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Waivers of Inadmissibility
Following are some of the waivers available under Immigration and Nationality Act for foreign nationals who are found to be inadmissible:
INA Section 212(a) Waivers: waives the 3 and 10 year bars, unlawful reentry after removal or unlawful stay in the United States for more than one year.
INA Section 240A(a) Cancellation of Removal for Lawful Permanent Residents: This form of relief applies to LPRs found to be inadmissible who can show that they have been:
Lawfully admitted as an LPR for at least 5 years;
Continuously residing in the United States for at least 7 years, and
Has not been convicted of crime of aggravated felony.
INA Section 209(c): waives inadmissibility of applicants who seek adjustment of status based on their status as asylees or refugees.
INA Section 212(d)(3)(A): generally waives inadmissibility of nonimmigrants.
INA Section 212(d)(3)(B): waives terrorism grounds of inadmissibility.
INA Section 212(g): waives inadmissibility of persons who have communicable disease of public health significance or have physical or mental disorder.
INA Section 212(h): waives inadmissibility of persons for commission of various crimes including crime of moral turpitude, prostitution and a single offense of simple possession of 30 grams or less of marijuana.
INA Section 212(i): waives inadmissibility of persons for commission of fraud or material misrepresentation.
INA Section 212(k): waives inadmissibility of immigrants not in possession of labor certification or whose immigrant visa was not issued in compliance with law.
Waivers of Deportability
INA Section 237(a)(1)(H): waives deportation of immigrants based on certain fraud or misrepresentations (e.g. document or visa fraud) who were inadmissible at the time of entry or adjustment of status.
INA Section 237(a)(1)(E)(iii): waives deportability of persons who committed the act of smuggling aliens into the United States, based on family unity principles and humanitarian purposes where the smuggled persons are applicant's spouse, parent, son or daughter.
INA Section 237(a)(7): waives deportability of persons convicted of domestic violence crimes, stalking crimes and violations of protective orders.
Voluntary Departure is a form of relief where the immigration judge allows for the respondent to leave the United States voluntarily within a specific amount of time period, instead of issuing a removal order. One of the benefits of obtaining a voluntary departure is that respondent will not be subject to 10 year bar in coming back to the United States. Also, respondent will not be subject to reinstatement of removal if the respondent later enters the United States unlawfully.
Voluntary Departure is only beneficial to respondents who will truly leave the United States. Respondents who violate the terms of voluntary departure will be subject to severe penalties such as: given a removal order by the Immigration Judge, be subjected to a penalty from $1000 to $5000, become ineligible for ten years for relieves under adjustment of status, cancellation of removal, voluntary departure, change of nonimmigrant status and registry.
Cancellation of Removal for Lawful Permanent Residents (INA Section 240A(a))
Under INA Section 240A(a), a lawful permanent resident is eligible for cancellation of removal if he or she:
Has been lawful permanent resident for at least 5 years;
Has resided in the United States continuously for seven years after having been admitted in any status;
Has not been convicted of crime of aggravated felony; and
Warrants a favorable exercise of discretion.
Other than the restrictions mentioned above, certain individuals may not be eligible for cancellation of removal such as: crewman who entered United States after June 30, 1964, persons admitted on J visa and did not fulfill the 2 year residency requirement abroad, persons inadmissible or deportable for security reasons, persons who are found to have persecuted others, lawful permanent residents convicted of aggravated felony, and persons previously granted cancellation or suspension.
Cancellation of Removal and Adjustment of Status for Non-Lawful Permanent Residents (INA Section 240A(b))
A respondent who is not a lawful permanent resident may be eligible for relief from removal and adjustment of status if he or she:
Has been physically present in the United States for a continuous period of at least 10 years immediately preceding his or her application for relief;
Has been a person of good moral character during the 10 year period prior to the final decision of the case;
Has not been convicted of crimes which will make him or her inadmissible or deportable;
Can show that removal will cause exceptional an extremely unusual hardship to his or her U.S. Citizen or Lawful Permanent Resident spouse, parent, or child; and
Warrants a favorable exercise of discretion.
Other than the restrictions mentioned non-lawful permanent residents may not be eligible for cancellation of removal such as: crewman who entered United States after June 30, 1964, persons admitted on J visa and did not fulfill the 2 year residency requirement abroad, persons inadmissible or deportable for security reasons, persons who are found to have persecuted others, persons previously granted cancellation or suspension, and persons who have been in deportation proceedings before effective date of IIRIRA.
Adjustment of Status
Respondents in removal proceedings may be eligible to obtain or re-obtain lawful permanent resident status by indicating the defense of adjustment of status. Eligibility for adjustment of status may be on the basis of approved family petition, approved self-petition under VAWA, and where immigrant visa is immediately available. All grounds of inadmissibility apply when seeking relief under the defense of adjustment of status. However, a respondent may file a waiver for inadmissibility before the Immigration Judge.