Waivers

A waiver of inadmissibility for fraud or misrepresentation under INA § 212(i) allows the issuance of an immigrant visa to an alien who has committed fraud or misrepresentation of a material fact in procuring a visa, admission into the U.S., or other benefit under the Act. Under Section 212(i), the waiver is available to an immigrant who is the spouse, son or daughter of a United States citizen or a legal permanent resident if it is established that the refusal of admission to the U.S. of the immigrant would result in extreme hardship to the United States citizen or a legal permanent resident spouse or parent. Section 212(i) also requires that the immigrant merit a favorable exercise of discretion.

The factors to be used in determining whether an alien has established extreme hardship pursuant to Section 212(i) include, but are not limited to, the following:

• The presence of lawful permanent resident, or United States citizen family, ties to this country
• The qualifying relative’s family ties outside the United States
• The conditions in the country or countries to which the qualifying relative would relocate and the extent of the qualifying relative’s ties to such countries
• The financial impact of departure from this country; and,
• Significant conditions of health, particularly when tied to the unavailability of suitable medical care in the country to which the qualifying relative would relocate

A waiver of inadmissibility for criminal activity under INA § 212(h) allows the issuance of an immigrant visa to an alien who has been convicted of a crime involving moral turpitude, multiple criminal convictions, prostitution and commercial vice, immunity from prosecution, and a single offense of simple possession of 30 grams or less of marijuana. Waivers under INA § 212(h) do not waive substance abuse offenses, nor do they waive trafficking in controlled substances or persons, or engaging in particularly severe violations of religious freedom.

The waiver is available to immigrants who are related to a United States citizen, a legal permanent resident of the United State and all other immigrants.

Immigrants who are the spouse, parent, son or daughter of a United States citizen or legal permanent resident must establish that the alien’s removal would result in extreme hardship to the alien’s USC or LPR spouse, parent, son or daughter, and that the alien merits a favorable exercise of discretion.

In assessing whether an alien merits a favorable exercise of discretion, a consular or an immigration officer must balance the adverse factors evidencing an alien’s undesirability as a permanent resident with the social and humane considerations presented in his behalf. The factors adverse to the applicant include:

• The nature and underlying circumstances of the inadmissibility ground at issue
• The presence of additional significant violations of U.S. immigration laws
• The existence of a criminal record, and, if so, its nature, recency and seriousness
• The presence of other evidence indicative of an alien’s bad character or undesirability as a permanent resident

The favorable considerations include:

• The presence of lawful permanent resident, or United States citizen family, ties to this country
• Residence of long duration in this country (particularly where the alien began his residency at a young age)
• Evidence of hardship to the alien and his or her family if he or she is removed from the U.S.
• Service in this country’s Armed Forces
• A history of stable employment
• The existence of property or business ties
• Evidence of value and service to the community
• Evidence of genuine rehabilitation if a criminal record exists
• Other evidence attesting to an alien’s good character, such as affidavits from family, friends and responsible community representatives

The equities that a waiver applicant must bring forward to establish that he or she merits a favorable exercise of discretion will depend in each case on the nature and circumstances of the ground of inadmissibility sought to be waived and on the presence of any additional adverse factors. As the negative factors grow more serious, it becomes incumbent upon the alien to introduce additional offsetting favorable evidence. The equity of a marriage and the weight given to any hardship to the spouse is diminished if the parties married after the commencement of deportation proceedings, with knowledge that the alien might be deported. If the alien has a history of employment, it is important to consider the type of employment and its length and stability. When looking at the length of the alien’s presence in the U.S., the nature of his presence during this period must be evaluated. Further, evidence of rehabilitation in some cases may constitute the factor that raises the significance of the alien’s equities in total so as to be sufficient to counterbalance the adverse factors in the case and warrant a favorable exercise of discretion.

Applicants seeking a waiver for criminal activity who do not have the requisite relationship to a United States citizen or a legal permanent resident must establish that:

• The criminal activity occurred more than 15 years before the date of the immigrant visa application
• His or her admission to the United States would not be contrary to the national welfare, safety or security of the U.S.
• He or she has been rehabilitated
• He or she merits a favorable exercise of discretion

An alien is considered to be unlawfully present in the United States after the expiration of his or her authorized period of stay or when he or she is present in the United States without being admitted or paroled. Under INA § 212(a)(9)(B) of the Immigration and Nationality Act, aliens who were unlawfully present in the U.S. for more than 180 days, who departed the U.S. before any removal proceedings were commenced against them, and who then seek admission to the U.S. are inadmissible for a period of three years. Aliens who were unlawfully present in the U.S. for one year or more who leave the country and then seek admission to the U.S. are inadmissible for a ten-year period.

However, the statute provides that aliens lawfully admitted or paroled into the U.S., and who, before the expiration of their lawful status, file a non-frivolous application for extension of stay or change of status (to change to a different nonimmigrant status) will not be considered unlawfully present during the time the application is pending, for up to 120 days. Such consideration, however, will be extended to them only if they do not engage in unauthorized employment.

An alien who is found inadmissible for unlawful presence may apply for a waiver if he or she is the spouse or son or daughter of a U.S. citizen or a lawful permanent resident and can also establish that denial of his or her admission into the United States would result in extreme hardship to the U.S. citizen or the legal permanent resident spouse or parent.

An alien who has been deported from the United States is typically barred from being re-admitted to the United States for a period of time. The period during which the alien is barred from reentering the United States can be either 5, 10 or 20 years depending on the circumstances of, and reasons for, the deportation. In order to be readmitted during the period of the bar, an applicant must file and receive approval of a Form I-212, Waiver for Reapplication for Admission.