Waivers of Inadmissibility
Foreign nationals may become inadmissible to the United States for a multitude of reasons, which are summarized at the Department of State web site. Waivers of inadmissibility, however, are available to certain individuals based on familial relationships and for specific bases. The following summarizes key waivers available:
Waivers for Fraud and Misrepresentations
A foreigner faces lifetime exclusion from the United States whenever a misrepresentation is such that immigration consequences result, unless a waiver of inadmissibility is granted. The immigration laws instruct that a foreign national is inadmissible if he or she “by fraud or willfully misrepresenting a material fact, seeks to procure (or has sought to procure or has procured) a visa, or other documentation, or admission into the United States or other benefit provided.”
Each of these terms—fraud, willful, misrepresentation, material, obtaining a visa—has been interpreted by statute, operating procedures, and case law, and the requisite standards of proof required also have defined.
Fraud waivers, however, are difficult to obtain, and only are available to intending immigrants who are the spouse, son, or daughter of a permanent resident or U.S. citizen; moreover, a showing of extreme hardship must be made to that person, and not to the intending immigrant who made the misrepresentation.
Waivers to Certain Criminal Grounds of Inadmissibility
There are two ways in which waivers of criminal grounds of inadmissibility can be obtained. The first method requires evidence of extreme hardship to a U.S. citizen or permanent resident spouse, parent, son or daughter. The second method requires evidence of that the alien is inadmissible under certain provisions of law or the underlying criminal conduct occurred more than fifteen years ago; that admission to the United States would not be contrary to the national welfare, safety, or the security of the United States; and that he or she has been rehabilitated.
A number of crimes are covered by this waiver, including crimes involving moral turpitude, a single conviction of simple possession of thirty grams or less of marijuana, multiple criminal convictions, prostitution, and offenses by diplomats asserting immunity from prosecution for serious criminal activities. This waiver is not, however, available for crimes of murder or torture or for admission of acts constituting murder or torture or to a foreign national who has been convicted of an aggravated felony since the date of admission as a lawfully permanent resident or if the alien has not continuously resided in the United States for the seven years immediately preceding the initiation of removal proceedings.
Waivers of the Three– and Ten-Year Bars Due to Unlawful Presence
Foreign nationals who are barred from admissibility based on their unlawful presence for periods of over 180 days or over one year, may have this bar waived, upon a showing of extreme hardship to the spouse or parent who is a U.S. citizen or permanent resident. Unlawful presence is defined as either
- being present after the expiration of the period of authorized stay, or
- being present in the U.S. without having been admitted or paroled.
It is important to note that while unlawful presence accrues while the individual is in the United States, the bars to inadmissibility do not attach until the individual leaves the U.S. and seeks to re-enter.
Please also see Deportation and Removal Defense for more on this topic.