Immigration Waivers

Different types of immigration waivers can help you stay or enter the U.S. Immigration Lawyers in Miami at Murray & Silva, P.A. may be able to help.


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What Is an Immigration Waiver?

If you are found inadmissible to the U.S., that doesn’t mean your immigration dreams for a U.S. green card are over. In some cases, an applicant can apply for a waiver. In other words, the applicant can ask the U.S. government to have a ground of inadmissibility waived. By obtaining an immigration waiver, certain individuals who were otherwise identified as inadmissible could be admitted to the United States. 

The Immigration and Nationality Act (INA) lists general grounds for the inadmissibility of immigrants to apply for immigration waivers. But they can be very broad.

Some of the grounds for inadmissibility include the following:

Inadmissibility for criminal and related grounds;

Misrepresentation of a material fact or fraud;

Inadmissibility stemming from the accrual of unlawful presence;

Inadmissibility for certain health-related grounds.

However, bear in mind that different grounds of inadmissibility have different requirements. An applicant has to make sure to meet basic criteria before applying for an immigration waiver. A skilled immigration lawyer may be able to help you with that. 

No one can guarantee that your immigration waiver will be approved. However, applying for the right one can provide a pathway for your immigration journey to continue.

Types of Immigration Waivers

Just like the Immigration and Nationality Act and immigration law establish the types of visas available to non-U.S. citizens as well as conditions they have to meet before they can be issued a visa, they also lay out reasons why someone can’t be issued a visa.

For example, suppose an immigrant has multiple criminal convictions on their record. In that case, such immigrant alien may not be admissible to the U.S. Those who are considered a threat to the national safety or those with a physical or mental disorder may also be found to be “inadmissible to the United States” by the U.S. authorities.

If you are not sure which grounds of inadmissibility apply to you, consulting with an experienced immigration lawyer may be a good move.


212(h) Waiver for Crimes Involving Moral Turpitude

A noncitizen in the U.S. that has committed a Crime Involving Moral Turpitude (CIMT) may be inadmissible to the U.S. Once it has been determined that a CIMT has been committed for which no exception applies, the other option is to determine if the applicant qualifies for a waiver under Section 212(h) of the Immigration and Nationality Act.  

212(h) waivers are granted where either: 

1) the act being waived occurred over 15 years ago; the admission would not be contrary to the safety or security of the U.S.; and the immigrant has been rehabilitated; or 

2) it is established that extreme hardship would result to the immigrant’s U.S. citizen or lawful resident spouse, parent, son, or daughter if the immigrant was not permitted to enter the U.S. or adjust status.

Another context where the 212(h) waiver is useful is when a person has been convicted of a single offense of possession of marijuana under 30 grams. 

If you believe CIMT may be applicable in your case or you have been convicted of a single offense of possession of marijuana under 30 grams and you are considering applying for a visa, returning to the U.S. after foreign travel, or applying for a benefit such as an adjustment or naturalization, it is advisable to consult with an experienced immigration lawyer beforehand.


Fraud Waivers

You may if you, by fraud or willful misrepresentation of a material fact, have sought to procure, or have procured a visa, other documentation, or admission into the U.S. or other benefit under U.S. immigration laws. You may have omitted certain information on a previous application for a visa or a green card. You may have failed to reveal that you were married. The possibilities are endless. Fraud is a lifetime bar to remaining in the U.S. If you believe you may be charged with committing fraud on an immigration application, be sure to consult with an Austin immigration lawyer or a Texas immigration lawyer.

Unlawful Presence Waivers

Immigrants who entered without inspection or overstayed a visa may waive their inadmissibility, i.e. the 3/10 year bar, by filing Form I-601A “Provisional Unlawful Presence Waiver.” The law, which became effective March 4, 2013, allows applicants to file the waiver stateside, thus avoiding the risk of getting stuck in their home country while waiting for a decision on the waiver application.

Effective August 29, 2016, the unlawful presence waiver Form I-601A was expanded to benefit a wider range of immigrants with unlawful presence.


Who Can File for Provisional Waivers After August 29, 2016?

Applicants for immigrant visas based on family, employment, investment, or diversity visa petition approvals may file for provisional waivers after August 29, 2016, provided they also have “qualifying relatives.”

This means both “immediate relatives” (parents, spouses, and unmarried children under 21 of US citizens) AND family preference applicants (spouses and married or unmarried children over or under 21 of US citizens, permanent residents, and siblings of US citizens) may file for provisional waivers.  Minors who are applicants for immigrant visas but are under 17 are not eligible for provisional waivers (and are usually not subject to the unlawful presence bar anyway).

Since the United States Citizenship and Immigration Services (USCIS) has now made the provisional waiver available to anyone who qualifies by statute, beginning August 29, 2016 applicants may also include beneficiaries of employment-based petitions, self-petitioners, investors, special immigrant petitions (I-140, I-360, I-526), and diversity visa applicants who would otherwise be ineligible for adjustment of status due to unlawful status and presence, and who must consular process immigrant visa applications.


Who Are Qualifying Relatives (QRs)?

In addition to being an immigrant visa applicant, by statute to get a waiver of the unlawful presence bar, the applicant must also have one or more “qualifying relatives” (QR).  QRs include US citizen and permanent resident spouses and parents of the applicant, NOT the children of the immigrant visa applicant. Prior to August 29, 2016, immediate relatives could file for provisional waivers only if they had U.S. citizen QRs, not permanent resident QRs.

Only Congress can change the definition of the qualifying relative. Therefore, the provisional waiver regulations have not changed the meaning of QR, but for procedural purposes will now include both US citizen AND permanent resident QRs.

Essentially, as of August 29, 2016, anyone who by statute is eligible for an unlawful presence waiver can file for a provisional waiver.


What About People in Removal Proceedings or With Final Orders of Removal?

Prior to the August 29, 2016 rule going into effect, individuals in removal proceedings or with final orders of removal, exclusion, or deportation, or orders in absentia, or other similar orders were not eligible for provisional I-601A waivers.

Beginning August 29, 2016, some individuals in removal proceedings may also pursue provisional waivers. The waiver application is filed with USCIS, not with the court. However, applicants will need to have their removal proceedings terminated or administratively closed (and not re-calendared) prior to filing the waiver application.

Individuals who already have removal, exclusion, or deportation orders will need to first file and have a conditionally approved (Form I-212) Application For Permission to Reapply for Admission to the United States After Deportation BEFORE leaving the USA and before they can file an I-601A family unity provisional waiver assuming there are no other grounds of inadmissibility.

Of course, anyone with a history of encounters with CBP, ICE or the Immigration Courts should seek advice from an experienced immigration attorney because these cases can be very complex.

How Can an Immigration Attorney Help?

The immigration visa system is complex, and there may be other immigration waivers more suitable for your case. Every case is different. The unique circumstances of your case will determine which type of immigration waiver best applies to your case. 

But, in order to determine that, consultation with an experienced immigration attorney can be necessary and beneficial.

Don’t let being classified as inadmissible hinder your immigration plans. Reach out to the immigration attorneys at Murray & Silva, P.A. They can help you through this process so you can get the support that you need and the outcome that you desire. 


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