Waivers
Even if an alien is otherwise inadmissible, removable, or deportable from the United States, at Shestopalko Law we have the knowledge and experience to help the alien obtain a waiver allowing him or her to obtain an immigrant visa, a non-immigrant visa, adjustment of immigration status, or other immigration benefits.
An immigration waiver or Application for Waiver of Ground(s) of Inadmissibility is an application made by an alien who is otherwise inadmissible, removable or deportable on one or more grounds. The waiver application asks the United States Citizenship and Immigration Services (USCIS), consular office or immigration court to “forgive” the alien’s inadmissibility, removability, or deportability.
There are many reasons why a foreign national would need to secure a waiver before being allowed to apply for a visa, enter the United States, adjust their immigrant status or avoid being deported. Some of the most common reasons why an alien would need to seek a waiver include but are not limited to:
- An alien who was previously deported or removed from the United States
- An alien who overstayed their visa or stayed in the United States past the expiration of his or hers visa
- An alien who was charged with or convicted of a crime
- An alien who was convicted of robbery, theft, another “taking” offense or any other crime involving moral turpitude
- An alien who entered on a J visa and wants to remain in the United States despite falling under the two years home residency requirement under INA § 212(e)
- An alien who entered the United States on Fraudulent documents or has committed fraud to obtain immigration benefit in the United States
- An alien who entered without inspection as a child
- An alien who is inadmissible and wants to enter the United States on a temporary visa
- An alien who divorced his or her United States citizen spouse while on a conditional two year lawful permanent status (green card)
Waivers are very fact-specific inquiries and each client and family must make their own decision as to whether a waiver should be sought. At Shestopalko Law, we take the time to explain the waiver process to you and to analyze your case so that we can help you come to an educated decision regarding filing a waiver.
Unlawful Presence Waivers (Visa Overstay)
The law generally requires those who have lived in the United States unlawfully to leave the United States and wait for three or 10 years before being able to come back to the United States. However, the alien may utilize the I-601 unlawful presence waiver to avoid the long wait period. To utilize the unlawful presence waiver, the alien must be able to demonstrate extreme hardship to his or hers qualifying United States Citizen or Lawful permanent resident relative. Extreme hardship means suffering that is “unusual or beyond that which would normally be expected” when a family member leaves the United States — a difficult standard to meet. To qualify for this waiver, the alien had to legally enter the United States (alien was admitted into the United States). If the waiver is granted the alien does not have to leave the United States.
Qualifying relatives:
- United States Citizen or Lawful permanent resident child
- United States Citizen or Lawful permanent resident spouse
- United States Citizen or Lawful permanent resident parent
Types of Extreme hardship:
- Health
- Education
- Finance
- Family and community ties to the United States
- United States citizen children
The law generally requires those who have lived in the United States unlawfully to leave the United States and wait for three or 10 years before being able to come back to the United States. However, the alien may utilize the I-601(A) provisional unlawful presence waiver to avoid the long wait period. To utilize the provisional unlawful presence waiver, the alien must be able to demonstrate extreme hardship to his or hers qualifying United States Citizen or Lawful permanent resident relative. Extreme hardship means suffering that is “unusual or beyond that which would normally be expected” when a family member leaves the United States — a difficult standard to meet. An alien who did not to legally enter the United States (was not admitted into the United States) is not eligible for unlawful presence waiver. Thus, the alien needs to apply for the provisional unlawful presence waiver. If the waiver is granted the alien has to leave the United States and consular process outside of the United States.
Qualifying relatives:
- United States Citizen or Lawful permanent resident spouse
- United States Citizen or Lawful permanent resident parent
Types of Extreme hardship:
- Health
- Education
- Finance
- Family and community ties to the United States
- United States citizen children
A person with a labor certification or a visa petition filed on their behalf on or before January 14, 1998 is qualified for the benefits of adjustment of status or obtaining a green card. Under the special adjustment of status law, a person who has a labor certification or visa petition filed on their behalf after January 14, 1998, but on or before April 30, 2001, is also qualified for the benefits of special adjustment of status law but only if they were physically present in the United States on the date of enactment of the new law on December 21, 2000.
This “waiver” allows an alien to adjust their immigration status even if he or she:
- Overstayed his or her visa (unlawful presence)
- Entered the United States illegally (entry without inspection)
- Illegally worked in the United States without proper authorization
This adjustment of status is becoming progressively more rare and complicated; please consult an experienced immigration attorney in order to meet the requirements of the special adjustment of status law.
Entry Without Inspection Waivers (Illegal Entry)
The law generally requires those who have lived in the United States unlawfully to leave the United States and wait for three or 10 years before being able to come back to the United States. However, the alien may utilize the I-601(A) provisional unlawful presence waiver to avoid the long wait period. To utilize the provisional unlawful presence waiver, the alien must be able to demonstrate extreme hardship to his or hers qualifying United States Citizen or Lawful permanent resident relative. Extreme hardship means suffering that is “unusual or beyond that which would normally be expected” when a family member leaves the United States — a difficult standard to meet. An alien who did not to legally enter the United States (was not admitted into the United States) is not eligible for unlawful presence waiver. Thus, the alien needs to apply for the provisional unlawful presence waiver. If the waiver is granted the alien has to leave the United States and consular process outside of the United States.
Qualifying relatives:
- United States Citizen or Lawful permanent resident spouse
- United States Citizen or Lawful permanent resident parent
Types of Extreme hardship:
- Health
- Education
- Finance
- Family and community ties to the United States
- United States citizen children
A person with a labor certification or a visa petition filed on their behalf on or before January 14, 1998 is qualified for the benefits of adjustment of status or obtaining a green card. Under the special adjustment of status law, a person who has a labor certification or visa petition filed on their behalf after January 14, 1998, but on or before April 30, 2001, is also qualified for the benefits of special adjustment of status law but only if they were physically present in the United States on the date of enactment of the new law on December 21, 2000.
This “waiver” allows an alien to adjust their immigration status even if he or she:
- Overstayed his or her visa (unlawful presence)
- Entered the United States illegally (entry without inspection)
- Illegally worked in the United States without proper authorization
This adjustment of status is becoming progressively more rare and complicated; please consult an experienced immigration attorney in order to meet the requirements of the special adjustment of status law.
Deferred Action for Childhood Arrivals (DACA) is an administrative relief from removal or deportation. The purpose of DACA is to protect from removal or deportation eligible immigrants who came to the United States when they were children. The program grants relief to eligible applicants for a period of two years. Thus, DACA recipients have to renew their DACA status every two years.
Basic Requirements:
- Alien was under 31 years old on June 15, 2012
- Alien came to the United States before his or hers 16th birthday
- Alien continuously lived in the United States since June 15, 2007
- Alien has not been convicted of a felony or certain misdemeanors
- Alien’s has either graduated from high school, earned a certificate of completion of high school or GED, or has been honorably discharged from the military
DACA gives young undocumented immigrants:
- Protection from deportation
- A work permit
On January 13, 2017, United States Citizenship and Immigration Services announced that it is again accepting DACA renewal applications, due to an order issued by a United States district court in California. However, as of 2018, the United States Citizenship and Immigration Services is not accepting DACA applications from people who have not obtained DACA previously (from first time applicantions). Due to the ongoing federal court dispute over the program please contact an experienced immigration attorney before renewing your DACA status.
Prosecutorial discretion is the power of the federal government to decline to deport individuals in certain circumstances. Thus, the government has the power to decline to place an alien in removal (deportation) proceedings, delay deportation and removal, or terminate removal proceedings. The government dismisses a significant number of removal and deportation cases every year on a case-by-case basis. If you have no criminal record and facing deportation, you should consider applying to get your case dismissed. Contact Shestopalko Law for your individualized help.
Criminal Waivers
Convictions for certain crimes can render an alien removable or deportable. However, a waiver is available where under certain circumstances the government may waive some of these offenses.
Under the waiver the government may waive the convictions for:
- Crimes involving moral turpitude
- Multiple criminal convictions
- Prostitution and commercial vice
- Certain aliens who have asserted immunity from prosecution
- Possession of marijuana of 30 grams or less
There are three separate categories of applicants who are potentially eligible for the waiver:
- Alien who can demonstrate that the crime occurred more than 15 years ago; AND the waiver would not be contrary to the national welfare, safety, or security of the US; AND the alien has been rehabilitated.
- Alien who can demonstrate that his or her removal would result in extreme hardship to his or her United States Citizen or Lawful Permanent Resident parent, spouse, or child.
- The Alien is a Violence Against Woman Act (“VAWA”) self-petitioner
Extreme hardship means suffering that is “unusual or beyond that which would normally be expected” when a family member leaves the United States — a difficult standard to meet.
Types of Extreme hardship:
- Health
- Education
- Finance
- Family and community ties to the United States
- United States citizen children
Former section 212(c) Waiver
The 212(c) waiver allows a Lawful Permanent Resident, who is removable or deportable on the basis of criminal convictions, eligible to retain his or her status. Congress canceled former section 212(c) waiver on April 1, 1997. However, the United States Supreme Court decided that lawful permanent residents who plead guilty to a crime before April 1, 1997, still qualify for the waiver.
Basic Requirements:
- The alien pled guilty to the crime before April 1, 1997
- The alien has been a lawful permanent resident for at least 5 years
- The alien has at least 7 year of consecutive residence in the United States
Prosecutorial discretion is the power of the federal government to decline to deport individuals in certain circumstances. Thus, the government has the power to decline to place an alien in removal (deportation) proceedings, delay deportation and removal, or terminate removal proceedings. The government dismisses a significant number of removal and deportation cases every year on a case-by-case basis. If you have no criminal record and facing deportation, you should consider applying to get your case dismissed. Contact Shestopalko Law for your individualized help.
Visa Waivers
Many aliens holding the J-1/J-2 visa are subject to a requirement that he or she spends two years in their country of citizenship after his or hers J-1/J-2 status has expired. These aliens are subject to the two years Home Residency Requirement under the Immigration Nationality Act section 212(e). An alien may discover if he or she falls under this requirement by looking at his or hers J-1 visa (that was issued to them in his or her passport) where the visa will specify whether he or she is subject to the 212(e) – Home Residency Requirement. Also, an alien’s Certificate of Eligibility or Form DS-2019 issued by J-1/J-2 program’s sponsor will clarify whether an alien is subject to the 212(e) – Home Residency Requirement.
If the two-year home residency requirement applies, the alien must spend a total of two years in their country of citizenship before seeking an immigrant visa to reenter the United States. An alien who falls under the Home Residency Requirement but wishes to remain in the United States must file a waiver.
There are four reasons an alien can request a waiver:
- No-Objection from alien’s country of citizenship
- Hardship to a United States citizen or legal permanent resident spouse or child
- Persecution in country of alien’s citizenship (similar to an application for asylum)
- Interested federal or state government agency
Exceptional Hardship means suffering that is “unusual and significant” or what would be expected when a family member leaves the United States — a difficult standard to meet.
If the J-1/J-2 waiver is approved, the two-year Home Residency Requirement is removed and the alien can freely pursue H, L, or K visa or a Green Card.
A I-212 waiver allows an alien who has been deported from the United States to apply lawfully for permission to enter before their period of ineligibility end.
Periods of ineligibility:
5 years
- Aliens ordered deported in an expedited removal proceedings
- Aliens ordered deported in a regular removal proceeding that was initiated upon alien’s arrival to the United States
10 years
- Aliens ordered deported in a regular removal proceeding
20 years
- Aliens deported a second or subsequent time
Permanently Ineligible
- Alien deported for an “aggravated felony”
- Alien who entered or attempted to enter the United States unlawfully after a previous order of removal
Factors that influence whether the waiver is granted:
- The reason the alien was deported
- How long ago the alien was deported
- The length of the alien’s residence in the United States
- The alien’s moral character
- Evidence of alien’s rehabilitation
- The alien’s family and community ties in the United States
- Whether hardship to family members who are lawfully present in the United States exists
The 212(D)(3) waiver allows aliens who are forbidden or barred from entering the United States (inadmissible) to overcome the bar (inadmissibility) and request for a temporary non-immigrant visa to enter the Unites States. The 212(D)(3) waiver is available to most aliens overcoming most bars except for bars relating to Terrorism, Nazism and National Security.
The 212(d)(3) waiver must be requested at a United States embassy in the alien’s country of residence or citizenship. The waiver must also be filed with a nonimmigrant visa, such as the B-1/B-2 tourist visa, F1 student visa, H-1B/H-2B work visa or L visa.
Criteria that determine whether the 212(d)(3) waiver is granted:
- The risk of harm to society if the applicant is admitted
- The seriousness of the applicant’s prior immigration or criminal violations
- The reasons the applicant is wishing to enter the United States
Example: An alien who has been deported from the United States due to a criminal conviction for an aggravated felony (or for a conviction for a crime involving moral turpitude) can apply for the waiver with an application for a B-2 tourist visa (or a work visa H1-B/H2-B) and can temporarily enter the United States if the visa and the waiver applications are granted.
Visa / Immigration Fraud Waiver
Aliens who by fraud or willful misrepresentation (by lying) got or tried to get any immigration documents or benefits is deportable and removable, and barred (inadmissible) from entering the United States. However, the alien may apply for a 212(I) waiver that his or hers qualifying relative would suffer extreme hardship if the alien is deported or removed. Extreme hardship means suffering that is “unusual or beyond that which would normally be expected” when a family member leaves the United States — a difficult standard to meet.
Common types of fraud or willful misrepresentation:
- Omitting (leaving out) information on current or past immigration application (visa, green card, naturalization, petition for relative)
- Lying to an immigration officer at a United States consulate, at an airport or at a United States Citizenship and Immigration Services office
- Lying to an immigration judge
- Lying on an asylum application
- Lying about whether an alien is married
Qualifying relatives (the applicant’s relatives that would qualify the applicant for the waiver):
- United States Citizen or Lawful permanent resident spouse
- United States Citizen or Lawful permanent resident parent
Types of Extreme hardship:
- Health
- Education
- Finance
- Family and community ties to the United States
- United States citizen children
Divorce Waivers While on Conditional Permanent Resident Status
Aliens on conditional two years green cards (conditional residents) that obtained a his or her two-year green card through a marriage to a United States citizen or green card holder (lawful permanent resident) will need to file Form I-751, Petition to Remove Conditions on Residence, before his or her conditional green card (conditional lawful permanent residence status) expires. Form I-751 has to be filed together (jointly) by the spouses. The United States citizen or lawful permanent resident spouse also has to accompany the alien to an interview at a United States Citizenship and Immigration Service office. United States Citizenship and Immigration Services provides the regular 10 year green card unconditional resident to granted Forms I-751.
If the alien fails to file Form I-751 before the conditional two year green card expires (conditional lawful immigration status) the alien becomes removable and deportable. If the marriage has ended due to death or divorce, and even if the spouse has abused the conditional resident, the aliens must file a separate I-751 waiver. In the waiver the alien needs to prove that he or she entered into a “real or normal” marriage (good faith marriage). The alien also needs to prove one of the three options.
Options for the waiver:
- Option A: Alien entered the marriage in good faith, but the marriage was terminated through divorce or annulment.
- Option B: Alien entered the marriage in good faith, and, during the marriage, the alien was battered, or was the subject of extreme cruelty, by his or hers United States citizen or lawful permanent resident spouse
- Option C: The termination of alien’s status and removal from the United States would result in an extreme hardship
Option C – Extreme Hardship factors that had to arise after the alien received the conditional green card (conditional residency status):
- Applicant’s age
- Applicant’s health
- Age, number, and immigration status of applicant’s children and their ability to adjust to life in applicant’s country of origin
- Applicant’s child’s, spouse’s, or parent’s health
- Applicant’s ability to earn income in his or her country of origin
- Applicant’s length of residence in the United States
- Applicant’s family and community ties in the United States
- Impact of applicant’s removal on his or hers finances
- Impact of applicant’s removal on his or hers education
- Impact of applicant’s removal on his or hers psychological state
- Current political and economic conditions in the applicant’s country of origian
- Applicant’s ties in his or her country of origin
Other Waivers
Deferred Action for Childhood Arrivals (DACA) is an administrative relief from removal or deportation. The purpose of DACA is to protect from removal or deportation eligible immigrants who came to the United States when they were children. The program grants relief to eligible applicants for a period of two years. Thus, DACA recipients have to renew their DACA status every two years.
Basic Requirements:
- Alien was under 31 years old on June 15, 2012
- Alien came to the United States before his or hers 16th birthday
- Alien continuously lived in the United States since June 15, 2007
- Alien has not been convicted of a felony or certain misdemeanors
- Alien’s has either graduated from high school, earned a certificate of completion of high school or GED, or has been honorably discharged from the military
DACA gives young undocumented immigrants:
- Protection from deportation
- A work permit
On January 13, 2017, United States Citizenship and Immigration Services announced that it is again accepting DACA renewal applications, due to an order issued by a United States district court in California. However, as of 2018, the United States Citizenship and Immigration Services is not accepting DACA applications from people who have not obtained DACA previously (from first time applicantions). Due to the ongoing federal court dispute over the program please contact an experienced immigration attorney before renewing your DACA status.
Prosecutorial discretion is the power of the federal government to decline to deport individuals in certain circumstances. Thus, the government has the power to decline to place an alien in removal (deportation) proceedings, delay deportation and removal, or terminate removal proceedings. The government dismisses a significant number of removal and deportation cases every year on a case-by-case basis. If you have no criminal record and facing deportation, you should consider applying to get your case dismissed. Contact Shestopalko Law for your individualized help.
These categories only touch upon some of the most common waivers and the descriptions are general. Waivers are a complicated area of immigration law and the attorneys at Shestopalko Law are happy to discuss the waivers that may be available to you.
Here is where we can help!
For more specific help with your individual case, call Shestopalko Law today at (585) 506-7356, email andriy@shestopalkolaw.com or fill out our contact form.
Disclaimer: This article discusses general legal issues, but it does not constitute legal advice. No one should act or refrain from acting on the basis of any information presented herein without seeking the advice of counsel in the relevant jurisdiction. Shestopalko Law expressly disclaims all liability in respect of any actions taken or not taken based on any contents of this article.