Waivers

I-212 or I-601 Waiver:

Immigrant waivers

In certain circumstances an individual may be deemed inadmissible to enter the US either as an immigrant. Various grounds for inadmissibility exist, the 3 most common grounds for inadmissibility are:

• A Prior Criminal History
• The commission of fraud in obtaining an immigration benefit; and
• Unlawful Presence

If you think there might be a possibility of you being deemed “inadmissible” on any of the above grounds, you should seek legal advice because in certain circumstances you may be eligible for a WAIVER of some of the grounds, also known as Extreme Hardship Waiver. Waivers are mainly available in the case of immediate relatives of citizens or lawful residents.

Nonimmigrant waivers

Applicants for nonimmigrant visas, such as B1/B2, H-1B, L-1, or J-1 can apply for waivers of inadmissibility, and on that ground can be granted visas or admission to the U.S. A nonimmigrant waiver is applied for at a U.S. consulate in conjunction with a nonimmigrant visa application and no specific form is required. The standard of proof for a nonimmigrant waiver is often easier to meet than for an immigrant waiver. The following factors are considered in granting a nonimmigrant waiver:

• Risk of harm to society if the applicant is admitted.
• The seriousness of the applicant’s prior immigration law, or criminal law, violations, if any.
• The nature of the applicant’s reasons for wishing to enter the United States.

While a nonimmigrant waiver is easier to obtain, the drawback is that it is temporary. It is valid for a maximum five year period but only authorizes nonimmigrant admissions. It does not authorize an alien to apply for permanent residence. Only the immigrant waiver can accomplish that.

I-601A Waiver

On January 3, 2013, the Department of Homeland Security published a regulation allowing immediate family members of U.S. citizens who entered the U.S. without inspection, or are otherwise ineligible to adjust their status in the U.S. due to unlawful presence, to apply for “form I-601A provisional waivers” in the United States. Once their waivers are approved by the USCIS, they will be eligible to attend their appointments for immigrant visas (green cards) in their countries of origin.

The aim of this new program, which became effective on March 4, 2013, is to avoid having spouses and sons and daughters of U.S. citizens be separated from their families for months or even years while their waivers are pending.

Now, these family members will obtain their waivers before departing the U.S., will be interviewed abroad, and will then return to their families in the U.S. within just a few days or weeks.

J1 Waiver

Certain exchange visitors (J-1) are subject to a two-year home-country physical presence requirement which requires them to return to their home country for at least two years at the end of their exchange visitor program. This is also known as the foreign residence requirement under U.S. law, Immigration and Nationality Act, section 212(e). If they are unable to return to their home country to fulfill the two-year requirement, they must obtain a waiver approved by the Department of Homeland Security prior to changing status in the U.S. or being issued a visa in certain categories for travel to the U.S.

USCIS may grant a waiver application under any one of the five applicable bases set forth in U.S. immigration law.

Five Bases for Recommendation of a Waiver:

• No Objection Statement
• Request by an Interested U.S. Federal Government Agency
• Persecution
• Exceptional Hardship to a U.S. citizen (or lawful permanent resident) spouse or child of an exchange visitor
• Request by a designated State Public Health Department or its equivalent (Conrad State 30 Program)