Waivers

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.

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.

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.

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.

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.

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.

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.

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.

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-.

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.

“Marriage fraud,” that is to enter into or endeavor to enter into a marriage for the sole purpose of procuring immigration benefits, is a very serious charge in the immigration context. Depending on the facts of the case, marriage fraud can result in lifetime inadmissibility, removal, and/or a bar on the alien having certain immigrant visa petitions approved in the future. Furthermore, marriage fraud can even result in criminal consequences in addition to civil immigration consequences. In certain cases, an alien may be able to seek relief from the consequences of marriage fraud or a waiver of inadmissibility or deportability. However, due to the gravity of marriage fraud, a finding of marriage fraud will often be fatal to an alien’s U.S. immigration prospects. The question will always come down to a case-specific and fact-specific inquiry. In this article, we will examine different civil immigration consequences of marriage fraud and when relief may be available. This article will not focus on criminal penalties for marriage fraud except as they may cause problems in seeking relief.

With limited exceptions, an alien must present an unexpired visa and, if applicable, an unexpired passport valid for a certain period of time in order to be admitted into the United States. This applies to those seeking visas or travel documentation through consular processing abroad. On September 5, 2017, both the Department of Homeland Security (DHS) and Department of State (DOS) published final rules in the Federal Register (FR) regarding waivers of the passport and visa requirement in situations in which the alien would otherwise need an unexpired visa and unexpired passport in order to travel to and be admitted into the United States. The amended rules reinstate a 1996 amendment to the implementing regulations that was invalidated by the United States Court of Appeals for the Second Circuit on procedural grounds. The new amended regulations apply to the waiver of the passport and visa requirements in the event of an “unforeseen emergency.” In this article, we will examine the amended rules and the general provisions for a section 212(d)(4) waiver of the passport and visa requirements for admission in section 212(a)(7)(B)(i) of the Immigration and Nationality Act (INA).

On October 13, 2017, the Board of Immigration Appeals (BIA) issued a published for-precedent decision in the Matter of Vella, 27 I&N Dec. 138 (BIA 2017). The Board considered the meaning of the phrase “has previously been admitted to the United States as an alien lawfully admitted for permanent residence” in the context of the waiver provision found in section 212(h) of the Immigration and Nationality Act (INA). The Board held that the phrase encompasses any individual who was inspected, admitted, and who had then physically entered the United States at any time in the past. This means the phrase encompasses individuals who were admitted into the United States as lawful permanent residents even if that admission was not the alien’s most recent acquisition of lawful permanent resident status. In this article, we will examine the facts of the case, the Board’s decision, and what the new precedent will mean going forward.

The U nonimmigrant visa category is for alien victims of certain crimes who assist the Government in the investigation or prosecution of the criminal activity. In order to be eligible for U nonimmigrant status, the alien must be admissible to the United States. There is a special waiver provision for inadmissible U visa petitioners found in section 212(d)(14) of the Immigration and Nationality Act (INA). This waiver, which may be granted at the discretion of the Department of Homeland Security’s (DHS’s) United States Citizenship and Immigration Services (USCIS), applies to any ground of inadmissibility except for Nazi crimes, genocide, torture, or extrajudicial killings as found in section 212(a)(3)(E) of the INA. Additionally, the USCIS may also use the generally applicable waiver provision in section 212(d)(3) of the INA to grant a discretionary waiver of most grounds of inadmissibility for a U visa petitioner. In this article, we will examine the U nonimmigrant waiver provision and related issues through the relevant statute, regulations, agency guidance.

On April 6, 1978, the Board of Immigration Appeals (BIA) issued a published for-precedent decision in the Matter of Hranka, 16 I&N Dec. 491 (BIA 1978). Despite its age, the decision remains good law today. Matter of Hranka set forth the three factors that must be weighed together by adjudicators in considering requests for waivers under section 212(d)(3) of the Immigration and Nationality Act (INA). Section 212(d)(3) allows for the temporary admission of certain aliens who are otherwise inadmissible to the United States, provided that they have requisite documentation or a waiver of the documentation requirement. In this article, we will examine the three factors set forth in Matter of Hranka, subsequent citations to the decision, and what the standing precedent means today.

Under section 212(a)(1)(A)(ii) of the Immigration and Nationality Act (INA), an alien must have received certain vaccinations in order to be admissible as an immigrant. This applies both when the alien is seeking an immigrant visa through consular processing and when the alien is seeking lawful permanent resident (LPR) status through adjustment of immigration status. We examined the vaccine requirement in general in a separate article. In this article, we will examine the U.S. Department of State (DOS) Foreign Affairs Manual (FAM) and the United States Citizenship and Immigration Services (USCIS) Policy Manual (USCIS-PM) to understand the limited waivers to the vaccine requirements that are available for immigrant visa and adjustment applicants.

Several generally applicable inadmissibility grounds and adjustment of status bars do not apply to adjustment applications based on an approved SIJ petition. For certain inadmissibility grounds that do apply, the Immigration and Nationality Act (INA) contains a special SIJ adjustment waiver provision at section 245(h)(2)(B). The SIJ adjustment waiver exists solely for SIJ-based adjustment of status applications. We discuss inadmissibility and waivers in the context of SIJ-based adjustment applications in our fill article on SIJ adjustment.

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.