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Application for Waiver of Grounds of Inadmissibility

by Hamid R. Kashani, Attorney at Law
Nov 07, 2018

What is the Application for Waiver of Grounds of Inadmissibility?

The Application for Waiver of Grounds of Inadmissibility allows eligible nonimmigrants, who are inadmissible due to certain grounds of inadmissibility, to request a waiver of those grounds in connection with their applications for visa, before a U.S. consulate outside of the United States, or their applications for adjustment of status or other immigration benefits before USCIS or the immigration court inside the United States.

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Who may apply for Waiver of Grounds of Inadmissibility?

You may apply for Waiver of Grounds of Inadmissibility, if you are an

  • Applicant for adjustment of status,
  • Applicant for an immigrant visa, or K or V nonimmigrant visa, and you are outside the United States, have had a visa interview, and during the interview the consular officer found you inadmissible,
  • Applicant for Temporary Protected Status (TPS),
  • Applicant for adjustment of status under the Nicaraguan Adjustment and Central American Relief Act (NACARA) § 202 or Haitian Refugee Immigration Fairness Act (HRIFA) § 902,
  • Applicant for an immigrant visa or adjustment of status as a Violence against Women Act (VAWA) self-petitioner or the child of a VAWA self-petitioner,
  • Applicant for adjustment of status based on T nonimmigrant status, or
  • Applicant for adjustment of status as a Special Immigrant Juvenile (SIJ) based on an approved Form I-360.

Which grounds of inadmissibility may be waived by filing an Application for Waiver of Grounds of Inadmissibility?

The inadmissibility grounds, for which you may seek waiver, depend on your underlying application for immigration relief:

  • Applicants for adjustment of status (except those identified below) may seek waiver of the following grounds of inadmissibility:
     
    • Health-related grounds,
    • Certain criminal grounds,
    • Immigration fraud and misrepresentation,
    • Membership in totalitarian party,
    • Alien smugglers,
    • Being subject to civil penalty, and
    • The 3-year or 10-year bar due to previous unlawful presence.
  • Applicants for an immigrant visa, or K or V nonimmigrant visa may seek waiver of the following grounds of inadmissibility:
     
    • All grounds listed for the adjustment of status applicants
  • Applicants for Temporary Protected Status (TPS) may seek waiver of the following grounds of inadmissibility:
     
  • Applicants for adjustment of status under the NACARA § 202 or HRIFA § 902 may seek waiver of the following grounds of inadmissibility:
     
    • All grounds listed for the adjustment of status applicants, except for the 3-year or 10-year bar due to previous unlawful presence
       
      Note. The 3-year and 10-year bars due to previous unlawful presence do not apply to NACARA or HRIFA applicants seeking adjustment of status.
    • Aliens previously removed, under INA § 212(a)(9)(A)
    • Unlawfully presence after previous immigration violations,
  • Applicants for an immigrant visa or adjustment of status as a self-petitioner under the Violence against Women Act (VAWA) or as the child of a VAWA self-petitioner may seek waiver of the following grounds of inadmissibility:
     
    • All grounds listed for the adjustment of status applicants
    • Unlawfully presence after previous immigration violations,
  • Applicants for adjustment of status based on T nonimmigrant status may seek waiver of the following grounds of inadmissibility:
     
  • Applicants for adjustment of status as a Special Immigrant Juvenile (SIJ) based on an approved Form I-360 may seek waiver of the following grounds of inadmissibility:
     

Can I file an Application for Waiver of Grounds of Inadmissibility to request waiver of inadmissibility due to prior removal orders or multiple illegal entries?

No. You cannot seek a waiver of 5-, 10-, or 20-year bars resulting from (a) prior removal orders, or (b) the permanent bar resulting from unlawful entry or attempted unlawful entry (i) after accumulation of more than one (1) year of unlawful presence or (ii) after prior removal. For possible waiver of these grounds, you may file an Application for Permission to Reapply for Admission into the United States after Deportation or Removal (Form I-212).

Note that you must wait 10 years outside of the United States, before you are eligible to apply for a waiver of a permanent bar to admissibility.

How do I apply for Waiver of Grounds of Inadmissibility?

To apply for waiver, you must file your Application for Waiver of Grounds of Inadmissibility (Form I-601), and all of the supporting documents, with the USCIS.

To see the current USCIS fee for this application, see USCIS Fee Schedule.

To see how long the USCIS would take to adjudicate your application, see USCIS Processing Times.

Premium processing is not available for processing Form I-601.  However, in exceptional situations, you may apply for expedited processing of your waiver request.  See Requests to Expedite Adjudication of Form I-601.

When do I file my Application for Waiver of Grounds of Inadmissibility?

If you are in the United States and you would be eligible for adjustment of status, if your waiver application were granted, you must file your Application for Waiver of Grounds of Inadmissibility together with your application for adjustment of status (I-485) or other relief (e.g., Form I-821 for Temporary Protective Status, or Form I-360 for battered spouses and children).

If you have already filed, an adjustment of status application, you should file Form I-601 together with a copy of the receipt (I-797C) for your adjustment of status application.

If you are in a removal proceeding, you must file Form I-601, with the immigration court, together with your underlying application for immigration relief.

If you are overseas and going through consular processing, you should file Form I-601 after you are found inadmissible during your visa interview at the U.S. consulate.

What do I need to show to support my Application for Waiver of Grounds of Inadmissibility?

What you need to prove will depend on the type immigration application you are filing and the kind of waiver you are seeking. A few of them are noted below.

Waiver of the ground of inadmissibility conviction of a crime of moral turpitude under INA § 212(a)(2)(A)(i)(I):

No waiver is needed, if

  • The crime was a purely political offense;
  • You committed only one such crime, you committed the crime when you were less than 18 years old, and you were released from confinement more than five (5) years before making your application; or
  • You committed only one such crime, the maximum possible sentence for the crime was one (1) year or less of confinement, and the actual sentence you received was for six (6) months or less (regardless of the actual time served).

Waiver of certain criminal grounds of inadmissibility under INA § 212(a)(2)(A)(i)(I):

If you are inadmissible because of a crime involving moral turpitude; a single controlled substance violation involving no more than 30 grams of marijuana; two or more convictions (other than purely political ones) resulting in sentences totaling five or more years of confinement; prostitution; or commercialized vice (including those involving prostitution); or because you have previously avoided prosecution of a serious crime by asserting immunity, then, you must show one of the followings:

  • If the only ground of inadmissibility is prostitution (as a provider, procurer, or receiving proceeds of prostitution), you have been rehabilitated and your admission to the United States will not be harmful to public welfare, safety, or security;
  • At least 15 years have passed since the acts which rendered you inadmissible, you have been rehabilitated, and your admission to the United States will not be harmful to public welfare, safety, or security;
  • Your qualifying U.S. citizen, lawful permanent resident relative (spouse, son, daughter, parent), would experience extreme hardship if you were denied admission;
  • If you are a K visa holder, your fiancé (the K visa petitioner) would experience extreme hardship if you were denied admission; or
  • You are an approved VAWA self-petitioner.

Waivers would not be available where ground of inadmissibility involves violent or dangerous crimes, “except in extraordinary circumstances, such as those involving national security or foreign policy considerations, or cases in which an alien clearly demonstrates . . . exceptional and extremely unusual hardship.” 8 CFR § 212.7(d).  Even then, waivers would be rare.

Waiver of inadmissibility due to the 3-year or 10-year bars resulting from unlawful presence under INA § 212(a)(9)(B):

  • Generally, you must show that your citizen or permanent resident spouse or your parent would experience extreme hardship, if you were denied admission.
  • If you are a K-Visa fiancé who wishes to adjust status, you must show that your K visa petitioner (your fiancé) would experience extreme hardship, if you were denied admission.
  • If you hold the T nonimmigrant status (victims of severe forms of human trafficking) and seek adjustment of status, you do not need to file Form I-601.
  • If you are a VAWA self-petitioner (or the child of a VAWA self-petitioner) and you can show a “substantial connection” between the battery or extreme cruelty, which was the basis of VAWA claim and your unlawful presence, then you do not need to file Form I-601 and instead should submit such evidence with your adjustment of status application (Form I-485).
     
    If you cannot show such a substantial connection, you must show that your citizen or permanent resident spouse or parent would experience extreme hardship, if you were denied admission.
  • If you are applying for Temporary Protected Status (TPS), you do not need a waiver of the ground of inadmissibility due to unlawful presence.

Waiver of inadmissibility due to fraud or willful misrepresentation for securing immigration benefits under INA § 212(a)(6)(C)(i):

  • Generally, you must show that your citizen or permanent resident spouse or parent would experience extreme hardship if you were denied admission.
  • If you are a K-Visa fiancé who wishes to adjust status, you must show that your K visa petitioner (your fiancé) would experience extreme hardship, if you were denied admission.
  • If you are a VAWA self-petitioner, you must show that you or your citizen, permanent resident, or qualified parent or child would experience extreme hardship, if you were denied admission.

Waiver of inadmissibility due to false claim of U.S. citizenship under INA § 212(a)(6)(C)(ii):

  • If the false claim happened on or after September 30, 1996, a waiver would not be available
  • If the false claim happened on or before September 29, 1996, see waiver of inadmissibility due to fraud or willful misrepresentation, above.

Waiver of inadmissibility due to unlawfully presence after previous immigration violations under INA § 212(a)(9)(C)(iii):

  • If you are a NACARA or HRIFA adjustment of status applicant, you must present evidence to support the argument for granting you a waiver. According to USCIS instructions for Form I-601, you must present evidence of the following:
     
    • Length of time you have lived in the United States, whether lawfully or unlawfully;
    • Whether you have any criminal records;
    • Your immigration history in the United States;
    • Your family ties to U.S. citizens or to aliens living lawfully in the United States;
    • Whether the denial of your application would impose hardship on you or your relatives and the degree of that hardship;
    • Likelihood that you will become a lawful permanent resident in the near future;
    • Your employment history in the United States and the continued need for your services;
    • Whether you are a person of good moral character; and
    • Any other factor that you believe should be considered in deciding your case.
  • If you are a VAWA self-petitioner or the child of VAWA self-petitioner, you must show a “connection” between the battery or extreme cruelty, which was the basis of VAWA claim and the VAWA self-petitioner's “removal, departure from the United States, reentry or reentries into the United States; or attempted reentry into the United States.” INA § 212(a)(9)(C)(iii)(II).

What is the availability of waivers for Temporary Protective Status (TPS) Applicants?

If you are seeking Temporary Protective Status (TPS), the following grounds of inadmissibility do not apply to you and you do not need to file Form I-601 for waiver of these grounds:

  • Public charge, under INA § 212(a)(4);
  • Labor Certifications and qualifications for certain immigrants, under INA § 212(a)(5);
  • Aliens present without admission or parole, under INA § 212(a)(6)(A);
  • Stowaways, under INA § 212(a)(6)(D);
  • Student visa violators, under INA § 212(a)(6)(G);
  • Documentation requirements for immigrants and nonimmigrants, under INA § 212(a)(7);
  • Certain aliens previously removed, under INA § 212(a)(9)(A);
  • Aliens unlawfully present, under INA § 212(a)(9)(B); or
  • Aliens unlawfully present after previous immigration violations, under INA § 212(a)(9)(C).

If you are a TPS applicant, waivers for the following grounds would not be available to you, except as noted:

  • Crimes involving moral turpitude, under INA § 212(a)(2)(A)(i)(I), except where
     
    • The crime was a purely political offense;
    • You committed only one such crime, you committed the crime when you were less than 18 years old, and you were released from confinement more than five (5) years before making your application; or
    • You committed only one such crime, the maximum possible sentence for the crime was one (1) year or less of confinement, and the actual sentence you received was for six (6) months or less (regardless of the actual time served);
  • Controlled substance violations, under INA § 212(a)(2)(A)(i)(II), expect that you may apply for a waiver if you committed only one offense involving only possession of no more than 30 grams of marijuana;
  • Multiple criminal convictions, under INA § 212(a)(2)(B), except for purely political offenses;
  • Controlled substance traffickers, under INA § 212(a)(2)(C);
  • General security and related grounds, under INA § 212(a)(3)(A);
  • Terrorist activities, under INA § 212(a)(3)(B);
  • Adverse foreign policy consequences for the United States, under INA § 212(a)(3)(C));
  • Immigrant membership in totalitarian party, under INA § 212(a)(3)(D); and
  • Participants in Nazi persecution, genocide, or the commission of any act of torture or extrajudicial killing, under INA § 212(a)(3)(E).

In the case of individual applicants, if you seek Temporary Protective Status, you must show that granting the waiver is warranted “for humanitarian purposes, to assure family unity, or when it is otherwise in public interest.”  INA § 242(a)(2)(C)(ii).

Can I apply for waiver of grounds of inadmissibility if I am in a removal proceeding?

Yes. Individuals in removal proceeding must file Form I-601 with the immigration court having jurisdiction over their case.

What is the validity period of my approved Application for Waiver of Grounds of Inadmissibility?

Generally, an approved Application for Waiver of Grounds of Inadmissibility is valid indefinitely, for the specific ground(s) waived, even if you do not obtain the intended immigration relief.

If you obtain a waiver in connection with a Petition to Classify Convention Adoptee as an Immediate Relative (I-800), the validity of the approval would be contingent on the final issuance of an immigrant or nonimmigrant visa based on the final approval of Form I-800.

If you obtain a waiver in connection with a K-1 or K-2 visa, the validity of the approval would be contingent upon your entry into the United States and marriage, upon entry, to the K visa petitioner.

If you obtain a waiver in connection with an application for conditional permanent residence status, the validity of the approval would be automatically ends with the termination of the conditional residence. The waiver will be revived, if subsequently an immigration judge holds that you are not removable because of the termination of your conditional residence status.

If you obtain a waiver in connection with an application for Temporary Protected Status, the waiver approval would be valid solely for securing a temporary protected status or renewal of that status, and not for any other immigration benefits.

What are my options, if USCIS denies my Application for Waiver of Grounds of Inadmissibility or revokes it after approval?

If the USCIS denies your Application for Waiver of Grounds of Inadmissibility, your options are to seek reconsideration, file an appeal, or submit a new application.

Appeals are filed with the USCIS' Administrative Appeals Office (AAO).  The appeal with take nearly two years and the chances of success are slim.  Motions for reconsideration, if denied, are automatically converted to an appeal and are sent to the USCIS' Administrative Appeals Office (AAO).  Unless the error in the denial of the waiver application is obvious, the best option would be to restart the process and file a new application, especially if the circumstances have changed. If you are inside the United States and possibly in a removal proceeding, you may seek deferred action while preparing to submit a new waiver application.

Related Topics:

Application for Provisional Unlawful Presence Waiver

Grounds of Inadmissibility to the United States

Consequences of Overstaying

90-Day Rule

 

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