**PROVISIONAL WAIVER PROCESSING (I-601A), otherwise known as Stateside Waivers, began March 4, 2013, for more information read Attorney Ruby L. Powers article on: Top 12 Things You Need to Know about the Provisional Waiver Rule.**
The concept of inadmissibility arises in a number of situations. It is an issue when the visa application is made and when the foreign national seeks entry to the US. It also comes up when a person in deportation proceedings is said to have been inadmissible at the time of entry or was not inspected at their entry. It can also be a factor when a permanent resident is said to have abandoned their permanent residency.
Before retaining your attorney, inquire as to whether or not he or she has represented clients with waivers in the past and if they have experience with your country. You must examine how much experience the attorney or firm has with waivers and how that corresponds with the service they will provide. Not all immigration attorneys have the same experience with waivers. The Law Office of Ruby L. Powers has experience with many successful I-601 and I-601A waivers and has worked on waivers with the following countries to name a few: Mexico, El Salvador, Romania, Guatemala, Japan, Nigeria, England, and Honduras, Qatar.
Form I-601A – Application for a Provisional Waiver of Ground of Inadmissibility
If you have a visa available and have a US spouse or parent that would suffer extreme hardship if you could not remain in the US, you might be eligible for the Provisional Waiver. The benefit of this waiver is that you can proceed for a green card (legal permanent residency) and only be out of the US for a short period of time. Our office has experienced several approvals already and has already had clients successfully return to the US.
Normal timelines as of February 2014:
- I-130 processing for an immediate relative – approximately 11 months but USCIS is trying to speed this up to 5-6 months
- I-130 Approval to Fee Receipts from NVC – about 2 months
- I-601A waiver – 3-5 months with a well-prepared clean case
- I-601A waiver approval to Consulate acknowledgement of approval – 1 month
- NVC process – 2-3 months – can be done while the I-601A is pending or if more conservative, wait until the waiver is approved.
- Wait for an interview at the US Consulate – depends on the consulate – For example, 1 month for Mexico, 2 months for El Salvador
- Time out of the US to attend the visa appointment and finalize medical exam – 10 days to 3-4 weeks
Note: The “Reason to Believe Memo” was provided January 24, 2014 where USCIS communicates their policy on any blemishes in the case like DWIs or other A numbers. This should help USCIS adjudicate many cases that have been held since September 2013 that were waiting on this memo. Additionally, if you have a prior denial, it could be worth having a consultation with an experienced provisional waiver attorney.
Form I-601 – Application for a Waiver of Ground of Inadmissibility
Some people who have been found ineligible for a visa under the Immigration and Nationality Act (INA) may file an Application for Waiver of Ground of Inadmissibility (Form I-601). Findings of ineligibility are usually made by a Consular Office during an immigrant visa interview, by an Immigration Officer during an immigrant visa interview inside the US, and/or in immigration court.
When the I-601 waiver is filed outside of the US, the application and “evidence of extreme hardship” are filed with the Consular Officer at the Embassy where the beneficiary of the petition applied for the visa. The Consular Officer forwards the form and supporting documentation to the U.S. Citizenship and Immigration Services (USCIS) office with jurisdiction for adjudicating the application. If the application is approved, USCIS sends approval notification to the appropriate Embassy for issuance of the visa. If the application is denied, the applicant will be notified in writing of the decision and the visa will not be issued.
We have had many successful I-601 waivers approved in and out of the US. Waivers filed while the client is outside of the US, we have seen the processing time between 6-8.5 months. Since the Lockbox system started in June 2012, we have had waivers approved for the UK and Mexico to name a few.
Evidence of Extreme Hardship
Approval of a waiver application requires a finding that the refusal of admission to the United States of the immigrant alien would result in extreme hardship to a qualifying relative. In general, a qualifying relative for the purpose of a waiver may be a spouse, fiance(e), or parent who is a United States citizen or a lawful permanent resident.
All claims of extreme hardship must be supported by documentary evidence or explanation specifying the hardship. Family separation and financial inconvenience, in and of themselves, do not necessarily constitute extreme hardship.
Therefore, it is important for the qualifying relative to describe and document any other claim that might be a hardship. The evidence is weighted under the totality of circumstances which means that USCIS should consider all the hardship in the aggregate.
Extreme hardship can be demonstrated in any aspects of the qualifying relatives’ life such as:
- Health: Ongoing or specialized treatment requirements for a physical or mental condition; availability and quality of such treatment in the applicant’s country, anticipated duration of the treatment; whether a condition is chronic or acute, or long-or-short-term.
- Financial Considerations: Future employability; loss due to sale of home or business or termination of a professional practice; decline in standard of living; ability to recoup short-term losses; cost of extraordinary needs such as special education or training for children; cost of care for family members (i.e., elderly and infirm parents); impact on credit history and its effect on future relocation; college loans; child support and alimony, etc.
- Education: Loss of opportunity for higher education; lower quality or limited scope of education options; disruption of current program; requirement to be educated in a foreign language or language or culture with ensuing loss of time for grade; availability of special requirements, such as training programs or internships in specific fields.
- Personal Considerations: Close relatives in the United States and/or the applicant’s country; separation from spouse/children; ages of involved parties; length of residence and community ties in the United States.
- Special Factors: Cultural, language, religious, and ethnic obstacles; valid fears of persecution, physical harm, or injury; social ostracism or stigma; access to social institutions or structures.
- Any other situation that the applicant feels may help meet the burden of extreme hardship. The evidence supporting the claim of extreme hardship should be as detailed as possible. Keep in mind that the hardship must be to the qualifying relative – not to the applicant.
Form I-212 – Application for Permission to Reapply for Admission into the U.S. after Deportation or Removal
Some individuals who have been deported or removed from the United States, or who departed the United States after the expiration of a voluntary departure order will also need to file Form I-212 Application for Permission to Reapply for Admission into the U.S. after Deportation or Removal.
If filing this waiver abroad, this application is filed with the Consular Officer at the Embassy where the beneficiary of the petition applied for the visa.
The applicant may attach a statement giving the facts that he/she believes USCIS should consider in making a decision on the application. The applicant may attach evidence in support of the statement.
If filed abroad, the Consular Officer forwards the form and supporting documentation to the USCIS office with jurisdiction for adjudicating the application. If the application is approved, USCIS sends approval notification to the appropriate Embassy for issuance of the visa. If the application is denied, the applicant will be notified in writing of the decision and the visa will not be issued.
FOR IMMIGRANT VISAS (“GREEN CARDS”)
WAIVER OF UNLAWFUL PRESENCE (“3/10 Year-Bar Waiver”)
The Immigration and Nationality Act (INA) section 212(a)(9)(B)(i) bars certain immigrants from returning to the United States if they accrued unlawful presence, i.e., were in the U.S. illegally. This means that if you have been in the U.S. illegally and then leave the country, you could be prevented from returning for several years. This applies whether the USCIS knows that you were in the country illegally or not. If you admit to being in the U.S. illegally or the Immigration Service learns of it, the ban applies. If you were in the country illegally for more than 180 days but less than one year and then leave, you are barred from returning for three years. If you were in the U.S. illegally for one year or more and you leave, you will be barred for ten years. In addition to the 3 and 10 year bars, there is also a permanent bar you will need to know about.
It is possible to obtain a waiver of the 3/10-year bar for those people who must return to their country to consular-process their green card applications. To do so, the applicant must demonstrate that if the waiver is not granted their US citizen or lawful permanent resident spouse or parents would suffer extreme hardship. The standard of “extreme hardship” is not easily defined or proven and you will need an excellent attorney to help you with this process. At the Law Office of Ruby L. Powers, we have over 14 years of combined experience in preparing waivers of the 3/10 year bar, so call us today for your consultation.
WAIVER OF CRIMINAL AND RELATED GROUNDS (“212(h) Waiver”)
The U.S. Immigration and Nationality Act (“INA”), especially as amended by the 1996 Anti-Terrorism and effective Death Penalty Act and the 1996 Illegal Immigration Reform and Immigrant Responsibility Act, contains several provisions that can result in harsh consequences to non-citizen foreign nationals due to criminal charges. Depending on the crime charged, even if there is no conviction, a foreign national may not be allowed to enter the United States legally (in other words, is “inadmissible” to the United States) or may not be allowed to remain in the United States even if he or she qualifies for an immigration benefit (in other words, is “deportable” or “removable” from the United States). Even relatively minor offenses in the eyes of a criminal defense attorney could have severe consequences under immigration law. Therefore, the consequences for a non-citizen of having been charged with a crime (or having admitted to a crime) can be much more severe than to a U.S. citizen.
The US has historically taken a harsh stance against non-citizen foreign nationals who have committed crimes; fortunately a waiver is available to certain immigrants who meet the statutory eligibility requirements and for whom the agency decides to exercise favorable discretion.
First, the person must fit into one of the following categories:
- An immigrant charged with certain prostitution offenses, IF admission would not be contrary to national welfare, safety, or security and the person has been rehabilitated.
- An immigrant charged with any other criminal ground of inadmissibility that is subject to the waiver, where:
o the criminal activities (necessitating the waiver) occurred more than 15 years before the date of the application for a visa, admission or adjustment of status; and
o admission would not be contrary to national welfare, safety, or security; and
o the person has been rehabilitated.
- An immigrant who:
o is the spouse, parent, or son or daughter of a U.S. citizen or LPR; and
o establishes that extreme hardship would befall the qualifying relative if admission were denied.
- VAWA self-petitioners under INA §§ 204(a)(1)(A)(iii) or (iv) or 204(a)(1)(B)(ii) or (iii) (no additional statutory requirements).
Second, the person cannot have been convicted of having committed, attempted or conspired to commit, or have admitted acts that constitute murder or criminal acts involving torture.
Third, “the Attorney General, in his discretion, and pursuant to such terms, conditions and procedures as he may by regulations prescribe, has consented to the alien’s applying or reapplying for a visa, for admission to the United States, or adjustment of status.”
Finally, in the case of a person previously granted LPR status, additional restrictions apply. In addition to the three requirements above, a § 212(h) waiver can only be granted to a person previously admitted to the U.S. as an LPR where the LPR: a. has lawfully resided in the United States for not less than 7 years before removal proceedings were initiated; and b. has not been convicted of an aggravated felony since becoming an LPR.
A § 212(h) waiver, if granted, waives ONLY the following criminal grounds of inadmissibility:
- crimes involving moral turpitude.
- a single offense of simple possession of 30 grams or less of marijuana.
- multiple criminal convictions where aggregate sentence was 5 years or more.
- prostitution and commercial vice activities; and
- serious criminal offenses involving a grant of immunity.
Immigration laws provide a discretionary waiver for certain misrepresentations and fraud in obtaining or attempting to obtain an immigration benefit that would otherwise render a foreign national or lawful permanent resident either inadmissible or deportable (i.e. a foreign national uses another’s passport to enter the United States or when a foreign national gives false information to an immigration official or on an immigration application form).
The fraud waiver is primarily based on having a “qualifying relative” and demonstrating to the U.S. Citizenship and Immigration Services (USCIS) that if you are not granted lawful permanent resident status, then your qualifying relative will suffer extreme hardship. A qualifying relative is the applicant’s U.S. citizen or lawful permanent resident spouse or parent. A U.S. citizen or lawful permanent resident child cannot be used as a qualifying relative, except in domestic violence cases.
At the Law Office of Ruby L. Powers, we believe that good people deserve second chances and we offer you a professional and compassionate representation. Call us today for an appointment.
Certain foreign nationals may be inadmissible to the United States based on a health problem. In addition to the criminal implications, US Immigration laws also restrict admission to the US based on the presumption of Alcoholism or Alcohol Abuse.
The health related grounds for inadmissibility are:
- communicable diseases;
- physical or mental disorders which threaten the safety of oneself or others;
- drug abusers or addicts; and
- failure to vaccinate against certain vaccine-preventable diseases.
There are waivers available for most of the health grounds of inadmissibility except for drug abusers and addicts. At the Law Offices of Ruby Powers and associates we have over a decade of experience in guiding our clients through this often difficult process. We take care of the painful work so that you can focus on what’s really important: your health and obtaining lawful status.
Smugglers are inadmissible to the United States. There is a discretionary waiver for certain instances where USCIS makes a formal finding that a foreign national is a smuggler. USCIS may consider granting a waiver to a smuggler if the foreign national:
- is an eligible immigrant,
- was physically present in the United States on May 5, 1988,
- is seeking admission as an immediate relative or preference immigrant,
- has smuggled only an individual who at the time of the offense was the alien’s spouse, parent, son, or daughter.
- the smuggling took place before May 5, 1988.
FOR NON-IMMIGRANT VISAS (“212(d)(3) Waiver”)
Certain foreign nationals seeking non-immigrant visas (like a tourist or employment-based visa, for example) are inadmissible to the U.S. because of a transgression, i.e. a minor crime they committed in the past. This discretionary waiver asks that the reasons for a petitioner’s inadmissible status be weighed against the relative risk of allowing them into the country. If we can establish that you have rehabilitated and have justifiable reasons for wanting to come to the United States, we can help you by preparing an optimal waiver packet.
On May 26, 2015 the Fifth Circuit composed by a three-judge appeals court panel voted, 2-1, to deny the Department of Justice (DOJ) request to lift a temporary injunction on expanded DACA and DAPA.