Waivers

Immigration waiversImmigration waivers are available for various grounds of inadmissibility and ineligibility for nonimmigrant and immigrant visas. Immigration waivers are available for immigration fraud or misrepresentation of a material fact to obtain immigration benefits (212(i)), inadmissibility for criminal and related grounds (212(h)), and certain health-related grounds (212(g)). Section 212(d) provides immigration waivers for numerous grounds of inadmissibility and ineligibility, including document fraud. There are limited immigration waivers of inadmissibility for inadmissibility stemming from the accrual of unlawful presence (212(a)). Regulations also permit certain aliens who are subject to the one of the unlawful presence grounds of inadmissibility to seek an immigration provisional unlawful presence waiver before departing the United States in order to apply for an immigrant visa. Limited immigration waivers for missing documentation are available (212(k)). There are special immigration waiver provisions for asylees and refugees (209(c)).

Immigration waivers allow an alien to seek to have a ground of inadmissibility waived in order to be admitted to the United States. Immigration waivers may also be sought by an alien applying for adjustment of status. Additionally, an alien placed in removal proceedings may apply for an immigration waiver in the context of seeking cancelation of removal and adjustment of status. Certain immigration waivers of inadmissibility require that the alien demonstrate that his or her being denied admission would result in extreme hardship to a specific immediate relative or, in limited cases, to the alien applicant.

Most immigration waiver applications are filed on the Form I-601. There is a waiver fee associated with the Form I-601. However, aliens who are exempt from the public charge grounds of inadmissibility may request an immigration fee waiver by filing a Form I-912. In general, the immigration fee waiver for the Form I-601 is available for those seeking U or T visas or for those applying for permanent residency as VAWA self-petitioners.

If an alien is charged with inadmissibility, or believes that he or she may be inadmissible, he or she should consult with an experienced immigration attorney immediately for counsel regarding potential eligibility for relief and guidance through the immigration waiver application process. At the Law Offices of Grinberg & Segal, PLLC, we are experienced and skilled in handling all types of immigration waiver applications and always pursue every appropriate avenue for immigration relief for our clients.

Extreme Hardship

If an alien is inadmissible to the United States, he or she will be ineligible to receive an immigrant visa from abroad or for adjustment of status to being a lawful permanent resident (LPR) from within the United States. Generally, persons who are within in the United States and have un-waived grounds of inadmissibility will be subject to removal. However, provided that the subject alien has a qualifying U.S. citizen (USC) or LPR immediate family member, the alien may be able to apply for an extreme hardship waiver, depending on the specific inadmissibility ground(s) and the immigration benefit being sought, on the ground that his or her removal would cause “extreme hardship” to the qualifying relative.

Matter of Cervantes and its Effect on Evaluating Extreme Hardship

Decided in 1999, the Board of Immigration Appeal’s decision in Matter of Cervantes, 22 I&N Dec. 560, 566 (BIA 1999) remains the leading judicial precedent on extreme hardship waivers in the Immigration and Nationality Act. Matter of Cervantes is an extremely valuable case for understanding the concept and application of extreme hardship both because it has been cited often and its reasoning has been applied to many extreme hardship waiver requests since it was decided, and because the concept of extreme hardship is not particularly well defined by statute. This article will explain the Cervantes case and decision, discuss the rules it set forth for evaluating extreme hardship waiver applications, and finally look at the lasting effects of Matter of Cervantes.

Waivers for Fraud or Willful Misrepresentation of a Material Fact to Obtain an Immigration Benefit

If an alien is caught using fraud or willful misrepresentation of a material fact to procure an immigration benefit, he or she will be deemed inadmissible to the United States. This ground of inadmissibility is particularly severe because it attaches to an alien for life. In very limited circumstances, there are waivers available for inadmissibility stemming from fraud or willful misrepresentation of a material fact. This article will explain the reasons why these waivers exist, the scenarios in which an alien inadmissible for fraud or misrepresentation may be able to obtain a waiver, and general guidance on the waiver adjudication process.

Provisional Unlawful Presence Waivers (Rules Taking Effect August 29, 2016)

On July 29, 2016, the Department of Homeland Security (DHS) published a final rule in the Federal Register expanding provisional unlawful presence waivers. The new final rule will take effect on August 29, 2016. Certain alien beneficiaries of approved immigrant visa or family-sponsored preference petitions who are subject to the 3- or 10-year unlawful presence bars of inadmissibility are eligible for waivers. The new rules will allow any person who may be eligible for an unlawful presence waiver to apply for a provisional unlawful presence waiver. In this article, we will discuss the new rules, the DHS’s important comments in the Federal Register notice, and the differences between the new rules and the previous rules for provisional unlawful presence waivers.

Forms for Which a Fee Waiver May be Available

Many United States Citizenship and Immigration Services (USCIS) forms must be accompanied by a required “filing fee,” when filed. If an applicant is required to pay the filing fee, the form will not be accepted without the fee. However, certain applicants may be eligible for what is called a “fee waiver.” Whether an applicant is eligible for a fee waiver will depend on the type of form being filed and whether the applicant can establish that he or she satisfies the terms of the regulations. In this article, we will go over the USCIS forms for which an applicant may seek and be granted a fee waiver, and special rules regarding fee waivers for those forms.

Establishing Eligibility for a Fee Waiver with the USCIS

The majority of filings with the United States Citizenship and Immigration Services (USCIS) require a filing fee in order for the application/form to be filed and processed. However, an applicant may qualify for an immigration fee waiver for many of these forms by filing the Form I-912, Request for Fee Waiver. In this article, we will discuss the evidentiary requirements for establishing eligibility for a fee waiver with the Form I-912 and the filing process.

Fee Waivers for Filings in Immigration Court or Before the BIA

Fees are required for filing certain forms or motions during immigration proceedings in immigration court or before the Board of Immigration Appeals (BIA). We discuss the fees and the filing process on this site. In this article, we will discuss the rules for obtaining a waiver from these fees based on the inability to pay. Please note that fee waivers for fees in immigration proceedings are distinct from fee waivers for forms that are filed with the USCIS.

Matter of Tima, 26 I&N Dec. 839 (BIA 2016): Inapplicability of Fraud Waiver to CIMT Conviction for Immigration Fraud

On November 1, 2016, the Board of Immigration Appeals (BIA) issued a precedent decision in the Matter of Tima, 26 I&N Dec. 839 (BIA 2016). In the Matter of Tima, the Board held that section 237(a)(1)(H) of the Immigration and Nationality Act (INA), which provides a waiver from removal for aliens charged with deportability on the grounds of having been inadmissible at the time of admission or adjustment of status under section 212(a)(6)(C)(i) (fraud or misrepresentation of a material fact to procure immigration benefits), cannot waive an alien’s deportability under section 237(a)(2)(A)(i) for having been convicted of a crime involving moral turpitude (CIMT), even where the CIMT conviction is based on the underlying fraud.

USCIS-PM on Inadmissibility for Falsely Claiming U.S. Citizenship (4): Waivers

In this article, we will examine the very limited waivers available to an individual who was found to be inadmissible under section 212(a)(6)(C)(ii) of the Immigration and Nationality Act (INA) for having made a false claim to U.S. citizenship to achieve a purpose or obtain a benefit under the INA or any other federal or state law.

Waivers of Inadmissibility for Asylees and Refugees

In order for an asylee or refugee to adjust status, he or she must be admissible to the United States. Furthermore, a refugee must be admissible to the United States at the time of admission. The Immigration and Nationality Act (INA) contains a generous waiver of inadmissibility provision for asylee and refugee applicants for adjustment of status. In this article, we will focus on the relevant statutes, regulations, and other administrative guidance in order to explain the waiver of inadmissibility provision for asylees and refugees in section 209(c) of the INA.

Matter of M-B-C-, 27 I&N Dec. 31 (BIA 2017) -- Burden for Establishing Eligibility for Relief from Removal

On May 18, 2017, the Board of Immigration Appeals (BIA) issued a precedent decision in the Matter of M-B-C-, 27 I&N Dec. 31 (BIA 2017) The Board’s decision concerned situations where the record of an alien in removal proceedings contains information from which a reasonable factfinder could conclude that one or more grounds of mandatory denial of an application for relief apply to the alien. The Board held that, under 8 C.F.R. 1240.8(d) (2016), the alien bears the burden in such cases of proving by a preponderance of the evidence that such grounds of mandatory denial of the application for relief do not apply. In this article, we will examine the facts, procedural history, and broader ramifications of the Board’s decision in the Matter of M-B-C-.

Maric v. Sessions, 854 F.3d 520 (8th Cir. 2017) - Burden of Proof in Establishing Eligibility for Waiver of Deportability

On April 18, 2017, the United States Court of Appeals for the Eighth Circuit issued a published decision in Maric v. Sessions, 854 F.3d 520 (8th Cir. 2017). The Eighth Circuit held that when seeking a waiver of deportation under section 237(a)(1)(H) of the Immigration and Nationality Act (INA), the alien has the burden of showing by a preponderance of the evidence that he or she is not subject to a mandatory denial ground to relief from removal if the evidence in the record suggests that he or she may be subject to at least one mandatory denial ground to relief. In this article, we will examine the facts, procedural history, and analysis and decision in Maric v. Sessions.