Waivers of Inadmissibility-You May Be Pardoned
Certain applicants for immigration benefits may be determined “inadmissible” to the US based on prior legal violations or administrative decisions entered against them. Because an applicant may be inadmissible, the applicant must submit a waiver (sometimes referred to as a pardon). Based on this inadmissibility, US immigration authorities may deny their applications for visas or to adjust status. A waiver of inadmissibility, however, may be available, depending on the charges raised against the applicant and the type of visa for which they are applying.
Most waivers are adjudicated by DHS and DOS based on loose discretionary standards with a wide berth of judgment left to the examining officer. Therefore, preparing a compelling waiver brief with supporting evidence, and knowing how to most effectively present this to US immigration authorities, can be absolutely critical to the waiver’s success. Other factors that might affect the chances for a waiver’s success include the nature and seriousness of the violation, the amount of time that has elapsed since the violation, the applicant’s family, and hardship to qualifying relative’s, business and social ties to the US, and any US interests that would be positively affected by the applicant’s admission. Ms.Cardenas and her team individually each waiver application.
Grounds of inadmissibility that may be raised against an applicant by US immigration authorities include:
- Unlawful Presence
- Prior Removal/Deportation
Determining whether or not you will be deemed to be unlawfully present in the US often times requires a detailed analysis of an applicant’s immigration record, and a FOIA request seeking your immigration record can be made to the USCIS, and other agencies. It is critical to advise Ms.Cardenas of any and all entries, attempts to enter, and departures from the US. In fact this immigration history is the first critical information requested during the initial intake, as it is the most important part of determining eligibility for visa approval.
In the context of adjustment of status or immigrant visas, unlawful presence waivers are only eligible to applicants who have a US citizen or lawful permanent resident spouse or parent. Hardship to US citizen child alone will not be a basis to file a waiver to unlawful presence.
Waivers are generally available for unlawful presence inadmissibility, but not to individuals who enter or attempt to re-enter the US illegally after being unlawfully present for one year or more. This is commonly referred to as the Permanent 10 year Bar for which there is no pardon.
It is also important to note that departing the US after being unlawfully present will trigger a bar to re-entry if a waiver application is not granted. If the period of unlawful presence prior to departure was between 180 days and 1 year, a three-year bar to re-entry will be imposed. If the period of unlawful presence was greater than 1 year, a 10-year bar will be triggered.
Federal Regulations permit spouses of US citizens to apply for a Provisions Waiver (Form I-601A) prior to departing the US for the interview at the consulate abroad. Because of this opportunity, many applicants will have very short periods of time aboard, and separation from family will be minimal the waiver for his/her unlawful presence will have already been granted. Assuming no other waiver is required (as set forth below), the time abroad can be as short as a week.
Applicants may be declared inadmissible for several health-related reasons, either because they are a carrier of a disease of public health significance, lack required vaccinations, have a physical or mental disorder that poses a threat to themselves or others, or are deemed to be a drug abuser or addict. These issues often arise as part of medical examinations that occur prior to a visa interview, and are reported in the doctor’s findings to US immigration authorities. Applicants who have been arrested or convicted for an alcohol- or drug-related offense may be referred back to visit a doctor for further questioning after the visa interview. DUI convictions, often times, do not have a negative effect on an immigration process. Each case is different.
Any applicant who has been arrested or convicted for any offense at any time, no matter how old (other than minor traffic violations) must be prepared to disclose these facts and produce original and certified court documents as part of their US immigration application. Typical offenses that can complicate visa processing are crimes involving fraud or deceit, crimes against persons or property and drug-related offenses. Crimes that an applicant believes to be a major bar to their immigration application often times are not, and crimes that an applicant believes not to be a bar to their immigration application are often time a serious impediment to their immigration applications. Unlike the unlawful presence waiver, hardship to US citizen child may be considered.
Currently Facing Criminal Charges
Know The Immigration Consequences Prior To Agreeing To A Guilty Plea.
The US Supreme Court in the landmark case of Padilla v. Kentucky, 559 US 356, the US Supreme Court decided that criminal defense attorneys must advise noncitizen clients about the deportation risks of a guilty plea. Any plea of guilty or no contest, or even a suspended sentence or a deferred entry of judgment (plea in abeyance), could result in negative US immigration consequences. Ms.Cardenas does not practice criminal law, but is knowledgeable in the consequences of criminal convictions, and can be consulted and/retained to provide this advice and guidance to you and/or your criminal defense attorney.
Fraud / Misrepresentation
Any applicant who has obtained (or sought to obtain) an immigration benefit or admission to the US through fraud or misrepresentation may be declared inadmissible. Lying to immigration or border officials, presenting false documents, or even failing to disclose certain information on an immigration application form can trigger inadmissibility. Applicants who have made false claims to US citizenship will also face similar problems. Applicants for adjustment of status or immigrant visas must have a US citizen or lawful permanent resident spouse or parent to qualify for a waiver.
Prior Removal / Deportation
Any applicant who has been ordered removed from the US—either by an expedited removal order by US Customs and Border Protection or a deportation order by a US Immigration Judge—will be declared inadmissible for a fixed period of time. After an expedited removal order issued at the US border, inadmissibility will follow for five years after departure; after a deportation order, 10 years; and after any second or subsequent order of any kind, 20 years.
Waivers are available to overcome inadmissibility based on a prior removal. However, it is important to note that other grounds of inadmissibility also typically apply to these cases because without prior violations, there may not have been a prior order of removal.
If you have been declared inadmissible to the US and need assessment of your opportunities to obtain a waiver, please contact Ms.Cardenas for a fact-specific review of your case.