QUESTION: I have some friends who are applying for different kinds of waivers, but I don’t know if they qualify. I heard that they are supposed to have somebody that will suffer extreme hardship if they will be denied the waiver. Can you explain?
Answer: First, you have to understand what is a waiver. There are various grounds that somebody is inadmissible. These grounds include: Convicted of, or who admit to committing, either a crime involving moral turpitude (CIMT) or a violation of any law or regulation related to a controlled substance; Convicted of two or more offences with an aggregate period of confinement of five years or more; Who are controlled substance violators; Engaged in prostitution and/or commercialized vice within the past 10 years; Engaged in controlled substance trafficking; Engaged in human trafficking; Engaged in money laundering activities; Various Health related grounds; Misrepresentation and Fraud; Various Public Charge grounds; Security related grounds; Alien smuggling; Unlawful Presence or Engaged in money laundering activities;
However, sometimes, even though one is inadmissible, it is still possible that they can either adjust status or consulate process if they can apply for a ‘waiver’ of that ground of inadmissibility. This is when they can show sufficient hardship to a ‘qualifying relative’ if it is not approved. The issue then becomes who is a qualifying relative. It is not always the same for all waivers. In fact, it can very well be different persons, and therefore, it is critical that you know who can be a qualified relative and that such a person exists. Otherwise, you cannot do the waiver. It is also necessary to know the burden of hardship that must be shown to that qualifying relative.
Question: Can you give some examples?
Answer: Yes. Let’s start with health related grounds of inadmissibility. In these cases, if the foreign national is the spouse or unmarried child of a United States Citizen (USC) or Lawful Permanent Resident (LPR), or is the parent of a USC or LPR. There is no necessity in this case to show any hardship whatsoever.
Next, let’s discuss fraud and misrepresentation. This is a much harder waiver to get approved. Waivers of this ground of inadmissibility are available only if the foreign national is the spouse, son, or daughter of a USC or LPR. Note, that one cannot be the parent of a USC only to apply for this particular waiver. In this case, hardship to the qualifying relative must definitely be shown.
Question: How can we show hardship?
Answer: There are different ways, but in general, there are certain factors which should be in all the waivers whereby hardship must be shown. They are presence of USC/LPR family ties in the United States; The qualifying relative’s family ties outside the United States; Country conditions in the country of relocation and the qualifying relative’s ties to that country; Financial impact of departure; and Significant health conditions, particularly when tied to unavailability of suitable medical care in the country of relocation. Other relevant factors may include the impact of separation; economic and other conditions in the country of relocation; the financial, emotional, cultural, and political conditions in that country; and quality of life factors. According to the court, the waiver applicant must prove extreme hardship both if the qualifying relative stays in the United States and the applicant departs, and if the qualifying relative must accompany the applicant back to the country of relocation.
Question: What about criminal related grounds of inadmissibility?
Answer: Of course it will depend on the crime, but also, how long prior to the application for residency the crime was committed. For example, if the crime was committed more than 15 years before the date of the visa application, admission to the United States, or adjustment of status; The foreign national’s admission would not be contrary to the national welfare, safety or security of the United States; and
The foreign national has been rehabilitated, the waiver can be approved. There is no qualifying relative necessary.
Otherwise, an individual may obtain a waiver if he is the spouse, parent, son, or daughter of a USC or LPR, and the USC would suffer extreme hardship if the foreign national is not admitted. Extreme hardship is narrowly interpreted and requires a balancing of all favorable and unfavorable factors.
As you can see, there are different types of waivers with different burdens for each type of ground of inadmissibility.
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Brian D. Lerner is an Immigration and Naturalization Attorney. He is a Certified Specialist in Immigration and Nationality Law as Certified by the State Bar of California, Board of Legal Specialization. Mr. Lerner is married to a Filipina and has been helping Filipinos immigrate to the United States for nearly 20 years. His firm represents clients in Deportation/Removal proceedings, does Waivers, Appeals, Naturalization, Adjustments, Criminal Relief, Citizenship, Consulate Processing, Work Permits, Investment Visas and all other areas of Immigration and Naturalization Law. You can go online to http://www.californiaimmigration.us/ and get a free consultation or call us at (562) 495-0554 for an in-person office consultation.
