WHAT IS A WAIVER PETITION?
Under the immigration laws of the United States, certain criminal convictions, past political associations, and immigration fraud can bar you from future immigration relief. While at first glance it would appear that you are completely barred from obtaining status, there are a variety of waiver petitions you can file that will forgive that bar and allow you to obtain status. Waivers are not automatic, you must prepare a petition along with supporting evidence to sustain the proof required to obtain a waiver.
The most common types of waiver petitions are for entering without inspection and for criminal convictions. There are also waivers available for immigration fraud, the J-1 home residency requirement, and political affiliations such as membership in the communist party. Waivers can be pursued with USCIS, while abroad during consular processing, or in immigration court in the course of removal proceedings. If you believe you are subject to a bar, the information here is a start to informing yourself about what waivers could be available to you.
An I-601 waiver of inadmissibility is a petition that may allow you to overcome your inadmissibility to the United States. The most common type of I-601 waiver is based on the immigrants qualifying family member, such as a US citizen or permanent resident spouse. In order to obtain the waiver, you must prove that your qualifying family member would suffer extreme hardship if you were to be denied entry or removed from the United States. In 2013, the Obama administration created the I-601A provisional unlawful presence waiver, allowing the applicant to remain in the United States while the waiver petition was processed. Extreme hardship is slippery concept, and approval depends on your evidence as well as which immigration officer happens to review your case.
The 212(h) criminal convictions waiver is available for those who are applying for permanent residence based on a family petition or a on VAWA self petition. It allows certain criminal bars to be waived, such as a single offense of possessing less than thirty grams of marijuana and multiple convictions where the total sentence was five years or less.. In order to obtain a 212(h) waiver, you must show that the crime was more than 15 years ago, or that a qualifying relative would suffer extreme hardship if it were denied. In addition, you must prove that you deserve the waiver, based on evidence of your good moral character. The availability of a criminal waiver, and which to pursue, varies greatly depending on your current immigration status and the details of the conviction.
Total I-601 Waiver Approvals 2010-2015
Countries with Communist Controlled Government
Total Approved 601(A) Waivers 2013-2015
Total Deportation Cases Initiated in 2016
While a past fraudulent act may seem like the end of the road, there is a waiver available. The fraud waiver allows you to overcome the bar created by a past fraudulent or willful misrepresentation to obtain an immigration benefit. A 212(i) fraud waiver petition requires a showing that you have a qualifying family member who would suffer extreme hardship if your waiver request were denied, and that your application should be granted as a matter of discretion, with the good factors outweighing the bad. It is therefore important to gather a sufficient amount of evidence and present it in a clear and concise way to support your claim of extreme hardship for your qualifying family member as well as to show proof of your good moral character.
Affiliation with the communist party, including in a foreign country, creates a bar to obtaining permanent resident status in the United States. This can pose a particular problem for immigrants from countries with a communist controlled government, such as Vietnam or China. For example, in order to be a professional in China, it is all but required that you are a member of the communist party. However, you can overcome this bar to obtaining a green card by showing that your affiliation terminated five or more years ago, that you were affiliated with the party involuntarily, or that your affiliation was not meaningful. It is important to begin to address these issues at the outset of your petition and plan to develop evidence in anticipation of this bar to obtaining status.