Ms. J had completed her final class before her Diversity visa interview, but had not received her high school diploma in time for the interview. The consular officer refused her for not having the equivalent of a high school education at the time of her interview. We pointed out that she had completed her high school education — that it was the education that satisfied the Lottery requirement, not the issuance of the diploma — and therefore satisfied the Lottery requirement at the time of her interview. Upon reconsideration, the consulate re-opened her case and issued to her an immigrant visa.
Reasons for Inadmissibility
There are a variety of reasons why a person might be deemed inadmissible to enter the US. The most common grounds for inadmissibility are:
- A prior history of criminal activities;
- The commission of fraud or material misrepresentation in obtaining a US visa;
- Prior periods of unlawful presence in the US longer than 6 months, subjecting applicants to a mandatory 3 to 10 year bar from entering the US;
- Alien smuggling; and
- Expedited removal.
Under certain circumstances it is possible for those applying for immigrant visas to obtain a waiver of inadmissibility. However, each case is unique and often requires a detailed analysis in order to determine the factual basis of inadmissibility, whether the consular decision is correct, the availability of a waiver, and the likelihood of a successful waiver application.
Who Can Apply?
The availability of an immigrant waiver to applicants for immigrant or K visas depends on the category of inadmissibility. The following table details the availability of an immigrant waiver and the standard that applies:
|Provision of Immigration and Nationality Act||Description of Inadmissibility||Availability of Waiver|
|212(a)(2)(A)(i)(I)||Admission or conviction of crime of moral turpitude and petty offense exception not applicable||
1) Admission to US would not be contrary to US national interests, safety and security, applicant has been rehabilitated; and more than 15 years has elapsed since the incident in question;
No waiver available for murder, torture, or conspiracy to commit murder or torture.
|212(a)(6)(C)(i)||Willful, Material Representation or Fraud||
Spouse or child of US citizen or LPR if refusal of waiver would result in extreme hardship to USC or LPR petitioner; VAWA
This waiver is not available to parents of USCs or LPRs.
Spouse or child of US citizen or LPR if refusal of waiver would result in extreme hardship to USC or LPR spouse or parent
Can apply for permission to reapply for admission to the United States.
Proving Extreme Hardship
In order to prove "extreme" hardship, an applicant must demonstrate hardship to a qualifying relative (US citizen, or legal permanent resident, spouse or parent) that is unusual and exceeds the suffering that would normally be expected as a result of inadmissibility. The USCIS considers economic detriment; the uprooting of family and separation from friends; and emotional suffering caused by severing of family and community ties to be common results of inadmissibility. This is not enough. Extreme hardship can be severe medical or psychological problems; tremendous financial hardship; family socialization issues; and conditions associated with relocating to a third country. In making this determination, USCIS will also consider the applicant’s family ties to the US; how long the applicant lived in the US and from what age; the negative impact a denial would have on the relative in the US; the applicant’s business, employment, and property ties to the US; and the applicant’s contributions to US society while was located there. Extreme hardship is a difficult standard to satisfy. Therefore, it is imperative that the hardship waiver be well- documented and carefully prepared.
What is the Process?
After a consular officer makes a finding of inadmissibility and the applicant does not seek to challenge that finding, the applicant will file an
How Does W&A Help?
Because of the complexity and the high stakes of these waivers, it is advisable to retain qualified legal counsel. White & Associates is experienced in dealing with Inadmissibility Waivers. For some of our successful waiver experience, please see the Case Studies section of this website.
Sometimes an instance may be resolved relatively easily, such as when an erroneous finding of inadmissibility has been made by a consular officer; for example, the reviewing officer mistakenly believed that a person was unlawfully in the United States or inaccurately counted the time of unlawful presence. It is possible to present additional evidence to the officer, his superior, and/or the Department of State in Washington, and the officer can then nullify his original decision.
If it is not possible to have a finding rescinded, then comprehensive legal support is needed to prepare the waiver application. We are able to formulate a strategy, clarify and