What is a Waiver of Inadmissibility to the US?
Section 212 of the Immigration and Nationality Act (INA) contains various grounds of alien “inadmissibility.” If an alien is found to be inadmissible, he or she may be ineligible for: Temporary Protected Status (TPS), nonimmigrant status, immigrant status and naturalization.
What is Inadmissibility to the US?Section 212 of the Immigration and Nationality Act (INA) contains various grounds of alien "inadmissibility." If an alien is found to be inadmissible, he or she may be ineligible for:
- Temporary Protected Status (TPS);
- Nonimmigrant status;
- Immigrant status; and
Furthermore, an alien who was inadmissible at the time of entry or at the time of adjustment of status is removable from the United States under section 237(a)(1).
Certain types of inadmissibility are either temporary in duration or they can be overcome by meeting certain requirements. Other types of inadmissibility either attach for life or attach unless/until a waiver is obtained. If an inadmissible alien intends to seek immigration status or fight immigration proceedings brought on account of inadmissibility, he or she will likely need to seek a waiver of inadmissibility.
What is a Waiver of Inadmissibility to the US?Along with containing the INA's inadmissibility grounds, section 212 of the INA also includes provisions for waivers of inadmissibility. In general, and depending on the inadmissibility ground and the waiver sought, an alien may apply for a waiver of inadmissibility when seeking lawful immigration status (nonimmigrant or immigrant) or in the course of seeking relief in immigration removal proceedings. The following are commonly used waivers available in section 212 of the INA:
- 212(i) - Waiver for inadmissibility for fraud or misrepresentation of a material fact to obtain immigration benefits;
- 212(h)(1)(B) - Waiver for inadmissibility for certain criminal or related grounds;
- 212(d) - Waiver for inadmissibility for several grounds of inadmissibility and ineligibility to receive a visa, including for document fraud;
- 212(a)(9)(B)(v) - Waiver for certain aliens subject to the 3- or 10- year bar of inadmissibility for the accrual of unlawful presence;
- 212(g)(1) - Waiver for inadmissibility for certain health-related grounds; and
- 212(k) - Limited waivers for inadmissibility/ineligibility for missing documentation.
Section 209(c) of the INA contains waiver provisions for asylees and refugees.
Certain waivers of inadmissibility will require the applicant to demonstrate that a qualifying relative would incur "extreme hardship" were he or she to be refused admission to the United States. These include section 212(i), 212(h)(1)(B), and section 212(a)(9)(B)(v).
Applying for a waiver of inadmissibilityMost applications for waivers of inadmissibility are made by filing the Form I-601, Application for Waiver of Grounds of Inadmissibility. An application for a provisional unlawful presence waiver is filed on the Form I-601A, Application for Provisional Unlawful Presence Waiver. Certain applicants who have been deported or removed may need to file the inadmissibility waiver application in conjunction with the Form I-212, Application for Permission to Reapply for Admission into the United States After Deportation or Removal. Although there is a fee associated with the Form I-601 ($585 as of August 26, 2016), a fee waiver may be requested with the Form I-912, Request for Fee Waiver (submitted with evidence that shows the alien is unable to pay the filing fee).
Asylees and refugees must apply for a waiver by using the Form I-602, Application By Refugee For Waiver of Grounds of Excludability. There is no filing fee for the Form I-602.
The United States Citizenship and Immigration Services (USCIS) accepts fee waiver requests for the Form I-601 from the following applicants:
- VAWA self-petitioner;
- T visa applicant;
- Battered spouse or child of a U.S. citizen or LPR;
- Applicant for TPS;
- An alien for whom a determination that he or she would be a public charge under section 212(a)(4) is not required.
See https://www.uscis.gov/i-601 (special instructions for list of applicants who may request fee waivers as of March 9, 2016)
Seeking Waiver of InadmissibilityIf a person who is seeking immigration status in the United States or who is resisting removal is charged as being inadmissible, he or she should consult with an experienced immigration attorney immediately. There is no catch-all rule for determining whether a person in a given case will be eligible for a waiver of inadmissibility. Each case is fact-specific, and each will depend on many factors, including the following:
- Ground of inadmissibility (not all inadmissibility can be waived);
- Nature of the conduct that resulted in the person being inadmissible (if a waiver is available);
- Immigration benefit sought;
- Other circumstances that may weigh in favor or against the applicant; and
- Other relevant factors not listed here.
An experienced immigration attorney will be able to help an applicant determine whether a waiver of inadmissibility is available for his or her ground of inadmissibility in conjunction with the immigration benefit that he or she is seeking. If there is, an experienced immigration attorney will be able to determine whether the applicant has a plausible path toward obtaining relief and, if so, to help the applicant put forward the best case for doing so.