Waivers
of Inadmissibility
Certain applicants for immigration
benefits may be determined "inadmissible"
to the United States based on prior
legal violations or administrative
decisions entered against them. Based
on this inadmissibility, U.S. immigration
authorities may deny their applications
for visas or to adjust status.
However, a waiver of inadmissibility
may be available, depending on the
charges raised against the applicant
and the type of visa for which they
are applying. Most waivers are adjudicated
by DHS and DOS based on loose discretionary
standards with a wide berth of judgment
left to the examining officer. Therefore,
preparing a compelling waiver brief
with supporting evidence, and knowing
how to most effectively present this
to U.S. immigration authorities, can
be absolutely critical to the waiver's
success. Other factors that might
affect the chances for a waiver's
success include the nature and seriousness
of the violation, the amount of time
that has elapsed since the violation,
the applicant's family and business
ties to the United States, and any
U.S. interests that would be positively
affected by the applicant's admission.
Grounds of inadmissibility that may
be raised against an applicant by
U.S. immigration authorities include:
Health-Related
Criminal
Fraud/Misrepresentation
Unlawful Presence
Prior Removal/Deportation
Other
Health-Related
(HIV / Substance Use)
Applicants may be declared inadmissible
for several health-related reasons,
either because they are a carrier
of a disease of public health significance,
lack required vaccinations, have a
physical or mental disorder that poses
a threat to themselves or others,
or are deemed to be a drug abuser
or addict. These issues often arise
as part of required medical examinations
that occur prior to a visa interview,
and are reported in the doctor's findings
to U.S. immigration authorities. Applicants
who have been arrested or convicted
for an alcohol- or drug-related offense
may be referred back to visit a doctor
for further questioning after the
visa interview. These grounds of inadmissibility
also exclude persons who are HIV-positive
from obtaining U.S. immigration benefits
without special permission.
All health-related grounds of inadmissibility
may be waived in the context of non-immigrant
visas and most may be waived for immigrant
visas. However, persons
deemed to be drug abusers or addicts
are ineligible to receive immigrant
visas or adjust status in the United
States.
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Criminal
Any applicant who has been arrested
or convicted for any offense (other
than minor traffic violations) must
be prepared to disclose these facts
and produce original court documents
as part of their U.S. immigration
application. Typical offenses that
can complicate visa processing are
crimes involving fraud or deceit,
crimes against persons or property
and drug-related offenses, although
many other offenses may be problematic
also. Applicants with multiple criminal
offenses may also face additional
problems. Applicants who have been
arrested or convicted for an alcohol-
or drug-related offense may even be
referred to a doctor for further questioning
after the visa interview to screen
for health-related inadmissibility.
If you are a non-citizen and are
currently facing criminal charges
in state or federal court, you should
strongly consider consulting with
an immigration attorney before
taking any action in your criminal
case. Any plea of guilty or no contest,
or even a suspended sentence or a
deferred entry of judgment, could
result in negative U.S. immigration
consequences. The collaboration of
an immigration attorney with your
criminal defense attorney can help
you make an informed decision about
your criminal case, and may be instrumental
in finding an alternative or lesser
charge that minimizes U.S. immigration
consequences.
If you are already convicted of a
criminal offense, a waiver of inadmissibility
may or may not be available depending
on the nature of your criminal offense
and the resulting punishment or sentence
ordered by the Court. Even if you
are now facing deportation charges
in U.S. Immigration Court based on
your conviction,
you may still qualify for a waiver.
Because of the wide-ranging negative
immigration consequences that can
follow a conviction, it is highly
advisable to retain an immigration
attorney to review your specific case.
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Fraud / Misrepresentation
Any applicant who has obtained (or
sought to obtain) an immigration benefit
or admission to the United States
through fraud or misrepresentation
may be declared inadmissible. Lying
to immigration or border officials,
presenting false documents, or even
failing to disclose certain information
on an immigration application form
can trigger inadmissibility. Applicants
who have made false claims to U.S.
citizenship or who have been prosecuted
for document fraud under the INA will
also face similar problems.
Waivers are available to overcome
most fraud-based inadmissibility charges
in non-immigrant and immigrant visa
applications. In some cases where
government allegations of fraud are
unsubstantiated or clearly erroneous,
it may even be possible to challenge
these allegations as part of, or in
addition to,
a waiver application. Applicants for
adjustment of status or immigrant
visas must have a U.S. citizen or
lawful permanent resident spouse or
parent to qualify for a waiver.
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Unlawful Presence
Most applicants who have been present
in the United States for more than
180 days after the expiration of their
valid immigration status (or after
entering unlawfully) may be declared
inadmissible.
Waivers are generally available for
unlawful presence inadmissibility,
but not to individuals
who enter or attempt to re-enter the
United States illegally after being
unlawfully present for one year or
more. In the context of adjustment
of status or immigrant visas, unlawful
presence waivers are only eligible
to applicants who have a U.S. citizen
or lawful permanent resident spouse
or parent.
It is also important to note that
departing the United
States after being unlawfully present
will trigger a bar to re-entry if
a waiver application is not granted.
If the period of unlawful presence
prior to departure was between 180
days and one year, a three-year bar
to re-entry will be imposed. If the
period of unlawful presence was greater
than one year, a 10-year bar will
be triggered.
These consequences are especially
critical to consider in cases where
the applicant must depart the United
States to apply for a visa and a waiver.
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Prior Removal/Deportation
Any applicant who has been ordered
removed from the United States—either
by an expedited removal order by U.S.
Customs and Border Protection or a
deportation order by a U.S. Immigration
Judge—will be declared inadmissible
for a fixed period of time. After
an expedited removal order, inadmissibility
will follow for five years after departure;
after a deportation order, 10 years;
and after any second or subsequent
order of any kind, 20 years.
Waivers are available to overcome
inadmissibility based on a prior removal.
However, it is important to note that
other grounds of inadmissibility also
typically apply to these cases because
without prior violations, there may
not have been a prior order of removal.
It is important to keep this in mind,
as the cumulative
effect of other violations may render
the applicant ineligible for a waiver,
or may reduce the chances of a waiver's
success.
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Other
An applicant may also be declared
inadmissible based on other diverse
grounds such as lack of a proper U.S.
visa or participation in alien smuggling,
or a U.S. immigration officer's belief
that the applicant will not be able
to support themselves financially
in the United States, they have supported
or are a member of a terrorist organization,
they have participated in drug trafficking,
or other reasons.
If you have been declared inadmissible
to the United States and need assessment
of your opportunities to obtain a
waiver, please contact us for a fact-specific
review of your case.
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