As you try to gain U.S citizenship, one of the most challenging things you would not want to encounter is being found inadmissible. At Orange County Immigration Attorney, we tackle immigration law matters for the Orange County community. We understand that applicants like you can apply for an inadmissibility waiver based on various grounds. Explained below are all the procedures and regulations involved in the application of an inadmissible waiver.
Understanding the Legal Concept of Inadmissibility
The legal concept of inadmissibility, which was previously known as excludability, gives a set of grounds for which an individual can be excluded from the U.S. Immigration authorities in the country usually consider several grounds of inadmissibility when processing applications for foreign nationals seeking immigration benefits. The immigration benefits may include a green card (which grants a person permanent residence) and a nonimmigrant (temporary) visa.
What is Permanent Inadmissibility?
You risk facing permanent inadmissibility if you attempt to enter the U.S without authorization after you were previously deported. Once the U.S immigration officials consider you as an inadmissible individual, they will deny you the application for a nonimmigrant (temporary) visa or a green card (an immigrant visa). Section 212(a)(9)(C)(i) of the country's Immigration and Nationality Act highlights the rules for determining permanent inadmissibility. Under this law, you may be permanently barred from entering the U.S for the following reasons:
- You had been unlawfully present in the country for over one year
- The immigration authorities ordered for your deportation, and you attempted to reenter the country without legal admission
Is There a Solution to Inadmissibility?
Inadmissibility has always been a big issue for immigrants denied entry to the U.S based on criminal, security, financial, or health grounds. However, the U.S immigration laws give applicants a chance to get around inadmissibility issues when they apply for a waiver (also known as legal forgiveness). Examples of waivers include the inadmissible waiver and the provisional waiver of unlawful presence.
Since most inadmissibility grounds can be waived, you can request permission to enter the country following a permanent bar. The U.S government will expect you to wait ten years first before asking for this permission. Once these ten years are over, you must first seek consent from the U.S government to apply for a green card or visa. Filing form I-212 can help you seek consent for a green card application.
The Meaning of an Inadmissible Waiver
Under the Immigration and Nationality Act, an inadmissible waiver is a legal remedy for individuals who are inadmissible to the US. When applying for the waiver, you will be asking the U.S government to forgive your inadmissibility ground. Every U.S citizen automatically qualifies for this waiver. The same applies to every individual who firmly resettled in the country as a refugee.
All other individuals are required to request a waiver of admissibility by filing Form I-601, which is downloadable from the official USCIS website. You may file this form at the USCIS (U.S Citizenship and Immigration Services) office or the consular office depending on whether you are applying for an adjustment of status or an immigrant visa. Alternatively, you may file it in the immigration court or with the BIA (Bureau of Indian Affairs). The fee charged when filing Form I-601 currently stands at $930.
Inadmissible Waiver for Nonimmigrant Visa Applicants
The U.S immigration laws can prevent you from visiting the US if you are a foreign national with a nonimmigrant visa. The immigration authorities may base your inadmissibility based on your record of illness or criminal history, among other negative factors. While the immigration laws can bar you from being admissible to the U.S, they also offer waivers for various inadmissibility grounds. When seeking the waiver, you will be requesting the immigration officers to grant you a visa despite your negative record.
Can the “Hranka” Waiver Help Your Case?
The Hranka waiver may be effective if you are requesting a waiver on your nonimmigrant visa. You may be granted this waiver only if you intend to visit the U.S temporarily and return to your place of origin once the authorized stay period ends. Consider consulting a licensed immigration lawyer if you want to request a Hranka waiver. The waiver may require you to adhere to various prerequisites, which require legal knowledge to understand.
Provisions for granting the Hranka waiver are highlighted under Section 212(d)(3) of the INA (Immigration and Naturalization Act). One of these provisions makes it possible for the U.S immigration authorities to allow you to enter the country if you do not qualify for a nonimmigrant visa.
The Hranka waiver was established based on the “Matter of Hranka” case, which was an immigration court case. Under this case, the immigration authorities should weigh the following legal factors when granting you a Hranka waiver:
- The nature of your reason for wanting to enter the country
- Your risk of harm to others if you are admitted to the country
- The severity of your prior immigration violations or criminal record (if any)
The Hranka waiver requires you to have compelling reasons for requesting the U.S immigration authorities to grant you admissibility to the U.S. If you wish to make social visits while entering the country, the authorities may disqualify you from seeking this waiver. The Hranka waiver mandates the U.S immigration officers to exercise a higher degree of discretion when handling your case. These officers must decide whether to deny or grant you the waiver in confidentiality.
Applying for the Hranka Waiver
You can take two possible routes when applying for a Hranka waiver. You may file Form I-192 if you already have a valid visa, but you are inadmissible to the country. Form I-192 is also known as the Application for Advance Permission to Enter as Nonimmigrant form. You may request the consular officers (at a consular post) for the waiver when applying for a visa if you have not yet been granted one already.
Either way, your application should prove that you positively satisfy the three legal factors drawn from the Matter of Hranka court case. You also need to supply a written legal argument outlining the relevant law that makes your case qualifies for a Hranka waiver. Your attorney will help you with the complex legal issues associated with this kind of waiver.
You may be ineligible for a Hranka waiver if you are a nonimmigrant visa applicant who:
- has been involved in politically motivated killings
- is suspected of having the motive of committing sabotage, prohibited export of crucial information/technology, or espionage
- has previously overstayed their U.S nonimmigrant visa
- has knowingly made a false asylum application
- is suspected of intending to remain in the country as a permanent immigrant
- participated in genocide or Nazi persecutions
Inadmissible Waiver for Green Card Applicants
Apart from being inadmissible to the US for violent and criminal activities, various communicable diseases and disorders may make you inadmissible as well. The immigration officials may also deny you entry to the country if you refused vaccinations on moral or religious grounds. As a green card applicant seeking an inadmissible waiver, you are required to file Forms I-601 and I-602.
If you apply for a green card while staying in the US, the authorities will facilitate your application through a process known as the adjustment of status. You need to visit a consulate office in your country to apply for a green card from overseas. Either way, the immigration official handling your case can accept or deny your application even if you seem to be eligible for the waiver.
Applying for a Waiver of Health-based Inadmissibility
A waiver of communicable disease helps you request the immigration authorities to grant you permission to enter the U.S despite your health condition. Your application will only be reviewed if you have a qualifying family member, who can either be a U.S citizen or a family member with legal permanent residence in the country. You need to prove that your qualifying family member will endure extreme hardship if the authorities fail to allow you to stay or enter the US. Extreme hardship, in this case, may take the form of financial turmoil and pain and suffering.
The U.S immigration authorities will not consider your personal pain and suffering as a factor for proving extreme hardship. If you are a tuberculosis patient seeking the waiver, you must give the exact location in the US where you will have the disease treated. You should also have an endorsement from a state or local health official overseeing the treatment center.
You can apply for a waiver of a physical or mental disorder if you prove that you cannot cause any harmful behavior when you are granted entry to the country. The immigration officials will request you to submit a doctor's report on your mental or physical condition and the potentially harmful behavior linked to it. Your report should indicate the physician-recommended treatment and the facilities in the U.S that you can visit for treatment.
A waiver of the vaccination requirement helps you seek admissibility to the U.S if you previously refused to be vaccinated on your moral or religious grounds. Your vaccination record will be reviewed as a physician determines whether the vaccination is medically appropriate or not. You should attach evidence supporting your stand against vaccination. The pieces of evidence may include academic studies on your moral/religious convictions and letters written by your religious leaders.
Inadmissibility Grounds that Cannot be Waived for a Green Card Applicant
You may be inadmissible to the US for various security, criminal, financial, or health grounds. While requesting an inadmissible waiver may help your case, it will not apply to various situations. You may be denied entry to the US as a green card applicant if:
- You have a history of addiction or drug abuse
- You are a known practicing polygamist
- You remained outside or departed from the country to avoid being an Armed Forces member in a time of national emergency or war
- You permanently do not qualify for U.S citizenship
- You abused the terms of your student visa
- You failed to attend an immigration removal hearing in the past five years before applying for a green card
- You are likely to be a dependent of need-based government assistance
- You have committed extrajudicial killing or torture
- You were involved in politically-motivated killings
- You participated in the persecution of Nazi genocide
- You are a supporter, member, or affiliate of a terrorist organization
- You were involved in drug trafficking, human trafficking, conspiracy to commit murder, or serious religious freedom violations
- You are a tax evader, voted unlawfully, made a false claim to your U.S citizenship, or helped confiscate property belonging to U.S citizens
If you match any of these descriptions, you may be ineligible for both a green card and a waiver of inadmissibility. As much as this list seems long, there may be exceptions to the inadmissibility grounds. A skilled immigration lawyer can advise you on your likely eligibility for a green card or an inadmissible waiver.
Can the Inadmissible Waiver Work for Individuals Living Unlawfully in the U.S?
You can be charged for being unlawfully present in the U.S after you did not qualify for an adjustment of status. The risks of your unlawful presence in the country include deportation or removal. As an immigrant, you can apply for the provisional waiver of unlawful presence, which is different from an inadmissible waiver. Though you may be skeptical about admitting that you were living in the country unlawfully, this waiver can help your case.
What Does Unlawful Presence Mean?
Being unlawfully present in the U.S may mean that you entered the country illegally. Illegal ways of entering a foreign country include stowing away in a car or boat or secretly crossing the border. You may also be unlawfully present in the U.S if you visited the country legally on the Visa Waiver Program or a visa but failed to return to your home country on time.
Will the USCIS Disclose Information About Your Case to the ICE?
The USCIS will use any piece of information you submit against you in deportation or removal proceedings. Details filled on Form I-601 will not be shared with the ICE (Immigration and Customs Enforcement). While the role of the ICE is to apprehend immigration law violators, the agency will not apprehend you based on unlawful presence. However, the ICE may intervene if you have a criminal history or you pose a threat to public safety or national security.
You should involve your lawyer when reviewing your situation to check whether there are red flags in your background information. Any red flags in your information may increase your risk of being detained or facing deportation. Common reasons you may be detained include providing false information when applying for government service and being linked to terrorist activities. Your attorney should advise you on how to proceed before submitting your information to the USCIS.
What Can Prevent You from Applying for the Provisional Waiver of Unlawful Presence?
When you apply for an immigrant visa for the first time, the authorities will check to see whether you are admissible to the U.S. One of the inadmissibility grounds is being unlawfully present in the country for 180 days or more. If your case has several inadmissibility grounds including criminal convictions and illnesses, the U.S immigration authorities will deny your application. The same still applies to your case when applying for the provisional waiver of unlawful presence.
You risk facing several consequences if you ignore this rule. If you apply for the waiver, you risk losing the application fee and facing enforcement measures. The ICE may be notified about your case and have you detained in their facilities as you await deportation.
Limitations of the Provisional Waiver of Unlawful Presence
While the provisional waiver may help reduce the burden you may face before receiving a green card, it is limited to various capacities. The waiver does not provide an automatic green card approval, employment authorization, lawful status in the country, or protection from deportation. You will still have to prove extreme hardship, which is a requirement when applying for a green card. In this case, proving extreme hardship may involve showing that your qualifying relatives will suffer hardship if you do not get a green card.
With the help of your immigration attorney, take time checking your information to determine whether you meet all green card application requirements. You may be surprised when your provisional waiver application is denied after spending lots of cash and time on it. The provisional waiver may grant you temporary relief as you take measures to seek lawful status in the U.S.
Requesting a Provisional Waiver
Form I-601A, which is downloadable from the USCIS website, is the official form needed when applying for the provisional waiver of unlawful presence. Your immigration attorney can help you correctly fill the form. Form I-601A is closely related to Form I-601, which is used when applying for an inadmissible waiver to overcome barriers to a green card application.
In your application, you will be requesting the government to grant you a waiver for being unlawfully present in the country. The immigration authorities will expect you to provide your identifying information, address, and contact information in the form. You should also give your citizenship information, country of birth, and information on your previous entries to the country. Other details, such as your criminal history and details about your qualifying relative also help the authorities to process your application.
Will the Inadmissible Waiver Help if You Overstayed a U.S Visa?
One of the ways you can enter the U.S lawfully from overseas is by using a nonimmigrant visa. Your nonimmigrant visa may be in the form of an M-1 visa if you are a vocational program student, a B-2 visa if you are a tourist, or a K-1 visa if you are a fiance to an American citizen. Once you enter the country, you will be notified about your departure date in form I-94, which is accessible online.
What Happens When You Overstay a U.S Visa?
The U.S immigration law highlights several consequences for individuals who overstay their permitted U.S stay or visa. Your authorized stay period is the amount of time the authorities will allow you to stay in the country as indicated on your I-94 form. You can extend your stay depending on your visa type and terms. For instance, you may extend your visa if you are temporarily working in the U.S and your employer wishes to hire you further. You must submit the extension application to the USCIS before your authorized stay period expires.
Overstaying your U.S visa can prevent you from applying for an adjustment of status. In this case, the U.S immigration authorities will deny you the chance to file your paperwork in the country without leaving since you stayed past the expiration of your authorized stay. You will still have the chance to get a green card after meeting various requirements. One of them includes proving extreme hardship and having a qualifying relative to support your course.
How the Inadmissible Waiver Can Help When You Overstay Your U.S Visa
When facing deportation or removal proceedings, your only hope to remaining in the country is an inadmissible waiver. The U.S immigration officials may apprehend you for overstaying your visa and place you into deportation or removal proceedings. Applying for an inadmissible waiver can help you convince the authorities to let you stay in the country and acquire lawful status. Consider discussing your case with an immigration attorney to determine how this waiver may help you.
Find an Experienced Immigration Attorney Near Me
Though the U.S immigration laws tend to be tough on green card and nonimmigrant visa applicants, an immigration attorney can help you navigate through them. Orange County Immigration Attorney helps clients with cases like yours across Orange County, CA. You can enlist our help on applying for a waiver of inadmissibility from us. Call us at 714-909-0426 for a consultation on your immigration-related case.