Established in 1980, with Over 30 Years of PROVEN Success in All Phases of U.S. Immigration law.

WAIVERS OF IMMIGRATION VIOLATION

There are few things more devastating than being denied a visa after years of waiting on visa lists- unless it’s having a green card and losing it because of a relatively minor criminal conviction. Many visa applicants do not realize how their past can come back to haunt them.

The U.S. government has a long memory when it comes to immigration or criminal violations and that memory is becoming even longer due to increased security in this terrorist age. The result is that even violations you consider minor can have a major impact on your ability to live and work in the US. That impact can destroy lives and families and the damage can be permanent.

These violations can be roughly placed into three categories:

  1. Relatively minor or technical violations that can often be corrected with a reasonable explanation;
  2. More serious violations that can have dire consequences but may be forgiven under certain, limited circumstances; and
  3. Very serious violations that can result in a permanent bar that cannot be forgiven except in the most extraordinary circumstances.

This article will concentrate on the second group of violations and how you can obtain forgiveness from the government through a waiver application, but it would be helpful to say a few words about the other groups at the outset.

The first group of violations generally results from unintended or unforeseen circumstances: the visitor who becomes ill and overstays his or her allotted time in the US by a few days; the individual on a nonimmigrant working visa who is reassigned to different job duties, or the student who drops a course in mid semester without notifying the USCIS. Although these violations can also be serious if not promptly corrected, the government can be understanding if promptly notified and a reasonable explanation is provided.

The last and most serious group of violations will generally result in a permanent bar from re-entering the US. Sometimes, these permanent bars are unexpected. Most notable is the bar that occurs if you re-enter the US illegally after have been previously illegal in the US for more than one year. If you were brought to the US as a child, live in this country for 20 years, marry a US citizen and have three US citizen children and then return home for the funeral of your grandmother and are caught attempting to re-enter the US illegally, you are permanently barred from ever getting a green card. Other permanent bars can also be unforeseen. You appear at the consulate for your green card interview. Your spouse in the US has already been granted a green card through his employer and the interview seems simple. You bring with you your niece whom you have raised since infancy and tell the consul that it is your daughter, presenting a false birth certificate. You will be permanently barred from coming to the US, not because of the fraudulent birth certificate (which otherwise might be forgiven) but because you have attempted to smuggle your niece into the US.

Other permanent bars are more easily anticipated: murders, kidnappers, and child molesters need not apply.

Waivers of Certain Immigration Violations

Waivers for Unlawful Presence. The most common type of immigration violation involves “unlawful presence “in the US. This is not necessarily the same thing as being “illegal” in the US although the two concepts have much in common. Unlawful presence generally occurs either when an individual enters the US illegally or when he or she enters legally but overstays their allotted time. Someone who enters illegally begins acquiring unlawful presence upon entry. Someone who enters legally generally begins acquiring unlawful presence after the date that is noted on the I-94 card issued by immigration at the port of entry.

If an individual totals more than 180 days of unlawful presence in the US and then leaves the US, he or she cannot return for at least 3 years. If the unlawful presence totals more than 1 year, and the individual leaves, he may not return for up to 10 years. This can cause enormous and unforeseen hardship for the unsuspecting. A woman brought to the US as a child, attends school in the US and marries her high school sweetheart. They have two children together. Her grandmother, who raised her as a young child, becomes critically ill back home in Ecuador. If that wife and mother returns to Ecuador, to visit her grandmother, she will be unable to return to the US for ten years.

There is some possibility for relief through a Waiver of Inadmissibility (although it may not come soon enough for grandma.) The waiver requires proof of extreme hardship to a qualifying relative. The “ordinary” hardship that occurs when a wife and mother of two children is separated from her family is not enough. The law does not provide a definition of extreme hardship but court cases have established the kinds of factors that the government will consider. These include:

  • The presence of a permanent resident or U.S. citizen spouse or parent (known as a "qualifying relative.")
  • Qualifying relatives ties outside the U.S (Can your relative leave the US and resettle in your country?)
  • Conditions in your home country (Economic, political, security)
  • Financial impact to your qualifying relative if required to resettle in your country
  • Health problems suffered by your relative and the effect of resettling in your country

A well prepared application will require extensive documentation including, financial records of the qualifying relative, chances of obtaining employment abroad, medical records documenting current physical and psychological disabilities, documentation of health care in your home country; reports of security problems in your home country, other unusual difficulties including religious, ethnic, or political issues that make resettlement problematic. A simple letter expressing the emotional pain of separations, no matter how hear felt, is not enough! Trying to do this without an experienced immigration attorney is not recommended.

For a good review of how the government analyzes these cases, we have attached a recent decision granting our appeal in a waiver case. click

Waivers for Attempting to Obtain Immigration Benefits by Fraud

"Fraud Waivers" are reviewed in the same way as waivers of Unlawful Presence. Most examiners tend to consider fraud as a more serious violation than unlawful presence and the seriousness of the fraud is a factor that is often taken into consideration. Approval rates for fraud waivers have tended to be less than 50% whereas approval rates for unlawful presence have tended to be as high as 80% at the U.S. consulate in Mexico.

Waivers for Criminal Conduct

Obtaining a waiver for criminal conduct is a very complicated issue and depends greatly on several factors:

  • The nature of the crime itself
  • How long ago the crime and conviction occurred
  • Whether the crime was committed in the US or abroad
  • Whether the convicted individual is a permanent resident of the U.S.
  • Various factors that might provide discretionary relief, including: any US citizen or permanent resident family members, a record of rehabilitation or contrition, the hardship that would be suffered by the applicant's family if he or she were deported, and whether the criminal act is an isolated incident in an otherwise law abiding life or whether the applicant has a history of illegal conduct.

Most importantly, the rules may be very different whether the immigrant is taken into custody after being admitted to the United States (and thus subject to deportation or removal) rather than being detained while attempting to re-enter the U.S. after a trip abroad (and thus subject to inadmissibility.) Certainly the most important issue to be resolved at the outset is whether the criminal immigrant is eligible for bond or is subject to mandatory detention. An immigrant subject to mandatory detention can sit in jail many months awaiting a hearing even if he or she has a very strong case and is convicted or a relatively minor, nonviolent offense.

For all of these reasons, a noncitizen arrested for any crime, should contact an immigration attorney immediately.