Practice Area
Waivers of Inadmissibility
Certain immigration history — such as unlawful presence, prior removal, or certain criminal matters — can make a person inadmissible to the United States. In many cases, a waiver allows someone to overcome that bar and move forward with their immigration case.
Who may need a waiver?
A waiver may be needed by someone who has been found inadmissible to the United States due to unlawful presence, a prior removal or deportation order, certain criminal history, misrepresentation, or other grounds. Waivers are commonly sought by individuals applying for a green card through a U.S. citizen or permanent resident family member, or by those going through consular processing abroad. Whether a waiver is available depends on the specific ground of inadmissibility and the applicant's individual circumstances.
Common grounds that may require a waiver
- Unlawful presence in the United States (three-year or ten-year bar)
- Prior removal, deportation, or voluntary departure under an order
- Certain criminal history, including crimes involving moral turpitude
- Misrepresentation or fraud in a prior immigration application
- Prior use of false documents
- Health-related grounds of inadmissibility
- Prior visa overstay combined with departure and reentry bar
How the waiver process works
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Identify the ground of inadmissibility
The first step is determining exactly which ground of inadmissibility applies. This requires a careful review of the person's immigration and travel history, any prior applications, and any criminal or civil matters. Not every bar has a waiver available, so this analysis is critical.
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Determine whether a provisional or standard waiver applies
For certain unlawful presence bars, a provisional unlawful presence waiver (Form I-601A) may be available. This allows the applicant to apply for the waiver before departing the United States for a consular interview, reducing the time spent outside the country. Other grounds require a standard waiver (Form I-601) filed after a finding of inadmissibility.
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Build the hardship case
Most waivers require showing that denial would cause extreme hardship to a qualifying U.S. citizen or permanent resident family member — typically a spouse or parent. Building this case involves gathering medical, financial, psychological, and country-conditions evidence. The strength of the hardship showing is often the most important factor in the outcome.
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Prepare and file the waiver application
The waiver application must be complete, accurate, and supported by thorough documentation. Errors or omissions can result in denial or delay. The attorney prepares the application, compiles supporting evidence, and submits it to the appropriate USCIS office or consular post.
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Respond to any requests for evidence
USCIS or the consular post may issue a Request for Evidence (RFE) or ask for additional information. Responding promptly and thoroughly is important. The attorney reviews any requests and prepares a complete response.
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Receive a decision and proceed with the underlying case
If the waiver is approved, the person can proceed with the underlying immigration application — whether that is adjustment of status, consular processing, or another benefit. If denied, options may include filing a motion to reconsider or appeal, depending on the circumstances.
Common questions about waivers
What is a provisional unlawful presence waiver?
A provisional unlawful presence waiver (Form I-601A) allows certain individuals who are inadmissible due to unlawful presence to apply for a waiver before leaving the United States for a consular interview. If approved, the person departs for the interview knowing the waiver has been granted, which reduces the time spent outside the country waiting for a decision.
Who qualifies as a qualifying relative for a hardship waiver?
For most unlawful presence and certain other waivers, the qualifying relative must be a U.S. citizen or lawful permanent resident spouse or parent. The hardship to children is not considered for the waiver itself, though it may be relevant to the overall hardship analysis.
What does 'extreme hardship' mean?
Extreme hardship is a legal standard that requires showing hardship beyond the normal difficulties of family separation or relocation. Relevant factors include the qualifying relative's health, financial situation, ties to the United States, conditions in the country where the applicant would reside, and other circumstances. Each case is evaluated individually.
Can someone with a prior removal order apply for a waiver?
A prior removal order creates a separate bar to admission that may require its own waiver (Form I-212) in addition to any other waivers needed. Whether a waiver of a prior removal is available depends on the circumstances of the removal and the type of immigration benefit being sought.
How long does the waiver process take?
Processing times vary depending on the type of waiver, the USCIS service center handling the case, and current agency workloads. Provisional unlawful presence waivers and standard waivers have different processing timelines. The attorney can provide current estimates based on the specific application.
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