Waivers are complex, and different types of waivers exist. If an individual requires a waiver because she/he has done something that has excluded him or her from being able to apply for an immigration benefit there might still be hope.
What is a Waiver? A definition does not exist, however, one can be deduced from practice. A waiver is a method in which an individual can ask for pardon for a transgression committed.
When would a Waiver be needed? As mentioned above there are many different types of waivers, which means that there are many different reasons why an individual would need to secure a waiver before being allowed to apply for relief/visa or to enter the US legally. A) If you were deported or removed from the United States; B) If you overstayed in the United States past your visa expiration and then left the United States; C) If you were charged with or convicted of a crime.
If you were convicted of a crime involving moral turpitude (It is conduct that is inherently vile, depraved and contrary to accepted rules of morality), theft, robbery, you may be ineligible to enter the United States without a waiver.
Types of Waivers Different types of Waivers exist and they vary depending on the matter that needs to be waived and the waivers all require different evidence/proof. Below you will find some of the most common types of waivers:
- Health Related Grounds INA §212(a)(1): A foreign national that U.S. Citizenship and Immigration Services (USCIS) has determined to have a communicable disease of public significance (in accordance with the Department of Health and Human Services) will be denied entry into the US. It is important to note that Human Immunodeficiency Virus (HIV) has been removed from the list. For example some of the diseases that will cause inadmissibility are: syphilis (infectious stage), gonorrhea, active tuberculosis, leprosy, chancroid, lymphogranuloma venereum, and any quarantinable disease designated by Presidential Executive Order.
- Lack required vaccinations;
- Suffers or has a history of suffering from Physical or Mental Disorder that causes the individual to engage in behavior harmful to the individual or others; and
- History of drug abuse or addiction.
There are waivers available for all health related grounds of inadmissibility with the exception of drug abuse and/or addiction.
- General Waiver for Nonimmigrants: Individuals who fall into the categories of inadmissibility are able to apply for a waiver to visit the United States. The individual must assert why she/he needs to enter the United States and why her/his visit would not be detrimental/bad to the United States. These waivers are discretionary.
- Fraud and Misrepresentation: an individual who by fraud or willful misrepresentation of a material fact, procures or seeks to procure a visa, other documentation, or admission to the United States.
- Falsely Claiming U.S. Citizenship: After 1996 any individual claiming that he or she is a citizen of the United States for any purpose or benefit under the INA or any other federal or state law is inadmissible. An immigrant waiver is not available under this category. There is an exception available to certain individuals which was included in section 201(b)(2) of the Child Citizenship Act of 2000. Under this section the inadmissibility ground does not apply if each parent of the individual is or was a United States Citizen by birth or naturalization, the individual must have believed at the time of making the statement that she was in fact a citizen and the individual must permanently reside in the United States prior to reaching the age of 16. This exception applies to representations made on or after September 30, 1996.
- Waiver after Prior Removal: An individual who has been removed from the United States and wishes to apply before the statutory period has expired must file a waiver of the waiting period.
- Waiver of Unlawful Presence: This is the result of having been in the United States in unlawful status for more than 180 days (three year bar) or more than a year (10 year bar). To qualify for this waiver, the individual must prove that he/she is the spouse or parent of a US citizen or legal permanent resident and that the denial of admission would cause that US citizen or legal permanent resident extreme hardship.
These waivers can be difficult since every waiver case is different. We suggest hiring a competent attorney to handle these matters. Our practice has handled many of these cases successfully. A well-documented waiver case can make a great difference.
Effective March 4, 2013 the Provisional Stateside Waiver is available to inadmissible immigrants. This waiver promotes family unity, in the sense that this waiver allows the applicant to remain in the United States while the Waiver is being processed by the United States Citizenship and Immigration Services (USCIS).
This waiver allows immediate relatives of US Citizen to apply for a waiver of the three and ten year bars for unlawful presence before leaving the United States. The Provisional Stateside waiver addresses only one ground of inadmissibility as established in the laws of the US. The ground states that an applicant who has accrued unlawful presence in the US of 180 days or more, is barred from returning to the US for three years (INA §212(a)(9)(B)(i)(I)); applicants who have accrued 1 year or more of unlawful presence are barred from returning to the US for ten years (INA §212(a)(9)(B)(i)(II)).
Applicants can be found inadmissible under a variety of grounds, i.e., crimes, fraud/misrepresentation, health problems, immigration violations, etc. cannot apply for the provisional stateside waiver as they would not qualify as this waiver only addresses unlawful presence.
Who is eligible to apply for the Provisional Stateside Waiver Form, I-601A?
Applicants must meet the following criteria:
- Are physically in the US;
- Are at least 17 years old at the time of filing;
- Are the beneficiary of an approved I-130 Petition for Alien Relative or I-360, Petition for Amerisian, Widow(er) or Special Immigrant that classifies you as a an immediate relative to a US citizen. Immediate relatives are your US citizen spouse, parent;
- Your case has not been scheduled for an interview date before January 13, 2013. In other words that the Department of State did not take action in your case;
If you feel based on the preceding information that you in fact would be eligible for a provisional waiver, contact Ramirez+Ramirez, LLC to discuss how we can assist you.