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Waivers of Inadmissibility

When Inadmissibility Can Be Waived
If an applicant for an immigrant visa, admission to the United States, or adjustment of status has been classified as an “inadmissible alien”, the application of the statutory provisions denying admission may be waived in certain circumstances (explained below).

The government’s consent to the alien's applying or reapplying for a visa, for admission to the United States, or for adjustment of status on the basis of waiver of inadmissibility is discretionary, meaning that the government may deny the waiver even if the statutory law allows to apply for it. An incomplete or erroneously completed application is likely to result in its denial, which is why legal assistance in preparing the application package is advisable.
  • An alien inadmissible on criminal grounds is eligible for a waiver if this individual:
    1. has been convicted of, or admits having committed, a crime of moral turpitude or an attempt to commit such a crime; or
    2. 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
    3. has multiple criminal convictions; or
    4. is, or has been, or will be involved in prostitution and commercialized vice; or
    5. has been granted immunity from prosecution for serious criminal offenses committed in the United States; or
    6. 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:
    1. 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
    2. 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
    3. 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:
    1. has admitted committing murder or criminal acts involving torture, or an attempt or conspiracy to commit murder or acts involving torture; or
    2. 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:
    1. 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
    2. has, or has had, a physical or mental disorder (including being HIV-positive), in certain circumstances; or
    3. has been denied admission due to failure to present the required vaccination documentation, in certain circumstances.
  • Another particular alien is eligible for a waiver if this individual:
    1. has committed fraud or made willful misrepresentations, in certain circumstances; or
    2. is a member of a totalitarian party with close family ties in the United States, in certain circumstances; or
    3. is a deserter or evader of military service, in certain circumstances; or
    4. is a foreign government official in continuous transit; or
    5. is admitted on national security grounds, in certain circumstances; or
    6. is an alien smuggler of family members, in certain circumstances; or
    7. is subject to final order for document fraud, in certain circumstances; or
    8. 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
    9. is a witness with information regarding crime or terrorism, in certain circumstances; or
    10. is a victim of trafficking in persons, in certain circumstances.
Procedure
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. 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 (DHS) United States Citizenship and Immigration Services (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 (however, the waiver does become invalid if permanent resident status is conditional and terminates automatically). Still, the government may reconsider a decision made in error.


Boston Immigration Attorneys & Lawyers
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