Waivers and inadmissibility under the new immigration reform senate bill

We’re continuing our discussions on the interesting proposals under the bipartisan senate bill on immigration reform, S.744, entitled the “Border Security, Economic Opportunity and Immigration Modernization Act”. Last time, we examined the legalization provisions of the bill. Now, we’ll discuss some new grounds for inadmissibility and changes in waivers of inadmissibility.

A criminal conviction could make an alien inadmissible or deportable under immigration laws. Generally, inadmissibility means that an alien is ineligible to receive a visa or cannot be admitted into the U.S. Deportability means that an alien who was previously admitted could be removed.

Under current immigration laws, crimes involving moral turpitude (CIMT), controlled substance violations and trafficking, prostitution, human trafficking and money laundering are some of the grounds for inadmissibility. Senate bill 744 proposes to add additional criminal grounds for inadmissibility such as a conviction for an offense where active participation in a criminal street gang is an element, convictions for 3 or more offenses related to driving under the influence (DUI) or driving while intoxicated (DWI), and convictions for domestic violence, stalking and child abuse. This does not mean though that these proposed offenses cannot be grounds for inadmissibility under current laws. They could be under the evolving interpretation of CIMT. However, Senate bill 744 explicitly makes these offenses grounds for inadmissibility under certain conditions.

For example, under the criminal street gang ground for inadmissibility, the alien must have (1) knowledge of the gang’s criminal activities and (2) he must have acted with intent (a) to promote these criminal activities or (b) to maintain or increase his position in the gang. For habitual drunk drivers, the DUI or DWI convictions must have occurred on separate dates. Under the proposed domestic violence, stalking and child abuse ground, the alien must have served at least 1 year imprisonment for the crime or have been convicted of more than one offense not arising out of a single scheme of criminal misconduct. A crime of domestic violence is one committed against, among others, (1) a current or former spouse, (2) a current or former cohabitant, (3) the other parent of a common child, or (4) a person similarly situated to a spouse under domestic or family violence laws.

Convictions are just one of many possible grounds for inadmissibility. Under current laws, unlawful presence in the U.S. and misrepresentations, including false claims to U.S. Citizenship (USC) are grounds for inadmissibility. Under certain conditions, certain grounds for inadmissibility may be waived. If waived, the alien would no longer be inadmissible and would qualify for a visa or admission. Senate bill 744 proposes to change waivers in a big way.

First, the bill allows false claimants to USC to obtain a waiver. This is significant because since 1996, these false claimants could not apply for a waiver and have no relief. It’s a surprising shift in policy that should give hope to many in the immigrant community.

Second, inadmissibility based on material misrepresentation committed while applying for a visa, admission or other immigration benefits is another long-standing policy. However, the bill would make this ground applicable only for misrepresentations committed within the last 3 years. This new limit is yet another way of easing the burdens of inadmissible aliens under the bill.

Third, in applying for a waiver of inadmissibility, the alien must show hardship on his qualifying relatives. The bill changes the standard for hardship in waivers for unlawful presence. If we recall, since March 4, 2013, USCIS has allowed certain aliens inadmissible for unlawful presence to apply for provisional waivers before they depart for their visa interviews abroad. This provisional waiver rule was a significant procedural change but the bill proposes a more significant substantive change by lowering the hardship standard from extreme hardship to mere hardship. This change would pave the way for more waiver approvals in the future.

Fourth, while the bill lowers the hardship standard for waivers of unlawful presence, it maintains the extreme hardship standard for waivers of misrepresentations and extends this extreme hardship standard to waivers of false claims to USC. This nuanced approach recognizes the seriousness of misrepresentations compared with unlawful presence.

Fifth, the bill also makes changes on the qualifying relatives for waivers. Under current laws, an alien who is applying to waive his inadmissibility for unlawful presence may use his USC or lawful permanent resident (LPR) spouse or parents as qualifying relatives. This means that the alien must show extreme hardship only on these specific relatives. If you’ve noticed, USC or LPR children are not qualifying relatives. The same is true for waivers of misrepresentations. However, if an alien is applying to waive his inadmissibility based on criminal convictions, he may use his spouse, parents and children as qualifying relatives. The bill allows children to be qualifying relatives in waivers for unlawful presence and misrepresentations and thus aligns the standards for qualifying relatives for these three common waivers.

There are a lot exciting changes under Senate bill 744 but don’t celebrate yet because the bill could undergo major amendments. We’ll try to keep track of these developments as they unfold.

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