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What is a Waiver of Inadmissibility?
A Waiver of Inadmissibility is an application for legal entry to the United States made by an individual who is otherwise inadmissible on one or more grounds. The application is submitted to the consular office in the persons native country or country of current residence, USCIS office, or immigration court considering the immigrant visa or adjustment of status application. Which venue you are required to submit your waiver to will depend on your individual circumstance. A Waiver may be required with your initial petition to enter the United States or with a petition to enter the United States after having been removed.
If an applicant for admission to the United States or adjustment of status has been classified as inadmissible then there are statutory provisions allowing a waiver of the grounds for inadmissibility in certain circumstances. The government’s consent to the granting of a waiver of inadmissibility is discretionary. This means that the government may deny the waiver even though you are eligible by statute to apply for it. An application that does not sufficiently set forth the factual and legal basis for your entitlement to a waiver is likely to be denied.
What is the Procedure for Filing a Waiver?
An applicant for an immigrant visa who is inadmissible and seeks a waiver must file an application for waiver of inadmissibility with the consular office at the U.S. Consulate where he resides. If the applicant is currently in the United States – under some circumstances – the waiver may be filed with the USCIS or the immigration judge. The waiver is filed simultaneously with the application for admission. The consular officer determines whether the alien is admissible except for the grounds for which a waiver is sought and, if this is so, transmits the application to the Department of Homeland Security’s USCIS for decision. If the application is approved or denied, the alien is notified of the decision and its reasons, and of the right to appeal. The waiver may be granted in accordance with certain conditions, including the giving of bond.
A waiver granted applies only to those grounds of inadmissibility specified in the application for waiver. Once granted, the waiver is valid indefinitely, even if the recipient of the waiver later abandons or otherwise loses lawful permanent resident status. The waiver does become invalid if permanent resident status is conditional and terminates. In this case the waiver terminates with the status.
An alien found inadmissible on criminal grounds is eligible for a waiver if;
- convicted of, or admits having committed, a crime of moral turpitude or an attempt to commit such a crime; or
- has been convicted of, or admits having committed, a single offense of simple possession of 30 grams or less of marijuana or an attempt to commit such an offense; or
- has multiple criminal convictions; or
- has been involved in prostitution and commercialized vice or has been granted immunity from prosecution for serious criminal offenses committed in the United States; or
- has been convicted of an aggravated felony and has not previously been admitted to the United States for permanent residence.
The government may grant such a waiver if any of the following is established to the government’s satisfaction:
- the alien is inadmissible only under the provisions relating to prostitution, or the activities for which the alien is inadmissible occurred more than 15 years before the date of the alien’s application for a visa, admission, or adjustment of status, the admission of such alien would not be contrary to the national welfare, safety, or security of the United States, and the alien has been rehabilitated; or
- the alien is the spouse, parent, son, or daughter of a United States citizen or permanent resident, and the alien’s denial of admission would result in extreme hardship to the United States citizen or permanent resident related to the alien; or
- the alien qualifies for classification as a battered spouse or a battered child.
No waiver of the grounds of inadmissibility is available to a criminal alien who:
- has admitted committing murder or criminal acts involving torture, or an attempt or conspiracy to commit murder or acts involving torture; or
- has previously been admitted to the United States for permanent residence and either (a) has been convicted of an aggravated felony after the date of such admission or (b) has not lawfully resided continuously in the United States for a period of not less than 7 years prior to the date of initiation of removal proceedings.
An alien inadmissible on health-related grounds is eligible for a waiver if this individual:
- has a communicable disease of public health significance and (a) is the spouse or the unmarried son or daughter (including the minor unmarried lawfully adopted child) of a United States citizen, permanent resident, or alien who has been issued an immigrant visa; (b) has a son or daughter who is a United States citizen, permanent resident, or alien who has been issued an immigrant visa; or (c) qualifies for classification as a battered spouse or child; or
- has, or has had, a physical or mental disorder (including being HIV-positive), in certain circumstances; or
- has been denied admission due to failure to present the required vaccination documentation, in certain circumstances.
An alien may be eligible for a fraud waiver if this individual:
If a non citizen of the United States has committed fraud or made willful misrepresentations, in certain circumstances; or is a member of a totalitarian party with close family ties in the United States, in certain circumstances; or is a deserter or evader of military service, in certain circumstances; or is a foreign government official in continuous transit; or is admitted on national security grounds, in certain circumstances; or is an alien smuggler of family members, in certain circumstances; or is subject to final order for document fraud, in certain circumstances; or is unlawfully present and whose removal would cause extreme hardship to the spouse or parent who is a United States citizen or permanent resident; or is a witness with information regarding crime or terrorism, in certain circumstances; or is a victim of trafficking in persons, in certain circumstances.
Permission to Re Enter the United States after an Order of Removal
This is not a “Waiver,” however it is often required to be filed in addition to a Waiver.
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