Inadmissibility And Waivers

There are various grounds of "inadmissibility" for foreign nationals. Grounds of inadmissibility are reasons that immigration officials may seek to deny entry or immigration benefits to a foreign national. However, just because you fall under one of these categories of inadmissibility does not automatically mean that you will be denied entry or benefits. For certain grounds of inadmissibility, you may request a "waiver," in effect a pardon, which would allow you to secure entry or benefits nonetheless.

Health: Certain communicable diseases or the lack of particular vaccinations can make a person inadmissible. Waivers are available for spouses, parents, unmarried children, or minor adopted children of U.S. citizens and legal permanent residents. Vaccines may be waived by guidelines issued by the Health and Human Services Secretary if the vaccine would be medically inappropriate or contrary to a person's religious or moral beliefs. Physical and mental disabilities may also be waived. These waivers are discretionary.

Crime: Most criminal offenses will not be waivable. If you have a criminal matter or history you should seek out the advice of an experienced attorney. The most common criminal waiver is referred to as a §212(h) waiver. Applicants who are the spouse, parent, or child of a U.S. citizen or legal permanent resident must show extreme hardship if the foreign national is not admitted. This waiver is discretionary and generally not available for violent or serious offenses. The only exception to controlled substances is a single conviction for simple possession of 30 grams or less of marijuana. Another waiver is available if 15 years has passed since the crime was committed, the person is rehabilitated, and their admission would not be contrary to national safety and welfare. Prostitution offenses must have been committed 10 years prior to admission or application.

Economic reasons: If it is determined that a person is likely to be become a public charge for lack of financial resources they may apply for a waiver. They must still submit an affidavit of support and also post a bond.

Fraud or willful misrepresentation: Can be waived for the spouse or child if they can show that denial of admission would result in an extreme hardship to the U.S. citizen or legal permanent resident. Improper travel documents may be waived if the person either did not know or could not have reasonably known of any problems with the documentation. There is no waiver for a finding of marriage fraud. Instead the spouses must prove the marriage was for legitimate purposes and not just for immigration benefits.

Returning legal permanent residents and people seeking admission or adjustment based on an immediate relative may also have fraudulent documents waived if they can demonstrate they have not previously been fined and the documents were obtained to support a child or spouse. Legal permanent residents without a civil penalty may avoid removal for document fraud if the offense was associated with helping a spouse or child acquire work.

Unlawful presence: This waiver is for people who have been in the United States without a legal immigration status for either more than 180 days or for a year or more. A waiver is available to someone who is the spouse, child or parent of a U.S. citizen or legal permanent resident if they can show that the qualifying parent or spouse will suffer extreme hardship if they are not admitted to the U.S. The waiver is also available to a battered spouse or child if they can demonstrate a connection between their unlawful presence and the extreme cruelty or battery that they suffered.

Ware|Immigration is proud to serve individuals and organizations nationwide. Our offices are located in the greater New Orleans area; Baton Rouge, Louisiana; Jackson, Mississippi; Birmingham, Alabama; Pensacola, Florida; Seattle, Washington and Centennial, Colorado. We are available by appointment. To discuss your options, call 866-833-8308 or contact us online.