Individuals may be inadmissible to the United States for a variety of reasons, including illegally entering the country, having been ordered removed, having committed certain criminal acts, due to a prior fraud or misrepresentations, on health-related grounds, on economic grounds, on moral grounds, on national security grounds, and for various other reasons. However, waivers for many of these grounds of inadmissibility are available, under certain circumstances.

Provisional Unlawful Presence Waivers

Certain immigrant visa applicants who are spouses, children and parents of U.S. citizens (immediate relatives) can apply for provisional unlawful presence waivers before they leave the United States. This allows individuals who only need a waiver of inadmissibility for unlawful presence to apply for a waiver in the United States before they depart for their immigrant visa interviews at a U.S. embassy or consulate abroad.

Eligibility Requirements

You may be eligible for a provisional unlawful presence waiver if you meet all of the following:

  1. Be 17 years of age or older.
  2. Be an immediate relative of a U.S. citizen (spose, child or parent of a U.S. citizen.)
  3. Have an approved Form I-130.
  4. Be able to demonstrate that refusal of your admission to the United States will cause extreme hardship to your U.S. citizen spouse or parent.
  5. Be physically present in the United States to file your application for a provisional unlawful presence waiver and provide biometrics.
  6. Not have been scheduled for an immigrant visa interview by DOS before January 3, 2013.

You are ineligible for a provisional unlawful presence waiver if any of the follow applies to you:

  1. You are subject to one or more grounds of inadmissibility other than unlawful presence.
  2. DOS initially acted before January 3, 2013, to schedule your Immigrant Visa interview for the approved immediate relative petition upon which your provisional unlawful presence waiver application is based, even if your immigrant visa interview has been canceled, you failed to appear for the interview, or your interview was rescheduled on or after Jan. 3, 2013.
  3. You have been ordered removed and are in removal proceedings that have not been administratively closed.

Waiver of the 3 and 10 Year Unlawful Presence Bars

An individual who amasses over 180 days, but less than one year, of unlawful presence, and departs the country, is barred for 3 years from applying for admission to the United States. An individual who accrues a year or more of unlawful presence in the country before departing faces a 10 year bar to admission. An individual who has been unlawfully present for over one year, exits the country, and either reenters or attempts to reenter, is permanently barred from applying for admission to the United States.

The government may grant a waiver of the 3 or 10 year bars for an immigrant who is the spouse, son, or daughter of a U.S. citizen or lawful permanent resident if it can be establish that the refusal of admission would result in extreme hardship to the qualifying relative. A waiver of the permanent bar can only be applied for after 10 years of residence outside of the United States.

212(i) Waiver of Misrepresentation or Fraud

An individual, who by fraud or willful misrepresentation of a material fact, seeks to procure, has sought to procure, or has procured a visa, other documentation, admission into the United States, or other benefit, is inadmissible. However, these grounds of inadmissibility may be waived in the case of an immigrant who is the spouse, son, or daughter of a United States citizen, or a lawful permanent resident, if it is established that refusal of admission would result in extreme hardship to the citizen or lawful resident spouse or parent of the alien.

212(h) Inadmissibility Waiver

INA Section 212(h) allows for waivers of numerous criminal grounds of ineligibility, including crimes involving moral turpitude, a single offense of simple possession of 30 grams or less of marijuana, and multiple criminal convictions where the aggregate sentence was 5 years or more. To be eligible for a 212(h) waiver, you must demonstrate either (1) that you are the spouse, parent, or child of a U.S. citizen or lawful permanent resident who would suffer extreme hardship if you were kept out of or forced to leave the United States; or (2) that there have been at least 15 years since you committed the crime, your admission would not harm the welfare, safety or security of the United States, and that you have been rehabilitated.