Waivers for Inadmissibility and Deportation

When people have spent a long time in the United States, their home countries may seem like only distant memories. The life they have here can seem like all they know, and the prospect to leaving the United States can be terrifying.

Attorney Norka M. Schell is an aggressive immigration attorney with experience to complex Immigration cases.

What You Should Know

An Application for Waiver of Grounds of Inadmissibility is an application for legal entry to the United States made by an individual who is otherwise inadmissible on one or more grounds. The application is submitted to the consular office, U.S. Citizenship and Immigration Services office or immigration court considering the immigrant visa or adjustment of status application depending on the alien’s circumstances.

An Application for Waiver of Grounds of Inadmissibility, is filed to permit an alien who has been denied admission to the United States to gain admission as a lawful permanent resident. This waiver is based on the “Extreme Hardship” to a United States citizen or to a lawful permanent resident relative of the alien which would result if the alien’s inadmissibility cannot be waived.

It is important to know that a Waiver for Inadmissibility is a discretionary relief. The alien not only has the burden to establish he/she meets all the requirements, but also that he/she deserves a favorable exercise of discretion. Because each waiver case is very specific to the circumstances of the alien and his or her family, it is important that you consult with an Attorney who has experience and proven results in filing a Waiver of Inadmissibility. Additionally, you are limited in the number of times you can file the Waiver of Inadmissibility. Therefore, the application should be prepared so that the alien has the best chance for success the first time filing.

Under some of the deportability grounds, foreign nationals may be found deportable for actions they committed after entry into the United States.Other grounds apply to these foreign nationals if an event occurs at any time after admission or withing five years of admission.

Foreign nationals subject to deportation have by definition already made an entry into the United States, and as such are “persons” within the coverage of many constitutional protections, including due process. A basis for his or her deportation must come to the attention of the Department of Homeland Security (DHS) before a deportation proceeding can commence. Foreign nationals are not subject to any sort of routine inspection after admission that would bring to light a possible basis for deportation. Some bases for deportation are apparent from inspection of the records the DHS, such as a nonimmigrant alien who overstays his or her temporary period of stay. Others bases, such as convictions of various criminal offenses, are usually reported to the DHS by state and federal authorities,

If a foreign national faces removal or deportation proceedings without a lawyer, the likelihood of his avoiding removal or deportation is much smaller than it is for those who have the resources to retain a lawyer. Attorney Norka M. Schell will be able to consult with you regarding every detail of your situation and to advise you on how to proceed in removal proceedings or deportation proceedings, so that you have the best chances of winning your claim. Attorney Norka M. Schell has successfully prepared applications for Waiver of Inadmissibility and Deportation for individuals both in the United States and abroad.

Ground of Inadmissability

  1. There are 10 general categories of inadmissibility grounds:
  2. Health-related grounds
  3. Criminal-related grounds
  4. National security grounds
  5. Public charges
  6. Labor protection grounds
  7. Fraud or other immigration violations
  8. Documentation requirements
  9. Grounds relating to military service in the United States
  10. Prior removals or unlawful presence in the United States
  11. Miscellaneous grounds

Grounds of Deportability

There are six general categories of deportable individuals:

  1. A non-U.S. citizen who was inadmissible at the time he or she entered the U.S., or who has violated his or her immigration status
  2. Those who have committed certain criminal offenses
  3. Those who have violated law relating to official documents
  4. National security risks
  5. Public charges
  6. Unlawful voters

Waivers of Inadmissability and Deportability

Inadmissibility grounds may arise in several ways during a removal proceeding. First, the individual may be in removal proceedings based on an inadmissibility ground. Second, the individual may be in removal proceedings based on a deportability ground under the INA 237(a)(1)(7) — having been inadmissible at the time of entry, or adjustment of status on a ground of inadmissibility existing at that time. Third, if an individual who is found removable is eligible for an immigrant visa, he or she may seek relief from removal in the form of adjustment of status to permanent residence. This requires the individual to establish that he or she is admissible as well as eligible for adjustment of status.

An individual may apply for a waiver of inadmissibility in removal proceedings only to overcome removability based on inadmissibility, or to establish admissibility for purposes of adjustment of status. Unlike other forms of relief from removal, waivers of inadmissibility standing alone cannot be asserted as affirmative applications for relief from removal.

There are waivers available for certain related grounds. INA 212(g). U.S. Citizenship and Immigration Services (USCIS) may waive the “communicable diseases” inadmissibility ground for aliens who are spouses, unmarried sons or daughters, unmarried lawful adopted children, or parents of U.S. citizens, permanent resident foreign nationals, or foreign nationals who have been issued immigrant visa

Waivers for criminal Inadmissibility. INA 212(h). These waivers do not waive substance abuse offenses–other than a single offense of simple possession of 30 grams or less of marijuana–nor do they waive trafficking in controlled substances or persons, money laundering, or engaging in particularly severe violations of religious freedom. These waiverss are granted at the government’s discretion. In addition, the applicant must present evidence showing that the positive factors in his or her case outweigh the negative factors.

Waivers for fraud or misrepresentation. INA 212(i).To qualify for the general waiver, the applicant must establish that his or her U.S. citizen or lawful permanent resident spouse or parent would suffer extreme hardship if permanent residence is denied. This waiver in not available based on a showing of extreme hardship to the applicant’s U.S. citizen or lawful permanent resident child.

Waiver for unlawful presence. INA 212(a)(9)(B). The government may waive the unlawful presence inadmissibility ground if refusing permanent residence would result in extreme hardship to a US citizen or lawful permanent resident spouse. This waiver is not available based on extreme hardship to a US citizen or lawful permanent resident child.

Cancellation of removal for lawful permanent resident is a form of discretionary relief available to lawful permanent resident in removal proceedings. The Attorney General may cancel removal in the case of an alien is inadmissible or removable from the United States if the individual has been an lawful permanent resident for not less than five years; has resided in the United States continuously for seven years after having been admitted in any status; has not been convicted of any aggravated felony and has not previously received cancellation, suspension of deportation under former INA 244(a) or relief under the former INA 212(c).

​Provisional Unlawful Presence Waivers of Inadmissibility for Certain Immediate Relatives

This is a new waiver process which allow eligible immediate relatives to apply for provisional unlawful presence waiver while they are still in the United States and before they leave to attend their immigration visa interview abroad. An application for Provisional Unlawful Presence Waiver, Form I-601A (Application), can be filed even if aliens are in removal proceedings if the proceedings are administratively closed and have not been re-calendar at the time of filing the Application.

Creative Solutions to Complex Immigration Cases. Call us at (212) 258-0713 or (973) 621-9300. We can help. 

A successful deportation defense requires many skills, and our NYC Lawyers are well prepared to defend your immigration rights. We excel at trial work and have handled hundreds of deportation defense cases over the course of our careers. When we accept a deportation defense case, we prepare it thoroughly – often developing creative solutions that take many things into account: case law, relevant statutes and public policy issues. We get results.