition, any individual convicted of two or more offenses for which the aggregate sentence exceeds five years of imprisonment, regardless of whether the offenses involved moral turpitude, is likewise inadmissible.
Finally, it is important to note that an individual may also be inadmissible for admitting that he or she committed a crime involving moral turpitude or an offense relating to a controlled substance. In other words, a conviction is not required to establish inadmissibility if the immigrant admits having committed the offense to an immigration official. There are strict rules about when such an admission can cause inadmissibility and the government routinely fails or refuses to follow them.
However, where an individual is inadmissible for a crime involving moral turpitude or a single offense involving less than 30 grams of marijuana, a waiver of inadmissibility is available.
What kinds of misrepresentations cause inadmissibility?
An individual can be rendered inadmissible for committing fraud or making a material misrepresentation when seeking an immigration benefit. But not all false statements qualify as material misrepresentations. The law makes a person inadmissible if the false statement was relevant and determinative of a question of eligibility. For example, if an individual lied about having a bachelor’s degree when applying for an H-1B visa, which requires applicants to have at least a bachelor’s degree, that individual will almost certainly have made a material misrepresentation. However, if the same individual claimed that he weighed 180 lbs when he actually weighed 210 lbs, that falsehood would not be material and would not create inadmissibility.
Benach Collopy attorneys will carefully examine the record to determine whether fraud was committed or a misrepresentation made before determining that a waiver is needed. If the individual did make a material misrepresentation, a waiver may be available.
What types of immigration violations create inadmissibility?
An individual will be inadmissible for a period of three years if he or she is unlawfully present in the U.S. for more than 180 days but less than one year and departs the U.S. prior to the initiation of removal proceedings. An individual will be inadmissible for a period of ten years if he or she is unlawfully present in the U.S. for more than 365 days and then departs the U.S. These are the so-called “3 and 10 year bars.” Unlawful presence includes all time in the U.S. after entry without inspection, time after the expiration of non-immigrant status, and time after the entry of a removal order. But there are exceptions and exclusions to unlawful presence and, before seeking a waiver, Benach Collopy attorneys will review the dates to make sure that a waiver is, in fact, required.
Where does one apply for a waiver?
Although waivers may be sought in the U.S. in conjunction with applications for adjustment of status or in removal proceedings, the vast majority of waivers are sought at U.S. embassies abroad. This is so because a very common waiver scenario occurs when an individual enters the U.S. without inspection and marries an American citizen. The law generally prohibits the foreign national from applying for adjustment of status in the United States, so the noncitizen applicant proceeds abroad, triggering the ten-year bar and, thus, requiring a waiver of inadmissibility in order to immigrate and obtain U.S. lawful permanent residency. The waiver request is made in connection with an immigrant visa application at a U.S. embassy or consulate and is decided by a U.S. Citizenship and Immigration Services officer abroad.
What do you need to get a waiver?
Initially, the applicant must be the beneficiary of an approved and current immigrant petition by a family member or an employer. That should be enough to issue a visa. However, due to inadmissibility a waiver is required. Very generally, an applicant for a waiver needs to demonstrate that:
- She/he has a “qualifying relative”
- That relative would suffer extreme hardship if the applicant were denied the visa
- The applicant deserves the waiver
What is a qualifying relative?
The immigration statute defines which relatives are relevant for each ground of inadmissibility. Oddly, the Immigration and Nationality Act (“INA”) is the most generous when it comes to waivers for crimes. INA §212(h) provides that inadmissibility resulting from conviction for a crime or crimes involving moral turpitude may be waived if the applicant is the spouse, parent, son or daughter of a U.S. citizen or lawful permanent resident. However, for inadmissibility resulting from fraud and unlawful presence, the INA only allows adjudicators to consider hardship to a spouse or parent of the applicant. In other words, applicants for waivers due to fraud or unlawful presence cannot rely upon hardship that denial of their visa would visit on their children.
What does extreme hardship mean?
Extreme hardship is an undefined and amorphous term. As a starting point, it is meant to signify greater hardship than would typically be expected when an individual is separated from close family members. There is no magic formula. Benach Collopy attorneys will take the time to get to know you and your family and develop potential arguments. Factors that often are highly relevant include serious health issues requiring treatment in the U.S., presence of family ties in the U.S. and the home country, significant financial issues, psychological and emotional issues, conditions in the country of relocation, a history of psychological issues or past negative experiences, social and community ties, inability to practice one’s religion or profession, and so forth. These are but a few examples, and we have learned that every case has its own nuances and that there is no single formula for a successful case. Preparation of a successful waiver application requires time and attention to understand the client’s past experience, present circumstances, hopes, fears, and motivations. And, then, we tell your story.
What does it mean to “deserve a waiver?”
The law does not require a waiver be granted to every applicant who demonstrates the requisite level of hardship to a qualifying relative or relatives. The law states that the government may grant a waiver. The immigration service has broad discretion either to grant or deny the waiver. In exercising its discretion, USCIS will weigh the seriousness of the ground of inadmissibility and any other factors relating to the desirability or undesirability of allowing the applicant to reside in the U.S. This is a “kitchen sink” sort of analysis, and often favorable discretionary factors can tip a marginal hardship case.
What happens after I file?
The U.S. embassy will accept an applicant’s waiver application and route it to the appropriate USCIS office. It can take anywhere from 3-12 months for USCIS to review the application. If the agency grants the waiver, then the embassy will be able to issue a visa. Often, if a long period of time has passed, the embassy will require updated documents before issuing the visa. If USCIS denies the waiver request, an appeal may be made to the Administrative Appeals Office (AAO). Processing times at the AAO are routinely more than two years.
What can I expect from Benach Collopy?
Benach Collopy will perform a searching inquiry of the facts and a rigorous analysis of the law to determine if you are, in fact, inadmissible. If so, Benach Collopy attorneys will walk you through the waiver application process and explain the choices, options, and risks with you. We will take the time to get to know you and provide you with an honest assessment of whether we believe you will be granted a waiver. Once we are retained, we will take the time to meet with you and your family members to discuss our theory of your case and the evidence we will need to support our arguments. We will work with you to gather the relevant documents and prepare all the filings. When the time comes for the visa interview, we will prepare you for your trip to the embassy. Although attorneys are not permitted to attend embassy visa interviews, we will send you with a complete waiver application that will tell your story. We will diligently follow up with USCIS after the application is filed, and we will continue to advise you throughout the entire process.
We’ll get you there.