Trying to enter the United States but were previously denied? Inadmissibility waivers provide a path for noncitizens previously refused entry to lawfully come to America under certain conditions.
Known formally as “Application for Advance Permission to Enter as Nonimmigrant,” these waivers overlook prior immigration violations or criminal histories that originally triggered inadmissibility orders.
In this blog, we’ll clarify key questions surrounding the waiver process – who qualifies, what steps you must take, what factors help or hurt applications, and other need-to-know details if your admission hopes hinge on correcting an old mark on your record that currently bars legal entry into the U.S.
What Are Waivers of Inadmissibility?
Under the Immigration and Nationality Act (INA), foreign nationals hoping to enter the U.S. through a visa or green card application must prove they are admissible. However, some applicants have committed acts, have certain medical conditions, or have other circumstances that make them ineligible or “inadmissible” under the law.
Waivers of inadmissibility are legal ways to overcome these barriers. If approved, they allow immigration authorities to disregard the grounds for inadmissibility and grant immigration benefits essentially.
There are two main types of inadmissibility waivers:
- Immigrant waivers – For foreign nationals seeking green cards through family or employment. These are permanent waivers.
- Nonimmigrant waivers – For foreign nationals seeking temporary U.S. entry through visas. These waivers are temporary, usually lasting 5 years.
While waivers allow inadmissible foreign nationals to obtain immigration benefits, they are not guaranteed. Applicants must prove they meet strict eligibility criteria.
Nonimmigrant vs. Immigrant Waivers
There are key differences between nonimmigrant and immigrant waivers. Nonimmigrant waivers provide temporary forgiveness of inadmissibility. They allow the applicant to obtain a nonimmigrant visa to enter the U.S. temporarily as a tourist, student, or temporary worker.
Immigrant waivers provide permanent forgiveness, allowing applicants to obtain green cards. Immigrant waivers are more difficult to obtain, generally requiring you to prove extreme hardship to a qualifying U.S. citizen or lawful permanent resident (LPR) relative if you are denied admission.
Common Grounds of Inadmissibility
U.S. immigration law provides several grounds that can make a foreign national inadmissible and ineligible for a green card or other immigration benefit. The most common include:
Health-Related Concerns
Immigration screening requires medical exams to identify communicable diseases like tuberculosis that could pose a public health risk. Applicants may also be denied for physical or mental disorders judged to be a threat.
Criminal History
Any conviction or admission of a crime involving moral turpitude (i.e. evil intent) raises inadmissibility concerns. Drug crimes, multiple criminal convictions, and broader security/terrorism grounds can also serve as bars.
Likelihood of Public Charge
Officials assess whether an immigrant is likely to depend on government assistance as a “public charge primarily.” Factors include health, income, assets, skills, family status, and sponsor affidavits.
Immigration Violations
Those unlawfully present in the U.S. for over 6 months face inadmissibility of 3-10 years after departing. Prior deportations or removals also raise red flags.
These are just highlights of the complex inadmissibility grounds defined under the Immigration and Nationality Act (INA). An attorney can provide a personalized assessment of your situation.
Who Qualifies for a Waiver? It Depends.
For immigration waivers of inadmissibility, whether you “qualify” depends primarily on two factors:
Your Qualifying Relative
To be eligible, you must have a close U.S. citizen or Lawful Permanent Resident (LPR) relative who would suffer extreme hardship if a waiver is denied.
The relative must be a spouse, fiancé, parent, or (for I-601A provisional waivers) child over age 21. Hardship to you, your LPR child, or others is insufficient. Documenting the significance of the family relationship is key.
Degree of Extreme Hardship
Simply showing a relative will endure normal separation consequences is inadequate. You need evidence of actual extreme hardship—circumstances that go well beyond what would typically result from family separation.
USCIS Guidance highlights health, financial, education, and personal considerations. We often provide evidence of conditions requiring a loved one’s presence, financial/logistical impacts of separation, access to educational opportunities, and safety in the home country.
The profound discretion involved means outcomes vary significantly based on the specific facts. A legal professional can advise if your circumstances clear the high extreme hardship bar.
The Waiver Application Process
So when and how do you actually apply for an inadmissibility waiver?
Timing is Key
Eligibility for provisional versus regular waivers hinges largely on whether you currently reside inside or outside the United States. Consult counsel, as the laws favor those continuing to reside abroad during immigrant visa processing.
Those with unlawful U.S. presence time typically must depart to obtain an immigrant visa, triggering inadmissibility penalties unless a provisional waiver is approved first.
Required Forms and Evidence
Most applications require Form I-601, Application for Waiver of Grounds of Inadmissibility, or (if eligible) I-601A for provisional unlawful presence waivers. Submitted with comprehensive supporting documentation, these detail inadmissibility factors, extreme hardship claims, and discretionary elements favoring a waiver approval.
Evidence routinely includes:
- Statements from relatives and applicants on family ties, hardship impacts, intent not to violate laws
- Medical records and evaluations regarding health conditions
- Financial records like tax returns, pay stubs, bills, poverty guidelines
- School/educational records for children
- Expert witness declarations (e.g. mental health professionals, country conditions)
- And other records corroborating claims
An incomplete, inadequately documented filing creates major obstacles to approval. Applicants should enlist legal assistance in properly presenting their waiver case.
USCIS Review
Filing fees, security checks, and extreme processing backlogs mean waiver decisions commonly take 1-2 years or longer. Congressional inquiries may help.
If approved, major hurdles are cleared for you to finalize your green card. Denials are issued with appeal rights, though typically waivers face long odds on appeal. Consulting counsel early provides the best hope of avoiding a denial in the first place.
Let Our Immigration Attorneys Help Determine Your Waiver Eligibility
This overview covers the basics of who qualifies for inadmissibility waivers. However, eligibility depends on your unique circumstances.
If you are inadmissible and want to enter the U.S., consult experienced Bay Area immigration attorneys at the Law Office of Lina Baroudi today.
Lina and her team have helped numerous clients obtain immigration benefits through waivers. Let them review your situation and apply for the waiver that offers you the best chance for approval. Call now or visit https://www.linalaw.com/ to get started.
