AN inadmissible alien cannot receive a visa and he cannot be admitted into the US. An alien may be inadmissible due to certain conduct, conditions, criminal convictions or events. Nevertheless, an inadmissible alien may receive a visa or be admitted into the US if the alien is granted a waiver of inadmissibility. Not all grounds of inadmissibility may be waived but, for the ones that can be waived, the grant of a waiver can have an important effect on the lives of these aliens. In this article, we will examine what a waiver can and cannot do so that aliens who benefit from waivers would know the extent of their benefits or the problems that lie ahead.
First, let’s examine waivers for misrepresentation. Under INA 212(a)(6)(C)(i), an alien is inadmissible if he has previously obtained or attempted to obtain a visa, other documentation, admission or other benefit under the Immigration and Nationality Act (INA), by means of fraud or by willfully misrepresenting a material fact. INA 212(i) allows an alien to waive his inadmissibility due to fraud or willful misrepresentation if such alien can show that the refusal of his visa or admission would result in extreme hardship to his US citizen (USC) or lawful permanent resident (LPR) spouse or parent.
The USCIS Policy Manual at Volume 9, Part G, Chapter 3(A), states that the grant of an INA 212(i) waiver, as a general rule, permanently waives the fraud or willful misrepresentation identified in the waiver application. Thus, 8 CFR 212.7(a)(4)(ii) emphasizes that the grant of an INA 212(i) waiver remains valid even if the alien later abandons or loses his LPR status.
For example, in 2000, X entered the US with a passport and a visa issued under a false name. In 2005, X acquired LPR status based on his USC wife’s petition and after obtaining a waiver for his misrepresentation. In 2010, an immigration officer at the airport placed X in removal proceedings after determining that X’s prolonged travels and stays abroad resulted in the abandonment of his residence in the US. In 2012, the Immigration Judge (IJ) granted X voluntary departure. In 2015, X wants to apply for an immigrant visa based on his adult USC son’s petition. In his 2015 immigrant visa application, X would not need a waiver for his misrepresentation in 2000 because this inadmissibility was already waived.
Second, let’s see how a waiver for misrepresentation relates to the lack of documentary requirements. Under INA 212(a)(7)(B)(i)(II), an alien is inadmissible if he is not in possession of a valid nonimmigrant visa at the time of his application for admission into the US. Thus, an alien who is inadmissible under INA 212(a)(6)(C)(i) for obtaining a nonimmigrant visa under a false name may also be inadmissible under INA 212(a)(7)(B)(i)(II) because the visa issued under the false name may be considered an invalid visa.
Inadmissibility under INA 212(a)(6)(C)(i) may be waived under INA 212(i) whereas inadmissibility under INA 212(a)(7)(B)(i)(II) may be waived under INA 212(d)(4). However, the USCIS Policy Manual at Volume 9, Part G, Chapter 3(C) states that if an alien, who is inadmissible under both INA 212(a)(6)(C)(i) and INA 212(a)(7)(B)(i)(II) based on the same incident, obtains an INA 212(i) waiver, then such waiver implicitly waives the INA 212(a)(7)(B)(i)(II) inadmissibility.
Third, let’s see how criminal waivers work. Various types of criminal convictions could render an alien inadmissible. For example, under INA 212(a)(2)(A)(i)(II), an alien with a controlled substance conviction is inadmissible. However, INA 212(h) allows an alien to waive a conviction for a single offense of simple possession of 30 grams or less or marijuana.
In Matter of Martinez-Espinoza, 25 I&N Dec. 118 (BIA 2009), the Board of Immigration Appeals (BIA) noted that INA 212(h) waives the ground of inadmissibility but not the offense or conviction that gave rise to the inadmissibility.
For example, in Rana v. Holder, 654 F.3d 547 (5th Cir. 2011), the petitioner was convicted in 2003 of simple possession of 30 grams or less or marijuana. He was able to adjust to LPR status after obtaining an INA 212(h) waiver. In 2005, he was convicted of a second offense of simple possession of 30 grams or less or marijuana. He was placed in removal proceedings after he was found inadmissible upon his return from a trip abroad due to his second conviction. Petitioner tried to apply for another INA 212(h) waiver. However, the IJ found that he was not eligible because INA 212(h) allows a waiver for a single offense of simple possession of 30 grams or less or marijuana but petitioner had two convictions. The IJ and the Fifth Circuit Court of Appeals held that since the first waiver only waived the inadmissibility arising from the first conviction, the first conviction can be considered in the subsequent removal proceedings. Thus, at the time of the removal proceedings, petitioner had two convictions.
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Charles Medina practices immigration law. Visit his website at www.medinalawgroup.net for more details. This article provides general information only and does not provide legal advice on any specific matter or predict the outcome of any legal matter. It does not invite or create an attorney-client relationship.
