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Waivers

WAIVERS OF INADMISSIBILITY

Waivers are needed in a wide variety of scenarios to overcome obstacles to obtaining legal status.  The situations which make a foreign national unable to obtain a visa, subject to removal or unable to obtain permanent residence are all found in the Immigration & Nationality Act.  The immigration laws also provide in many situations waivers to overcome these grounds of inadmissibility.

The most common grounds of inadmissibility are a result of prior immigration violations, criminal records and misrepresentations to the U.S. government.

Immigration violations

A widespread ground of inadmissibility arises from a period of unlawful presence followed by an exit from the United States. A waiver is available for foreign nationals that entered the United States illegally on one occasion.  This waiver is critical for individuals who entered the United States illegally without inspection and have approved petitions and must leave the United States to obtain permanent residence.  The departure to a US Consulate overseas may trigger a bar from returning; the good news is that a waiver is available in the United States to overcome this ground of inadmissibility.  If a foreign national is unlawfully present in the U.S. for more than 180 days but less than one year and departs the U.S. prior to the initiation of removal proceedings, a three-year bar from returning is imposed; if the individual has been present in the United States for over one year, then the individual is barred from returning for ten years.

The waiver affords those that are living in the United States but entered illegally to obtain permanent residence through the visa process at a US Consulate overseas with a brief time abroad.  This waiver has assisted countless individuals who may not have another means to obtain status to regularize.  For example someone married to a US citizen who entered illegally can use a waiver to obtain residence.

The waiver is only available to those that have US or permanent residence spouses or parents.  However, Oltarsh & Associates have combined that waiver with petitions through work or through a child to achieve residence as quickly as possible.

Crime-related impact on immigration

The Immigration & Nationality Act makes many crimes as a basis for inadmissibility, thus requiring a waiver to overcome the ineligibility.  A common ground of criminal inadmissibility result from a conviction for a “crime involving moral turpitude” which often involve  theft, fraud and other forms of dishonesty.  Mere commission of an act that is within the moral turpitude definition can be a ground of inadmissibility, even absent a conviction.   Because criminal laws in the United States are often state laws and vary from state to state, to determine whether a specific crime triggers inadmissibility requires analysis.   Indeed, not all crimes are eligible for waivers; for example many convictions for violating laws involving a controlled substance are ineligible for a waiver.  A careful analysis is very important in determining whether a waiver is available.

For crimes involving moral turpitude or an offense relating to a controlled substance, a conviction is not even required to be found inadmissible and a foreign national admitting to having committed the offense to an immigration official may be sufficient to be deemed inadmissible.

There are a number of different waivers of inadmissibility for crimes and depend on the date of the criminal act, what was the conviction, was it pursuant to a plea or a trial and the status of the applicant.  Waivers of inadmissibility include cancellation of removal, waivers pursuant to INA § 212(c) or 212(h).

Interface with law enforcement is particularly serious in the immigration arena.  It can have significant implications even if the crime appears to be relatively minor.  Interface with competent lawyers knowledgeable about the intersection of criminal and immigration law is essential.  At Oltarsh & Associates, P.C. we have the knowledge and ability to competently represent foreign nationals seeking immigration benefits with a criminal history.

Fraud and Misrepresentation

A foreign national who using fraud or a material misrepresentation of material fact seek to procure an immigration benefit are inadmissible.  Fraud involves misstatements at the US Consulate and to the Immigration Service. Fraud typically involves a false representation of a material fact with knowledge of its falsity and intent to deceive.  Willful misrepresentation must be willful but does not require the intent to deceive.  Misrepresentation and fraud is very severe and when found results in a lifetime application of inadmissibility that may only be overcome with a waiver.

Some misrepresentation is statutorily set.  For example, there is a presumption for individuals entering the United States with a non-immigrant visa for the 90 day period after their entry.  For example if  a tourist or ESTA visa, and then within 90 days of entry, acts in a manner inconsistent with the representations made to obtain the visa or enter the United States, it may be presumed that the noncompliance was a willful misrepresentation of intent in seeking a visas or at the time of entry into the United States.  

Waiver for the travel ban 

President Donald Trump signed an Executive Order banning foreign travel into the U.S. from six nations, Chad, Iran, Libya, North Korea, Syria, Venezuela (some travelers), Yemen and Somalia, and included a provision saying waivers would be granted on a case-by-case basis. These waivers, presented to either a consular officer or a Customs and Border officer must show not only qualifications for the waiver but also that denying entry would cause the foreign national undue hardship; entry would not pose a threat to the national security or public safety of the U.S., and that the entry would be in the U.S. national interest.

Waiver procedure

Waivers are filed in the U.S. in conjunction with applications for adjustment of status or for provisional waivers as well as in removal proceedings and at U.S. consulates and embassies abroad.  The location of where the waiver is submitted is set forth by statute and designates the location.  Waivers for the bar as a result of unlawful presence only can be applied for in the United States notwithstanding that the individual will process the case overseas.  While most waivers are currently filed in the United States, some waivers may be made to the US Consulate.  Waivers requesting permanent residence as a result of exceptional extremely unusual hardship to US citizen or permanent residence children, spouses or parents through the cancellation of removal process are made in Immigration Court before an immigration judge.

Hardship

Most waivers are based on hardship to a defined immediate relative and the level hardship is set forth in the immigration statute.  For example unlawful presence waivers, fraud waivers and waivers for crimes are based on the extreme hardship to a US citizen or permanent resident spouse or parent.  Fraud waivers likewise are based on extreme hardship.  Cancellation of removal is based on the exceptional extremely unusual hardship to a child, spouse or parent who is a US citizen or permanent resident.  Factors that germane include health issues requiring treatment in the U.S., family ties in the U.S. and the home country, significant financial issues, psychological and emotional issues, conditions in the country of relocation, social and community ties, and other individual circumstances that are relevant to inability to return to one’s past home.

The US government will also balance the negative history with the hardship.  In exercising its discretion, USCIS will weigh the seriousness of the immigration violation with positive factors.

In all waiver cases, the help of an experienced immigration attorney for assessing the waiver case and preparing persuasive documentary evidence is critical.  Oltarsh & Associates, P.C. will evaluate the factual scenario to determine if a waiver is required and available.  If a waiver is necessary and permitted, Oltarsh & Associates has had great experience and positive results with many waivers.  We spend the time to discuss the case in depth and the evidence we will need to support our arguments.  Out experienced attorneys and staff prepares and files the waiver package and submits it for adjudication.  Please contact us if you have any questions or feel that a waiver may be necessary.