Convictions | Exchange Visitors | Fraud and Misrepresentation | Health-related | Marriage-related | Nonimmigrant | National Interest | Physician | Removal Proceedings | Return after Removal | Unlawful Presence
For over twenty years, Minikon Law, LLC has represented individuals seeking waivers from deportation and removal, waivers to obtain a green card, and waivers to enter the United States as a nonimmigrant. Immigration waivers are needed when an applicant for a visa has engaged in activities that prevent the issuance of the visa, is not admissible to the U.S., or ineligible for certain types of visas due to the applicant’s immigration history. In other instances, waivers are needed to prevent the deportation and removal of someone already in the United States or to remove conditions imposed on their lawful permanent resident status.
When you hire Minikon Law, LLC to represent you in your waiver application case, we do the following:
- Evaluate the facts of the case to assess eligibility for the waiver
- Evaluate the case to assess whether a waiver is actually needed
- Conduct research to ensure that changes in the law are considered in preparing the application
- Advise and guide you regarding the types of evidence that will support the waiver
- Prepare and submit the waiver application and supporting evidence
- Represent you in Immigration Court or before USCIS
Waivers for Criminal Convictions
A person placed in removal proceedings due to criminal convictions has several waiver options available. One waiver option is commonly referred to as section 212(c) relief. In order to be eligible for this waiver, a lawful permanent resident must have received a guilty verdict, pled guilty, or entered a no contest plea to any crime before April 24, 1996, or to certain crimes between April 24, 1996, and April 1, 1997.
Another waiver is available in the following situations: crimes involving moral turpitude; a single offense of simple possession of 30 grams or less of marijuana; multiple convictions where the total sentences imposed were five years or more; prostitution and commercial vice; and serious offenses involving the assertion of immunity by a foreign diplomat. All crimes cannot be waived.
J-1 exchange visitors must return to their home countries for two years. This requirement can be waived by obtaining a “no objection letter” from the foreign government in cases where the foreign government provided financial sponsorship for the exchange visitor program or the applicant’s field of study or occupation is on the country’s skills list. Physicians are eligible for a waiver on the basis of a no objection letter if participating in the Conrad waiver program. Another method for obtaining a waiver is to prove that the J-1 exchange visitor’s U.S. citizen or permanent resident spouse or child would suffer exceptional hardship if the requirement is not waived. Finally, an exchange visitor can apply for a waiver if it can be proven that the foreign government would persecute him or her.
Fraud and Misrepresentation Waiver
If an immigration officer or consular official determines that an applicant for adjustment of status, or a visa has engaged in fraud or misrepresentation the application will be denied. The applicant must file a waiver and prove that a U.S. citizen or permanent resident spouse or parent would suffer extreme hardship if the waiver is not granted. If the applicant is a Violence Against Women’s Act (VAWA) petitioner, proof of extreme hardship to the applicant or a U.S. citizen or lawful permanent resident parent or child is required.
If the fraud or misrepresentation is discovered after the person has acquired lawful status, a waiver is available for a VAWA self-petitioner or the spouse, parent, son, or daughter of a U.S. citizen or lawful permanent resident who is otherwise admissible to the U.S.
A third type of waiver is needed and available when an immigrant enters the United States with an improperly issued visa, expired passport, or entry document that s/he was unaware of before traveling to the U.S. The waiver is granted in the discretion of the adjudicator.
Certain health conditions require a waiver in order to enter the United States or obtain lawful permanent resident status. Those conditions include communicable diseases and mental and physical disorders that pose a danger to others or property. In addition, most applicants for an immigrant visa or adjustment of status must prove that they have had vaccines to prevent common childhood illnesses and other specified conditions. Waivers of the vaccine requirement are available where administration of the vaccine is not medically recommended, the administration of the vaccine would be contrary to the religious or moral beliefs of the applicant, or the applicant has received the vaccines, but failed to provide proof.
When a person obtains lawful permanent resident status through a marriage that was less than 2 years old at the time, the status granted is conditional, and for two years only. Ninety days prior to the expiration of the person’s conditional status, the couple must jointly file an application to remove the conditions. If a joint application is not possible, a waiver is available in the following situations: the U.S. citizen or lawful permanent resident spouse is deceased; the marriage was entered in good faith, but ended through no fault of the applicant; the marriage was entered into in good faith, but the applicant or applicant’s children were subject to mental or physical abuse; or, the termination of conditional resident status would result in extreme hardship for the applicant.
Waiver for Nonimmigrants
An applicant for a nonimmigrant visa or applicant for entry into the U.S. as a nonimmigrant may need a waiver if he or she has overstayed a previously issued visa, has certain convictions that prohibit entry into the U.S., or falls within one of the other classes of inadmissible persons. A waiver may be granted to allow an inadmissible nonimmigrant entry into the U.S. temporarily for public interest or humane reasons. In order to qualify for this waiver, the applicant must prove that the entry will not pose a risk of harm to U.S. society.
National Interest Waiver
An application for a national interest waiver seeks to waive the requirement that a person who immigrates to the United States in an employment-based category must have an approved labor certification document. The waiver application can be filed as part of an employer petition process or as part of a self-petition (no job offer required). The applicant must be immigrating to perform work that is national in scope and important enough to outweigh the U.S.’s national interest in protecting U.S. workers by requiring labor certification.
Medical doctors who are on an exchange visitor visa can apply to waive the requirement that they return to their home countries for two years in order to obtain a H1B visa or lawful permanent resident status. State health departments are authorized to recommend 30 waivers each year. Each state has its own requirements for participation. In addition, the Department of Health and Human Services (HHS) has a program that allows health centers and hospitals located in rural or medically underserved areas to apply for a waiver on behalf of physicians who will work for them. Another HHS program grants waivers to physicians who will engage in academic research of national significance.
Cancellation of Removal
A non-permanent resident who has been placed in removal proceedings may file a waiver, which if granted, will cancel their removal and grant them a green card or lawful permanent resident status. The applicant must prove physical and continuous presence in the United States for a certain number of years prior to being placed in removal proceedings. In addition, the applicant must prove that a U.S. citizen or lawful permanent resident child, parent, or spouse will suffer exceptional and extremely unusual if the person is removed. Abused and battered spouses, children, and parents of abused and battered children of lawful permanent residents or U.S. citizens can apply to cancel their removal as well by proving extreme hardship to the applicant, the applicant’s child, or parent. Lawful permanent residents (LPR) may also apply for cancellation of removal if in immigration court. This waiver, however, is available to waive only certain crimes.
Waiver to Return after Removal
A person who has been deported or removed and seeks to return before a certain amount of time has passed, must apply for permission before returning to the U.S. as an immigrant or nonimmigrant. The amount of time a person must stay out following their removal from the United States varies; it is dependent on the type of process that led to the deportation or removal, and whether it was the first or second removal. If the application is granted, the period of time the person must remain outside the U.S. is waived, thereby allowing entry immediately.
Waiver for Unlawful Presence
Persons who enter the United States without inspection, or entered with a visa and overstayed, face a three- or 10=year bar to admission to the U.S. after departure. This bar affects the ability to obtain a nonimmigrant visa or an immigrant visa abroad after approval of a family or employer petition. If you enter the U.S. with a visa, overstay, and then obtain their lawful permanent resident status through a petition filed by a U.S. citizen parent, spouse, or child, you do not need this waiver and can obtain your green card in the U.S. Time spent in the U.S. unlawfully while under the age of 18 does not count towards the bar to admission.
In order to apply for the waiver, the applicant must be the child or spouse of a U.S. citizen or lawful permanent resident. Persons who have an approved family or employer petition and meet all other eligibility requirements can apply for the waiver while they are in the United States and do not have to leave before obtaining a decision on the waiver. If a waiver is approved, the applicant must proceed to his or her home country to obtain the immigrant visa.