What is an Immigration “Waiver”?
Immigration law is usually described as a labyrinth because it is confusing and elaborate. Here, we break down what a waiver means in the world of immigration and how you can use a waiver to stay in the U.S. legally. As a general matter, you should always discuss your case with an immigration attorney who can advise you of the specific requirements of filing a waiver in your case.
Anytime a person applies for legal status –abroad at a consulate or inside the U.S. – they must meet specific requirements.
First, the immigration officer will verify whether the person entered the U.S. with permission. This is usually the first question the government will ask to see if the person can stay in the U.S. indefinitely. It can be a temporary visa, such as a visitor’s visa. Or, it can be a long-term visa, such as a green card holder who plans to live in the U.S. indefinitely. Certain criminal conduct can put that status at risk when the person is a green card holder who already has permission to stay in the U.S.
Second, an immigration officer will look to see if a person who requests to live here permanently or temporarily meets all of the legal requirements. Each application has its own set of complicated conditions.
The term “waiver” means to surrender a right or a claim. Both sides of the immigration coin – the government and the applicant can use waivers to surrender rights and claims. For this article, we will focus on those grounds that the government could pursue but chooses to give up through a waiver.
Health-related grounds. To become a lawful permanent resident, the government requires a medical examination. Without this requirement, an applicant’s request would be denied. When a medical exam shows certain illnesses or disabilities, that could also provide the basis to deny lawful status. However, the government releases or waives that ground in some instances.
Criminal grounds of inadmissibility. Much of extending legal status in the U.S. rests on whether a person is a law-abiding citizen. The government even can consider arrests that never resulted in a conviction. When there is a conviction, that alone could threaten the approval of most applications. This area is very complicated. However, the government does waive its ability to pursue this claim in certain circumstances and for particular convictions.
Immigration fraud and misrepresentation. Immigration laws do not favor dishonesty. In fact, misrepresenting a fact could lead to permanent denial of your case. For example, suppose you applied for a visa outside of the U.S. because you were the unmarried son or daughter of an American citizen parent. In the time it took to get your visa, let’s say you got married but never disclosed that. You traveled to America as the “unmarried” son or daughter, but you were married. That could count as a misrepresentation and put you into deportation proceedings. However, some waivers would pardon that particular ground.
Unlawful presence. For many seeking legal status, unlawful presence results in an automatic denial of a case. Luckily, a waiver could cure this unlawful presence issue, allowing the applicant to win legal status. Unlawful presence means that a person is present in the U.S. with no legal right. This can happen because a person entered the U.S. without permission and crosses through the Southwest Border. Or, a person entered with a visitor’s visa and stayed past the six months generally allowed. In immigration law, once a person enters the area of “unlawful presence,” the law prohibits them from getting legal status, although there are some exceptions. Using a waiver could alleviate that requirement for you if you qualify.
Another significant waiver can also help many non-citizens looking to get lawful permanent resident status (green cards). This waiver is for those who came into the U.S. without legal permission but has a qualifying relationship. Perhaps they married a lawful permanent resident or U.S.C spouse, or their child has turned 21 years old and requests status on their parent’s behalf. This waiver also applies when a person entered with legal status but has since gained “unlawful presence.”
Ordinarily, the law only allows those who came into the U.S. with permission to become permanent residents based on a qualifying relative. However, there are certain situations where the government will forgo that requirement.
To take advantage of this waiver, generally called the 601A waiver, you must:
- Be the spouse, son/daughter of a U.S. citizen or lawful permanent resident;
- Show that your deportation would result in extreme hardship to your qualifying relative; and
- Show why you deserve a favorable outcome.
Contact an Experienced Immigration Attorney
Immigration law is complicated, but our immigration attorneys at Castillo & Associates can speak with you about your legal rights and help to ensure that you are protected. To schedule a free consultation, call 1 800-497-9774.
Attorney Domingo Castillo is a workers’ compensation & personal injury lawyer who serve Southern California from our 5 offices: Indio, Pomona, Riverside, San Diego & Calexico.