Some aliens may be deemed “inadmissible”, on the basis of some specific violations of the law, or certain administrative decisions. USCIS or a U.S. Consulate may deny applications for adjustment of status or visa applications accordingly based on these inadmissibility factors.

A waiver of inadmissibility is a forgiveness, which allows an alien to adjust status to lawful permanent residence in the U.S. or obtain an immigrant visa outside of the U.S.  It may be available depending on the type of inadmissibility and availability of a qualifying relative, as well as the basis for inadmissibility.

Most waivers are reviewed and decided by DHS and DOS officials based on their personal opinion and judgment about the facts of the case at hand.  In order to secure a favorable decision, it is essential to prepare a persuasive waiver brief, with compelling evidence, and present it to the authorities in an expedited manner. Proper preparation and presentation of the waiver is a chief element in the successful adjudication of the case.

Several other factors affect the decision of the case: seriousness of the violation and period of time when it has been committed, whether the applicant has any business or family ties in the USA, and whether admitting the applicant to the USA would be beneficial to the country.

There are different grounds for inadmissibility wherein waivers are required.  They are as follows:

MEDICAL/HEALTH-RELATED

An alien could be found inadmissible based on health grounds, including being a carrier of some infectious diseases, not having vaccinations, being a drug addict, or having a physical or mental disability when the applicant is a threat to others or to him/herself.

Any of the medical/health-related inadmissibility grounds could be waived for non-immigrant visas, and most of them can be waived for immigrant visas. However, unlike medical reasons, drug addictions could become a basis for inadmissibility.

CRIMINAL

Any alien with a record of arrest or a conviction for any offense other than minor traffic issues is to provide the adjudicating officer with police and/or court records concerning such arrests, indictments, pleas of guilt and/or convictions.  An alien may be inadmissible is s/he committed crimes of fraud or deceit, crimes against people or property, and drug-related crimes. Some other crimes could cause admissibility problems, especially for applicants with multiple offenses.

If an alien is not a U.S. citizen, and is currently facing criminal charges in a state or federal court, s/he should consult with an immigration attorney before making a decision in the criminal case.  Entering a “not guilty” or “no contest” plea, or even getting the sentence suspended or deferred, could still complicate the immigration case.  Your immigration lawyer can collaborate with your criminal lawyer and help you to make the best decision about your case, and find a solution that minimizes the potential impact on your immigration case.  Remember that the greatest result in the criminal case could be a basis for your inadmissibility in immigration sense.

If you already have a criminal conviction, a waiver of inadmissibility may or may not be possible to obtain, depending on the exact nature of the conviction and the sentence imposed by the court. You may still qualify for a waiver even if you are currently facing deportation charges in U.S. Immigration Court based on your criminal conviction.  It is a good idea to retain an immigration lawyer to review your specific case and help steer you clear of the negative consequences with immigration that can follow a criminal conviction.

FRAUD/MISREPRESENTATION

Aliens who have obtained (or attempted to obtain) an admission to the U.S., or any other immigration benefit, through fraud or misrepresentation, may be found inadmissible.  Inadmissibility may be triggered by defrauding immigration officials, presenting false documentation, or even not disclosing certain information on immigration applications.  Aliens who have been criminally prosecuted for document fraud, or who have made false claims to U.S. Citizenship, would also face similar problems.

Waivers to overcome most fraud-based inadmissibility charges are available for aliens applying for immigrant and non-immigrant visas.  If the government’s charges of fraud are not supported by evidence, or are obviously in error, it may be possible to challenge these charges in addition to (or as part of) a waiver application.  Applicants seeking an adjustment of status, or an immigrant visa, shall have a parent or spouse who is a U.S. citizen or a lawful permanent resident, in order to qualify for a waiver.  U.S. citizen or lawful permanent resident children are not deemed to be qualifying relatives for fraud-based inadmissibility waivers.

UNLAWFUL PRESENCE

Aliens who overstayed their lawful presence in the U.S. for over 180 days past the expiration date of their valid immigration status, or over 180 days past the date of their illegal entry, will be declared inadmissible for the period of three years after departure if they leave the U.S.  Aliens who overstayed their lawful presence in the U.S. for over one year past the expiration date of their valid immigration status, will be declared inadmissible for the period of ten years after they leave the U.S.

In case of adjustment of status, if an alien overstayed his/her lawful status or presence in the U.S. and is eligible to adjust his/her status based on family-reunion with U.S. citizen spouse, parent (if the child is under 21 years of age) or child over 21 years of age, he/she is entitled to a waiver for unlawful presence and employment without authorization as a matter of law, if he/she is otherwise admissible.

Leaving the U.S. after a period of unlawful presence will bar you from re-entering unless a waiver application is granted.  In certain cases, when an alien is inadmissible while physically present in the U.S., is allowed to file for preliminary waiver while still present in the U.S.  Preliminary waiver is available only in cases of unlawful presence.  If an alien had committed immigration fraud, preliminary waiver will not be available to such alien.

PRIOR REMOVAL/DEPORTATION

Aliens with outstanding deportation orders are inadmissible for five years.  Aliens with removal orders are inadmissible for ten years.  Aliens expedited removal orders are inadmissible for five years as well.  Aliens with second or subsequent order of any type are inadmissible for twenty years.  Waivers are available for such grounds of inadmissibility.  Furthermore, since generally an alien in deportation/removal proceedings are unlawfully present in the U.S., he/she is inadmissible because unlawful presence as well.  In such cases, aliens are required to get two waivers at the same time.  Both waivers have the same standard of proof and the same qualifying relatives could be used on both waivers.

Applicants may be deemed inadmissible based on other grounds as well, such as: lack of a proper U.S. visa, helping to smuggle aliens or drugs, supporting a terrorist organization, being a member of a terrorist organization, not being able to support themselves financially, or other reasons.

If you have been deemed inadmissible and need an analysis of your chances of getting a waiver, please contact us for a detailed review of your specific case.

PROVISIONAL UNLAWFUL PRESENCE WAIVERS

Starting from March 4th, 2013, some applicants for immigrant visas who are immediate relatives of a U.S. citizen, i.e. parents, children, or spouses, can apply for a provisional unlawful presence waiver before they leave the U.S. This waiver process lets individuals who only require a waiver of inadmissibility for unlawful presence, to apply for a waiver before they leave the U.S. in order to get an immigrant visa interview at a U.S. Consulate or Embassy in another country.

This process can shorten the time the immediate relatives of a U.S. citizen are separated from them, while they seek an immigrant visa to become a lawful permanent resident of the USA.

Under the current law, if you are an immediate relative of a U.S. citizen but are not eligible to adjust your status in the U.S., you must leave the U.S. and obtain an immigration visa abroad.

The new process of the provisional waiver does not change the immigrant visa process.  Even if your waiver is approved, you still have to leave the U.S. and have the immigrant visa interview abroad, with a U.S. consular officer.

Mayzel Law Group successfully handles this kind of cases.  If you need help, do not hesitate to contact us, give us an opportunity to help you to become legal in the U.S.