Waivers

Today I want to discuss the concept of waivers, which can be fairly complicated.  First, what is a waiver?  A waiver is basically a request for mercy by a foreign national who has some kid of problem that is preventing them from entering the US or seeking a visa or a green card or other benefits.  This is called being inadmissible.  Or a foreign national who was ordered deported and has a ten year bar, but wants to reenter sooner than ten years.  This foreign national is saying to the federal government, hey, I know I have a problem that prevents me from entering the US or getting a visitor visa or a green card, but please overlook this problem, because otherwise a US citizen relative will suffer.  So you are asking for admission or status in the US because if you don’t get this admission or status, then your USC or LPR family members will suffer.  That is the basic premise, now let’s break it down a little more. 

First, when can you file a waiver?  When you have a viable application for entry to the US or application for an immigration green card through a family member, or another way to immigrate. 

Next, what kids of problems could you have that require a waiver? Criminal conduct, misrepresentation, and unlawful presence.  There is also the permission to reenter once you were formally deported. 

Are there problems that can’t be waived?  Yes, a finding of fraud in obtaining an immigration benefit such as a green card, or certain serious crimes. 

What do you mean by, my family will suffer?  Finally, you must show “extreme hardship” to an American relative.  Which American relative depends on the waiver you are seeking.  What is extreme hardship?  Well, the law doesn’t quite define that, but it generally involves medical problems or financial problems with the qualifying American relative.  Generally, you need to show that you are helping provide healthcare for a medical issue with the American relative, or that you are an important provider of financial support.  Remember, you need to show extreme hardship, not just hardship.  You have to go above and beyond the usual difficulties faced by a family that is broken apart.

Some people are not allowed to enter the United States, whether as a visitor or an immigrant, because of some problem in the past.  For example, if you were convicted of a crime in the United States or abroad, you will have problems getting a visa.  Or perhaps you were previously ordered deported, and now you want to reenter.  All these past problems will require that you file a waiver to cure the problem with your visa application.  If you file the visa application without the waiver and you have one of these problems, your application will be denied, probably with a suggestion to file a waiver. 

Now, it’s not just any citizen or any green card holder.  The rules are very strict, and they are usually limited to a spouse, or children, or parent, or both, depending on the type of waiver you are filing, and it can get quite technical.  Sometimes it’s to a USC, sometimes to a green card holder, sometimes spouse, sometimes children, sometimes both, it depends on your case.  But hardship to yourself usually doesn’t matter, what matters to the government is the hardship to an American relative. 

So, for example, if you are applying for a green card through a spouse, but you entered the US with a false passport a long time ago, that requires a waiver under section 212(i), for which you must demonstrate extreme hardship to a USC spouse.

However, if your problem is that you overstayed a visa in the US and you want to reenter, and you are barred from reentering for 3 or 10 years (depending on period of overstay), then you will need a waiver under section 212(a), for which you may only show hardship to a USC or LPR spouse or parent, but not to children. 

Finally, you must show “extreme hardship” to an American.  What is extreme hardship?  Well, the law doesn’t quite define that, but it generally involves medical problems or financial problems with the qualifying American relative.  Generally, you need to show that you are helping provide healthcare for a medical issue with the American relative, or that you are an important provider of financial support.  Remember, you need to show extreme hardship, not just hardship.  You have to go above and beyond the usual difficulties faced by a family that is broken apart.