The pathway to legally immigrating to the United States is rife with pitfalls, roadblocks and fees. One such roadblock comes when immigration authorities flag you as inadmissible. This will likely stop any process of entry, including lawful permanent residency (your Green Card). This is even possible after you received a visa, though, a finding of inadmissibility is rare after receiving visa approval. Luckily, waivers are possible.
What is a waiver of inadmissibility?
Essentially, a waiver of inadmissibility means that you can qualify for a visa or Green Card despite a finding of inadmissibility. It is allowable through Section 212 of the Immigration and Nationality Act.
What is the most common inadmissibility flag?
While official statistics on this are not available, most industry experts point to the Unlawful Presence flag. As the name suggests, you cannot receive a visa or residency after you illegally entered the country. You must enter the United States legally to qualify for an immigration benefit.
Normally, to clear this flag, you must first leave the United States for 3 to 10 years. However, you can file Form I-601 (Application for Waiver of Grounds of Admissibility) to have your Unlawful Presence flag cleared. This will only be granted if a United States citizen (or someone who has a Green Card) would experience extreme hardship if they were denied the immigration benefit. Normally, this applies to a married spouse, fiancé or parent, and not to a friend or other non-familial connection. Heartbreakingly, the child of an applicant does not count.
What if I do not want to leave the United States?
If you do not want to leave the United States to clear your flag, you can file Form I-601A (Application for Provisional Unlawful Presence Waiver), which is allowed for those still in the United States. These are limited to the same group as the Form I-601, and you cannot have any other flags.
What does extreme hardship mean?
This is the $1,000,000 question! It is not defined in Section 212. Based on prior approvals, it is proof of a greater hardship than a normal denial. If that sounds confusing or vague that is because it, most certainly, is, and that is likely by design. The U.S. immigration officer reviewing your waiver request is meant to have full and broad discretion, so your application could be denied when another was approved, even though you provided virtually identical information.
