Are You Inadmissible to the U.S.? Discover How Waivers Can Help!
If you're deemed inadmissible to the United States, don't lose hope. Waivers provide a legal pathway to overcome certain grounds of inadmissibility, allowing you to pursue your immigration goals. Whether it's due to health issues, criminal history, or overstaying your visa, understanding and applying for the right waiver can make all the difference. Consult with an experienced immigration attorney to determine your eligibility and take the first step toward securing your immigration benefits.
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What is inadmissibility and how do I know if I am inadmissible?
Individuals who are inadmissible are not permitted by law to enter or remain in the United States. The general categories of inadmissibility include health, criminal activity, national security, public charge, fraud and misrepresentation, prior removals, unlawful presence in the United States (overstaying your visa), and others. For certain grounds of inadmissibility, a person may obtain a waiver (or legal forgiveness).
Does everyone who falls under the inadmissibility categories need a waiver?
In some cases, even if an individual falls under a category of inadmissibility, no waiver is required. Some examples are: aliens who have been battered, abused or subjected to extreme cruelty, victims of severe forms of trafficking, and minors. Contact an experienced immigration attorney and find out if you need a waiver.
What do I have to prove to be granted a waiver?
Depending on the category of inadmissibility, you have to prove something different. The most common categories are entry without admission or parole or overstay. In these cases, the applicant must prove that a qualifying relative (spouse, parent, or child) who is a U.S. citizen or Green Card holder will suffer extreme hardship if the intending immigrant must return to his//her country of origin or if the U.S. citizen or Green Card holder has to relocate to the intending immigrant’s country of origin.
What is extreme hardship?
Extreme hardship means negative factors that are greater than what your qualifying relative (U.S. citizen or lawful permanent resident spouse, parent or child) would experience under normal circumstances if you were not allowed to enter or remain in the United States. The extreme hardship may be related to family ties, social and cultural impact, economic impact, health conditions, and/or conditions in the intending immigrant’s country of origin.
What is the difference between the waiver requested through form I-601 and I-601A?
The scope of Form I-601A is narrower than that of Form I-601, as the I-601A applies to waivers of provisional unlawful presence only. Form I-601, in turn, is used to waive other grounds of inadmissibility (that may be waived by law).
Another difference is that Form I-601A must be filed from inside the United States, allowing the intending immigrant to return to his/her country of origin to attend the consular interview. Form I-601 can be filed from outside or inside the United States.
When can I file I-601A?
Persons with an approved immediate relative petition who are in the United States and believe they are inadmissible only for unlawful presence in the United States, may be eligible for a provisional unlawful presence waiver. The intending immigrant must be seeking an immigrant visa through the consular process at a U.S. Embassy or consulate abroad. The I-601A can be filed after the Petition for Alien Relative is approved, the case is transferred to NVC and payment of the DS 260 fee for an immigrant visa is made (with receipt).
FAQ - Frequently Asked Questions
What are Waivers?
In U.S. immigration, waivers are exemptions or concessions that allow certain individuals who would otherwise be ineligible to enter the U.S. or adjust their status to overcome legal barriers. Waivers are crucial for those facing obstacles such as inadmissibility due to health issues, criminal background, prior illegal presence in the U.S., or other violations of immigration law.
Who can apply?
Waivers can be requested by individuals who:
Have been declared inadmissible to enter the U.S. due to a specific immigration law violation, such as illegal presence, entry without inspection, or criminal conviction.
Need to adjust their status to permanent residency but face legal impediments that would otherwise make adjustment impossible without a waiver.
Are applying for certain types of visas that have specific admissibility requirements, such as the K-1 Fiancé(e) Visa or immigrant visas.
J1 Visa Waiver - Elimination of the 2-Year Requirement
For J1 visa holders, who are participants in cultural exchange programs, there is a requirement known as the "Two-Year Home Country Physical Presence Requirement." This requirement mandates that the J1 holder return to their home country and reside there for at least two years after the program ends before they can apply for certain types of immigration or non-immigration visas, such as H, L, K visas, or adjustment of status to permanent resident.
However, under certain circumstances, it is possible to request a waiver to eliminate this two-year requirement. Circumstances that may justify requesting a waiver include:
No Objection Statement: If the government of the J1 holder's home country issues a statement indicating that it does not oppose the waiver of the two-year requirement, the holder may request a waiver.
Request from a U.S. Employer: If a U.S. employer wishes to hire the J1 holder in a position of national interest, a waiver may be requested.
Persecution: If the J1 holder can prove they will face persecution in their home country based on race, religion, or political opinion, they can request a waiver.
Extreme Hardship to a Family Member: If the J1 holder has a U.S. citizen or permanent resident spouse or child who would suffer extreme hardship if the holder were required to fulfill the two-year requirement, a waiver may be requested.
Request from a U.S. Government Agency: If a U.S. government agency determines that the work of the J1 holder is of critical interest to the country, a waiver may be requested.
How does the application process work?
The process for requesting a waiver for J1 visa holders involves the following steps:
Submit Form DS-3035: The J1 holder must initiate the process by submitting Form DS-3035, "Application for Waiver of the Two-Year Foreign Residence Requirement."
Obtain Supporting Documentation: Depending on the basis for the waiver request, the applicant must provide necessary documentation, such as a No Objection Statement, evidence of persecution, or proof of extreme hardship.
Review by the State Department and USCIS: The application is reviewed by the U.S. Department of State and, in some cases, by USCIS, which will determine whether the waiver will be granted.
Benefits of Waivers
Waivers allow individuals to overcome significant legal barriers to obtain or maintain legal status in the U.S. These benefits include the possibility of adjusting status to permanent residency, avoiding prolonged family separation, and addressing legal issues that would otherwise result in deportation or ongoing inadmissibility.
Waivers, especially for J1 visa holders, are essential tools that provide significant flexibility in the U.S. immigration system, allowing cultural exchange participants to continue their lives in the U.S. without having to meet the two-year home country return requirement.