US Immigration and Provisional Waivers
Waivers under the Immigration and Nationality Act (INA)
What is it Immigration Waiver?
Waiver is essentially a request for forgiveness of inadmissibility. When submitting a Form I-601 or I-601A, an applicant asking for a waiver “forgiveness” for his/her acts, demonstrating that denial of his/her waiver-refusal of his/her admission into the U.S. will cause extreme hardship to his/her U.S. citizen or U.S. Legal Permanent Resident spouse or parent(s).
An alien who is ineligible to be admitted to the United States as an immigrant or to adjust status in the United States, and certain nonimmigrant applicants who are inadmissible due to certain grounds such criminal conviction, fraud or misrepresentation, unlawful presence, medical reason and so on, nevertheless may be eligible for a waiver. Not all grounds of inadmissibility are eligible for a waiver. In addition, hardship is an eligibility standard for many waivers of inadmissibility under the Immigration and Naturalization Act. The degree of hardship that must be proven ranges from an instated but implicit requirement for cancellation of removal for lawful permanent residents to extreme hardship for a waiver for unlawful presence, criminal conviction, and fraud (using a Form I-601 waiver)and to exceptional and extremely unusual hardship for the cancelation of removal of a non-legal permanent residence (EOIR-42B). Specific sections of the Immigration and Naturalization Act provide statutory requirements and standard for the exercise of discretion. Each section provides a standard as to who is a qualifying relative for purpose of specific waiver.
The decision on the waiver is discretionary and thus an element of discretion provides immigration judges and other adjudicators with a tremendous power in deciding cases. Most cases involving a waiver are difficult and time sensitive and thus it is important to consult an experienced immigration attorney prior to submitting a waiver.
Our offices have an extensive experience representing client requiring submission of a waiver both in the U.S. and in U.S. embassy or a consulate abroad.
Waivers under INA for unlawful presence, immigration fraud, criminal conviction and other waivers.
Who needs a waiver?
If you unlawfully presented in the U.S. for ONE YEAR or more, and left or was removed from the country, you are not admissible for 10 years from the date of departure, however, INA under section 212(a)9 B (v) provides for a waiver of unlawful presence grounds of inadmissibility.
Also, if you have ever been convicted of a crime, committed immigration fraud, been deported, entered the US illegally or overstayed for more than 180 days you may need a waiver.
We are constantly challenging delayed adjustment and naturalization applications in the federal district court and are successful in various waivers such as I-601 waivers and applications for cancellation of removal.
Provisional Waiver, Form I-601A
Intially, the process of unlawful presence-provisional waiver began on March 4, 2013, it was limited to people who could demonstrate that their U.S. spouse or U.S. parents would suffer extreme hardship, if their unlawful presence waiver was denied. On August 29, 2016, the provisional unlawful presence waiver process was expanded to all individuals statutorily eligible for an immigrant visa and a waiver of inadmissibility only for unlawful presence in the United States. As such an applicant now would need to demonstrate that refusal of his/her admission to the United States will cause extreme hardship to his/her U.S. citizen or Legal Permanent Resident spouse or parent. New provisional unlawful presence waiver process allows applicants who are eligible for an immigrant visa (immediate relatives, family-sponsored or employment-based immigrants as well as Diversity Visa selectees) and who only need a waiver for unlawful presence to apply for that waiver in the United States before they depart for their immigrant visa interview.Under the new provisional waiver process, a foreign national must still depart the United States for the consular immigrant visa process; however, he or she may apply for a provisional waiver before he/she departs for an immigrant visa interview abroad. The new process will reduce the amount of time U.S. citizens and U.S Lawful Permanent Residents are separated from their relatives.
For a detailed evaluation of your matter, please contact us at (212)880-1538 or in case of an emergency at (347)249-1311, We will aggressively defend your interest.