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Waivers Of Inadmissibility

August 16, 2013

Waivers Of Inadmissibility: Permission to Come or Stay in the US

Author: New York Immigration attorney Alena Shautsova

Waivers of inadmissibility are applications that should be submitted to USCIS in order to perceive a permission to come or stay in the US after the violation of Immigration laws. There are different kinds of waivers for different kinds of violations. For example, some waiver, if granted, excuse the existence of criminal convictions; some excuse immigration misrepresentation/fraud; some excuse unlawful presence; etc.

All waivers can be divided into two big category: those that waive some condition with an immigrant visa/permanent residency application; and those that waive a condition for a non-immigrant visa application.

Most of the time, the waivers require showing of some sort of hardship. Usually, it is an extreme hardship that a qualifying relative will suffer, in case the applicant is not granted the waiver.

Waivers of Inadmissibility

Non-immigrant Visas

Section 213(d)(3) of the INA provides authority to the US Department of Homeland Security to waive most grounds of inadmissibility in connection with non-immigrant visa applications. It is not available, however, for certain security grounds of inadmissibility, including terrorism, espionage, participation in genocide or Nazi persecution, and foreign policy grounds.  The standard for this type of waiver is not defined in the law. The only reference to the standard can be found in Foreign Affairs Manual and Matter of Hranka, 16 I&N Dec. 491 (BIA 1978). In short, it will depend on the consul and the case preparation. The factors that will be taken into consideration are: rehabilitation; risk of harm in admitting the applicant; seriousness of the act that cause inadmissibility; the importance of the applicant’s reason to come to the USA.  This waiver is technically available even to those who were convicted of an aggravated felony.

Immigrant Visas

Waivers of inadmissibility for immigrant visas are vary and their availability depends on the grounds for inadmissibility. For example, there are waivers for Health related grounds; fraudulent misrepresentation; criminal and related grounds; waiver for foreign residency requirement for J-1 visa holders and their dependents; unlawful presence.

No waivers available for the following situations:

  • Claims of US citizenship
  • Unlawful voters
  • Terrorist activities
  • Participation in Nazi persecution
  • Polygamy
  • International child abduction
  • Ex citizen who renounced US citizenship to avoid US taxes
  • Knowingly making a frivolous application for asylum

If you have further questions regarding waivers of inadmissibility, please contact New York Immigration attorney ALENA SHAUTSOVA at 917-885-2261.

Category: Visas