Am I eligible for a waiver of inadmissibility to immigrate to the United States?

When applying for residency in the United States either within the US or outside of the US, your admissibility status is critical. A person may be ruled inadmissible for many reasons, such as residing in the United States past the expiration of your authorized stay, entering the US undocumented, or being convicted of a crime. Being ruled inadmissible means you’re currently not eligible to obtain your residency, but waivers are available to circumvent this issue if you fulfill certain requirements.

What is a waiver of inadmissibility?

A waiver of inadmissibility is a waiver that allows you to obtain your residency despite your current inadmissible status. In most cases, this consists of applying for the waiver and demonstrating your eligibility for the waiver.

Who qualifies for a waiver of inadmissibility?

There are several different types of waivers, and it’s important to apply for the right waiver depending on why you were deemed inadmissible. Each waiver has its own requirements for approval.

I-601: This waiver is available to those who have a spouse, fiance, or parent who is a citizen or lawful permanent resident and would experience extreme hardship if you were denied admission to the United States. Unfortunately, if you have a child who is a citizen or permanent lawful resident they are not considered a qualifying relative for this waiver.

I-601(A): Similar to the I-601 waiver, it allows you to apply from within the United States before leaving the country. For most, this is much easier and safer than leaving the country and applying through a consular interview. However, this waiver is only available to those who were deemed inadmissible due to unlawful presence.

INA 237 A1H: This waiver is used for those who were ruled inadmissible due to fraud or misrepresentation. Similar to the I-601 waiver, you still need to demonstrate that a qualifying relative would experience extreme hardship if you are unable to immigrate. If you were found to have made a false claim to US citizenship, you are not eligible for this waiver. 

212(H): The 212(H) waiver is used in cases where inadmissibility comes from a criminal conviction. Certain crimes can be waived to allow immigration, such as possession of a small amount of marijuana. You’re eligible for this waiver if more than 15 years have passed since the crime, or if you have a spouse, fiance, child, or parent who is a US citizen or lawful resident. As with the rest of the waivers we’ve discussed, you must still demonstrate that the qualifying relative would experience extreme hardship if you were to be denied entry.

What are the challenges to receiving a waiver of admissibility?

The biggest challenge to getting a waiver is proving that 1) your qualifying relative would face extreme hardship if you were denied and 2) you merit a favorable exercise of discretion. 

Qualifications for extreme hardship include your US relative being financially dependent on your immigration or requiring a caretaker for medical assistance. You can prove hardship by providing evidence, such as proof of debts or a letter from a medical professional stating that your relative requires your medical assistance.

A finding of extreme hardship permits but never forces, an immigration officer or an Immigration Judge, a favorable exercise of discretion. If the officer or Immigration Judge finds the requisite extreme hardship, the officer or Immigration Judge must then determine whether they should grant the waiver as a matter of discretion based on an evaluation of the positive and negative factors relevant to the exercise of discretion. The family relationships to U.S. citizens or lawful permanent residents and a finding of extreme hardship to one or more of those family members are significant positive factors they will consider.

How can I tell if I’m eligible for a waiver of admissibility?

There are several different types of waivers and each has its own eligibility requirements. Rotella & Hernandez has years of experience in immigration law, and we can be your partner through the process of applying for a waiver. Call us at (305) 596-3618 to schedule your consultation and see if you qualify today.

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