The Immigration & Nationality Act contains several provisions that allow an Immigration Judge to waive the removal or deportation of an otherwise inadmissable alien.
WAIVERS FOR CRIMINAL GROUNDS OF INADMISSIBILITY
For many years, immigration law has provided a waiver if the criminal act was a purely political offense. This provision applies both if the immigrant was unfairly targeted by the government for prosecution because of their race, religion, or membership in a political minority, and if the immigrant actually committed the offense, but did so to further a political goal.
Waivers are available for a number of juvenile offenses. A person convicted of a single crime involving moral turpitude while under age 18 must be given a waiver if more than five years have passed since the commission of the offense.
Repeat offenders are not eligible for this waiver, nor are those who were convicted of more serious offenses. The waiver is only necessary, however, if the juvenile was prosecuted as an adult. By law, a criminal offense committed before age 15 cannot render a person inadmissible, and crimes committed between ages 15 and 18 will lead to inadmissibility only if the person was tried as an adult.
Waivers are also available for so-called “petty offenses.” It is available if the alien has been convicted of only one crime, and the maximum possible punishment for the crime was not more than one year in prison, and the alien was sentenced to six months or less. The offense must have been a crime involving moral turpitude, although the crime may be either a felony or a misdemeanor.
Status Waivers – 15 Year Rule and Hardship
Finally, there is a general discretionary waiver based on the status of the immigrant rather than the crime. The offenses covered are crimes involving moral turpitude, multiple criminal convictions, prostitution or commercialized vice, assertion of immunity from prosecution, and simple possession of 30 grams or less of marijuana. There are two ways to qualify for this waiver.
The first involves convictions either for convictions for prostitution (regardless of how old) or convictions for certain other crimes that are more than 15 years old.
Under the second, if the immigrant is the spouse, child or parent of a US citizen or permanent resident, he or she may obtain a waiver by showing that the denial of the waiver would result in extreme hardship to the qualifying relative.
Additional eligibility requirements for status waivers:
- Applicant must have been a permanent resident who has resided in the United States for seven consecutive years prior to the date of the criminal offense;
- Applicant cannot have been convicted of murder, acts involving torture, or either conspiring or attempting to commit those offenses; and
- Applicant cannot have been convicted of an aggravated felony.
WAIVERS FOR HEALTH-RELATED GROUNDS OF INADMISSIBILITY
All green card and visa application forms ask questions designed to find out if any health related grounds of inadmissibility apply. If the answers to the questions reveal that there are grounds for inadmissibility, an applicant can request a waiver.
Process of Obtaining Waiver
To receive a waiver of inadmissibility, the applicant does not need to eliminate or disprove the ground of inadmissibility but instead petitions the USCIS to overlook the problem and issue a green card or visa.
The health related grounds for inadmissibility are:
- Communicable diseases;
- Physical or mental disorders which threaten the safety of oneself or others;
- Drug abusers or addicts; and
- Failure to vaccinate against certain vaccine-preventable diseases.
There are waivers available for most of the health related grounds of inadmissibility except for drug abusers and addicts.
Waivers for Aliens With Communicable Diseases
An alien with a communicable disease may receive a wavier if he or she has the requisite relationship to a U.S. citizen or permanent resident spouse, unmarried child, unmarried minor lawfully adopted child or parent. And, of course, the applicant must be eligible for permanent residence status in all other respects except for the health related grounds of inadmissibility.
The most common communicable diseases for which waivers are sought are Tuberculosis (TB) and HIV(AIDS).
A waiver applicant with tuberculosis must agree to see a doctor immediately upon admission and make arrangements to receive private or public medical care.
An HIV+ waiver application must include evidence that:
1. The danger to the public health of the United States due to the alien’s admission is minimal;
2. The possibility of the spread of the infection created by the alien’s admission to the United States is minimal; and
3. There will be no cost incurred by any level of government agency of the United States without prior consent of that agency.
Aliens who are HIV+ will also have to show the following:
1. Medical treatment has been arranged in the United States;
2. The alien is aware of the nature and severity of his or her medical condition;
3. The alien has provided evidence of counseling; and
4. The alien has demonstrated a knowledge of the modes of transmission of the virus.
Physical & Mental Disorders
An alien with a physical or mental disorder which threatens the safety of the alien and/or others may receive a waiver if they meet the special conditions required by the USCIS.
The alien must submit detailed documentation that shows his or her medical history and, in the case of mental illness, the alien must also show that he or she has recovered. The alien must have a statement from a hospital or physician practice affirming that it will examine the immigrant upon admission.
An alien who is found inadmissible for not being vaccinated, may receive a waiver if,
1. The alien received a vaccination but does not have documentation;
2. The vaccine is medically inappropriate as certified by a USCIS civil surgeon; or
3. Having vaccines administered is contrary to the alien’s religious beliefs or moral convictions. There must be an objection to vaccinations in any form.
The alien requests a waiver of inadmissibility on Form I-601 accompanied by $545.00 filing fee. If he or she is outside the United States, the application is submitted to the nearest Embassy or Consulate for transmission to the USCIS.
If the alien is in the United States, the application may be made in proceedings for adjustment of status. Note that waivers can take many months to process since the waiver requires an endorsement from the Center for Disease Control (CDC).