Waivers

Grounds for Inadmissibility

Under Section 212(a) of the Immigration and Nationality Act (INA), various past conducts on the part of a foreign national may render him or her inadmissible to the United States – that is, the foreign national will be barred from entering the United States. Although there are a large number of potential grounds of inadmissibility under INA 212(a), the following are the most common:

Health Related Grounds: In general, any foreign national who is determined to have a communicable disease of public health significance is inadmissible to the US Such diseases include, but are not limited to TB, syphilis, and Gonorrhoea.

Criminal and Related Grounds: Criminal conviction of a crime of moral turpitude will render one inadmissible to the United States. Applicants are often distressed to discover that what they consider very minor crimes may lead to a finding of inadmissibility. For example, any crime involving theft, no matter how small the amount, is considered a crime involving moral turpitude. Multiple Criminal Convictions: Multiple criminal convictions, particularly crimes which might not result in a finding of inadmissibility if only one conviction was involved, may render one inadmissible to the US

Controlled Substance Traffickers: Convicted drug traffickers are inadmissible to the US Prostitution: Prostitution will render one inadmissible for ten years from the date of the last act of prostitution.

Fraud and Misrepresentation: Any foreign national who, by fraud or willfully misrepresenting a material fact, seeks to procure (or has sought to procure or has procured) a visa, other documentation, or admission into the United States or other benefit provided under the INA is inadmissible.

Prior Visa Violators (overstays): If a foreign national has previously been in the United States and violated his or her visa by overstaying the period of lawful admission, he or she is inadmissible for a variable period depending on the length of overstay.

Waiving Inadmissibility

If one of the foregoing or other statutory grounds of inadmissibility apply, the applicant may be eligible for a US waiver/waiver of inadmissibility. A US waiver application may only be filed after a consular officer has found an applicant inadmissible. US Waiver applications are commenced by filing of an I-601 waiver application with the USCIS.

Congress has provided for waivers of grounds of inadmissibility, but has limited the application of these waivers. In general, the waiver provisions which apply to most grounds of inadmissibility frequently encountered in an immigration practice require a determination that the continued denial of the foreign nationals admission to the United States would result in extreme hardship to a US citizen spouse or fiancé(e). Extreme hardship is not specifically defined in the regulations; however, the key term is extreme. The ordinary hardship that would naturally arise out of the separation of spouses is insufficient as a matter of law. Only in cases of great or prospective hardship to the US citizen or permanent resident family member will the bar to admission be removed.