Waivers of Inadmissibility

Form I-601 / I-601A

When an applicant for admission to the U.S. is deemed inadmissible by a U.S. immigration agent, the applicant may be eligible for a waiver of inadmissibility to overcome the inadmissibility grounds if certain criteria are met. There are many reasons an applicant may be inadmissible, such as “unlawful presence,” “fraud/misrepresentation,” “membership in a totalitarian party” (oftentimes the Communist Party), “certain criminal convictions,” and “alien smuggling.” There are more grounds of inadmissibility but for purposes of this article I will focus on these five grounds.

Not all grounds of inadmissibility are cured in the same way. The standard to overcome some grounds of inadmissibility is tougher than others. Some grounds of inadmissibility not discussed in this article are not even eligible for a waiver, no matter what (i.e., false claim to U.S. citizenship).

Ground of Inadmissibility #1
Unlawful Presence

Foreign nationals who leave the U.S. after being in the U.S. unlawfully for a period of 180 days to 364 days are deemed ineligible to re-enter the U.S. for three years starting from the date of their departure. This is commonly referred to as the “3-year bar.” The important point to note here is that the 3-year bar is triggered upon leaving the U.S.

If the period of unlawful presence is 365 days or more and the individual leaves the U.S., they trigger the “10-year bar.”

Unlawful presence is any period in which a foreign national is present in the U.S. after expiration of their period of authorized stay (e.g. after the expiration date found on the ir I-94 entry/departure card) or after entering the U.S. without being admitted or paroled (e.g. after entering the U.S. illegally without inspection).

A waiver of the three- and ten-year unlawful presence bars is available for people who are the spouses, sons, or daughters of U.S. citizens or lawful permanent residents (these are called “qualifying relatives”). The qualifying relative, for a waiver to be approved, must show to the U.S. government’s satisfaction that he or she would experience extreme hardship if the inadmissible applicant were denied admission.

There are two different unlawful presence waiver processes—one involves Form I-601 and the other, the provisional waiver, uses Form I-601A. These forms cannot necessarily be used in the same circumstances. The I-601 can be used to waive multiple grounds of inadmissibility, including unlawful presence under 212(a)(9)(B), and in multiple contexts (immigration court, adjustment of status, consular processing). The I-601A provisional waiver, on the other hand, allows applicants in the United States to apply for the waiver of unlawful presence before they leave the U.S. for an interview at a U.S. Consular post abroad. To be eligible for the I-601A, the only ground of inadmissibility the applicant may be subject to is unlawful presence. For example, a Form I-601A could be denied by a consular officer if the applicant also is deemed to be inadmissible for another ground of inadmissibility such as fraud/misrepresentation.

Ground of Inadmissibility #2
Fraud / Misrepresentation

INA 212(a)(6)(C)(i) states:

Misrepresentation. –

In general. – Any alien who, by fraud or willfully misrepresenting a material fact, seeks to procure (or has sought to procure or has procured) a visa, other documentation, or admission into the United States or other benefit provided under this Act is inadmissible.

Like the unlawful presence ground of inadmissibility, the legal standard to overcome the fraud/misrepresentation ground of inadmissibility is that of extreme hardship. The qualifying relative (same as above), must show to the U.S. government’s satisfaction that he or she would experience extreme hardship if the inadmissible applicant were denied admission.

Fraud/misrepresentation may be found by an immigration officer in many different contexts. An applicant may have lied about a material fact on his/her B-2 visitor visa application many years ago, an applicant for asylum may have fabricated a story in his/her asylum application, etc.

Ground of Inadmissibility #3
Membership in a Totalitarian Party

Unlike the grounds of inadmissibility discussed above, the standard for curing the ground of inadmissibility for membership in a totalitarian party does not excplicitly involve a showing of extreme hardship to a qualifying relative.

Rather, this ground of inadmissibility may be overcome if you are the parent, spouse, son, daughter, brother, or sister of a U.S. citizen; a spouse, son, or daughter of an alien lawfully admitted for permanent residence; or if you are the K-1 fiancé(e) of a U.S. citizen. The waiver may be granted for humanitarian purposes, to assure family unity, or when it is otherwise in the public interest, if you are not a threat to the security of the United States.

Ground of Inadmissibility #4
Certain Criminal Convictions

Ground of Inadmissibility #5
Alien Smuggling

A charge of alien smuggling can come as a surprise during a consular interview. It might come as the result as a consular officer discovering that a parent who formerly lived in the U.S. had brought her children to the U.S. illegally. Or it might come as a result of a consular officer discovering that an applicant had lied about how many biological children she has in attempt to bring a non-relative to the U.S. as a child.

This ground of inadmissibility may be overcome if you are the parent, spouse, son, daughter, brother, or sister of a U.S. citizen; a spouse, son, or daughter of an alien lawfully admitted for permanent residence; or if you are the K-1 fiancé(e) of a U.S. citizen. The waiver may be granted for humanitarian purposes, to assure family unity, or when it is otherwise in the public interest, if you are not a threat to the security of the United States.