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Immigration Waivers

Understanding Your Options for Overcoming Inadmissibility

A comprehensive guide to immigration waivers under the Immigration and Nationality Act (INA), including 212(h), 212(i), I-601, and I-601A waivers.

What is an Immigration Waiver?

An immigration waiver is a form of relief that allows certain individuals who are otherwise inadmissible to the United States to overcome their inadmissibility and obtain a visa, green card, or other immigration benefit. Waivers are discretionary, meaning USCIS or the immigration judge has the authority to grant or deny them based on the specific circumstances of each case.

Grounds of Inadmissibility

Under INA § 212(a), there are numerous grounds that can make a person inadmissible to the United States. The most common include:

Criminal Grounds
INA § 212(a)(2)

Crimes involving moral turpitude (CIMT), drug offenses, multiple criminal convictions, aggravated felonies

Fraud/Misrepresentation
INA § 212(a)(6)(C)

Making false statements or presenting fraudulent documents to obtain immigration benefits

Unlawful Presence
INA § 212(a)(9)(B)

Accruing more than 180 days of unlawful presence triggers 3-year or 10-year bars

Health-Related
INA § 212(a)(1)

Communicable diseases, lack of required vaccinations, physical or mental disorders

Immigration Violations
INA § 212(a)(6) & (9)

Prior deportations, illegal entry, visa overstays, false claims to citizenship

Security Grounds
INA § 212(a)(3)

Terrorism, espionage, Nazi persecution (generally NOT waivable)

Types of Immigration Waivers

INA § 212(h) Waiver - Criminal Grounds

The 212(h) waiver forgives certain criminal grounds of inadmissibility. It is one of the most important waivers for individuals with criminal histories.

Who Can Apply:

  • Immediate relatives of U.S. citizens (spouse, parent, unmarried child under 21)
  • Applicants who can show the crime occurred more than 15 years ago
  • VAWA self-petitioners
  • Applicants for T or U visas

Cannot Waive:

  • Drug trafficking offenses (except simple possession of 30g or less of marijuana)
  • Murder or torture
  • Attempt or conspiracy to commit murder or torture

Important: Under the Lanier v. U.S. Attorney General decision, LPRs who adjusted status in the U.S. (rather than being admitted at a port of entry) may still be eligible for a 212(h) waiver even after an aggravated felony conviction.

INA § 212(i) Waiver - Fraud/Misrepresentation

The 212(i) waiver forgives fraud or willful misrepresentation of material facts made to obtain an immigration benefit.

Who Can Apply:

  • Applicants for immigrant visas
  • Applicants for adjustment of status
  • K visa applicants
  • V visa applicants

Requirements:

  • Must have a qualifying relative (U.S. citizen or LPR spouse or parent)
  • Must demonstrate extreme hardship to the qualifying relative
  • Must merit a favorable exercise of discretion
Form I-601 - Application for Waiver of Grounds of Inadmissibility

Form I-601 is the general application used to request a waiver of various grounds of inadmissibility. It can be filed with USCIS or at a U.S. consulate abroad.

Grounds That Can Be Waived with I-601:

Criminal grounds (under 212(h))
Fraud/misrepresentation (under 212(i))
Unlawful presence bars (3-year and 10-year)
Health-related grounds
Prior removal orders (in some cases)
Smuggling (if smuggling certain family members)
Form I-601A - Provisional Unlawful Presence Waiver

The I-601A is a special waiver that allows certain individuals to apply for a provisional waiver of the unlawful presence bars BEFORE leaving the U.S. for their immigrant visa interview.

Key Advantage:

By obtaining approval before departing, applicants can minimize the time spent outside the U.S. and reduce the risk of being stuck abroad if the waiver is denied.

Eligibility Requirements:

  • Must be 17 years of age or older
  • Must be physically present in the U.S.
  • Must have an approved immigrant visa petition (I-130 or I-140)
  • Must have a case pending with the National Visa Center or scheduled interview
  • Must have a U.S. citizen spouse or parent who would suffer extreme hardship
  • Must be inadmissible ONLY for unlawful presence (no other grounds)
  • Must not be in removal proceedings

Note: The I-601A can ONLY waive unlawful presence. If you have other grounds of inadmissibility (criminal, fraud, etc.), you must file a separate I-601 waiver.

I-601 vs. I-601A: Key Differences

FeatureI-601I-601A
Grounds CoveredMultiple grounds of inadmissibilityONLY unlawful presence
When to FileAfter leaving U.S. (at consulate) or with USCISBEFORE leaving U.S.
Qualifying RelativeUSC or LPR spouse, parent, son, or daughter (varies by ground)USC spouse or parent ONLY
Processing LocationUSCIS or U.S. ConsulateUSCIS only
Risk LevelHigher - must leave U.S. before knowing outcomeLower - know outcome before departing

Understanding Extreme Hardship

Most waivers require demonstrating that a qualifying relative would suffer "extreme hardship" if the waiver is not granted. This is a legal standard that requires more than the normal hardship of family separation.

Factors Considered:

Family Ties

Ties to family in U.S., responsibility for children or elderly relatives, length of residence

Health Conditions

Physical or mental health conditions of qualifying relative, availability of treatment abroad

Financial Impact

Loss of employment, income, ability to maintain standard of living

Country Conditions

Political instability, crime, economic conditions, civil unrest in home country

Social/Cultural

Language barriers, community ties, assimilation into U.S. culture

Educational Impact

Disruption to children's education, availability of schools abroad

Common consequences like family separation or economic detriment alone do NOT constitute extreme hardship. You must show hardship beyond what is normally expected.

Qualifying Relatives by Waiver Type

Waiver TypeQualifying Relatives
212(h) - CriminalU.S. citizen or LPR spouse, parent, son, or daughter
212(i) - FraudU.S. citizen or LPR spouse or parent (NO children)
I-601A - Unlawful PresenceU.S. citizen spouse or parent ONLY (NO LPR relatives, NO children)

Grounds That CANNOT Be Waived

Certain grounds of inadmissibility have no waiver available under any circumstances:

Drug Trafficking

INA § 212(a)(2)(C)

Espionage and Sabotage

INA § 212(a)(3)(A)

Terrorist Activities

INA § 212(a)(3)(B)

Adverse Foreign Policy Impact

INA § 212(a)(3)(C)

Nazi Persecution or Genocide

INA § 212(a)(3)(E)

Murder or Torture

INA § 212(a)(2)

The Waiver Application Process

1

Determine Inadmissibility

Identify which ground(s) of inadmissibility apply to your case

2

Identify Waiver Type

Determine which waiver form is appropriate for your situation

3

Identify Qualifying Relative

Confirm you have a qualifying relative who meets the requirements

4

Gather Evidence

Collect documentation of extreme hardship, rehabilitation, and positive factors

5

Prepare Application

Complete the appropriate form with supporting documentation

6

File and Wait

Submit the application and wait for USCIS decision (processing times vary)

Tips for a Strong Waiver Application

Document EVERYTHING - medical records, financial statements, country condition reports

Get expert declarations from doctors, psychologists, or country condition experts

Show rehabilitation if applying for criminal waiver - employment, community service, therapy

Address both scenarios: hardship if relative stays in U.S. AND hardship if relative relocates

Be honest - any additional fraud or misrepresentation will hurt your case

Work with an experienced immigration attorney who has handled waiver cases

Need Help with an Immigration Waiver?

Waiver applications are complex and require careful preparation. Our experienced immigration attorneys can evaluate your case, identify the appropriate waiver, and help you build the strongest possible application.

Legal Disclaimer

This information is provided for educational purposes only and does not constitute legal advice. Immigration law is complex and fact-specific. The availability of a waiver and the likelihood of approval depend on your individual circumstances. Please consult with a qualified immigration attorney to evaluate your specific situation.