Immigration Waiver

If you are not a US Citizen or lawful permanent resident (green card holder), getting permission from the US government to move to or visit the United States can be a difficult process. Even though an individual may have someone to sponsor them for a green card, or may have a legitimate reason to come for a visit, certain aspects of that person’s background may require them to obtain an immigration waiver before being granted the immigration benefit that they desire. Immigration waivers are not easy to get.

What is an immigration waiver and how do I know if I need one?

If a person is inadmissible to the United States, their visa application will be denied. However, certain of these inadmissibility grounds can be waived by an immigration officer. Since an immigrant visa applicant or nonimmigrant visa applicant can be denied for a whole host of reasons, there are many different types of immigration waivers. In a perfect world, all visa applicants would consult with an immigration attorney prior to submitting a visa application, would discover that they need a immigration waiver even before the visa interview, and would be ready to turn in the waiver at the interview. Sadly, this rarely happens. Most applicants have no idea that they are inadmissible until they attend the interview.

Typically, the immigration officer or consular officer handling the application will deny the visa application and tell the applicant that she needs a waiver. The visa application cannot be approved until the waiver has been approved. Unfortunately, the waiver process can be quite lengthy and not all waivers are approvable. First, one must prepare a proper waiver package (yes, it involves much more than simply filing out a form). Then, the waiver must be submitted as instructed by immigration officials. Finally, the applicant must wait for the waiver to be decided. The waiting time for an immigration waiver decision ranges from hours to several years. Since failure to submit an adequate waiver package will result in a denial, thus placing the applicant at the end of the waiver line, it is important to have a waiver attorney prepare the waiver package the first time.

Types of immigration waiver

Identifying which type of immigration waiver a visa applicant needs depends largely on whether they are trying to move permanently to the US or just coming to visit or work for a short time. Further, the ground of inadmissibility for the visa denial (prior immigration violation, criminal history, medical issues, prior deportation, etc.) will determine which type of immigrant waiver or nonimmigrant waiver must be filed.

• Inadmissibility waiver for an intending immigrant (601 Waiver) – Green card applicants (and those applying for a K-1 or K-3 visa) who are denied the visa either when applying at a US Embassy or Consulate abroad or when adjusting status in the US will be given the chance to file a 601 waiver if their ground of inadmissibility is waivable. Typical grounds of inadmissibility that can be waived with a 601 waiver include a 212(a)(9) bar for a visa overstay (or for entering without inspection EWI). The 212 a 9 overstay waiver can be used for both the 3 year bar (visa overstay of less than a year but more than six months) and a 10 year bar (visa overstay of more than a year). Certain criminal grounds of inadmissibility that can be waived with a 601 waiver, pursuant to INA 212(h), include some crime involving moral turpitude (CIMT) and multiple criminal convictions. Further, entering or attempting to gain an immigration benefit (such as applying for a visa or applying for admission at the border) using fraud or misrepresentation makes someone inadmissible pursuant to INA 212 a 6 c. A 601 waiver is also available for misrepresentation.
• Inadmissibility waiver for a temporary worker or visitor (212(d)(3) Waiver)- Although non-immigrants are subject to the same grounds of inadmissibility that intending immigrants are subject to (see above), non-immigrants do not file their waiver on form I-601. Instead, they file a 212(d)(3) nonimmigrant waiver either at a US Embassy or Consulate abroad or with a port of entry in the United States, depending on the situation. The 212(d)(3) waiver will either be filed informally or on form I-192.
• Deportation Waiver (I-212) – Although, depending on the length of time that has passed, a prior deportation order may make a person inadmissible, a deportation waiver is usually filed on form I-212 for all applicants, whether they are applying for the deportation waiver along with an immigrant visa or nonimmigrant visa.
• Mexico Waiver – immigration waiver cases for citizens from Mexico warrant a separate discussion given the special nature of consular processing for 601 waiver and I-212 deportation waiver cases which are handled at the US Consualt in Ciudad de Juarez, Mexico. All immigrant visas are processed through CDJ and some Mexico waiver applicants may have their waiver cases approved in as little as one week.
• J1 Waiver – The J1 cultural exchange visa program allows nonimmigrants to live and work in the United States for a short period of time (usually 12 – 18 months) in order to experience the American way of life and share their knowledge with fellow countrymen when they return home. Thus, as a general rule, J1 visa holders must return to their home country for at least 2 years after the J1 program ends. However, certain individuals can apply for a J1 waiver, which would eliminate the 2 year foreign residency requirement and allow them to remain in or return to the US.