Whether you are eligible for a waiver depends on the immigration benefit you are seeking and the reason for your inadmissibility. If you are an applicant for an immigrant, K, or V nonimmigrant visa (and you are outside the United States, have had a visa interview with a consular officer, and during the interview, you were found inadmissible,) or you are an applicant for adjustment of status to lawful permanent residence (excluding adjustment categories listed below,) you may file this application to obtain relief from the following grounds:
1. Health-related grounds of inadmissibility (INA section 212(a)(1))
2. Certain criminal grounds of inadmissibility (INA section 212(a)(2))
3. Immigration fraud and misrepresentation (INA section 212(a)(6)(c))
4. Immigrant membership in totalitarian party (INA section 212(a)(3))
5. Alien smuggler (INA section 212(a)(6)(E))
6. Being subject to civil penalty (INA section 212(a)(6)(F))
7. The 3-year or 10-year bar due to previous unlawful presence in the United States (INA section 212(a)(9)(B))
If you are an applicant for an immigrant visa or adjustment of status as a Violence Against Women Act (VAWA) self-petitioner or the child of a VAWA self-petitioner, you may file this application to obtain relief from the following grounds:
1. All grounds listed for the adjustment of status applicants.
2. Unlawfully present after previous immigration violations (INA section 212(a)(9)(C))
NOTE: VAWA self-petitioners (and their children) seeking adjustment have a special form of relief available if they are inadmissible under the 3-year or 10-year bar (INA section 212(a)(9)(B)(i)). VAWA self-petitioners (and their children) who are not eligible for this special form of relief, but meet the requirements for the waiver under INA section 212(a)(9) (B)(v), may file Form I-601.
Except as provided below, if you are granted a waiver of grounds of inadmissibility in connection with your immigrant visa or adjustment of status application, the waiver is valid indefinitely. This is true even if you do not obtain your immigrant visa, or immigrant admission, or adjustment of status, or if you lose your legal permanent resident (LPR) status.
The following waivers are either conditional or limited to certain benefits.
Convention Adoptee. If you obtain a waiver in connection with Form I-800, Petition to Classify Convention Adoptee as an Immediate Relative, the approval of your waiver is conditioned upon the final issuance of an immigrant or nonimmigrant visa based on the final approval of Form I-800.
K Nonimmigrant Visa Applicant. If you obtain a waiver in connection with an application for a K-1 or K-2 nonimmigrant visa, the approval of your waiver is conditioned upon the marriage of the K-1 visa applicant and the K-1 visa petitioner after the K-1 nonimmigrant visa applicant is admitted to the United States.
Conditional Resident. If you obtain a waiver in connection with an application for lawful permanent residence on a conditional basis under INA section 216 or INA section 216A, the validity of the waiver automatically ceases with the termination of such residence. No separate notification of termination of the waiver is needed, and you cannot appeal the termination of the waiver. However, if the immigration judge determines that you are not removable based on the termination of your conditional resident status, the waiver will become effective again.
TPS Applicant. If you obtain a waiver in connection with Form I-821, Application for Temporary Protected Status, the waiver is only valid for the TPS application. If granted, the waiver will apply to subsequent TPS re-registration applications, but not to any other immigration benefit requests
NOTE: The waiver that is granted will apply only to the grounds of inadmissibility and those crimes, incidents, events, or conditions that you have included in your application. For this reason, it is important that you disclose all conduct or conditions.
Per USCIS Policy Manual:
A waiver’s validity depends on the underlying immigration benefit connected to the approved waiver.
An inadmissible applicant seeking to enter the United States as a nonimmigrant generally needs to obtain advance permission to enter the United States as a nonimmigrant. Advance permission to enter as a nonimmigrant despite inadmissibility is referred to as a nonimmigrant waiver. Customs and Border Protection (CBP) generally adjudicates this waiver, which is temporary if approved. This temporary permission does not ordinarily carry over to other benefit categories, such as other nonimmigrant categories, immigrant categories, visas, or adjustment of status.
An applicant seeking temporary protected status (TPS) status in the United States may be inadmissible. In most cases, a waiver is available to a TPS applicant in connection with his or her TPS application. If USCIS approves a TPS applicant’s waiver, the waiver is temporary and lasts for the duration of TPS only.
An inadmissible refugee must apply for a waiver before seeking admission to the United States. A waiver granted to a refugee for admission to the United States is valid for purposes of seeking adjustment of status as a refugee. In this case, the applicant does not have to file another waiver for the specific inadmissibility ground previously waived.
There is an exception, however, for medical waivers. If USCIS grants the refugee a waiver for purposes of admission to the United States because of a Class A condition, then the refugee is required to submit to another medical examination. If the second examination reveals a Class A condition, the refugee must file another waiver when seeking adjustment of status.
An inadmissible applicant seeking lawful permanent resident (LPR) status requires a waiver. As previously explained, the availability of a waiver depends on the specific category under which an applicant seeks LPR status.
A waiver granted in connection with any application for LPR status permanently waives the ground of inadmissibility for purposes of any future immigration benefits application, including immigrant and nonimmigrant benefits. The waiver remains valid even if the LPR later abandons or otherwise loses LPR status.
This rule, however, does not apply to conditional residents or conditional grants issued to K-1 and K-2 nonimmigrants.
For most conditional permanent residents,the waiver becomes valid indefinitely when the conditions are removed from the permanent resident status. This is the case even if the LPR later abandons or otherwise loses LPR status.
For certain criminal waivers and a waiver of fraud or willful misrepresentation,the validity of a waiver automatically ends if USCIS terminates conditional residency. There is no need for a separate termination notice and the applicant cannot appeal this waiver termination. If the immigration judge determines during removal proceedings that USCIS incorrectly terminated the conditional residence, the waiver becomes effective again.
If the applicant seeks a waiver to obtain a fiancé(e) visa (K-1 or K-2), the waiver’s approval is conditioned upon the K-1 nonimmigrant marrying the U.S. citizen who filed the fiancé(e) petition. If the K-1 nonimmigrant marries the petitioner, the approved waiver becomes valid indefinitely for any future immigration benefits application, whether immigrant or nonimmigrant.
The waiver remains valid even if the K nonimmigrant does not ultimately adjust status to an LPR or if the K nonimmigrant later abandons or otherwise loses LPR status.
If the K-1 nonimmigrant does not marry the petitioner, the K-1 and K-2 (if applicable) remain inadmissible for any application or any benefit other than the proposed marriage between the K-1 and the K nonimmigrant visa petitione
An approved waiver in conjunction with the provisional approval of a Petition to Classify Convention Adoptee as an Immediate Relative is conditioned upon the issuance of an immigrant or nonimmigrant visa for the child's admission to the United States and final approval of that Form I-800. If Form I-800 or the immigrant or nonimmigrant visa application is ultimately denied, the waiver is void
Foreign nationals who are not eligible to adjust their status in the United States must travel abroad and obtain an immigrant visa. Individuals who have accrued more than 180 days of unlawful presence while in the United States must obtain a waiver of inadmissibility to overcome the unlawful presence bars under section 212(a)(9)(B) of the Immigration and Nationality Act before they can return. Typically, these foreign nationals cannot apply for a waiver until after they have appeared for their immigrant visa interview abroad, and a Department of State (DOS) consular officer has determined that they are inadmissible to the United States. The provisional unlawful presence waiver process allows those individuals who are statutorily eligible for an immigrant visa (immediate relatives, family-sponsored or employment-based immigrants as well as Diversity Visa selectees); who only need a waiver of inadmissibility for unlawful presence to apply for that waiver in the United States before they depart for their immigrant visa interview. This new process was developed to shorten the time that U.S. citizens and lawful permanent resident family members are separated from their relatives while those relatives are obtaining immigrant visas to become lawful permanent residents of the United States.
To be eligible for a provisional unlawful presence waiver, you must fulfill ALL of the following conditions:
You are not eligible for a provisional unlawful presence waiver if any of the following conditions apply to you:
Jagat Kooner, Esq. Admitted to Minnesota Bar. Authorized to Practice Immigration and Nationality Law in All 50 States and US Territories Pursuant to 8 USC 1292.1. Law practice in California limited exclusively to immigration law. Our office does not provide legal advice on California or any other state law.