Below we discuss the two most common waivers; INA § 212(h) Waiver of Inadmissibility for Criminal Acts and I-601A Unlawful Presence Waiver.

INA § 212(h) Waiver of Inadmissibility for Criminal Acts

INA § 212(h) enables immigration authorities to waive many criminal grounds of inadmissibility in some circumstances, but a waiver applicant must meet various eligibility requirements, must not be subject to certain bars to relief, and, ultimately, must show that relief is warranted as a matter of discretion. An INA § 212(h) waiver will only waive the inadmissibility grounds relating to:

1) Crimes involving moral turpitude (There is no limit to the number of offenses);

2) Engaging in prostitution;

3) A single conviction for simple possession or being under the influence of 30 grams or less of marijuana, or an equivalent amount of hashish

• Conviction of two or more offenses of any kind with an aggregate (the total length combined) sentence imposed of at least five years; or
• Asserting immunity against prosecution of a serious crime

In addition, the § 212(h) applicant must be:

• A spouse, parent, son or daughter of a U.S. citizen or permanent resident who will face extreme hardship if the applicant is removed;
• A VAWA self-petitioner;
• Inadmissible only under the prostitution ground; or
• Inadmissible based upon a conviction or event that took place more than 15 years before the current application. In these last two categories, the applicant must prove that she is rehabilitated and her admission is not contrary to U.S. interests.

Section 212(h) is granted as a matter of discretion. It is not automatic relief. If the conviction to be waived was of a “dangerous or violent” offense, the applicant must meet an extraordinarily high standard in order to be successful on the waiver application.

If you are facing a bar to admissibility, contact us to discuss your options.

I-601A Unlawful Presence Waiver

Non-US Citizens who enter the United States unlawfully or those who have overstayed and are not the immediate relative of a sponsoring US Citizen,  are barred from adjusting status. Instead, in order to become a lawful permanent resident, these individuals must leave the United States and apply for an immigrant visa at a United States embassy or consulate.

However, once a non-US Citizen, who 1) entered the United States unlawfully and 2) accrued more than 180 days of unlawful presence, leave the US, they become inadmissible. Depending on how much unlawful presence they accrued, they may face a 3-year ban on reentry or a 10-year ban on reentry.

The I-601A waiver allows the spouses and children of United States citizens and LPRs to apply for a provisional unlawful presence waiver while still in the United States. If the waiver is approved, the non-US Citizen leaves the United States and returns to their home country for consular processing. Once the immigrant visa is approved, the non-US Citizen may then re-enter the United States with lawful status. Regrettably, there is no waiver available for parents of US Citizens or LPR children.

Eligibility Requirements

To be eligible for an I-601a provisional unlawful presence waiver, the non-US Citizen must meet ALL of the following requirements:

• Be physically present in the United States to file the application and provide biometrics.
• Be 17 years of age or older.
• Be in the process of obtaining an immigrant visa  and have an immigrant visa case pending with the Department of State (DOS) because the non -US Citizen
  • Is the principal beneficiary of an approved Form I-130, Petition for Alien Relative; an approved Form I-140, Petition for Alien Worker; or an approved Form I-360, Petition for Amerasian, Widow(er), or Special Immigrant who has paid the immigrant visa processing fee;
  • Have been selected by DOS to participate in the Diversity Visa (DV) Program (that is, the non-US Citizen is a DV Program selectee);
  • The non-US Citizen is the spouse or child of a principal beneficiary of an approved immigrant visa petition and has paid the immigrant visa processing fee to DOS; or
  • The non-US Citizen is the spouse or child of a DV Program selectee (that is, you are a DV Program derivative)
• Be able to demonstrate that refusal of admission to the United States will cause extreme hardship to the US Citizen or LPR spouse or parent. (Unfortunately, not a child.)
• The non-US Citizen must believe that they are or will be inadmissible only because of a period of unlawful presence in the United States that was:
  • More than 180 days, but less than 1 year, during a single stay (INA section 212(a)(9)(B)(i)(I)); or
  • 1 year or more during a single stay (INA section 212(a)(9)(B)(i)(II)).
• Meet all other requirements for the provisional unlawful presence waiver, as detailed in 8 CFR 212.7(e) and the Form I-601A and its instructions.

Non-US Citizens who are in removal; i.e. detention and deportation proceedings are not eligible for I-601a waivers. Non-US Citizens who have a final order of removal, exclusion, or deportation (including an in absentia order of removal under INA 240(b)(5)) may only seek an I-601a provisional unlawful presence waiver if they have applied for, and have already received, an approved Form I-212, Application for Permission to Reapply for Admission into the United States After Deportation or Removal. Further, neither non-US Citizens who are inadmissible to the United States on grounds other than the unlawful presence or who have a pending I-485 are eligible for this waiver.

Unlawful presence for asylees and refugees seeking permanent residence may be waived for humanitarian reasons, to assure family unity, or if the public interest warrants the stated relief.

If you are facing a bar to admissibility, contact us to discuss your options.