What are waivers?
- A waiver is an application a non-citizen can make that must be approved in order to receive the benefit they seek. Think of “waivers” as getting forgiveness for a bad act.
- The term waivers is usually used in reference to legal grounds of inadmissibility, and they are submitted to get permission to enter the U.S. or to get a green card application approved from within the U.S.
What is inadmissibility?
- When immigration finds that you are inadmissible, it simply means that you do not meet all of the requirements to have legal status in the U.S. unless you get a waiver approved.
- Some legal requirements allow for the submission of a waiver application; other legal requirements do not.
- If there is a legal reason why you cannot come to the U.S., or why you cannot receive residency in the U.S., you must find out whether or not you can waive that ground of inadmissibility or not.
- If the law allows for a waiver, you may submit it if you qualify. If the law does not allow for a waiver, you can only try to challenge the finding that you are inadmissible.
- Reasons for findings of inadmissibility under immigration law include:
- certain criminal convictions
- fraud to get an immigration benefit
- leaving the U.S. after being here without legal status for a long time
- most types of drug convictions
- entering the U.S. without inspection after having been deported or removed.
If I want permanent residency and need a waiver of inadmissibility, how do I qualify?
- You must have a “qualify relative.”
- A qualifying relative is always a family member who has citizenship or permanent residency in the U.S.
- If you need a waiver because of fraud, or if you need a waiver of the 10-year bar for unlawful presence, you must prove that your spouse or parent family member will suffer extreme hardship if your application is not approved.
- If you need a waiver for criminal reasons, you may also demonstrate hardship to a child.
- If you need a waiver because you were ordered deported or removed, and then you subsequently reentered the U.S. without inspection, you will need a different kind of waiver under a law that requires you to remain outside the U.S. for ten years.
What if I have to leave the U.S. for an interview at a U.S. consulate?
- If you are not eligible for adjustment of status and must leave the U.S. to go to an interview at the consulate, you should consult with an immigration attorney for advice about how long you could be gone and outside the U.S. away from your family.
- If your only legal issue is the 3/10-year unlawful presence bar, you can file a provisional waiver and wait in the U.S. for a decision on the waiver.
- If you have other inadmissibility issues, you cannot file while waiting in the U.S.; you will have to file the waiver application after your interview at a consulate and wait for a decision from outside the U.S.
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