Waivers

Our Legal Team


Steven L. Tuchman
Director
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Thomas R. Ruge
Director
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Robert W. Rund
Director
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Sarah Moshe

Sarah Moshe
Director
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Ryan C. Marques
Associate
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Dallin Lykins

Dallin Lykins
Associate
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Indiana Immigration Lawyers

Under immigration law, there are many waivers available for different reasons, for certain people only, and for specific visa types. Some waivers cure immigration violations and others confer permanent resident status. The waivers listed below are ones commonly by foreign nationals seeking temporary visas, permanent residency, criminal convictions, or defense from removal or deportation. This is not an exhaustive list and your eligibility should be evaluated by an attorney in our immigration team.

Temporary Visa Waiver

For temporary visa waiver applicants, a versatile waiver exists under immigration law which may be used to waive all grounds of inadmissibility except certain security grounds. Its many uses include case of crimes, fraud, and even the permanent bar for having overstayed in the U.S. No family relationship, extreme hardship, good moral character, or waiting period is required. In general, one must demonstrate that they qualify for the underlying visa they are seeking and that they are not a risk of harm to society.

An exchange visitor (EV) on a J-1 visa may be subject to the two-year foreign residence requirement of Section 212(e) of the Immigration and Nationality Act (INA), for one or more of the following reasons:

  • The EV's participation in an exchange program was funded by the United States Government, EV's own government, or an international organization.
  • The education, training, or skill the EV is pursuing in an exchange program appears on the Exchange Visitor Skills List (1997 Amendment) for EV's country.
  • The EV acquired J-1 status on or after January 10, 1977, for the purpose of receiving graduate medical education or training.

If a J-1 exchange visitor who is subject to but does not wish to comply with the two-year foreign residence requirement may apply for a waiver of that requirement under any one of the five applicable grounds for a waiver set forth in the INA 212(e). Choose the one that you qualify for or which applies to your situation.

Types of Waivers for J-1 Visa holders:

1. No Objection Statement (NOS):

The EV's home country government issue a No Objection Statement (NOS) through its Embassy in Washington, DC directly to the Waiver Review Division that it has no objection to the EV not returning to the home country to satisfy the INA 212(e) two-year foreign residence requirement and does not object to the possibility of the EV becoming a resident of the U.S. The NOS may also be issued by a designated ministry of the EV's home government and forwarded to the U.S. Chief of Mission, Consular Section, within that country to be forwarded directly to the Waiver Review Division. The EV has the responsibility for obtaining a no objection statement from his/her home government.

Note: The law precludes the use of this option by foreign medical physicians, who acquired J-1 status on or after January 10, 1977, for the purpose of receiving graduate medical education or training.

2. Request by an interested government agency (IGA):

If an exchange visitor is working on a project for or of interest to a U.S. Federal Government agency, and that agency has determined that the visitor's departure for two years to fulfill the INA 212(e) requirement will be detrimental to its interest, that agency may request an interested government agency waiver on behalf of the EV for sake of public interest. The IGA request must be signed by the head of the agency or its designee and submitted directly to the Waiver Review Division. The EV has the responsibility for obtaining an IGA request from a U.S. Federal Government agency.

Note: For IGA applications on behalf of foreign physicians, who agree to serve in medically under-served areas, please refer to Federal Register Volume 62, No. 102 of May 28, 1997.

3. Persecution

If an exchange visitor believes that he or she will be persecuted based on his/her race, religion, or political opinion if he/she were to return to his/her home country, the EV may apply for a persecution waiver. This waiver basis requires that the EV submit Form I-612, Application for Waiver of the Foreign Residence Requirement of Section 212(e) of the Immigration and Nationality Act, directly to the United States Citizenship and Immigration Services (CIS), within Department of Homeland Security. Only if CIS makes a finding of persecution will the Waiver Review Division proceed with the waiver case under this basis. Once CIS makes a decision, it will forward directly to the Waiver Review Division its decision on Form I-613.

4. Exceptional hardship to a United States citizen (or legal permanent resident) spouse or child of an exchange visitor:

If an exchange visitor can demonstrate that his or her departure from the United States would cause exceptional hardship to his or her U.S. citizen or legal permanent resident spouse or child, he or she may apply for an exceptional hardship waiver. (Please note that mere separation from family is not considered to be sufficient to establish exceptional hardship.) This waiver basis requires that the EV submit Form I-612, Application for Waiver of the Foreign Residence Requirement of Section 212(e) of the Immigration and Nationality Act, directly to the United States Citizenship and Immigration Services (CIS), within the Department of Homeland Security. Only if CIS makes a finding of exceptional hardship will the Waiver Review Division proceed with the waiver case under this basis. CIS will forward its decision directly to the Waiver Review Division on Form I-613.

5. Request by a designated State Department of Public Health or its equivalent, CONRAD:

Pursuant to the requirements of Public Law 103-416, a foreign medical graduate who has an offer of full-time employment at a health care facility in a designated health care professional shortage area or at a health care facility which serves patients from such a designated area, and agrees to begin employment at that facility within 90 days of receiving such a waiver, and who signs a contract to continue to work at that health care facility for a total of 40 hours per week and for not less than three years, may apply for a waiver under this basis.

The EV must first apply with a state public health department which is allowed to request 30 such waivers per federal fiscal year. Five of the thirty requests may be for EV physicians who will serve at a facility which may not be located within a designated area but serves patients who live within a designated health care professional shortage area. The state public health department will forward the Conrad requests directly to the Waiver Review Division if agrees to sponsor the EV for such a waiver.

Note: Only foreign medical doctors who received their J-1 status to pursue graduate medical education or training may apply for a waiver under this basis.

Permanent Visa Waiver

I-601

For applicants seeking permanent resident status, An I-601 waiver of inadmissibility may be available to cure overstays (i.e. "unlawful presence") and certain criminal grounds. In general, applicants must show that their U.S. citizen or lawful permanent resident spouse or parent will suffer an extreme hardship if their application is denied and, in certain cases, the applicant must also show that they have been rehabilitated. I-601 applicants may apply for this waiver in the U.S in some cases; however, others may be required to leave the U.S. to apply. In some cases, departure from U.S. may result in the applicant's inability to return for a period of ten years or render the person ineligible to apply for the I-601 waiver altogether. It is imperative to seek competent legal advice to determine whether you qualify for this type of waiver.

I-212

If the applicant has been excluded, deported, or removed, from the U.S. and is seeking admission, the applicant may also need to apply for advance permission on Form I-212. Like the I-601, the applicant is required that their U.S. citizen or lawful permanent resident spouse or parent will suffer an extreme hardship if their application is denied. Applicants who have been removed or physically departed the U.S. after April 1, 1997, and who have reentered or sought reentry, are ineligible for the I-212 and the I-601 Waiver, as they are subject to the permanent bar.

245(i)

Applicants who have an independent basis to apply for permanent resident status in the U.S., such as a job offer or marriage to a U.S. citizen, who entered without inspection (illegally) may adjust in the U.S. if they meet the waiver criteria under the provisions of INA §245(i). This section applies to individuals who were the beneficiary of an immigrant visa petition or labor certification filed on or before April 30, 2001 and who were physically present on December 21, 2000, or whose visa petition was filed on or before January 14, 1998, but before April 30, 2001, irrespective of whether they were physically present on December 20, 2001, and satisfy all other grounds of inadmissibility. A surcharge of $1000 is assessed to the applicant. As with the I-601 and I-212, applicants who have been removed or physically departed the U.S. after April 1, 1997, and who have reentered or sought reentry, are ineligible for the 245(i) Waiver, as they are subject to the permanent bar.

Criminal Grounds Waiver

Eligibility of waivers of criminal convictions varies, depending on whether the applicant is applying for admission to the U.S., or challenging deportation or removal. Other factors include when the offense took place, the federal jurisdiction that controls where the crime was committed, and how the state or federal government defines the crime. It is important to understand that some state misdemeanors are considered aggravated felonies under immigration law, which may render applicant ineligible for waivers or from seeking bonds altogether.

In general, certain crimes are "waivable" if the applicant shows that extreme hardship will result to their U.S. citizen or lawful permanent resident spouse or parent (or child if in deportation or removal proceedings) will suffer an extreme hardship if their application is denied and, in certain cases, the applicant must also show that they have been rehabilitated. Another waiver is available for those whose crime (1) occurred more than 15 years before the application for a visa, admission, or adjustment of status; (2) the applicant's admission is not contrary to the national welfare, safety, or security of the U.S.; and (3) the applicant has been rehabilitated.

A criminal based exception to inadmissibility exists if the maximum possible sentence does not exceed one year and the actual possible sentence is 180 days or less. Another exception exists if the crime was committed when the applicant was a juvenile. Certain bars apply to these exceptions, which should be discussed with a member of our immigration team.

Waivers in Removal or Deportation

There are waivers available to both lawful permanent resident and non-permanent residents, and those who have falsely claimed to be a U.S. citizen. There also are waivers for those who have obtained their lawful resident status intentionally or unintentionally by fraud or misrepresentation. Some of these waivers confer lawful permanent resident status, depending on family ties in U.S., length of time in U.S., and various other factors.

Persons in removal proceedings, also known as deportation hearings, may apply in court for a special pardon to receive a green card and stay in the United States. This is called Cancellation of Removal. More information is available at Deportation and Removal Defense. For individuals who have never had a green card, the critical element is proving that you have a spouse, parent, or child who is a US citizen or permanent resident who would suffer extreme and exceptionally unusual hardship if you were not allowed to stay the United States. You must also prove that you have lived in the United States for 10 years and have otherwise obeyed the laws.

Persons who have been victims of domestic violence may also be eligible for relief in removal or deportation proceedings. This form of relief falls under the Victim Against Women Act ("VAWA") – Cancellation but is not limited to women. Men, as well as children, also are eligible to apply. Qualifications for VAWA-Cancellation differ greatly from VAWA self-petitioners and your specific facts and circumstances should be discussed with a competent attorney.

There are other forms of relief from Removal and Deportation which are not mentioned here. Please schedule an appointment for a consultation with an attorney from our immigration team by calling (317) 639-1210 or send us an email at immigration@lewis-kappes.com.