Applicants for U.S. green cards who are afraid to leave the U.S. for their consular visa interview because they might be blocked from return based on their past time spent in the U.S. unlawfully can apply for a “provisional waiver” (also known as a “stateside waiver”) of this unlawful presence ground of inadmissibility.
By applying for a stateside waiver, applicants can get a “yes” or “no” answer from U.S. Citizenship and Immigration Services (USCIS) before departing the U.S. for their visa interview. With a “yes” answer, they can leave the U.S., feeling fairly comfortable that the consular officer will approve the immigrant visa and allow them to return to the U.S. as permanent residents.
If the answer from USCIS is “no,” applicants will at least find out while they’re still with their family in the U.S., not trapped outside for three or ten years. They can potentially reapply. (And, the enforcement authorities have said they do not intend to use this process as a way to identify people for removal – unless they’re criminals or public safety risks.) Or they can take a chance and leave the U.S. for a consular interview and present their waiver application there. Not everyone who is eligible for a green card is eligible to for this provisional waiver, however.
Under section 212(a)(6)(C)(i) of the Act, an alien who, by fraud or willful misrepresentation of a material fact, seeks to procure, has sought to procure, or has procured a visa, other documentation, or admission into the United States or other benefit provided under the Act, is inadmissible.
However, the Attorney General (the immigration service) may waive the application of section 212(a)(6)(C)(i) of the Act in the case of an immigrant who is the spouse, son, or daughter of a United States citizen or of an alien lawfully admitted for permanent residence if it is established to the satisfaction of the Attorney General that the refusal of admission to the United States of the alien would result in extreme hardship to the citizen or lawful resident spouse or parent of the alien. INA 212(i).
If you were denied admission to the United States because of your criminal history, you may be eligible to file a waiver application. Section 212(h) of the I.N.A. identifies certain criminal grounds that allow for a waiver application.
These include crimes of moral turpitude, prostitution, and a single offense of possession of 30 grams or less of marijuana. Waivers are not allowed for murder, torture, aggravated felonies or for violations of any other law regarding controlled substances.
If your criminal ground of inadmissibility allows a waiver application, you are eligible if one of the following applies to you:
- More than 15 years has passed since you committed the crime and applied for admission to the United States; or
- You have a U.S. citizen or lawful permanent resident spouse, fiance, child, or parent who will experience extreme hardship if you are denied admission.
If you are applying for a waiver based on the passage of 15 years, you will need to demonstrate that you are not a threat to U.S. safety, security, or welfare, and that you have rehabilitated. The officer will have discretion in deciding upon these factors. Your chances of success will be greater if you have not committed any other crimes in your home country during the 15-year period and you actively participated in and completed programs specific to rehabilitation.
If you are applying based on the hardship to a qualifying relative, the factors will be the same as those for waivers of unlawful presence and misrepresentation. The only difference is that U.S. citizen or lawful permanent resident children count as qualifying relatives for criminal grounds of inadmissibility.
If you are a legal permanent residence of the United States and have been placed in removal proceedings due to criminal activity, you could seek a waiver of your convictions and avoid deportation. Your eligibility to apply for a waiver is based on the type of crime you committed and the date on which you were convicted. Certain lawful permanent residents can apply for discretionary relief under section 212(c) of the Immigration and Nationality Act.
The requirements to apply for and receive a 212c waiver include:
- You pled guilty to the crime prior to April 1, 1997
- You have been a lawful permanent resident for at least 5 years
- You are returning to a lawful, unrelinquished residence of at least 7 consecutive years
- You are not subject to deportation or removal on the grounds of terrorism or national security
- You are not unlawfully in the US due to a previous immigration offense
- You have not been convicted of a firearms offense or an aggravated felony offense for which you served over 5 years
You are ineligible to receive a 212c waiver if you have departed and are currently outside the US, you have illegally returned after deportation or removal, or you are present in the US without having been admitted or paroled.
It is important to note that the 212c waiver is a discretionary. Therefore, even if you are eligible to apply for a 212c waiver, the Immigration Judge will decide on a case-by-case basis whether or not to grant you this relief. The Judge will look closely at the balance of positive factors versus negative factors in your application. Positive factors include family ties in the US, long time residence in the US, hardship to you and your family if you were deported, property ownership, business ties, demonstrated value and service to the community, genuine rehabilitation and evidence that you are person of good character Negative factors can include the nature, seriousness and recency of your criminal record and evidence that you are a person of bad moral character.