Waiver of inadmissibility (United States)
Waiver of inadmissibility under the Immigration and Nationality Act is a legal remedy available to every person found to be "removable" from the United States. It is statutorily linked to cancellation of removal, which is another form of relief under the INA that effectively operates parallel to waiver of inadmissibility.
Every American is manifestly and automatically qualified for waiver of inadmissibility. Similarly, every person who has been firmly resettled in the United States as a refugee is statutorily entitled to waiver of inadmissibility. All other people must request this relief by filing Form I-601.
Background
The INA, which was enacted by the U.S. Congress in 1952, states that "he term 'alien' means any person not a citizen or national of the United States." The terms "inadmissible aliens" and "deportable aliens" are synonymous, which mainly refer to the INA violators among the 75 million foreign nationals who are admitted as visitors each year, the 12 million or so illegal aliens, and the INA violators among the 400,000 foreign nationals who possess the temporary protected status."Only aliens are subject to removal." A lawful permanent resident can either be an "alien" or a "national of the United States", which requires a case-by-case analysis and depends mainly on the number of continuous years he or she has spent in the United States as a green card holder.
U.S. Presidents and the U.S. Congress have expressly favored some "legal immigrants" because they were admitted to the United States as refugees, i.e., people who escaped from genocides and have absolutely no safe country of permanent residence other than the United States. Removing such protected people from the United States constitutes a grave international crime, especially if they qualify as Americans or have physically and continuously resided in the United States for at least 10 years without committing any offense that triggers removability.
Before the 1996 enactment of the Illegal Immigration Reform and Immigrant Responsibility Act, U.S. President Bill Clinton had issued an important directive in which he expressly stated the following:
Waiver of inadmissibility for people who qualify as refugees or asylum seekers
An alien may be inadmissible to the United States for a variety of reasons, which are all described under paragraphs to of 8 U.S.C. § 1182. In 1980, Congress and the Carter administration enacted the Refugee Act, which approved 50,000 international refugees to be firmly resettled in the United States each year.Congress had intentionally provided to every refugee a special waiver of inadmissibility under 8 U.S.C. §§ 1157 and 1159, even if the refugee has been convicted of an aggravated felony or a particularly serious crime. An asylum seeker may also obtain a waiver of inadmissibility pursuant to § 1159, but an asylum seeker may be disqualified if he or she has been convicted of a particularly serious crime, unless its "term of imprisonment was completed within the previous 15 years."
Section 1157 provides the following:
In this regard, paragraph expressly provides the following:
The above legal finding "is consistent with one of the most basic interpretive canons, that a statute should be construed so that effect is given to all its provisions, so that no part will be inoperative or superfluous, void or insignificant." It clearly demonstrates that Congress intentionally made available a special statutory and mandatory relief exclusively for refugees. If Congress wanted to treat refugees the same as all other aliens, it would have repealed §§ 1157 and 1159 instead of amending them in 1996 and then in 2005. Under the well known Chevron doctrine, "f the intent of Congress is clear, that is the end of the matter, for the court as well as the must give effect to the unambiguously expressed intent of Congress."
Reasons for people to become inadmissible to the United States
Health related grounds
- Communicable diseases of public health significance. This currently includes Class A Tuberculosis, Chancroid, Gonorrhea, Granuloma inguinale, Lymphogranuloma venereum, Syphilis, Leprosy or any other communicable disease as determined by the U.S. Secretary of Health and Human Services. Individuals diagnosed with these illnesses may apply for a waiver inadmissibility.
- Refusal of required vaccinations
- Physical or mental disorders and associated harmful behaviors
Criminal grounds
- Crimes involving moral turpitude
- A controlled substance violation according to the laws and regulations of any country or U.S. state
- Two or more summary convictions not including DUI's, Dangerous Driving or General Assault, or 1 Indictable conviction.
- Prostitution and commercialized vice
- A serious criminal activity for which immunity from prosecution has been received
Security and related grounds
- Spies, saboteurs or terrorists
- Voluntary members of Communist or other totalitarian parties
- Members of Nazism
- been involved in a current or past terrorist group
- contributed finances to a current or past terrorist group
- relatives whom are or have been involved in a current or past terrorist group
- provided medical assistance to a past or current terrorist group
- been child soldiers, sex slaves, or trafficked persons forced to contribute to a current or past terrorist group
- been forced to aid a past or current terrorist group
Illegal entrants and immigration violators
- Aliens who enter the United States without being admitted or paroled at a port of entry or who overstay a valid visa begin to accrue unlawful presence after the illegal entry, or the period of authorized stay expires.
- Aliens who knowingly or willfully made misrepresentations or committed fraud in order to obtain an immigration benefit or benefit under the INA, may apply for a waiver of inadmissibility on Form I-601.
- Aliens previously deported or given expedited removal must also file Form I-212, Application for Permission to Reapply for Admission.
- Aliens unlawfully present in the United States for an aggregate period of one year who have exited the United States and re-entered without inspection are not eligible to file Form I-601 to waive their unlawful presence.
Miscellaneous grounds
- practicing polygamists
- guardians accompanying helpless aliens
- International child abductors and relatives supporting abductors
- Former U.S. citizens found by the Attorney General to have renounced citizenship for the purpose of avoiding taxation
Requirements for approval of waiver of inadmissibility
Unlawful presence (3/10 year bar)
- If the applicant is inadmissible because he or she has been unlawfully present in the United States for more than 180 days or one year, they may apply for a waiver of inadmissibility.
- It is important to note that an applicant MAY NOT BE ELIGIBLE to apply for waiver of inadmissibility if he or she was unlawfully present in the United States for more than one year, left the United States, then returned without being admitted or paroled.
- The applicant must establish that his or her U.S. citizen or legal permanent resident spouse, parent, or the K visa petitioner would suffer extreme hardship if the application were denied.
- There are special instructions for TPS and VAWA self-petitioners applying for a waiver of this ground of inadmissibility.
Criminal grounds
- The applicant may apply for a waiver of inadmissibility if he or she has been found to be inadmissible for: a crime involving moral turpitude ; a controlled substance violation according to the laws and regulations of any country; two or more summary convictions, or one or more indictable convictions; prostitution; unlawful commercialized vice whether or not related to prostitution; or being an alien involved in serious criminal activity, who has asserted immunity from prosecution.
- The applicant must establish that he or she is inadmissible only because of participation in prostitution, but has been rehabilitated and his or her admission will not be contrary to the national welfare, safety or security of the United States; OR
- At least 15 years have passed since the activity or event that made the applicant inadmissible, they have been rehabilitated and that their admission to the United States will not be contrary to the national welfare, safety or security of the United States; OR
- The applicant's qualifying U.S. citizen or legal permanent resident spouse, son, daughter, parent or K visa petitioner would experience extreme hardship if the applicant were denied admission; OR
- The applicant is an approved VAWA self-petitioner.
- The U.S. Attorney General will not favorably exercise discretion for a waiver to consent to the reapplication to the United States in cases involving violent or dangerous crimes except in extraordinary circumstances or cases where the applicant clearly demonstrates that denial of the application would result in "exceptional and extremely unusual hardship."
Fraud or misrepresentation
- If the applicant is inadmissible because he or she has sought to procure an immigration benefit by fraud or misrepresenting a material fact , they may apply for a waiver of inadmissibility.
- The applicant must demonstrate that his or her qualifying U.S. citizen or legal permanent resident spouse, parent or the K visa petitioner would experience extreme hardship if the applicant were denied admission or the applicant is a VAWA self-petitioner and the applicant, their U.S. citizen or legal permanent resident parent or child would experience extreme hardship if the applicant were denied admission to the U.S.
Health related grounds of inadmissibility
- An applicant's petition may be approved if he or she is the spouse, parent, unmarried son or daughter, or the minor unmarried lawfully adopted child of a U.S. citizen or legal permanent resident, or of an alien who has been issued an immigrant visa, or the fiancé of a U.S. citizen or the fiancé's child; or if they are a VAWA self-petitioner.
- Please note that there are additional application requirements for individuals who are inadmissible due to diagnosis with Class A Tuberculosis, HIV, or a "Physical or Mental Disorder and Associated Harmful Behavior".
- A blanket waiver of required vaccinations can be given by the civil surgeon for vaccinations that are not medically appropriate at the time of examination. Applicants with religious or moral objections to all vaccinations may submit proof and apply for a waiver.
Immigrant membership in a totalitarian party
- If the applicant is inadmissible because he or she was a member of, or affiliated with, the Communist or any other totalitarian party, they may apply for a waiver of inadmissibility.
- A waiver may be granted for humanitarian purposes, to assure family unity, or when it is in the public interest if the applicant is the parent, spouse, son, daughter, brother or sister of a U.S. citizen, or a spouse, son or daughter of a lawful permanent resident, or the fiancé of a U.S. citizen. The applicant must also not be deemed a threat to the security of the United States.
Alien smuggling
- If the applicant is inadmissible because he or she has engaged in alien smuggling, they may apply for a Waiver of Ground of Inadmissibility on Form I-601 ONLY IF they have encouraged, induced, assisted, abetted or aided an individual who at the time of the action was their spouse, parent, son or daughter to enter the United States in violation of the law.
- Also, the applicant must be either: a legal permanent resident who temporarily proceeded abroad, not under an order of removal, and who is otherwise admissible to the U.S. as a returning resident; or seeking admission or adjustment of status as an immediate relative, a first, second or third preference immigrant, or as the fiancé of a U.S. citizen.
- A waiver under this section may be granted for humanitarian reasons, to assure family unity, or when it is otherwise in the public interest.
Procedures