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Waiver of Inadmissibility: When it’s needed; How to apply; How to improve your Chance of Approval

Usually, a Waiver of Inadmissibility (USCIS Form I-601) can be required by the Department of Homeland Security / USCIS (former INS) or by the US Embassy or Consulate abroad whenever a visa applicant is considered “inadmissible to the USA” and when he was denied a visa. “Inadmissible” means that he is not eligible for a visa to USA because a certain statutory ground of ineligibility makes him inadmissible. Another waiver can be required if a person is applying for a visa after deportation (USCIS Form I-212). Sometimes, both waivers can be required at the same time.

Without an approved Waiver Application, a Visa Application will be denied and a visa applicant will not be allowed to come to United States. Therefore, it’s very important to prepare a strong and convincing Waiver Application package.

The most commonly required Waivers for Immigrant and Non-immigrant Visas are the following:

The most common ground of ineligibility for a visa and a reason to file a Waiver application is an “Unlawful Presence” ground. A typical Waiver Application should show an “Extreme Hardship” to a visa applicant’s spouse (husband or wife) or a parent.

• Waiver of Unlawful Presence, INA section 212(a)(9)(B)(v);
• Waiver of Misrepresentation or Fraud in Procuring Visa or Entry to the USA, INA section 237(a)(1)(H);
• Waiver for Fraud and Misrepresentation, INA section 212(i);
• Waiver for Document Fraud, INA sections 212(d)(12) and 237(a)(3)(C)(ii);
• Waiver for Prostitution, Criminal History, Crimes of Moral Turpitude, and Simple Possession of Marijuana, “Criminal Waiver”, INA section 212(h);
• Waiver of HIV / AIDS ground of Inadmissibility, INA sections 212(g)(1) and 212(d)(3)(A);
• Waiver for Smuggling, INA section 212(d)(11);
• Waiver for any Non-immigrant visa or for a Visa Waiver Applicant, INA section 212(d)(3);
• Waiver After Prior Deportation or Removal, so called Permission to Reapply for Admission, INA sections 212(a)(9)(A)(iii) and 212(a)(9)(C)(ii).

The other common reason to apply for a Waiver is because of prior criminal history and criminal convictions of the visa applicant. For this Waiver application, an “Extreme Hardship” should be established to an applicant’s spouse (husband or wife), parents or/and children.

Sometimes, a hardship waiver can be approved for a fiancée visa applicant, where a couple is not married yet.

Usually, a Waiver Application, Form I-601, can be filed either:

• In the United States: with the local USCIS office in the USA. In this case, the adjudicating officer and/or a supervisor will make a decision on a Waiver application; or
• Abroad: with the USA Embassy or Consulate abroad when applying for a visa. In this case, a Waiver application will be adjudicated by the USCIS office abroad or in the USA, and the decision can take up to 6-9 months to obtain (with exception of Ciudad Juarez, Mexico, where it could take a several days if a waiver application is “clearly approvable”).

What we can do for you:

• We can help to review your circumstances and advise you about your legal options,
• Create the list of the documents and evidentiary proof for your application packet,
• Advise you as to what documentation and proof of extreme hardship would be required from you personally and appropriate in your situation,
• Prepare the complete Waiver Application packet for you (waiver application with supporting documents).

A Waiver preparation process is very complex and requires utmost expertise and knowledge of the law. On average, it takes at least 3-4 months of preparations and gathering all required supporting documentation. If you cannot afford a lawyer, it’s always a good idea to, at very least, consult a qualified immigration attorney. It’s advisable to hire an attorney to assist with preparing of the Waiver Application even if you filed the initial immigrant petition by yourself and it was approved (the approval of the base petition does not guarantee that a visa will be issued).

The immigration attorney does not have to be located in your town, especially where a waiver application is being prepared for an immigrant visa applicant abroad (for example, if you are not eligible to apply for “adjustment of status” in the USA, and have to apply for a visa at the US embassy or Consulate abroad in your home country). In order to improve your chances of approval, it’s more important to have a knowledgeable and experienced lawyer, rather than having an inexperienced or unqualified lawyer or unlicensed notario “next door”. Please remember that a waiver never guaranteed to be granted, and it might be your best shot to have your relative legally back to the USA. You have to prove an “extreme hardship to a qualified relative”, and provide at least several factual and legal arguments showing why your waiver application should be granted.

Please keep in mind that if there are several inadmissibility grounds in your situation, all of them have to be disclosed and a waiver requested for all of them. If a Waiver After Prior Deportation or Removal, so called Permission to Reapply for Admission, is required, there would be required another Form (USCIS Form I-212 with a separate filing fee). See INA sections 212(a)(9)(A)(iii) and 212(a)(9)(C)(ii).

If a visa applicant is in the USA, sometimes we suggest doing a confidential FBI fingerprint check through our law office before starting the waiver application process (contact us for more information at Attorney@law-visa-usa.com . It is very important to know in advance about a foreign national’s prior immigration history, convictions, arrests, detentions by CBP, ICE, CIS, and about work in USA without a work authorization.

If a waiver application is denied, it’s possible to file an appeal within 30 days of the date of denial with the Administrative Appeals Office (AAO), or reapply for a waiver again. Please remember that waiver decisions are discretionary, and it’s very hard to win on appeal. Therefore, it’s extremely important to have an immigration lawyer’s assistance preparing your initial Waiver application, as it can be your best shot to have a Waiver and Visa approved.

We can assist you to prepare a strong and persuasive Waiver application packet, advise you about the waiver application process, its legal and documentation requirements. Please contact us for a consultation and a quote at Attorney@law-visa-usa.com . We will email, fax or mail you the Questionnaire, if you would like to schedule a telephone consultation. Consultation fee for telephone or email consultation shall be prepaid prior to consultation. The payment can be made through PayPal (follow PayPal link from the bottom of any page of our website), or by a check or a money order mailed to our office address (write your name in the note section of the check). If you decide to retain us as your lawyer during or shortly after the initial consultation (within 2 weeks period), the consultation fee will be credited toward the legal fees for your case. You are welcome to email or call us if you have any additional questions or want to retain us to assist you with the waiver application or with any other immigration matters, and we will be glad to help you.