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What is a Waiver of Inadmissibility to the United States?

A Waiver of Inadmissibility is an application requesting a pardon of certain offenses and the permission to be granted legal entry into the United States. A person may have been considered inadmissible and refused entry into the United States based on some specified grounds. A waiver is, however, a request to pardon the inadmissible grounds and grant the person legal entry.

Section 212 of the Immigration and Nationality Act {INA} provides for the conditions in which a person may be considered inadmissible. These conditions are as follows:

  • Inadmissibility Based On Health Condition: A person may be considered inadmissible based on certain health conditions like - if they have a communicable disease, if they refused to be vaccinated against vaccine-preventable disease, if they have a physical or mental disorder that could result in harmful behavior and if they are drug abusers or drug addicts.
  • Inadmissibility Based On Criminal offenses: A person who is convicted of an aggravated felony, crimes involving "moral turpitude," drug trafficking, commercialized vice, human trafficking, prostitution, money laundering, violation of religious freedom, and other inadmissible crime cannot be allowed into the United States unless they have a waiver for these crimes.
  • Inadmissibility Due To National Security Reasons: A person who is suspected of having engaged in any form of espionage, sabotaging the U.S. government, participating in any terrorist activity, or is a member of a terrorist group, appears to pose a threat to any foreign policy or is a member of a totalitarian group and participated in the Nazi German persecutions or genocide is inadmissible.
  • Inadmissibility Due To Public Charge: A public charge is a person who is primarily dependent on the government for subsistence. Factors like health, age, family status, employment history, education, and assets would be considered to determine whether a person is a public charge. 
  • Inadmissibility Based On Lack Of Labor Certificate: A person without a labor certificate would be considered inadmissible. This mostly applies to immigrants who intend to move to the U.S. for employment purposes. 
  • Inadmissibility Based On Fraud or Misrepresentation: A person who seeks to enter the United States through a fraudulent means or misrepresentation of a material fact would be inadmissible. 
  • Inadmissibility On The Basis Of Unlawful Presence: Unlawful presence here could mean a person who was barred from entering the United States, a person who was deported due to a violation, or someone who unlawfully resides in the United States. Anyone who falls under any of these categories of unlawful presence is inadmissible.   
  • Inadmissibility Based On Other Miscellaneous Grounds: Other miscellaneous grounds such as; renouncing citizenship, smuggling prohibited goods, child abductors, student visa abusers, practicing polygamy, unlawful voters, and others would also be considered inadmissible. 

While some of the offenses listed above can be waived, others cannot. Therefore, offenders of these offenses are not eligible to file for a Waiver of Inadmissibility. 

Furthermore, there are exceptions where no waiver is required for the inadmissibility to be dismissed. This exception applies to aliens who have been battered or subjected to extreme cruelty or abuse, victims of trafficking, and minors. 

Also, the Attorney General has the discretion to decide whether a person is eligible for a waiver or not. 

What are the Consequences of Being Deemed Inadmissible to the USA?

When a person is deemed inadmissible in the United States, the person suffers the consequences of not being issued any visa, prohibited from getting a green card, prohibited from enjoying any form of benefit from the government, and barred from entering the United States. 

When is a Waiver of Inadmissibility Available for a Green Card Applicant?

A green card applicant is a non-U.S. citizen seeking permanent residency in the United States. If a green card applicant is found inadmissible based on the offenses listed in Section 212 of the Immigration and Nationality Act (INA), their application may not be successful unless the inadmissibility is waived. However, a Waiver of Inadmissibility does not automatically guarantee a green card. A green card applicant must go through the due process of application before being given a green card. 

How to Apply for a Waiver of Inadmissibility to the United States

An application for a waiver can be made from within or outside the United States. When a person files for a waiver from within the United States, that is, when the person is physically present in the U.S., the I-601A form is used (Application for Provisional Unlawful Presence Waiver). On the other hand, when the application is filed from outside the United States, the I-601 form is used (Waiver of Grounds of Inadmissibility). Instructions on how to fill the I-601A form or I-601 form have been provided by the United State Citizenship and Immigration Services (USCIS).

The application can either be done through mail or online. All supporting documents must be submitted alongside the application. Once the application is submitted, the United States Citizenship and Immigration Services (USCIS) processes the application and makes a decision. The decision is then relayed to both the applicant and the consular officer. 

In the event that the application is unsuccessful, an applicant can appeal or file for a motion to reopen, and this can be done with the I-290B form.

Can a Request for an Immigration Waiver Fail?

While a Waiver of Inadmissibility may be granted on certain grounds, some offenses cannot be waived, and if an application for a Waiver of Inadmissibility is filed for these offenses, such waiver will fail. They include:

  • Drug trafficking or drug violation involving the possession of 30 grams or less of marijuana.
  • Drug abuse or drug addiction.
  • Likelihood to become a public charge or depend totally on government for survival.
  • Conviction of an aggravated felony like murder or torture.
  • Human trafficking.
  • Unlawfully present in the United States.
  • Participation in any form of terrorism.
  • Involved in the confiscation of national property.
  • Falsifying a U.S. citizenship or unlawful voting.
  • Renouncing U.S. citizenship or failure to pay taxes.
  • Violation of religious freedom.
  • Alleged to have aided and abetted Colombian insurgents.
  • Suspected of having committed espionage.
  • Participation in the Nazi German genocide.
  • Violation of U.S. laws prohibiting certain goods.
  • Participation in the recruitment and use of child soldiers.
  • Refusal to serve the Armed Forces in times of war or national emergency.
  • Failure to attend an immigration court hearing.

An application for a waiver on any of the grounds of inadmissibilities listed above would fail because they are crimes that cannot be waived. 

How Long is a Waiver of Inadmissibility Valid for?

Once an application for a Waiver of Inadmissibility is successful, that waiver is valid indefinitely. However, it should be noted that a waiver is only valid for the actions or crimes for which it was applied. If there are subsequent inadmissibilities, an applicant may need to apply for an entirely new waiver. Therefore, it is advisable to include all the grounds of inadmissibilities when applying for a waiver.

Furthermore, a waiver can be considered to be conditional. In this case, the person seeking the waiver may be required to satisfy certain conditions before the waiver can be granted. 

Can I Apply for a U.S. Waiver of Inadmissibility Myself?

The process of applying for a Waiver of Inadmissibility is rigorous and should be done carefully. While applicants may be able to apply for a waiver of inadmissibility on their own, it is advisable to seek the assistance of someone who is knowledgeable in the process. 

An immigration attorney is conversant with the laws and regulations governing immigration in the United State, and can assist an applicant with the process of applying for a waiver of inadmissility. They can also help to prepare all the necessary documents needed for the application. 

Applicants can also visit the United States Citizenship and Immigration Services (USCIS) website for more information and guidance.

What Happens After a Waiver is Approved?

Once a waiver is approved, applicants may proceed to apply for their visa or green card. The waiver should be submitted alongside the visa or green card application.

How Much does Waiver of Inadmissibility Cost?

According to the United States Citizenship and Immigration Service (USCIS) fee schedule, an application for a waiver on the ground of inadmissibility can cost up to 930 dollars, while a provisional unlawful presence waiver can cost up to 630 dollars with an additional 83 dollars as biometrics fee. 

Finding an Immigration Attorney

In recent days, finding an immigration attorney can be a lot easier. A quick search on the internet would avail an applicant the opportunity to select from hundreds of options. Online search is one of the fastest ways to find an immigration law firm or attorney. 

The National Immigration Law Center (NILC) can also assist immigrants to get lawyers who would represent them through their application.

Referrals from family members and friends is also a good way to find an immigration attorney. Family relatives or friends who have gone through a similar process can recommend an immigration attorney that assisted them.

Before hiring any law firm or attorney, it is important to make proper findings and research. Some of the important factors to look out for in an attorney are:

  • Years of Experience: a more experienced immigration attorney would be preferable when filing for a waiver of inadmissibility. It is expected that an attorney who has repeatedly gone through the process would be more conversant and skilled in filing for a waiver. An experienced immigration attorney would also be aware of possible mistakes and could come up and try to prevent them.
  • Expertise: it is also important to consider the practice area and level of expertise of an attorney before hiring one. An attorney who does not specialize in immigration practices may not be a good fit for the job.
  • Success Rate and Reviews: Reviews from previous clients would help an applicant measure the success rate of an attorney. The success rate of an attorney is an important factor to consider because it builds a lot of confidence in the applicant and gives the notion that the application would most likely be successful.

Should I Hire an Immigration Lawyer or Not?

An immigration lawyer can be useful for an application for a Waiver of Inadmissibility in the following ways:

  • To advise applicants on the type of waiver they need, depending on their circumstance.
  • To update applicants on changes in immigration laws and policies.
  • To help applicants prepare persuasive legal briefs that support their claims.
  • To help applicants prepare affidavits when necessary.

Considering the advantages of hiring a renowned immigration attorney and the possibility of a successful application, it is advisable to get an attorney when applying for a waiver of inadmissibility.

Furthermore, it is also important to consider the cost of an immigration lawyer before hiring one. Depending on the complexity of the case, the attorney's location, years of experience, and expertise, an immigration lawyer may cost between one hundred to four hundred dollars per hour. 

In conclusion, it is important to note that though the services of an immigration lawyer may reduce the stress and make the application easier, it is not compulsory to hire an immigration lawyer. An applicant can file for a Waiver of Inadmissibility on their own.