Quite often an individual who is applying for benefits or an individual with permanent residency must file a waiver for certain violations of the immigration law. Immigration waivers are needed for periods of unlawful presence in the United States, criminal activity, fraud or willful misrepresentation, or health related issues. Waivers may be filed while the applicant is in or out of the United States.
Most waivers require that the applicant have a qualifying relative – specifically – a parent, spouse, or child who is either a citizen or permanent resident of the United States. In order for the waiver to be approved the applicant must prove extreme hardship would exist for the qualifying relative if the applicant was not permitted to remain in or enter the United States or if the qualifying relative had to live in the applicant’s country. There are additional requirements depending on the type of waiver being sought.
Situations considered for “extreme hardship”
- The age of the alien at the time of entry and at the time of the application.
- The age, number and immigration status of the alien’s children.
- The health condition of the alien, children, spouse, or parents and availability of treatment in the alien’s home country.
- The ability to obtain employment in the alien’s home country.
- The length of residency in the U.S.
- If there are other family members who will be living legally in the U.S.
- The financial impact if the family member leaves the U.S.
- The disruption of educational opportunities.
- The psychological impact of the family member’s departure.
- The current political and economic situation in the alien’s home country.
- Family ties in the alien’s home country.
- Contributions to and ties to the community in the U.S.
- Immigration history including authorized residence in the U.S.
- The availability of other means to adjust status in the U.S.
Hardship can be very significant in one category, such as a critically ill qualifying relative who needs care provided by the intending immigrant, or it can be an accumulation of hardships from the various categories. These criteria are listed at Title 8 Code of Federal Regulations §1240.58. Working with an immigration attorney can help you develop a waiver based on your strongest issues.
UNLAWFUL PRESENCE WAIVER
Applying for permanent residency is prohibited if the applicant has been in the United States without permission for at least six months and then leaves the United States. Unlawful presence in the United States for six months to less than one year can result in a bar to readmission for a period of three years. Unlawful presence for a period of at least one year can result in a bar to readmission for a period of ten years. The act of leaving the United States is what triggers the bar.
In order to become a permanent resident once the bar has been triggered, the applicant must file the waiver application. The applicant must have a qualifying relative, that is the applicant’s spouse or parent, and be able to show the qualifying relative will suffer “extreme hardship” if separated from their family member. The applicant’s children are not qualifying relatives for the unlawful presence waiver. There are several exceptions to the unlawful presence bar. See the Immigration Act at §212(a)(9)(B).
PROVISIONAL “STATESIDE” UNLAWFUL PRESENCE WAIVER
Certain immigrant visa applicants who are spouses, children, and parents of U.S. citizens applying for consular processing, who would otherwise trigger the unlawful presence bars when leaving the United States, are eligible to apply provisionally for the unlawful presence waiver before they leave the U.S. for the consular interview in the home country.
CRIMINAL ACTIVITY WAIVER
An applicant who has committed or has been convicted of a criminal offense may also be ineligible to become a permanent resident by filing a waiver application and having the waiver approved. Not all crimes need a waiver. The qualifying relative for this waiver is the applicant’s spouse, parent or child who is a citizen or permanent resident of the United States. Once again, the applicant must be able to show the qualifying relative will suffer “extreme hardship” if separated from their family member. If you have any criminal convictions, you should consult with an immigration attorney to find out if a waiver is needed in your case.
FRAUD WAIVER
An applicant who has committed fraud or willful misrepresentation of a material fact may also be ineligible to become a permanent resident without first filing a waiver application and having the waiver approved. The qualifying relative for this waiver is the applicant’s spouse or parent who is a citizen or permanent resident of the United States. Once again, the applicant must be able to show the qualifying relative will suffer “extreme hardship” if separated from their family member. As with the waiver for unlawful presence, the applicant’s children are not qualifying relatives for the fraud waiver.
HEALTH WAIVER
Health waivers are needed if the applicant has certain medical conditions that can be spread to others or that pose a danger to other individuals.
When a Waiver may not be filed
There are situations when a waiver may not be filed. You are not eligible for a waiver under the following circumstances, except for some very specific exceptions to these general rules:
- You are subject to a permanent bar due to unlawful presence in the United States for more than one year after April 1, 1997 followed by a departure from the U.S. and a return to the U.S. without inspection
- You are subject to a permanent bar due to removal from the U.S. after April 1, 1997 and a return to the U.S. without inspection.
- After removal, you have not spent 10 years outside the U.S.
- You have falsely claimed to be a U.S. citizen.
- You have been a member of a criminal gang.
- You have a drug conviction or a guilty plea after the age of 18 unless the drug involved was simple possession of less than 30 grams of marijuana for personal use.
- You failed to appear at a removal hearing in the United States and have not been outside the U.S. for five years.
- You have a previous finding of marriage fraud in an immigration application.
- You filed for asylum in the past and the application was found to be frivolous.
A consultation with an attorney from Murphy Law Firm to discuss your situation will help you determine whether you qualify for a waiver. We will work with you to present your case, focusing on the issues that your family faces, and prepare the best presentation of facts to help you get your waiver approved.
