Getting a Waiver
People may be refused a visa, or may be refused entry to the United States, if they are inadmissible. There are many grounds of inadmissibility. These grounds include criminal convictions or previous immigration problems such as an overstay, or deportation. Since 9/11, the U.S. government has gone to great lengths to develop and access databases of people who may be inadmissible. Many people who have entered the U.S. in the past without difficulty are suddenly being stopped at the border because of an old criminal conviction. We have successfully handled many waiver cases from Canada and other countries. We can prepare the necessary applications, prepare the supporting documentation that the U.S. government wants to see, and guide you through the process. We also handle Canadian waivers.
Waivers for visitors, temporary workers, and other nonimmigrants
In the case of nonimmigrants such as B visitors, F students, and H or L workers, most grounds of inadmissibility can be overcome by applying for a waiver. This is known as a section 212(d)(3) waiver. If you need a visa to enter the U.S., you must apply for a waiver at the time you apply for a visa at a U.S. consulate. The Department of State then refers the case to the Department of Homeland Security, which makes the final decision. All such waivers are now processed through the Office of Admissibility Review (OAR) in the United States.
If you are Canadian and do not need a visa, you must file your application at a port of entry, or preclearance inspection at an airport. Fingerprints are taken at the time you file. The application is filed using Form I-192. These applications are processed through the OAR as well.
The DHS considers three factors in deciding a waiver: (1) the importance of your reasons for coming to the U.S.; (2) the risk to society if you are allowed in the U.S.; and (3) the seriousness of any previous misconduct.
Nonimmigrant waivers are not permanent, and must be renewed. It is possible to obtain waivers for up to five years. Often, the first waiver will be approved for one year, and subsequent waivers for a longer period if no problem arises. It is important to apply as far in advance as possible since processing takes several months at a minimum.
Waivers are not automatic. The waiver application must be well documented. In criminal cases, it is important to prove that you have been rehabilitated. It is very helpful to have support letters from responsible members of the community who can prove your good character, not just your own statement. We are experienced in preparing these applications, and in gathering the evidence needed to present your application in the best possible light.
We can also analyze your situation to determine whether a waiver is really necessary. Not all criminal convictions make you inadmissible. In some cases, an explanatory letter to a port of entry with adequate documentation might solve the problem.
Immigrant waivers
Immigrants are people who are applying for a Green Card to live in the U.S. permanently. There is no all purpose waiver for immigrants as there is for nonimmigrants. Instead, there are a series of separate waivers connected to most of the different grounds of inadmissibility. These are permanent waivers. These waivers have more difficult requirements than the nonimmigrant waiver. Often, an immigrant waiver is based on extreme hardship to a U.S. citizen or permanent resident relative. For instance, to get a waiver for a prior misrepresentation, you must demonstrate that your U.S. citizen or permanent resident spouse or parent would suffer extreme hardship if you were not allowed to immigrate. The same applies to a waiver for a previous overstay of more than six months. For a prior crime, you must demonstrate extreme hardship to your spouse, parent, or child. You may also obtain a waiver if fifteen years have passed since the crime occurred. Not all crimes can be waived. There is no immigrant waiver for drug crimes, other than possession of 30 grams or less of marijuana.
It is not enough to just have a qualifying relative. “Extreme hardship” means hardship above and beyond the hardship that would result from simple separation, even of a husband and wife. For instance, if your relative has a disability and needs special care that only you can provide, that might qualify as “extreme” hardship. Extreme emotional hardship can be proven with a professional evaluation by a psychologist. Extreme economic hardship may also be accepted.
Immigrant waivers are filed using Form I-601. They may be filed at a U.S. consulate following the immigrant visa interview, in the event the applicant is found to be inadmissible. Persons adjusting status in the United States may file the Form I-601 along with the I-485, or may file the form following the adjustment interview. In either case the I-601 is processed by USCIS. There is a filing fee of $585.
Persons living in the United States without legal status may now file an I-601A in advance of the visa interview, if the only ground of inadmissibility is a three or ten year bar resulting from an overstay. This is called a “provisional unlawful presence waiver.” This new procedure can prevent the lengthy separation of families that would occur previously while persons waited outside the United States for a decision on their waiver application.
It is extremely important to obtain professional help if you need an immigrant waiver, or think you might need one. Your whole future may depend on it.
