A waiver for a ground of inadmissibility or removability is simply a foreign national’s way of asking USCIS or the Immigration Judge to forgive him or her for past transgressions.
For example, someone who entered the U.S. without inspection and then leaves the U.S. will require a waiver for unlawful presence. Someone who may have lied to get a visa will also need a waiver. There are waivers for many different types of issues.
Some foreign nationals who have been found inadmissible or removable by the U.S. government may file an Application for Waiver of Grounds of Inadmissibility if they can prove to the satisfaction of the U.S. Department of Homeland Security that particular U.S. citizen or lawful permanent resident relatives would suffer extreme hardship if the foreign national were not allowed to enter or remain in the United States.
The relative is usually an innocent victim who has violated no immigration law but stands to suffer greatly if his or her alien relative is denied status in the United States or is ordered removed.
All claims of extreme hardship must be supported by strong and comprehensive documentary evidence. The evidence is weighted under the totality of circumstances, meaning, USCIS should consider the totality of circumstances which could potentially result in hardship, and balance those hardships against the grounds of inadmissibility or removability. This means, unfortunately, that the sadder the situation is for the family, the stronger the case is for immigration purposes.
There is a new version of the waiver, the I-601A, which allows for a waiver for unlawful presence to be processed inside of the United States instead of overseas. The standard of hardship remains the same, but the timing and procedure is dramatically different than the traditional I-601 waiver.
The I-601A is only available for relatives of U.S. citizens (see update – rules changing in August 2016!) whose only ground of inadmissibility is unlawful presence, whose one entry to the United States was without inspection. If there is any hint of a criminal violation, the I-601A will likely be denied. However, the traditional route of filing for an I-601 waiver is still available.
Regardless of the type of waiver needed, we have years of experience in preparing detailed, compelling, and successful applications.
Although not technically a waiver, an I-212 serves an identical purpose for individuals who have been removed from the U.S. or who have left after an order of removal or deportation. In order to be readmitted to the United States, these individuals must have an I-212 approved by USCIS. Unlike the I-601 or I-601A, the standard for approval is more discretionary and humanitarian – there is no extreme hardship requirement and there is no need for a qualifying relative. Rather, USCIS will look at such things as the applicant’s overall moral character, the amount of time the applicant had been in the U.S., the reason for the removal/deportation, signs of rehabilitation or reformation, family ties in the United States, and other similar factors.