Waivers Unlawful Presence Fraud or Criminal Prior Deportation Orders

Individuals who are otherwise eligible for a temporary, nonimmigrant visa or for a permanent visa (green card) may nevertheless be denied visa approval due to prior immigration violations or criminal convictions. Certain criminal convictions can be serious enough to result in Removal proceedings, even for individuals who have been permanent residents for many years. Often, these transgressions can be forgiven through approval of a waiver or pardon of the offense. These waivers arise due to many different circumstances but they generally have one common requirement: the applicant must prove that the failure to grant the waiver will result in extreme hardship to a close family relative who is either a U.S. citizen or lawful permanent resident.

We briefly review the most important situations where waiver applications arise.

Unlawful PresenceThe single greatest obstacle to legal immigration status for most applicants is the accumulation of “unlawful status.” Generally, if you have been unlawfully present in the U.S. for more than 6 months you will trigger a 3-year bar to re-entry once you leave the U.S.; unlawful presence of more than 1-year will trigger a 10-year bar to re-entry. Since the law generally requires that you leave the U.S. to “get legal” if you are currently illegal or “out of status” in the U.S. you will likely trigger the 3 or 10-year bars to get a green card or to qualify for nonimmigrant visa. There are several important exceptions to this rule (such as marriage to an American citizen coupled with a legal entry) but unlawful presence often becomes a bar to permanent residency other lawful status in the U.S. if you entered illegally or violated the terms of your lawful admission. There is, however, a waiver available if you have a “qualifying relative” who is a parent or spouse and is a U.S. citizen or permanent resident and you can prove that the failure to obtain the applicable immigration status would result in extreme hardship to the qualifying relative. Current regulations may allow you to apply for this waiver in the U.S. rather than waiting abroad for an approval with the obvious risk that if the waiver is denied, you are stranded outside the US.  In addition, these applications are filed with a central office of the USCIS in the States, resulting in more standardized adjudications and a higher approval rate than in the past.

Immigration FraudA wide variety of false statements, improper or altered documents and outright lies that are included on immigration applications can result in a finding of visa fraud and a denial of an immigration benefit. Entering or attempting to enter the U.S. with a false passport or failing to disclose a prior name or immigration application are common examples. Some immigration fraud can be overcome through a waiver if you can show extreme hardship to a parent or spouse who is a U.S. citizen or a permanent resident. This waiver process is similar but not identical to the waiver process to overcome unlawful presence bars.

Criminal ConvictionsConvictions for relatively minor offenses can be overlooked by US immigration under the “petty offense” exception. More serious convictions, particularly those involving “moral turpitude” such as convictions involving drugs, violence, or prison sentences of more than 6 months will often require a waiver and the most serious offenses, known as “aggravated felonies” may make you ineligible for a waiver. Waivers involving criminal convictions are among the most complicated immigration issues under the law and will always require the expertise of a knowledgeable and experienced immigration attorney, preferably working with your criminal attorney even before a plea is entered. These waivers differ from the waivers described above in many respects, including the fact that a child who is a US citizen or permanent resident can serve as a qualifying relative.

Prior DeportationsMost deportation orders result in a 10-year bar that must be served outside the U.S. Re-entering without a visa during this period can result in a permanent bar. Nevertheless, in some instances it may be possible to apply for a waiver of this bar while in the US, particularly if it is done along with a waiver of the unlawful presence bar. As a final alternative, yiou may be required to leave the US and stay out until a waiver is approved.