Waivers of Inadmissibility

What are Waivers of Inadmissibility?

In general, Waivers of Inadmissibility are designed for the spouses and children of U.S. citizens and legal permanent residents. 

When it comes to an adjustment of status, if an individual is determined to be inadmissible, the person might qualify for a Waiver of Inadmissibility without having to leave the United States.

Under consular processing, the waiver process is usually done outside of the U.S. unless the applicant qualifies for the I-601A waiver, which is usually done from inside the U.S., but with the I-601A, the applicant later leaves the U.S. to attend their immigrant visa appointment abroad.

The special I-601A waiver was announced by the USCIS on July 29, 2016. This benefit was so the applicant remains inside the U.S. for the majority of their immigration case, only leaving the U.S. for a few days to attend their consular interview abroad.

In the case of a marriage-based Adjustment of Status (spousal adjustment), the purpose of the application is also to show that the applicant (the foreign spouse) has a good faith marriage with their U.S. citizen or permanent resident spouse. When the applicant is filing an Adjustment of Status based on marriage, it is often possible to file Form I-130 and Form I-485 at the same time (a process called “concurrent filing”).

Adjustments of Status can also be filed under other categories if the visa is current and the person otherwise qualifies. For example, an individual with an approved 1-360 or U visa might also qualify for Adjustment of Status. 

Frequently asked questions about Waivers of Inadmissibility

WHY IS A WAIVER OF INADMISSIBILITY NECESSARY?

So applicants can remove the grounds of inadmissibility that are preventing them from obtaining their legal residency. 

WHO QUALIFIES FOR A WAIVER OF INADMISSIBILITY?

Applicant’s who have a legal resident or U.S. citizen parent or spouse and who have triggered or will trigger grounds of inadmissibility. In general, a child is not a qualifying relative for purposes of the I-601 waiver.

To successfully apply for a Waiver of Inadmissibility, the applicant should submit evidence to the Citizenship and Immigration Service (USCIS) of extreme hardship to which the applicant’s qualifying relatives would be subjected to in the event of deportation.

EXTREME HARDSHIP AND THE WAIVER OF INADMISSIBILITY

In order to qualify for an I-601A or an I-601 Waiver of Inadmissibility, an applicant must prove the extreme and unusual hardship to which their qualifying relative or family member would be exposed if the waiver were denied.  According to the USCIS, the waiver will be approved if the applicant provides strong evidence that the qualifying relative will experience either: extreme hardship in the U.S. (if the applicant is not allowed to enter or remain in the U.S.) or in the applicant’s home country (if the relative relocates with the applicant outside of the U.S.) It is best to prove extreme hardship in both potential situations. 

The qualifying relative for the Waiver of Inadmissibility does not have to be the same person who petitions for the applicant to immigrate to the U.S. For example, someone immigrating to the U.S. based on marriage to a U.S. citizen could apply for the waiver based on the extreme hardship his U.S. citizen father would face.

Wavers are done on different types of forms depending on what time of waiver is needed. Not everyone qualifies for or is required to submit an I-601A waiver. Oftentimes, the applicant is required to file a standard I-601 and does not qualify for an I-601A. Other times, the applicant might not need a waiver of inadmissibility and instead needs an I-212, Application for Permission to Reapply for Admission into the United States After Deportation or Removal. It is essential to consult with an experienced immigration attorney to analyze each case and determine what kind of Waiver of Inadmissibly is needed.

For certain Waivers of Inadmissibility, it is required that the applicant leave the United States. 

Moreover, an approved waiver is not a guarantee for entry to the United States. Since an applicant is investigated in detail at their consulate interview, other issues of inadmissibility can present themselves, which could cause other grounds of inadmissibility. If this happens, the applicant can be denied and any previously filed Waiver of Inadmissibly is usually invalidated. At this point, if eligible, the applicant would be asked to submit a new I-601 for each ground of inadmissibility. After the subsequent waivers are approved, the applicant will need to schedule a new interview at the consulate where they will be investigated in detail (again) and the officer will determine whether the person is eligible to enter the United States.

ARE ALL INADMISSIBILITY WAIVERS THE SAME?

No. Each applicant’s grounds of inadmissibility are different. Therefore, it is essential that you speak to an experienced immigration lawyer who understands immigration laws and is experienced with waivers of inadmissibility.

WHAT ARE THE GROUNDS OF INADMISSIBILITY?

The most common grounds for inadmissibly (reasons for denying someone admission to the United States) are unlawful presence in the U.S., multiple entries and exits to the U.S., lying to U.S. immigration officials, contagious disease, drug use, human trafficking, having committed crimes, terrorism, violations of immigration laws, or being a bigamist or polygamist.

Waivers of Inadmissibility Processing Time

The processing time is about 6 to 24 months. Once the waiver is approved, additional steps are usually required, especially when the person is applying for a visa aboard via the consular process.

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