WAIVERS
GROUNDS FOR INADMISSIBLITY AND RELIEF
Waivers for Inadmissibility on
Health-Related Grounds:
Non-U.S. citizens who have communicable
diseases of significant public interest
are inadmissible, but the non-citizen may
be able to obtain a waiver for this ground
if he or she is the spouse or unmarried
child of a U.S. citizen or LPR (Legal Permanent
Resident), or if one of the non-citizen’s
children is a U.S. citizen or LPR. A non-citizen
who does not have a record of receiving
particular vaccinations (shots given by
a doctor or nurse to prevent disease) may
also be inadmissible. A waiver of this ground
is available if the non-citizen receives
the vaccine, or if it is certified by an
authorized official that the vaccine is
not medically appropriate or that the vaccination
would violate the religious or moral convictions
of the non-citizen. If the person is inadmissible
due to mental health related reasons, a
waiver may be granted by the Secretary of
Health and Human Services.
Waivers for Inadmissibility on
Criminal and Related Grounds Prior to 1996:
A provision in immigration law known as
INA section 212(c) did allow discretionary
waivers for persons who are LPRs with particular
criminal convictions. Though this section
is no longer the law, it still may apply
in certain instances. The section does not
apply to persons already removed from the
country. It only applies to non-citizens
who are currently in immigration proceedings,
those who may be placed in removal proceedings,
or those who have gone through immigration
proceedings and are under final orders of
removal.
A Supreme Court (the highest court in the
United States) decision allowed this section
of the immigration code to continue to apply
to those persons whose criminal convictions
were received through plea agreements before
April 1, 1997, if the person would have
been eligible for the waiver at the time
of their conviction. To be eligible, the
non-citizen must have lived in the United
States for at least seven years and served
less than five years in prison for their
conviction. The courts are allowed in these
cases to consider negative factors, such
as the severity of the crime, against positive
factors, such as the non-citizen’s
rehabilitation and connections with the
community. This waiver relief only applies
to a small group of people and is not available
to those convicted for a crime after April
1, 1997 or those with convictions that was
not part of a plea agreement.
Besides the narrow provision of section
212(c), the Act contains another waiver
which is available under section 212(d)(3).
According to this provision, a nonimmigrant,
that is otherwise inadmissible, may be allowed
into the country temporarily at the discretion
of the Attorney General. To determine whether
a non-citizen may receive this this waiver,
there are three factors which have to be
weighed. The first factor weighs the risk
of harm to society if the person is admitted.
The second factor examines the seriousness
of the person’s criminal law or immigration
law violation. The third and final factor
requires the court to look at the nature
of the person’s motives for wanting
to come into the United States. A waiver
for inadmissibility/removability for criminal
reasons may be sought under INA section
212(h). This waiver is allowed for crimes
of moral turpitude and a one-time violation
involving possession of 30 grams or less
of marijuana for personal use.
Multiple Convictions, Prostitution,
and Serious Crimes Committed by an Alien
who has Asserted Immunity:
A non-citizen qualifies for a waiver under
INA section 212(h)(1)(A) if the crime he
or she committed was committed more than
fifteen years before the date of the non-citizen’s
application for admission, admitting the
person would not be contrary to the national
welfare, and the non-citizen is able to
show their rehabilitation-that they have
changed and will not commit a crime again.
Another waiver is available under INA section
2121(h)(1)(B) if the non-citizen is a spouse,
parent, or child of a U.S. citizen or LPR
and if denying admission would result in
an extreme hardship to the U.S. citizen
or LPR. For certain crimes, no waiver is
available. These crimes include torture,
murder, and conspiracy to commit torture
or murder. There is an oddity in the law
which makes a waiver for an aggravated felony
available for non-LPRs, but not for LPRs.
A non-citizen wanting 212(h) relief must
demonstrate that they are statutorily eligible
and they must establish that they deserve
the waiver as a matter of discretion. The
discretionary factors used to determine
eligibility for section 212(c) relief, are
also applied in 212(h) situations.*
Continued on Next Page
Non-Immigrants
and Immigrants
Deportation
and Inadmissibility
Unlawful
Presence
Expedited
Removal and Re-Entry After Deportation
Immigration
Acts Effecting H-1B and Family Based Visas
Reference
Tool for Waivers of Inadmissibility or Removability
Grounds
for Inadmissibility and Removability
Waivers
of Inadmissibility or Removability
Other
Avenues of Relief
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