The immigration waiver, or hardship waiver, is a concept that each and every intending immigrant should understand prior to undertaking the immigration process, whether they have hired an immigration lawyer or not. Receiving approval for an immigrant visa petition is the first step in the process of immigrating to the US and obtaining a green card. However, not all applicants with approved petitions will ultimately get a green card.
Certain aspects of a person’s criminal, physical, social or economic background can cause them to be inadmissible to the United States for the purposes of immigration. Certain of these grounds of inadmissibility may be waived at the discretion of USCIS immigration officers, while others act as a complete, permanent bar to obtaining the right to permanently live and work in the United States. In order to obtain a waiver, an applicant must prove that a qualifying relative will suffer extreme hardship if the applicant is not allowed to immigrate to the US. Certain US consulates and embassies abroad, such as the US consulate at Ciudad de Juarez, Mexico have special programs to handle an extreme hardship waiver. See Waiver Mexico.
Section 212(a) of the Immigration & Nationality Act lists the various ways in which a green card applicant could be inadmissible to the US. Evidence obtained from oral questioning, written documents, medical exams and background checks aid the immigration officials in determining an applicant’s eligibility to immigrate to America. A DHS or Consular officer will notify a visa or green card applicant if they require a waiver of inadmissibility.
There are two common types of immigration waiver available to those applicants who are deemed inadmissible to the US, the 601 waiver and the 212 waiver. Each hardship waiver covers different grounds of inadmissibility. The 601 waiver is most commonly submitted to overcome an inadmissibility bar for a prior visa overstay (ULP or unlawful presence), misrepresentation, fraud, or certain crimes. A 212 waiver is used to overcome inadmissibility bars for prior deportations. Further, foreign nationals who seek to temporarily visit the United States (NIV or non-immigrant visas), but who are subject to one or more bars of inadmissibility, can can file a 212(d)(3) waiver.
How can an immigration attorney help with the hardship waiver process? Although many immigration forms can be filed by applicants without the aid of an immigration lawyer, a hardship waiver requires the applicant to prove extreme hardship by submitting written evidence. An immigration lawyer can assist in this process by identifying an applicant’s best arguments, planning and directing the collection of written evidence, drafting a professional brief, and preparing the final package to be submitted to the immigration officer.