U.S. IMMIGRATION
Waivers of Inadmissibility or Removability under the Immigration and Nationality Act: A Reference Tool

After 9-11, lawyers began to receive a greater number of calls from people who are having problems coming into the United States because of various indiscretions from their past. There is even one case where a person was deemed inadmissible because of a conviction for theft of less than $20.00 that happened over 20 years ago. This is especially troublesome for those who are in the country on valid visas but then take a trip to another country and are not able to re-enter. Even Green Card holders (resident aliens) are subject to this.

The goal of this article is to help you understand this complex area of law, and to offer a short explanation of the different grounds for inadmissibility and removability from the United States under the Immigration and Naturalization Act and various waivers available to a finding of inadmissibility or removability.

There are a number of reasons why an alien may be deemed inadmissible or removable, with waivers available to only certain categories of aliens. This article will discuss only the areas of law where waivers are available, and it will not get into the categories of inadmissibility or removability for which waivers and other discretionary relief are not available. After the discussion on waivers, you will find a discussion of cancellation of removal and parole under I.N.A. section 212(d)(5), which are two options available for those seeking to come into the United States.

Please know that this article is not meant to replace advice obtained from a lawyer, since a number of nuances exist in immigration law, particularly in regards to the facts of specific cases. You should speak with an immigration lawyer to get advice on your particular case.

CATEGORIES OF NON-U.S. CITIZENS

The law deals with different groups of non-U.S. citizens differently under different circumstances. To better grasp the differences, this article will briefly outline the various categories of non-U.S. citizens.

Permanent Residents:

This group includes legal permanent residents (LPRs) and conditional permanent residents (CPRs). Both of these groups consist of people who have successfully gotten their status adjusted. Spouses of U.S. citizens, for example, who still have the condition on their status that they be married for 2 years to the U.S. citizen, are included within CPRs. If a CPR gets divorced before the end of 2 year period, there is another procedure, discussed below, which allows the condition to be removed and for the alien to become an LPR.

Refugees/Asylees:

For purposes of removal, asylees and refugees are treated much like permanent residents. Both refugees and asylees endure persecution in their home country. The difference in the two groups is where the person received their status. Refugees were given their status abroad at a consular office, whereas asylees come into the United States first and then obtain their status. While classified as a refugee or asylees, these alien are permitted to work, and after one year they are able to become LPRs.

Non-immigrant Visa Holders:

Non-immigrant visa holders are people who were granted permission to come to the United States for a temporary period of time with certain conditions attached. This category includes students, H-1B visa holders for temporary work, tourists, and diplomatic persons. If the person violates the conditions of the visa, such as overstaying or dropping out of university, they fall out of status and are subject to removability.

Undocumented:

Undocumented aliens are subject to the grounds for inadmissibility and to the grounds of removability. This also covers non-immigrant visa holders noted above, that fall out of status and are subject to removability. If the alien entered illegally, then they may be removed on the basis of inadmissibility.

GROUNDS FOR INADMISSIBILITY AND REMOVABILITY

Inadmissibility:

Grounds for inadmissibility are applicable to undocumented aliens, non-citizens seeking to come back into the country, and non-citizens seeking a Green Card. If an LPR is found inadmissible upon criminal grounds, they will not be deemed to have good moral character and will not be able to naturalize.

The criminal grounds include crimes falling under one of the following categories:

• A single crime of moral turpitude. (Please refer to the companion article to get a detailed discussion of what constitutes a crime of moral turpitude.) A “petty offense” exception does exist for this ground if the possible sentence for the crime was not more than 1 year and the alien actually received a sentence of 6 months or less. An exception exists for juveniles as well where the crime was committed more than five years prior to the request for admission into the country.
• Any controlled substance violation. However, a waiver is available if the violation was only a single offense of simple possession of 30 grams or less of marijuana for personal use.
• Two or more convictions for which the total sentences of imprisonment are 5 years or more.
• If the immigration officer or consular has “reason to believe” that the alien assists in drug trafficking or is actually a drug trafficker.

Other basis of inadmissibility include: an alien that has a mental or physical disorder which may or has posed a threat to the safety of the alien or others; drug abusers; persons engaged in prostitution or other commercialized vice; and alien smugglers. People convicted of prostitution may qualify for a waiver under INA section 212(h), which is discussed below. Additionally, people who smuggled aliens may be able to receive a waiver for humanitarian reasons if the alien they smuggled was their spouse, parent, or child and they did so to assure family unity and to otherwise further the public interest. If an alien smuggler is not eligible for a waiver, then they will be barred from the country until they are 90 years old! Drug abusers are not eligible for a waiver, but those with mental health issues that pose a danger to the alien or others may qualify for a waiver, as discussed below.

REMOVABILITY

An alien is deemed removable if at the time they enter the country or at the time of adjustment of status, they are inadmissible. An alien may also be subject to removal if they have violated their status, violated the law, or violated the conditions placed on their original entry. Another basis for removability includes alien smuggling for which a waiver is available as noted above. Fraud relating to the misuse of visas and immigration documents constitutes a ground for removability too; you can receive a waiver for this ground, as discussed below under “Waivers”. A waiver is not available for drug abuse, which is another ground for removability. Aliens may also be removable if they have committed or been convicted of certain crimes, such as:
• Conviction of a crime of moral turpitude committed within five years of admission into the country, and a sentence of one year or longer may be imposed for the crime.
• Conviction of two crimes of moral turpitude arising out of separate schemes of criminal activity, regardless of the sentence.
• Conviction of an aggravated felony.
• Any drug offenses, except the exception noted above of a one-time conviction of 30 grams or less of marijuana for personal use.
• Espionage or sabotage
• Domestic violence, stalking, child abuse, child abandonment, child neglect, or violation of a protective order for convictions entered after September 30, 1996.

WAIVERS

Waivers of Inadmissibility on Health-Related Grounds:

Aliens who have communicable diseases of significant public interest are inadmissible, but the alien may be able to obtain a waiver for this ground if they are the spouse or unmarried child of a U.S. citizen or LPR, or if one of the alien’s children is a U.S. citizen or LPR. An alien who does not have a record of particular vaccinations may also be inadmissible. A waiver of this ground is available if the alien 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 alien. If the alien is inadmissible due to mental health related reasons, a waiver may be granted as the Secretary of Health and Human Services may provide.

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 has been repealed, it is still applicable in certain instances. The section does not apply to persons already removed from the country. It only applies to aliens 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 recently decided Supreme Court case 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 alien must have lived in the United States for at least seven years and served less than five years in prison for their conviction. The court is allowed in these cases to consider negative factors, such as the severity of the crime, against positive factors, such as the alien’s rehabilitation and connections with the community. This waiver relief only applies to a small group of aliens and is not available to aliens convicted after April 1, 1997 or aliens with convictions received absent 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 eligibility for 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:

An alien qualifies for a waiver under INA section 212(h)(1)(A) if the crime the alien committed was committed more than fifteen years before the date of the alien’s application for admission, admitting the alien would not be contrary to the national welfare, and the alien is able to show their rehabilitation. Another waiver is available under INA section 2121(h)(1)(B) if the alien 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. An alien 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.

Waivers of Inadmissibility due to Fraudulent Misrepresentation:

A waiver is available for an alien who fraudulently obtained a visa if that alien is the child or spouse of a U.S. citizen or an LPR and the Attorney General is satisfied that refusing to allow the alien’s admission into the United States would cause an extreme hardship to the U.S. citizen or LPR parent or spouse of the alien. Waivers are no longer available for parents of U.S. citizens or LPRs, and waivers are no longer available for misrepresentations occurring ten or more years ago.

For an alien which claims U.S. citizenship falsely, only one exception exists to the finding of inadmissibility. For example, if both of the natural parents of the alien are or were citizens, the alien permanently resided within the United States before reaching the age of 16, and the alien reasonably believed at the time he or she made the representation that he or she was a U.S. citizen, then the exception may apply. If this is not the case, then there is not a waiver for those asserting U.S. citizenship falsely.

Waivers of Inadmissibility due to lack of Proper Documentation:

These waivers include cases where the alien lacks a valid passport, visa, or border crossing identification. The ground for inadmissibility based upon an alien no having a valid passport, visa, or border crossing identification can be waived by the Attorney General and the Secretary of State acting together, according to I.N.A. section 212(d)(4). The waiver is approved on for individual cases on the basis of an unforeseen emergency.

In addition, there is an I.N.A. section 212(k) waiver based on the fact that the alien was ignorant of his or her ineligibility for admission into the United States. The waiver is only available, however, in cases where the Attorney General, in his or her discretion, finds that the alien, who was ignorant of his or her ineligibility for admission, could not have found this ineligibility by an exercise of reasonable diligence. Waivers of Removability for Unauthorized Work in Section 245(k) permits an alien who is eligible to obtain an employment-based visa to adjust his or her status in spite of past violations, including unauthorized work. Section 245(k) forgives violations such as failure to maintain continuously lawful status, acceptance of unauthorized work, violation of the conditions of a nonimmigrant visa, or failure to be in lawful immigrant status when applying for permanent residence.

In order for this provision to apply, the applicant must meet two requirements. First, the applicant has to be, on the date on which the application for adjustment of status is filed, present in the United States pursuant to a lawful admission. Second, the applicant, after being lawfully admitted, must not have, for an aggregate period exceeding 180 days, any of the following:

a) a failure to maintain continuously lawful status;

b) an acceptance of unauthorized employment; or

c) any other violations of the terms and conditions of the applicant’s admission.

Waivers of Admissibility for Overstay Aliens:

Under I.N.A. section 212(d)(4), an alien, who arrives at a point of entry into the United States with a visa that became automatically void because of an overstay by the alien, may apply for a waiver in limited circumstances. As noted above, this waiver may be given due to a finding of an unforeseen emergency in individual situations by the Secretary of State and the Attorney General acting together.

Removal of Condition for CPRs:

As discussed earlier, a CPR may become removable if he or she violates the condition of maintaining his or her marriage to a U.S. citizen for at least a two year period. A hardship waiver does exist for this situation. To be eligible for the waiver, the alien has to prove that if he or she were removed, there would be a hardship, that the marriage was a good faith marriage, and the condition of maintaining the marriage was violated due to no fault of the alien. An exception also exists in the case of a battered spouse who entered into a good faith marriage.

OTHER AVENUES OF RELIEF:

Cancellation of Removal:

Cancellation of Removal is available for certain permanent residents and non-permanent residents. In regards to a permanent resident, an alien who has been a lawfully admitted alien for permanent residence for no less than five years may obtain Cancellation of Removal if the alien resided in the country continuously for seven years after being admitted in any status and the alien has not been convicted of an aggravated felony.

As to non-permanent residence, Cancellation of Removal applies to both aliens who were lawfully admitted for permanent residence and aliens who are inadmissible or removable from the country, and who meet the following requirements: the alien has been physically present in the country for a continuous time period of at least ten years immediately before the date of applying, the alien has been a person of good moral character during that time, the alien has not been convicted of a crime outlined within the grounds for inadmissibility (unless a waiver has been granted), and the alien shows that removal would cause an exceptional and extremely unusual hardship to the alien’s U.S. citizen or LPR spouse, parent, or child. Special rules exist for battered spouses or children. The alien must demonstrate the he or she deserves relief as a matter of discretion. The discretionary factors listed in 212(c) relief are the appropriate standards used to determine eligibility for this relief under I.N.A. section 212(d)(5),

Parole:

The Attorney General may temporarily parole an alien on a case-by-case basis for humanitarian reasons. This is not an admission of the alien, but simply a temporary granting of permission to enter the United States if the Attorney General sees a significant public benefit. As such the parolees are not considered to be admitted and once the purposes of the parole have been completed the alien has to return to his or her country of origin and re-apply for status there.

CONCLUSION

Our goal was to provide you with a glimpse into the very complex area of waivers. We will continue to provide updates and more in-depth articles on this area of law to hopefully help you with any questions or issues you may have, especially since information on this subject is difficult to find on the Internet.