My team and I have extensive experience in preparing I-601, I-212, 212(d)(3), I-192, and I-601A Provisional Waivers for those deemed inadmissible to the U.S.
Foreign nationals who enter the United States without a visa or without inspection cannot apply for permanent residence from within the United States. Instead, they must leave the United States to obtain an immigrant visa at a consulate abroad and are generally barred from reentering the U.S. for three or ten years or in some cases permanently.
The number of years you are inadmissible is determined by which of the following circumstances apply to you:
- Five-Year Bar: If you were removed upon arrival in the U.S. (expedited removal at a border) or were ordered removed by an immigration judge, you are subject to the five-year bar on reentry from the date of your removal.
- Ten-Year Bar: If you entered the U.S. and were later placed in removal proceedings, or if you left the U.S. willingly but before removal proceedings were concluded, you are subject to the ten-year bar on reentry from the date of your removal.
- Twenty-Year Bar: If you have been removed from the U.S. on more than one occasion, you are subject to the 20-year bar from the date of removal.
- Permanent Bar: If you were convicted of an aggravated felony, you are permanently inadmissible and forever barred from reapplying for a visa without filing Form I-212. If you are permanently barred under Section 212(a)(9)(c) of the Immigration and Nationality Act (I.N.A.), because you aggregated one year’s unlawful stay in the U.S. and left, or you were ordered removed from the U.S, and then you attempted to reenter illegally, you must wait ten years before filing Form I-212.
I-601 A Provisional Waiver. Foreign nationals who are barred from obtaining permanent residence in the United States as a result of past unlawful presence must obtain a “hardship waiver” to obtain a green card (immigrant visa) and re-enter the United States The I-601A waiver allows certain immediate relatives of U.S. citizens to apply for a provisional waiver of the unlawful presence ground of inadmissibility while still in the United States if they can demonstrate that being separated from their U.S. citizen spouse or parent would cause that U.S. citizen relative ”extreme hardship”.. To qualify for a hardship waiver, they must prove that their qualifying relative – a U.S. citizen or permanent resident spouse or parent – would suffer “extreme hardship” if they were not allowed to return to the United States.
An I-601 waiver allows you to waive the “unlawful presence” or “misrepresentation” grounds of inadmissibility. You must prove that your U.S. citizen or permanent resident spouse or parent would suffer “extreme hardship” if you two cannot be united.
The I-212 waiver; If you are inadmissible for certain immigration violations under the Immigration and Nationality Act, or you re-entered the United States after you were removed at the border or by the immigration court, you must ask for consent to reapply for admission to the United States before you can lawfully return to the United States. Consent to reapply is also called “permission to reapply.” allows you to apply for early readmission into the U.S. after you were previously removed and before you stayed the required amount of time outside the U.S.
Under section 212(d)(3) of the Immigration and Nationality Act (INA), the Department of Homeland Security (DHS) is authorized to waive many grounds of inadmissibility for people who have been previously deported, so long as they are not applying for green cards.
The preparation any immigration waiver is a complicated process, best done by an experienced immigration attorney.
For example, children are not qualifying relatives for certain waiver applications. However, children may be qualifying relatives for hardship waivers based on other grounds of inadmissibility. Also, sadness and stress accompanying separation from a qualifying relative is not sufficient cause to seek a hardship waiver. The foreign national must present additional factors that rise to the level of extreme hardship, such as a serious medical condition, personal circumstances (such as caring for the spouse’s elderly or ill relative), the spouse’s financial dependence on the foreign national, and/or unrest or other significant problems in the foreign national’s home country that would make it extremely difficult for the foreign national and the petitioning relative to relocate there.
The approval of a waiver application does not grant automatic authorization to return to the Unites States. If a waiver application is approved, you still would have to prove that you qualify based on the type of visa that you’re applying for.