Waivers of Legal Inadmissibility to the U.S.
For a number of reasons, many foreign citizens are inadmissible to the United States. If this is the case, foreign nationals can sometimes overcome their inadmissibility in order to enter the U.S. on a temporary basis by applying for a waiver under the Immigration and Nationality Act (INA).
A non-immigrant waiver is different from an immigrant waiver in the same way that a non-immigrant visa is different from an immigrant visa. If you are abroad and a U.S. consular officer denies your petition for an immigrant visa or non-immigrant K or V visa because you are not permitted in the U.S., you can file an application for a waiver of inadmissibility.
The INA outlines certain grounds of inadmissibility, including:
- The individual has a communicable disease;
- The individual is a drug abuser;
- The individual has been convicted of specific crimes;
- The individual was previously removed or deported from the U.S.; or
- The individual has violated immigration laws or committed immigration fraud.
There are three main criteria that are assessed when determining whether a non-immigrant waiver will be granted. First, the risk of harm in admitting the applicant to the United States is considered. Second, the seriousness of the acts that gave rise to the inadmissibility of the applicant to the United States must be weighed. Finally, it is necessary to consider the importance of the applicant’s reason for seeking entry into the United States. Non-immigrant waivers are not restricted to exceptional cases. An individual can seek a non-immigrant waiver in order to visit his or her family, to obtain medical care, or merely for tourism purposes.
Non-immigrant waivers of inadmissibility are valid for a five-year term but can be issued for a lesser period at the discretion of the immigration officer. If the waiver is granted, the individual who sought it can enter the U.S. but must show the waiver during each entry.
Immigrant visas are those through which individuals seek to obtain a green card so they can live in the U.S. permanently. It is important to note that there is not an immigrant waiver available for all grounds of inadmissibility. Instead, there are separate waivers that are linked to various grounds of inadmissibility. These are permanent waivers and thus are harder to obtain than non-immigrant waivers. Immigrant waivers are typically based on extreme hardship to a U.S. citizen or permanent resident relative.
For example, an individual who is not allowed to enter the U.S. due to a prior misrepresentation would need to show that his or her spouse or parent would suffer extreme hardship if the immigration waiver were not granted. Accordingly, different grounds of inadmissibility will have different criteria that the individual needs to fulfill in order to obtain a waiver.
Applicants seeking a waiver for an immigrant visa may be eligible to file Form I-601, Application for Waiver of Ground of Inadmissibility. If the application is approved, the United States Citizenship and Immigration Services (USCIS) office will send an approval notice and notify the relevant consulate for issuance of the visa. If, however, the application is denied, the applicant will be told in writing of this decision. The decision can be appealed.
