Immigration Waivers

Waivers of Inadmissibility

Any individual who seeks to enter into the United States or who would like to become a legal resident must be admissible. The conditions are defined under the Immigration and Nationality Act (INA).

Certain foreign citizens who are not eligible to immigrate to the United States because they are “inadmissible” can request a waiver (forgiveness) of inadmissibility. If the waiver is granted, then the individual can enter the United States or remain in the United States and apply for adjustment of status if already here.

Whether or not the U.S. government will grant a waiver is dependent on various factors and, in most cases, requires the individual to have a qualifying relative who is a U.S. citizen or Lawful Permanent Resident.

Different grounds of inadmissibility have different waiver requirements, however, so make sure you meet the basic criteria to submit an application. The application itself will need to be carefully prepared and documented.

Reasons for Inadmissibility

An individual may be declared inadmissible to the United States for various reasons, including:

  • Prior Unlawful Presence in the United States
  • Previous Fraud or Misrepresentation
  • Criminal Grounds – previous Criminal Offenses

It is essential to hire an attorney who has experience with well written waivers and has a great success rate having such waivers granted. 

For a free initial consultation about your legal options for resolving any Immigration issues or Waivers, contact Immigration Attorney, Brigitte Garza at 210-227-5700.

Hardship Waiver I-601A

Immediate relatives seeking legal permanent residency are required to return to their home country for their immigrant visa interview as part of the consular immigrant visa process. A provisional waiver (I-601A and DS-260) will allow you to remain in the U.S. with your family while a decision on your waiver application is pending, greatly reducing the amount of time you would otherwise be required to remain outside the U.S.

To be eligible to apply for a provisional waiver, an applicant must meet the following conditions:

  • Be an immediate relative of a U.S. Citizen (spouse, child, parent);
  • Be the beneficiary of an approved immediate relative petition;
  • Be 17 years of age or older;
  • Be present in the U.S. at the time of filing the application for a provisional waiver and for biometrics collection at a USCIS Application Support Center;
  • Have a case pending with the Department of State (DOS) based on the approved immediate relative petition and have paid the immigrant visa processing fee; and
  • Show extreme hardship to the U.S. citizen spouse or parent.

It is essential to hire an attorney who has experience with well written waivers and has a great success rate having such waivers granted. 

U-Visas – Victims of Crimes

Although many immigrants are fearful of admitting that they have been a victim of a crime because of their fear of removal, U.S. law provides several protections for legal and undocumented immigrants who have been victims of a crime.  There are specific protections for victims of domestic violence, victims of certain crimes, and victims of human trafficking.  All agencies within the Department of Homeland Security (DHS), including USCIS, are legally prohibited from disclosing that a victim has applied for VAWA, T, or U immigration benefits.

VAWA – What is a Self-Petitioner?

Victims of domestic violence who are the child, parent, or current/former spouse of a United States citizen or a permanent resident (green card holder) and are abused by the citizen or permanent resident may be eligible to apply for lawful permanent residence themselves without needing the abuser to file for immigration benefits on their behalf. This provision of the law was created under the Violence Against Women Act (VAWA).

VAWA provisions apply equally to men and women. Victims of domestic violence, whether a spouse, child, or parent of the abuser, may self-petition by filing Form I-360, Petition for Widow(er)s, Amerasians, and Special Immigrants.

Victims must establish that they:

  1. Have or had a qualifying relationship with the abusive spouse or are the parent or child of the abuser
  2. Reside or resided with the abuser
  3. Have a good moral character
  4. Have been victims of battery or extreme cruelty

What is U nonimmigrant status?

U nonimmigrant status (or U visa) offers immigration protection for victims and is also a tool for law enforcement. To obtain U status, the victim must obtain certification from law enforcement. However, obtaining certification does not grant a benefit; only USCIS has the authority to grant or deny this benefit.

Victims are not required to be in legal immigration status, but they must establish that they:

  1. Are a victim of a qualifying criminal activity and have suffered substantial physical or mental abuse as a result of the crime
  2. Possess credible and reliable information about the qualifying criminal activity
  3. Are, have been, or are likely to be helpful in the investigation and/or prosecution of that qualifying criminal activity
  4. Are a victim of criminal activity that violated a U.S. law

For a free initial consultation about your legal options for resolving Waivers, VAWA Visas, DACA or other Waivers contact San Antonio, Immigration Attorney, Brigitte Garza at 210-227-5700.   

DACA Overview

Deferred Action for Childhood Arrivals (DACA) is a kind of administrative relief from deportation. Its purpose is to protect eligible immigrant youth who came to the United States when they were children from deportation. DACA gives young undocumented immigrants: 1) protection from deportation, and 2) a work permit. The program expires after two years, subject to renewal. Approval on Deferred Action does NOT lead to a Legal Permanent Resident Status.

Requirements

  • Be under the age of 31 on June 15, 2012;
  • Came to the U.S. before reaching the 16th birthday;
  • Has continuously resided in the United States since June 15, 2007, up to the present time;
  • Was physically present in the United States on June 15, 2012;
  • Entered without inspection by June 15, 2012, OR the lawful immigration status expired as of June 15, 2012;
  • Be physically present in the United States at the time of filing the request for deferred action with USCIS;
  • Is currently in school, has graduated or obtained a certificate of completion from high school, has obtained a general education development (GED) certificate, or is an honorably discharged veteran of the Coast Guard or Armed Forces of the United States; and
  • Has not been convicted of a (i) felony, (ii) significant misdemeanor, (iii) three or more other misdemeanors, and (iv) does not otherwise pose a threat to national security or public safety.

An applicant must be at least 15 years or older to request deferred action, unless (s)he is currently in removal proceedings or has a final removal or voluntary departure order.

DACA in the Trump Administration

On September 5, 2017, the Trump administration announced it would end the Deferred Action for Childhood Arrivals program, or DACA, in six months if Congress doesn’t find a more permanent solution.

By that time, about 800,000 immigrants who were children when they arrived in the U.S. illegally have received protections from the program. They include a stay of deportation and the ability to legally work and go to school. In a tweet that evening, Trump signaled he supports legalizing DACA, saying he would revisit the issue if Congress can’t legalize the program.

Since then, several lawsuits have been filed against the administration for terminating the program unlawfully. As a result, three nationwide injunctions issued by U.S. district courts — in California, New York, and the District of Columbia have allowed people who have previously had DACA to renew their deferred action. As of today, there are still active legal threats to the program, and court dates and rulings in the next few months will determine the program’s future.

Latest Developments:

On November 8, 2018, the Ninth Circuit issued a decision affirming the lawfulness of the preliminary injunction in Regents. In its decision, the court reasoned that the plaintiffs in the case were likely to prevail on their claim that the Trump administration’s termination of DACA was “arbitrary and capricious” and therefore unlawful.

Daca Renewal Update (as of 4/1/2020):

In the fall of 2019, the U.S. Supreme Court heard oral argument on the legality of the DACA program. Given the pending case at the Supreme Court, the USP Legal Support Team will submit renewals for DACA recipients regardless of the date of expiration. We anticipate a decision from the Supreme Court regarding the DACA program by the end of its current term, which will be approximately June 2020 at the latest.