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New Jersey Extreme Hardship Lawyer: The Different Kinds of Immigration Waivers

On Behalf of | Jul 7, 2014 | Waivers |

The immigration laws can be especially strict. Under certain circumstances, an individual applying for a green card or immigrant visa may actually be barred or prohibited from permanent residence due to some problem, whether it be a criminal conviction, previous overstay, or misrepresentation in the application process. Fortunately, our system does allow for some of these problems to be forgiven or waived. Most waivers are filed on Form I-601, which is a broad based application that embraces many different types of waiver applications. Among the more waivers frequently applied are the following (understand that the waivers listed here only represent some of the more popular ones but by no means is a list of all the waivers that may be applied for):

212h waiver:

This crime waiver is normally applied for in cases where the applicant has a criminal record. It grants the Attorney General discretionary power to waive crimes involving moral turpitude, multiple criminal convictions, prostitution and commercial vice, and a single possession of marijuana 30 grams or less. There are two sections of the waiver. One provides that certain grounds may be waived where 1) the activities for which he is inadmissible occurred more than fifteen years before the date of the alien’s application for a visa, admission, or adjustment of statues; 2) the admission would not be contrary to the national welfare, safety, or security of the U.S.; and 3) the alien has been rehabilitated. The other section provides that certain grounds of inadmissibility under section 212(a)(2)(A)(i)(I)-(II), (B), (D)-(E) of the Act may be waived in the case of an alien who demonstrates that his removal from the United States would result in extreme hardship to his United States citizen or lawful resident parent, spouse, son, or daughter.

212i waiver:

This fraud waiver is used when an individual is found to be inadmissible due to fraud or willful misrepresentation of a material fact in connection with seeking a visa, other documentation, or admission into the US, or any other benefit under the Immigration and Nationality Act. The Attorney General may, in his discretion, waive the application of section 212(a)(6)(C)(i) of the Act in the case of an immigrant who is the spouse, son, or daughter of a United States citizen or of an alien lawfully admitted for permanent residence if it is established to the satisfaction of the Attorney General that the refusal of admission to the United States of the alien would result in extreme hardship to the citizen or lawful resident spouse or parent of the alien.

212(d)(3) waiver:

This is an extremely useful waiver that allows people who would otherwise be inadmissible to enter the United States on a temporary visa. In adjudicating the waiver, an immigration officer will consider: 1) the risk of harm to society if the applicant is admitted; 2) the seriousness of the applicant’s prior violation; and 3) the applicant’s reasons for wanting to enter the US. The thing to keep in mind, however, that this is a waiver for a non-immigrant visa. In other words, it cannot be used in conjunction with an immigrant visa based application.

245k waiver

This waiver is usually applied within the context of adjustment of status applications filed by employment-based applicants. While this waiver does not waive entry without inspection or other types of problems such as criminal or fraud issues, it does potentially waive status violations and unauthorized employment that does not exceed 180 days.

Unlawful Presence Waiver

This waiver is applied to waive the consequences of the three or ten year unlawful presence bar, which is triggered by a departure from the United States after a specific period (6 months or 1 year) of unlawful presence in the US. The applicant must demonstrate extreme hardship to a US Citizen or Lawful Permanent Resident Spouse or Parent.

Provisional Waiver

This waiver is similar to the unlawful presence waiver. However, the difference is that the applicant applies for the waiver in the United States on Form I-601A. It is provisional in the sense that the applicant will receive an answer here in the US before departure, whereas in most cases, the applicant has already left the US and is applying for the waiver outside the US.  Due to the limited forms of relief available, the Provisional Waiver has proven to be of great utility to many applicants.

To keep informed about the latest developments in immigration law, please subscribe to our blog. It is important to understand that the above is only general information and not legal advice. It does not create an attorney-client relationship nor should it be relied upon as legal advice. The law is extremely fact and circumstance sensitive. For an individual legal analysis of your specific legal case, please complete the “Case Evaluation” box to the right of the screen to get in touch with one of our attorneys.