Immigration Article - Waivers of Inadmissibility or Removability
Since 9-11, lawyers are receiving more and more calls from people who are having trouble:
~ entering the USA due to various ‘inadmissibility’ issues,
~ remaining in the USA due to various ‘removability issues.
This article seeks to offer a brief explanation of the various grounds for ‘inadmissibility’ and ‘removability’ to the United States under the Immigration and National Act, and the various ‘waivers’ available.
There are several reasons that an alien may be found inadmissible or removable, and waivers are not available to aliens in all categories. The scope of this article is to explain the law where such waivers are available.
We have even dealt with someone rendered inadmissible due to a conviction for theft under $20.00 that occurred over 20 years ago. This area is particularly troublesome for people who are here on a valid visa and then make a visit to a foreign country and cannot return; this even happens to green card holders (resident aliens).
Categories of Non-U.S. Citizens
The law treats different types of non-U.S. citizens differently under different circumstances. For a better understanding of the distinctions, this article will briefly define the various categories of non-U.S. Citizens.
This category includes both legal permanent residents (“LPRs”) and conditional permanent residents (“CPRs”). These are aliens who have successfully had their status adjusted. CPRs include spouses of United States citizens who have yet to have the condition removed that they remain married for two years. If an alien who is a CPR ends up divorced before the two-year time period, then there is a procedure, discussed below, to have that condition removed and for the alien to become an LPR.
Refugees and Asylees are treated similarly to permanent residents for purposes of removal. Both refugees and aslyees are subject to persecution in their native countries. The distinction between the two involves the location where they received their status. Refugees received their status abroad at a consular office, while asyless first achieved entry into the United States and then received their status. Both refugees and aslyees can become LPRs after one year, and, while in refugee or aslyee status, these aliens are authorized to work.
Non-immigrant visa holders
Non-immigrant visa holders are those who have come to the United States with permission, for a temporary period, with conditions attached. Examples include tourists, students, H1-B visa holders for temporary work and diplomatic individuals. If the terms of the visa are violated, i.e., if the alien overstays or drops out of school, he or she falls out of status and is subject to removability.
Undocumented aliens are subject to both the grounds for inadmissibility and the grounds for removability. This includes non-immigrant visa holders who have fallen out of status and are subject to removability. If the alien entered illegally, he may removable on grounds of inadmissibility.
Grounds for Inadmissibility and Removability
Grounds for inadmissibility apply to undocumented aliens, non-citizens seeking re-entry as well as non-citizens seeking a green card. LPRs hoping to achieve naturalization won’t be found to have good moral character if they are found inadmissible under criminal grounds. These criminal grounds include crimes falling into one of the following categories:
• One crime of moral turpitude. (Please see the companion article for a thorough discussion of what constitutes a crime of moral turpitude.) There is a “petty offense” exception to this ground if the possible sentence was not more than one year and the alien did not receive more than a six-month sentence. There is also an exception for juveniles whose crime was committed more than five years before the request for admission.
• Any controlled substance law violation. (There is a waiver available for one single offense of simple possession of 30 grams or less of marijuana for personal use.)
• Two or more convictions for which the aggregate sentences of confinement are five years or more.
• If the consular or immigration officer has “reason to believe” that the alien is a drug trafficker or assists in such trafficking.
Other grounds of inadmissibility include the alien being in possession of a mental or physical disorder which may or has posed a threat to the safety of the alien or others, drug abusers, those engaged in prostitution or other commercialized vice, and alien smugglers. Those convicted of prostitution may be eligible for a waiver under I.N.A. section 212(h) discussed below. Alien smugglers may be eligible for a waiver on humanitarian grounds if the alien smuggled only a spouse, parent or child in order to assure family unity and to otherwise further the public interest; otherwise, they are barred from the U.S. until the ago of 90! There is no waiver available to drug abusers, but there may be a waiver for those with mental health problems that are such as to be dangerous to the alien or others as mentioned below.
An alien is removable if at the time of entry or at the time of adjustment of status, the alien is inadmissible. The alien could also be subject to removal if there is a violation of status, a violation of law or a violation of the conditions of the original entry. Other grounds for removability include alien smuggling for which a waiver is available, discussed above. An alien is removable if he or is convicted of certain crimes. These crimes include:
• Conviction of a crime of moral turpitude committed within five years of admission to the United States for which a sentence of one year or longer may be imposed. (Please see our upcoming article for a thorough discussion of what constitutes a crime of moral turpitude.)
• Conviction of two crimes of moral turpitude arising out of different schemes of criminal conduct, regardless of sentence.
• Conviction of an aggravated felony.
• Any drug offense (with the exception of the one-time conviction of 30 grams or less of marijuana for personal use).
• Espionage or sabotage
• Domestic violence, stalking, child abuse, child neglect, child abandonment or violation of protective order for convictions entered after 9/30/96.
Other grounds of removability include fraud relating to the misuse of visas and other immigration documents. A waiver is available for this ground and is discussed below. Finally, an alien may be removed for drug abuse, and there is no waiver for this ground.
Waivers of Inadmissibility on Health-Related Grounds
Aliens who carry communicable diseases of significant public interest are inadmissible. However, this ground may be waived if the alien is the spouse or unmarried child of a United States citizen or LPR or if the alien has a child who is a United States citizen or LRP. Aliens who have no record of certain vaccinations may also be deemed inadmissible. There is a waiver of this ground if the alien receives the vaccine, it is certified by a proper official that the vaccine is not medically appropriate or if the vaccination would violate the alien’s religious beliefs or moral convictions. If an alien is inadmissible on mental health related grounds, there may be a waiver granted as the Secretary of Health and Human Services may provide.
Waivers for Inadmissibility on Criminal and Related Grounds
Prior to 1996, there existed a provision in Immigration law that allowed discretionary waivers for individuals who are LPRs with certain criminal convictions known as I.N.A. section 212(c). This section has since been repealed, but is still applicable in certain cases. It is not applicable to those who have already been removed, but only to those who are currently in immigration proceedings, who may be placed in removal proceedings, or who have completed immigration proceedings and are under final orders of removal. A recent Supreme Court case has allowed this code section to still apply to those individuals whose criminal convictions were obtained through plea agreements prior to April 1, 1997 if they would have been eligible for this relief at the time of their conviction. In order to qualify, the alien must have resided in the United States for at least seven years and served less than five years on the conviction. The court is authorized in such cases to weigh negative factors, such as the severity of the crime, against positive factors, such as the individual’s rehabilitation and ties to the community. This relief only applies to a narrow group of aliens and is not available to those who have been convicted after April 1, 1997 or those who were convicted prior to that date, but without a plea agreement.
Outside of this narrow provision, the Act also contains a waiver available under section 212(d)(3). Under this provision, a nonimmigrant, otherwise inadmissible, may be admitted into the United States temporarily at the discretion of the Attorney General. The test to be used in determining eligibility for this waiver involves three factors that must be weighed in making the determination. The first factor involves the risk of harm to society if the applicant is admitted. The second factor involves the seriousness of the applicant’s immigration law or criminal law violation, if any. Finally, the court should look at the nature of the applicant’s reasons for wishing to enter to the United States.
A waiver may also be sought for inadmissibility/removability on criminal grounds under code section 212(h). This waiver is authorized for crimes of moral turpitude, a one-time violation involving the possession of 30 grams or less of marijuana for personal use, multiple convictions, prostitution and serious crimes committed by an alien who has asserted immunity. The alien is eligible for a waiver under section 212(h)(1)(A) if the crime committed was committed more than fifteen years prior to the date of application for admission, the admission would not be contrary to the national welfare and the alien can demonstration his rehabilitation. Section 212(h)(1)(B) provides another waiver if the alien is a spouse, parent or child of a United States citizen or LPR and if denial of admission would cause an extreme hardship to the United States citizen or LPR.
There are certain crimes for which no waiver is available. These include murder, torture and conspiracy to commit murder or torture. Due to a quirk in the law, non-LPRs are eligible for a waiver in the case of an aggravated felony whereas LPRs are not eligible for this relief. An applicant seeking 212(h) relief must not only show statutory eligibility, but must establish that he or she deserves the waiver as a matter of discretion. The same discretionary factors used in determining eligibility for section 212(c) relief are appropriately applied in a 212(h) situation.
Waivers of Inadmissibility due to Fraudulent Misrepresentation
A waiver may be granted in the case of an alien who fraudulently procured a visa if the alien is the spouse or child of a U.S. citizen or an LPR and the Attorney General is satisfied that the refusal of the alien’s admission to the United States would result in extreme hardship to the U.S. citizen or LPR spouse or parent of such alien. There is no longer a waiver for the parents of a U.S. citizen or LPR, and there is, likewise, no longer a waiver for misrepresentations which occurred ten or more years ago. For those claiming U.S. citizenship falsely, there is only one exception to the finding of inadmissibility, i.e., if each natural parent of the alien is or was a citizen, the alien permanently resided in the US prior to attaining the age of 16 and the alien reasonably believed at the time of making such representation that he or she was a citizen. Otherwise, there is no waiver for those claiming U.S. citizenship falsely.
Waivers of Inadmissibility due to lack of Proper Documentation, including valid passport, visa or border crossing identification
Under I.N.A. section 212(d)(4), the ground for inadmissibility based on the alien not possessing a valid passport, a valid visa or border crossing identification may be waived by the Attorney General and Secretary of State acting jointly. This waiver is authorized on the basis of an unforeseen emergency in individual cases. Additionally, there exits an I.N.A. section 212(k) waiver for inadmissibility based on the fact that the alien was unaware of his or her ineligibility for admission to the United States. This waiver is only available if the Attorney General, in his discretion, finds that the alien who was unaware of his ineligibility for admission could not have discovered this ineligibility by an exercise of reasonable diligence.
Waivers of Removability for Unauthorized Work
Section 245(k) allows aliens eligible to receive an employment-based visa to adjust status notwithstanding past violations, including unauthorized work. This section forgives violations such as acceptance of unauthorized employment, failure to maintain continuously a lawful status, failure to be in lawful nonimmigrant status when applying for permanent residence or violation of the terms of a nonimmigrant visa. There are two requirements for this provision to apply. First, the applicant must, on the date of filing an application for adjustment of status, be present in the United States pursuant to a lawful admission. Second, the applicant, subsequent to such lawful admission must not have, for an aggregate period exceeding 180 days, any of the following: a) a failure to maintain, continuously a lawful status; b) an engagement in unauthorized employment; or c) any other violations of the terms and conditions of the applicant’s admission.
Waivers of Removability for Overstay
Aliens arriving at a point of entry with a visa that has become automatically void due to an overstay may apply for a waiver under I.N.A. § 212(d)(4) in limited circumstances. As discussed earlier, this waiver may be granted by a finding of an unforeseen emergency in individual cases by the Attorney General and the Secretary of State acting jointly.
Removal of condition for CPRs
As mentioned earlier, a CPR can become removable if she or he violates the condition of maintaining his marriage to a United States citizen prior to the passage of two year’s time. There is a hardship waiver for this situation. In order to qualify for this waiver, the alien must show that there would be a hardship if he or she were removed, that the marriage was a good faith marriage and the condition of maintaining the marriage was violated through no fault of the alien. There is also an exception made in the case of a battered spouse who entered into a good faith marriage.
OTHER AVENUES OF RELIEF
Cancellation of Removal
Cancellation of Removal is available for certain permanent residents and certain non-permanent residents. In the case of a permanent resident, Cancellation of Removal may be obtained if the alien has been an alien lawfully admitted for permanent residence for not less than five years, if the alien has resided in the United States continuously for seven years after having been admitted in any status, and the alien has not been convicted of an aggravated felony.
Cancellation of Removal is available for certain non-permanent residents, both those who have been lawfully admitted for permanent residence and those who are inadmissible or removable from the United States, who meet the following criteria: the alien has been physically present in the United States for a continuous period of not less than ten years immediately preceding the date of such application, the alien has been a person of good moral character during such period, the alien has not been convicted of a crime outlined in the grounds for inadmissibility, unless a waiver has been granted, and the alien establishes that removal would result in exceptional and extremely unusual hardship to the alien’s United States citizen or LPR spouse, parent or child. There are also special rules for battered spouses or children. The applicant must show that he or she warrants relief as a matter of discretion. Discretionary factors for 212(c) relief are the appropriate standards used for determining eligibility for this relief.
I.N.A. § 212(d)(5) Parole
The Attorney General can temporarily parole an alien on a case-by-case basis for humanitarian reasons. This is not an admission, but merely a temporary granting of permission to enter the country if the Attorney General sees a significant public benefit. These parolees are not regarded as admitted and once the purposes of the parole have been served the alien must return to his country of origin and re-apply for status there.
We hope this article offered you a glimpse into this most complex area of law. Only 3% of lawyers deal with high-level research and information is hard to find on the web. We will keep explaining this area on a regular basis and hopefully it will help you with any issues you may be dealing with.
This article is not intended to be a substitute for legal advice as many nuances exist in immigration law, especially as they pertain to the facts of specific cases. For complete advice regarding your individual case, you should consult with an immigration attorney.
TO CONTACT AN ATTORNEY
Steven Riznyk has been practicing immigration law for 15 years dealing with a variety of complex problems and appeals.
Steven can be contacted for Immigration Consultation and Services at:
Tel: 1 (818)-508-7299
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