2' Waivers of Grounds of Inadmissibility and Deportability

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• 2. Waivers of Grounds of Inadmissibility and
  Deportability

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Waivers of inadmissibility grounds
Waivers of deportability grounds
Application for status
Application for visa
Inspection
Admission
Post-admission Removal Hearing
U.S. Consul
CBP
CBP
USCIS
EOIR
Removal Hearing
EOIR
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Immigrant Visa Applicant
U.S. Consulate -- Visa Applicant
USCIS Adjudication of Waiver
Administrative Review
8 C.F.R. 1003.1(b) and 103.3(a)
Application approved Consul issues visa
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Waivers and Adjustment of Status
USCIS Application for Adjustment
Administrative Review
denial
Adjudication of waiver (USCIS)
Determination of need for waiver
reversal
LPR Status granted
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Waivers in Removal Proceedings
ICE serves NTA
Waiver submitted to IJ
BIA
denial
Immigration Judge takes plea at Master Calendar
IJ adjudicates waiver along with underlying
application for relief, e.g. adjustment,
cancellation
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When are waivers needed?

• Is the applicant really inadmissible or
  deportable?
• Sometimes the individual does not meet the the
  statutory definition described in the
  inadmissibilty or deportability provision and
  therefore does not need a waiver.
• E.g., where a person failed to meet the public
  charge requirement 8 U.S.C. 1182(a)(4) and
  now can show sufficient financial resources. She
  is no longer inadmissible and therefore a waiver
  would not be required (such a waiver does not
  exist). Another example is where the person is
  an asylum applicant, as asylum applicants and
  refugees are exempted from the requirement under
  section (a)(4).

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. . . similarly

• Where the applicant is found not to have had a
  criminal conviction, she will no longer need of a
  waiver.
• Or where the person has obtained post-conviction
  relief such as setting aside the conviction.
• Expungements are ineffective as the conviction
  remains
• Therefore careful review needs to be made of the
  grounds of inadmissibility or deportability to
  determine whether the basis for removal exists
  in which case the waiver may not be necessary

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Non-waivable Grounds

• Aggravated Felons
• Nazis
• Narcotic Traffickers
• National Security and Terrorists
• Drug Addicts and Abusers
• Graduates of Foreign Medical Schools (without
  VQE)
• Likely to Become a Public Charge (except
  refugees/asylees)
• Coming to Practice Polygamy

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The Basic Elements

• Discretion
• Residency in the U.S. (period of time in the U.S.
• Hardship.
• Relationship with U.S. Citizen or LPR.

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