Waiver of Inadmissibility

By: Ujwala Bagal and Jagan Tamirisa  

Noncitizens, who would otherwise be ineligible for admission or legal status  may be eligible to file a waiver of inadmissibility application. Inadmissibility refers to the circumstances or factors that can make an individual ineligible for entry or lawful status in the United States. These grounds of inadmissibility can include criminal convictions, health-related issues, immigration violations, fraud or misrepresentation, and other factors.

Noncitizens who are abroad can file a Form I-601 Waiver application to overcome various grounds of inadmissibility. Noncitizens who are immediate relatives of U.S. citizens and are physically present in the United States can also file Form I-601A Provisional Waiver application to seek a waiver of inadmissibility.

Common Reasons for Inadmissibility

A noncitizen who, by fraud or willfully misrepresenting a material fact, seeks to procure a visa, other documentation, or admission into the United States or other benefits provided under the Act, is inadmissible.

There is an option for a discretionary waiver for this ineligibility if denying admission would result in severe hardship to the U.S. citizen or lawful permanent resident spouse or parent of the noncitizen.

Similarly, a noncitizen who has been unlawfully present in the United States for 1 year or more, and who again seeks admission within 10 years of the date of departure or removal from the United States, is inadmissible.

This inadmissibility can be potentially waived at the discretion of the authorities if denying admission would lead to extreme hardship for a U.S. citizen or lawful permanent resident spouse or parent.

In both waiver circumstances, the assessment of whether a denial of admission would lead to extreme hardship depends on the specific details and circumstances of each case. It's important to note that some level of hardship affecting eligible family members is common in most cases; however, for it to be classified as "extreme," the hardship must surpass what is considered typical or anticipated. Factors like economic setbacks, severing family and community connections, loss of current employment, and cultural adaptation difficulties were found to be outcomes commonly associated with deportation and do not, by themselves, constitute extreme hardship. When determining the presence of extreme hardship, it's also crucial to consider individual hardships that, on their own, may not reach the extreme level, but when viewed collectively, they may contribute to extreme hardship.

If the noncitizen can demonstrate their eligibility for a waiver, they must also provide a compelling case for the USCIS to exercise its discretion in a favorable manner and grant the waiver. This assessment involves weighing the negative factors that indicate the applicant's undesirability as a lawful permanent resident, against the social and humane aspects presented to determine whether granting relief through discretionary means aligns with the best interests of the country. The negative factors encompass the nature and underlying circumstances of the specific inadmissibility grounds in question. For example, the presence of significant violations of immigration laws, the existence of a criminal record and, if applicable, its character, recency, and severity. On the other hand, the favorable considerations include factors like family ties within the United States, long-standing residence in the country, evidence of hardship faced by the foreign national and their family, service in the U.S. Armed Forces, a history of steady employment, property or business connections, contributions to the community, signs of genuine rehabilitation in the presence of a criminal record, and other evidence demonstrating good character, as detailed in the same case.

In June 2022, USCIS released policy guidance clarifying the rules regarding inadmissibility. This guidance states that the statutory 3 or 10year bar for readmission begins counting from the day of departure or removal, but a noncitizen subject to this bar is not considered inadmissible unless they attempt to re-enter within the specified period following their departure.

Furthermore, the policy guidance specifies that a noncitizen who was previously found inadmissible but seeks admission more than 3 or 10 years after their departure is no longer inadmissible, even if they returned to the U.S. during the statutory period. In this case, the applicant is no longer inadmissible due to the 10-year period having elapsed between the most recent departure and current admission request. However, a grant of waiver of inadmissibility for overstay does not automatically include other grounds of waiver too. Meaning each ground of waiver must be separately addressed in the waiver application. So, if the applicant is granted a waiver of inadmissibility for overstay, the applicant can remain inadmissible due to fraud or willful misrepresentation. Therefore, a separate waiver of inadmissibility for fraud or willful misrepresentation is still required.

One interesting aspect to note on waiver of inadmissibility for fraud is ‘timely retraction’. There is a separate standard applied for analyzing applicant's claim that they made a "timely retraction" of fraud. A timely retraction necessitates that a person voluntarily corrects the fraud or misrepresentation before it becomes exposed. The USCIS Policy Manual and Foreign Affairs Manual emphasize that a retraction must occur before exposure by the officer or government official, or before the conclusion of the proceeding during which false testimony was given.

In conclusion, obtaining a waiver of inadmissibility often involves providing thorough documentation to meet the specific requirements outlined in the applicable immigration laws and regulations. Due to the complexity of the process, it is highly recommended to consult with an experienced immigration attorney to navigate the application successfully. The trusted immigration team at Chugh, LLP understands the waiver process can be confusing and complicated, therefore we are happy to answer any questions or discuss the specifics of your case. Ultimately, a waiver of inadmissibility can be a valuable option for individuals facing inadmissibility issues, offering the possibility of overcoming such obstacles and achieving lawful entry or status in the United States.

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