APPLICATION FOR WAIVER OF GROUNDS OF INADMISSIBILITY

About Admissibility. Admissibility refers to a person’s ability to be legally admitted and enter the United States. Think about when you visit a foreign country on vacation (hopefully, you have had that opportunity). You generally have to talk with someone at the border/airport upon arriving, in order to legally enter that country. If you are currently in the United States, then hopefully you talked to someone at the “Port of Entry” (most likely an airport), and you were then legally “admitted” into the United States. Believe it or not, this admission, even when you have a valid visa issued to you, is not automatic. There are things that can make a person “inadmissible,” or, unable to enter the United States.

Unfortunately, the concept of Admissibility is not just applicable to those individuals desiring to enter the United States for the first time. If you are already in the U.S., and you apply for certain different statuses (say you are pursuing a Green Card for example), then the law will treat you as if you are outside of the United States; desiring to enter once again. Likewise, if you are outside of the United States and seeking a visa at the U.S. Embassy, they will also consider your admissibility before agreeing to issue you the visa that you are applying for.

In short, anytime you try to make a big change in your U.S. Immigration Status, whether it is applying for a U.S. visa for the first time abroad, entering the U.S. at the airport on your visa, or applying for certain new statuses while in the United States; your eligibility to enter the U.S., and be legally “admitted,” will be considered.

Grounds for Inadmissibility and Potential Waivers Available. Admissibility is a complex topic, and there are some things that make a person inadmissible for one visa status, but not for another. Similarly, if you believe you may be inadmissible for whatever reason, there may be something called a “waiver” available to you; depending on the reason that you are inadmissible, as well as your individual circumstances. This waiver has to be applied for in addition to the application(s) for the immigration benefits you are seeking. Basically, if the waiver is granted to you, it forgives the specific reason that would otherwise make you inadmissible to the United States. Under other circumstances, there may also be “exceptions” available to you, to overcome reasons you may be inadmissible. Such exceptions would mean that you would not need a waiver, because you are among a protected group of persons, for certain inadmissibility grounds.

What are the things that could make you inadmissible? Well, the list is very long, but certain diseases and psychiatric problems could disqualify you for admission. Also, if you have committed certain crimes, have multiple criminal convictions, have had prior removals from the U.S., or committed certain immigration violations, you may be inadmissible. If you are a drug abuser or an addict, or if you lack certain vaccinations, or if the authorities believe that you are likely to require public assistance while in the U.S.; then you will also be inadmissible to the United States. One common category is Fraud or Misrepresentation with respect to the U.S. Immigration Authorities, and prior admissions to the United States and/or previous immigration benefits applications (such as visas).

Unlawful Presence Inadmissibility. One of the most common grounds of inadmissibility is if you have acquired a certain amount of unlawful presence while in the U.S., and then subsequently left the United States. This means that you were present in the United States for a certain amount of time without being in status, before leaving the United States. By law, if you were in the United States out of status for a period of more than 180 days (but less than a year), and you left the U.S., then you would normally be inadmissible to the United States for three years; if you tried to reenter. If you were inside of the United States out of status for a year or more, and you left the U.S., then you would normally be inadmissible to the United States for ten years; if you tried to re-enter. If you have acquired this amount of unlawful presence in the U.S., and you are currently abroad, please drop down to the paragraph entitled “Pursuing an Unlawful Presence Waiver from Abroad,” below.

If you are immediately eligible for a Green Card, then normally, this ground of inadmissibility would only apply to you, if you left the United States and tried to re-enter later. Thus, if you are immediately eligible for a Green Card (say you’re an Immediate Relative of a U.S. Citizen), and you are still in the United States; then this inadmissibility ground is NOT NORMALLY a problem for you, in attempting to Adjust your Status to have a Green Card. However, if you are still in the U.S., otherwise immediately eligible for a Green Card, these unlawful presence inadmissibility grounds could still be a problem for you, under very limited circumstances.

When could they be an issue for you? Generally, only if your unlawful presence was accumulated, not because your I-94 expired and you overstayed, BUT rather because you entered the U.S. without inspection in the first place. Why? Because even if you are otherwise immediately eligible for a Green Card (say you’re an Immediate Relative of a U.S. Citizen for example), you are ineligible to apply for your Green Card via Adjustment of Status while in the U.S., if you were not legally inspected and admitted into the country on your last entrance. Thus, if your unlawful presence resulted from you entering and living in the U.S. without ever being inspected and admitted, then these bars do apply to you. Thus, to pursue your Green Card, you will have to do so from abroad, via Consular Processing, and try to overcome these bars to your admissibility. However, If you are in this situation, you may be a candidate to apply for a Provisional Waiver of Unlawful Presence using Form I-601A, while still in the United States; if your unlawful presence is your only inadmissibility ground.

If you are not immediately eligible for a Green Card, then these bars to admissibility could also be a problem for you, if you are in the United States. Why? If you aren’t an Immediate Relative of a U.S. Citizen (spouse, unmarried child under 21, or parent), then there is a good chance that there isn’t a Green Card immediately available to you. All of the other qualifying Family-based Green Cards are delayed for multiple years. Thus, if your priority date isn’t current, then you won’t be able to apply for your Green Card from inside the United States. You will have to apply for your Green Card from abroad, and thus you will run into these Unlawful Presence bars. Similarly, if you have a job offer that qualifies you for an EB-2 or an EB-3 Visa, but your nationality is one of the few that is backed up for years (like China, or India for example); if your priority date isn’t current, then that means there isn’t an Immigrant Visa immediately available to you. Thus, you would also be ineligible to pursue your Green Card from inside the United States, and you will have to go abroad and pursue it through the Consular Processing route. Thus you would also run into these Unlawful Presence bars. Fortunately, if you are in this situation and you qualify, you may also be able to apply for a Provisional Waiver of Unlawful Presence using Form I-601A, while still in the United States; if your unlawful presence is your only inadmissibility ground.

Pursuing a Provisional Unlawful Presence Waiver from inside the United States:
If you have unlawful presence inadmissibility, and if you are ineligible to pursue your Green Card via adjustment of status from inside of the United States, either because:

(1) you entered the U.S. without being inspected and admitted (snuck over the border); or,

(2) because there is not an immigrant visa immediately available to you; then this is the section of the page for you.

If you are in this situation, you may be able to overcome your inadmissibility ground while still in the United States, before going abroad for your Green Card interview at the U.S. Embassy or consulate in your home country. That way if granted the waiver, you won’t have to worry about being inadmissible due to your unlawful presence. To be eligible to apply for this waiver from the United States though, unlawful presence will have to be your only ground of inadmissibility.

To qualify for this waiver, you will also have to be able to show “extreme hardship” to a qualifying relative. The qualifying relative for the waiver needs to be a U.S. Citizen or an LPR, spouse, or parent. It also does not have to be the same relative that your Green Card petition is based on. Sadly, if your Green Card petition was based on the immediate relative category of you being the parent of a U.S. Citizen Child ( an unmarried child under 21), you can’t qualify for this waiver of inadmissibility by showing “extreme hardship” to your child. However, if you have a U.S. Citizen or LPR, spouse, or parent also, then you could qualify by showing “extreme hardship” to them. However, if you just have a U.S. Citizen child, and don’t have a U.S. Citizen or LPR spouse or parent, then sadly you are out of luck and will be subjected to these 3 or 10-year bars of inadmissibility.

Assuming that you have a qualifying relative (U.S. Citizen or LPR, spouse or parent) to show extreme hardship to, then the waiver that you would pursue is entitled to a Provisional Unlawful Presence Waiver and you should submit Form I-601A, Application for Provisional Unlawful Presence Waiver, before leaving the United States. You will have to prove “extreme hardship” to a qualifying relative if you are not allowed to enter the United States. If granted the waiver, that’s a great sign, but the approval of the waiver is “provisional.”

Meaning, it is a preliminary pardon for your unlawful presence on inadmissibility grounds. However, you will still need to leave the United States after being granted the waiver provisionally, to have your Immigrant Visa interview at the U.S. Embassy or consulate in your home country. If the Consular Officer interviewing you abroad, finds that you are otherwise eligible for a Green Card, AND if you don’t have any other inadmissibility grounds other than your unlawful presence, you should be formally granted the waiver (meaning it will no longer be provisional). However, if the Consular Officer finds that you have other inadmissibility grounds, in addition to the unlawful presence ground, you won’t be eligible for a Form I-601A waiver. Instead, you will have to pursue your waivers via a Form I-601 Application for Waiver of Ground of Inadmissibility with USCIS from abroad (see section below). For a full list of inadmissibility grounds, please see the USCIS document “Inadmissibility and Waivers,” available here.

Pursuing an Unlawful Presence Waiver from Abroad. If you are already abroad and have accrued unlawful presence in the United States, then you are unfortunately ineligible to apply for the Provisional Waiver of Unlawful Presence. Thus, you will have to File Form I-601, Application for Waiver of Grounds of Inadmissibility, which is USCIS’ general form for overcoming any inadmissibility ground. Likewise, if you were found ineligible for a provisional unlawful presence waiver due to having more than one inadmissibility ground, you will also have to file this Form I-601 from abroad. One requirement to pursuing this waiver from abroad, however, is that you already had your visa interview with a consular officer and were found inadmissible.

The other requirement based on your unlawful presence inadmissibility ground (similar to the Provisional Unlawful Presence Waiver), is that you will have to establish “extreme hardship” to a qualifying relative. The qualifying relative for the waiver needs to be a U.S. Citizen or an LPR, spouse, or parent. It also does not have to be the same relative that your Green Card petition is based on. Sadly, if your Green Card petition was based on the immediate relative category of you being the parent of a U.S. Citizen Child ( an unmarried child under 21), you can’t qualify for this waiver of inadmissibility by showing “extreme hardship” to your child. However, if you have a U.S. Citizen or LPR, spouse, or parent also, then you could qualify by showing “extreme hardship” to them.

Provisional Unlawful Presence Waiver. Unfortunately, some Green Card applicants who are physically present in the United States, who are otherwise eligible for a Green Card, are forced to leave the United States to complete the Green Card application process abroad, instead of via the Adjustment of Status route while in the United States. This is the case for foreign nationals that originally entered the United States without inspection. Or, for Immigrants who are otherwise ineligible to Adjust Status; perhaps because they do not have an Immigrant Visa number currently available to them, and they don’t have a lawful Nonimmigrant Status that permits them to stay and live in the U.S., while they wait for that Immigrant Visa number to become available. Thus, this inadmissibility ground can come up for a foreign national, even when they hadn’t originally planned to leave the United States to apply for their Green Card. Fortunately, there may be a waiver available to you, if you are in this situation. The waiver that you would pursue is entitled to a Provisional Unlawful

Other common Waivers of the Inadmissibility Grounds. Generally, unless you are, or have been a drug trafficker, an addict or abuser, a spy, a Nazi, a terrorist, or you have participated in genocide, there is likely a waiver for your category of inadmissibility ground.

However, just because a waiver exists, does not mean that you will qualify for it, and even if you meet the requirements on paper for the waiver, it does not mean that you will be granted it. Many of the waivers are discretionary and proper advocacy during the application process, can give you a much higher chance of being granted a waiver. All of the waivers have differing and complicated requirements to qualify, and thus, it is important to consider enlisting the help of an experienced immigration lawyer, should you need to pursue a waiver of inadmissibility. Many of the waivers available, are based on establishing that a qualifying relative who is a U.S. Citizen or Lawful Permanent Resident (LPR), will experience “extreme hardship”  if you are not admitted to the United States.

Unfortunately, the categories of relatives that will qualify, will differ based on the type of inadmissibility ground you are trying to waive/forgive. For example, for some inadmissibility grounds, establishing extreme hardship to a U.S. Citizen Child will qualify you for the waiver; but not for others, you can only use a U.S. Citizen or LPR parent to qualify. Other inadmissibility grounds (such as Criminal Inadmissibility), won’t require establishing extreme hardship to a qualifying relative, but can instead be obtained by proving other facts (such as rehabilitation). Due to the complicated nature of these waivers, getting the help of an experienced immigration attorney can greatly help if you find yourself inadmissible. Fortunately, here at Zontlaw, we can help you with that. Don’t hesitate to contact us about your inadmissibility!

Related form: I-601, APPLICATION FOR WAIVER OF GROUNDS OF INADMISSIBILITY

Frequently Asked Questions