Immigration Has No Borders
A foreign national seeking admission into the U.S. at the Consulate, a port of entry, or permanent residence either at the Consulate or through the adjustment of status in the U.S. must overcome inadmissibility grounds. A Waiver is available for some, but not all, grounds of inadmissibility. To set aside a ground of inadmissibility, foreign nationals are required to present the waiver of inadmissibility. It is important to mention here that most waivers are discretionary and are available for humanitarian purposes, to assure family unity, or when it is otherwise in the interest of the general public.
The procedure for applying for a waiver depends on the type of waiver requested, the ground of inadmissibility, and the qualifying relative. A waiver application is made in conjunction with a visa application or an adjustment of status application. Most common waivers require the applicant to prove “extreme hardship” to a qualifying relative. To be very clear – the hardship must be to the qualifying relative, not to the applicant. A qualifying relative may be a U.S. citizen or permanent resident spouse, child, or parent.
Extreme hardship is not defined in the Immigration and Nationality Act. The elements to prove extreme hardship depend upon the facts and circumstances of each case. Therefore, it is important to provide enough evidence with your waiver application to convince the USCIS that your U.S. citizen or Lawful Permanent Resident family members will indeed experience extreme hardship if your waiver application is not approved. The extreme hardship must always be to the qualifying relative, not the applicant.
Common grounds for inadmissibility include, but are not limited to, unlawful presence, health-related grounds, criminal and related violations, misrepresentation, smuggling, and false claim to citizenship.
To file a waiver for unlawful presence, the applicant must have a qualifying relative who is a U.S. citizen or permanent resident spouse, child, or parent. Unlawful presence is when a foreign national either enters the U.S. unlawfully or their lawful status lapses. With certain exceptions, if the foreign national is unlawfully present between 180 and 365 days, they are inadmissible for three years from the date of next departure. If they are unlawfully present for over a year, they are inadmissible for ten years from the date of next departure. Waivers are available for these three and ten year bars. It is worth mentioning here that these bars do not begin until after the foreign national leaves the U.S.
A medical threat to public safety applies to a foreign national with a catastrophic, highly contagious disease, such as the Ebola virus or tuberculosis. Others who have been found medically inadmissible include those who do not have the required vaccinations, have abused drugs in the past year, or have a mental illness that poses a threat to the applicant or the general public. A waiver for vaccination requirements is available for those with a long-held religious or moral opposition to vaccines. A waiver for mental illness is more difficult to get as the applicant must prove they will report to a mental health facility immediately upon entering the U.S., have the financial means to pay for treatment, and the facility has agreed to report the applicant’s progress to DHHS.
A criminal threat to public safety applies to a foreign national with a criminal history. The main types of crimes making a foreign national inadmissible are: crimes of moral turpitude, drug offenses and trafficking, prostitution, and gang membership. A crime of moral turpitude must involve intent. For example, shoplifting has the element of intent, while driving under the influence does not have intent. An exception to crimes of moral turpitude is the “petty offense exception”, which allows for one conviction, with a maximum possible sentence of no more than a year, and the actual sentence of incarceration is no more than six months. It is worth mentioning here that a sentence of probation is not considered incarceration, but a suspended sentence is. Further, juvenile delinquency is not considered a conviction for immigration purposes.
A foreign national is inadmissible if they have a drug-related conviction. For drug trafficking, only suspicion or a reason to believe by the government official is necessary for a finding of inadmissibility,; no arrests are necessary. Waivers are available for most crimes of moral turpitude, prostitution, and simple possession of less than 30 grams of marijuana. There are no waivers for murder, attempted murder, torture, or attempted torture.
A foreign national is subject to a fraud or misrepresentation waiver if they have been found to have made a misrepresentation or have committed fraud in order to obtain an immigration benefit. Although the terms “fraud” and “misrepresentation” can be used interchangeably, these terms have specific implications in immigration law. It is worth mentioning here that misrepresentation does not make the foreign national inadmissible if it was not material. It is considered material if the government official would have made a different decision had they had the true information.
Smuggling is when a foreign national brings another into the U.S. A waiver for smuggling is available only if the person who was smuggled was the foreign national’s child, spouse, or parent.
If you or your loved one have been facing inadmissibility grounds and need a I-601 waiver, give us a call at 925.315.9797. Make sure you hire the right immigration attorney to process your waiver application.