M is a citizen of a Visa Waiver Program country. She entered the US as a tourist to see her US boyfriend. Upon questioning at the US airport, she said that she only planned to stay a week to do some sightseeing. Before the allotted 90 days expired, she departed the United States. Two weeks later, she tried to return to the US, but upon her arrival, she was detained, interrogated, and returned back home. She was afraid that she would be permanently barred from the US for making a willful, material misrepresentation, so she retained our firm. We prepared a memorandum, acknowledging her initial willful misrepresentation, but evidencing how the misrepresentation was not material. The consular officer agreed, not finding her inadmissible under Section 212(a)(6)(C)(i).
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;
- Public charge; 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 self-petitioner if extreme hardship to applicant or USC/LPR relative.
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
Family-based immigration waiver available if the smuggling action took place while the applicant was the spouse, child, or parent of the individual who was being smuggled. Not available to siblings of USC.
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 against an applicant for an immigrant visa, the applicant has three options: 1) seek an explanation of the factual basis for the finding of inadmissibility if it is unclear; 2) challenge that finding with a Request for Reconsideration and/or 3) file an I-601 Application for Waiver of Grounds of Inadmissibility. While there are no time restrictions on seeking an explanation or filing a Request for Reconsideration, it is advisable to do so as promptly as possible to the consular officer (or to the State Department directly, when warranted). Although rare, sometimes the mere request for an explanation may prompt consular management to review and overturn the initial decision. If the Request for Reconsideration is declined and the applicant believes that the decision is incorrect, a request to rescind the finding can be incorporated into the waiver application to USCIS. In any event, if the waiver application requires the submission of evidence reflecting extreme hardship, the applicant should submit that evidence, regardless of the perceived inaccuracy of the consular decision. If the immigrant application is denied, an appeal may be submitted to the USCIS Administrative Appeals Office.
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 very 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, if 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. A consular officer may reflexively defer to an egregiously wrong decision from many years ago, but upon presentation of new evidence, rescind that decision. For example, a consul found an immigrant visa applicant inadmissible under Section 212(a)(2)(B) of the INA because he had multiple convictions, relying on a previous consular decision. But upon presentation of evidence that the term of imprisonment did not total 5 years or more — the second prerequisite for making such a finding — he overturned that 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 re-construct events, and represent your interests. Preparation of affidavits, legal memoranda, scientific/forensic/medical testimony and opinions, and voluminous supporting evidence are often an integral part of the representation process. Please feel free to contact us so that we may be able to assess your case. Even if you have been found inadmissible under a section of law not included in the above table, please contact us to discuss the availability of a waiver.