How to get a waiver

Waivers for visitors, temporary workers, and other nonimmigrants

People may be refused a visa, or may be refused entry to the United States, if they are inadmissible. There are many grounds of inadmissibility. These grounds include criminal convictions or previous immigration problems such as an overstay, or deportation. Since 9/11, the U.S. government has gone to great lengths to develop and access databases of people who may be inadmissible. Many people who have entered the U.S. in the past without difficulty are suddenly being stopped at the border because of an old criminal conviction. We have handled many waiver cases. We can prepare the necessary applications, and guide you through the process. We also handle Canadian waivers.

In the case of nonimmigrants such as B visitors, F students, H or L workers, most grounds of inadmissibility can be overcome by applying for a waiver. This is known as a section 212(d)(3) waiver. If you need a visa to enter the U.S., you must apply for a waiver at the time you apply for a visa at a U.S. consulate. The Department of State then refers the case to the Department of Homeland Security, which makes the final decision. All such waivers are now processed through the Office of Admissibility Review (OAR) in the United States. If you are Canadian and do not need a visa, you must apply at a port of entry or preclearance inspection at an airport. These applications in most cases are processed through the OAR as well.

The DHS considers three factors in deciding a waiver: (1) the importance of your reasons for coming to the U.S.; (2) the risk to society you pose if you are allowed in the U.S.; and (3) the seriousness of any previous misconduct.

Nonimmigrant waivers are not permanent, and must be renewed. It is now possible to obtain waivers for up to five years. At present, there are long delays in applying for a waiver. Many waiver applications by Canadians are held up for a year or more due to FBI name checks. It is important to apply as far in advance as possible.

Waivers are not automatic. It is important that the waiver application be well documented. In criminal cases, it is important to prove that you have been rehabilitated. It is very helpful to have support letters from responsible members of the community who can prove your good character, not just your own statement. We are experienced in preparing these applications, and in gathering the evidence the government needs to see to approve waiver applications.

We can also analyze your situation to determine whether a waiver is really necessary. For instance, not all criminal convictions make you inadmissible. In some cases, a phone call or letter to a port of entry might solve the problem.

Immigrant waivers

Immigrants are people who are applying for a Green Card to live in the U.S. permanently. There is no all purpose waiver for immigrants as there is for nonimmigrants. Instead, there are a series of separate waivers connected to most of the different grounds of inadmissibility. These waivers have more difficult requirements than the nonimmigrant waiver. Often, an immigrant waiver is based on extreme hardship to a U.S. citizen or permanent resident relative. For instance, to get a waiver for a prior misrepresentation, you must demonstrate that your U.S. citizen or permanent resident spouse or parent would suffer extreme hardship if you were not allowed to immigrate. The same applies to a waiver for a previous overstay of more than six months. For a prior crime, you must demonstrate extreme hardship to your spouse, parent, or child. You may also obtain a waiver if fifteen years have passed since the crime occurred. Not all crimes can be waived. There is no immigrant waiver for drug crimes, other than possession of 30 grams or less of marijuana.

It is not enough to just have a qualifying relative. "Extreme hardship" means hardship above and beyond the hardship that would result from simple separation, even of a husband and wife. For instance, if your relative has a disability and needs special care that only you can provide, that might qualify as "extreme" hardship.

It is extremely important to obtain professional help if you need an immigrant waiver, or think you might need one. Your whole future may depend on it.

Canadian "waivers"

Canada does not use the term "waiver," but there are similar procedures available. People are often refused admission to Canada because of a criminal conviction. A person is inadmissible to Canada if he has been convicted of an offense anywhere in the world, if the offense would be an "indictable offense" in Canada. Most crimes in Canada are indictable offenses, including driving under the influence.

If the sentence for the crime was completed more than five years ago, a person may apply for "rehabilitation" through a Canadian consulate. If granted, the person is no longer inadmissible. This applies to both immigrants and nonimmigrants. The relief is permanent, and there is no need to file additional applications. In some cases, rehabilitation is automatic after ten years, and there is no need to file an application. For this rule to apply, there must be only one conviction, and the maximum possible sentence for the offense under Canadian law must not exceed ten years. If less than five years have passed, the person may apply for a "temporary resident permit" known as a TRP. This used to be called a "minister's permit." A TRP allows a person to enter Canada temporarily.

We have handled many Canadian waiver cases. We can help you determine whether you need a waiver and what kind you need.

Don't go it alone! We can help you get the waiver you need.