Immigration Waivers

Waivers, in the sense of "forgiveness" of immigration violations, occur throughout the Immigration and Nationality Act (INA) and are fundamental to an understanding of a foreign citizen's rights to acquire status in the United States. In this post we will review the major waivers that can help a foreign citizen acquire lawful permanent resident (LPR) status in the United States.

Waivers are also best understood in light of what it is they "forgive," i.e. "inadmissibility." Being "inadmissible" can mean two things: (1) not being allowed to be physically admitted to the United States at a port of entry because of something in the foreign citizen's personal history; and (2) not being able to acquire permanent resident status while already in the United States because of some event in the applicant's past that also makes him or her "inadmissible." To understand this, understand that the immigration service

For purpose No. 2 one has to understand that when applying to become a permanent resident, while already in the United States, the immigration service employs the fiction that the applicant is "knocking at the front door" seeking to be "admitted" again, this time as a permanent resident. That's why one read in denials of permanent resident status applications that the person is "inadmissible" rather than "deportable," or "removable," although the applicant is also deportable and/or removable.

The most well-known waiver available is that under INA Section 212(h)(1)(B), which is applicable "in the case of an immigrant who is the spouse, parent, son, or daughter of a citizen of the United States or an alien lawfully admitted for permanent residence if it is established to the satisfaction of the Attorney General that the alien's denial of admission would result in extreme hardship to the United States citizen or lawfully resident spouse, parent, son, or daughter of such alien."

A few things to note about this waiver which aren't obvious. First, although the statute mentions sons and daughters, this refers to adult children of the alien, not children under 21. In the INA there is a difference between adult sons and daughters and the "child" of an alien. Thus, even though a child might suffer extreme hardship from the absence of an alien father, that "doesn't count" for purposes of this waiver.

There is an indirect "workaround" for this. If the other parent of the child is a US citizen or green card holder, the burden of having to raise the child on his or her own may be sufficient "extreme hardship," especially if the child suffers from some special handicap such as ADHD, or other medical or mental health disability.

The 212(h) doesn't allow for blanket waivers of all grounds of inadmissibility. Only certain crimes can be waived, and there may be other technical requirements before an alien is statutorily eligible to apply for the waiver. In addition, "extreme hardship" is a legal term of art and one really must consult with an experienced immigration attorney to determine if there are reasonable hardship grounds for seeking the waiver to begin with.

Under the right circumstances, a 212(h) waiver can be asserted following denial of the green card application in the United States, as a defense to removal in immigration court, and when applying overseas for an immigrant visa to come to the United States.

Under Pres. Obama's administration, there is another way in which a 212(h) waiver can be asserted. This occurs when someone who is unlawfully present in the United States for over a year, and who entered the United States illegally so that they cannot apply to the immigration service here to obtain a green card, can only travel to the home country to apply for visa. The problem with this scenario is that once on "departs" the United States to apply for a visa, he or she is subject to the "10 year bar" which makes the person inadmissible for that period of time a from the date of departure.

Before Pres. Obama, one actually had to risk a 10 year separation to see whether or not a waiver based on one year's unlawful presence would apply. Now, however, one may actually apply for this waiver while in the United States, and if it is granted travel with relative assurance back to the home country that the waiver will be granted.

Where other grounds of inadmissibility exist beyond simple "unlawful presence," it remains necessary for the alien to return to the home country to apply for a waiver if they are ineligible to "adjust status" because they entered the country illegally.

Another waiver that applies is the I-212 waiver seeking to excuse inadmissibility based on a prior order of deportation or removal. Although this waiver is considered "totally discretionary" with the Atty. Gen. so that no fixed rules apply, in most cases immigration attorneys simply utilize the criteria applicable for a 212(h) waiver together with whatever additional mitigating circumstances exist.

Immigration waivers are definitely a "don't try this at home" proposition. There are dozens of technical rules that may bar making the waiver, and there is an art to assembling the proofs of "extreme hardship" in a way that will maximize the chances for success. Anyone needing a waiver should seek the advice of an experienced immigration lawyer before making the expensive investment in time money and hope that it will succeed.

Brian D. O'Neill Attorney at Law, LLC

Immigration, Employment and Business Law