Unfortunately, not everyone is eligible for immigration to the United States in every circumstance, and there may be issues in your past that make you ineligible, such as a criminal conviction, unlawful entry into the United States, or accruing unlawful presence. Fortunately, you may qualify for a waiver. Many different types of waivers are available, each with its own requirements.

What Is a Waiver?

It may be helpful to first clarify what exactly a waiver is and does. U.S. immigration law has various grounds of inadmissibility that bar someone from immigrating to the United States despite being otherwise eligible. In seeking a waiver, you are asking the government to overlook or “waive” the reason why you are inadmissible. 

There are several types of waivers for both immigrants and nonimmigrants. Below are a few of the most common. 

Extreme Hardship Waiver

Generally speaking, people who are in the United States unlawfully—whether because they overstayed a visa, they have accrued unlawful presence, or they entered without inspection by an immigration official (also known as entering “EWI”)—cannot apply for permanent residency. However, individuals in the United States without legal status can seek an extreme hardship waiver allowing them to remain in the country while seeking permanent residence.

An extreme hardship waiver is one where an individual argues that the denial of immigration would cause extreme hardship to a qualifying relative who is either a U.S. citizen or lawful permanent resident. For example, a husband may be denied immigration because he misrepresented material facts in his application. The husband may seek an extreme hardship waiver by arguing that his inability to immigrate would cause extreme hardship for his wife, who is a U.S. permanent resident. 

Depending on the reason for the foreign national’s inadmissibility and whether the foreign national is located in the United States or is abroad, either a Form I-601 hardship waiver or a Form I-601A provisional hardship waiver may be appropriate. 

Extreme hardship is a high bar that can be difficult to clear, so it is important to speak to a knowledgeable immigration attorney who can assist you in proving that you meet that high bar.

Waiver for Criminal Convictions

Prior criminal convictions can be problematic for individuals seeking an immigrant visa or adjustment of status. An extreme hardship waiver may be available to those with criminal convictions. Waivers may also be available to those who have criminal convictions that meet the following criteria: 

  • The crime occurred more than 15 years ago,
  • They have been rehabilitated, and 
  • They are not a threat to U.S. national safety or welfare

If you have committed crimes of moral turpitude, have been convicted of possession of marijuana, or have other arrests or convictions in your history, a knowledgeable immigration attorney can determine whether you qualify for a waiver. 

J-1 Waiver

The J-1 visa, which is for exchange students and researchers, may come with the requirement that the visa holder return to their home country for two years after they complete the J-1 program. Not all J-1 visas are subject to this requirement. If a J-1 visa holder who is subject does not fulfill the requirement, they cannot apply for a green card or change status to an H-1B. 

However, J-1 visa holders who cannot or do not want to fulfill the two-year requirement can instead seek a J-1 waiver that allows them to stay in the United States without having to leave for two years. There are different types of J-1 waivers, and they each have a different process, so it is important to speak to an experienced immigration attorney to determine which type is the best for you.

Lotfi Legal—Overcoming Whatever Immigration Challenges You Face

Waivers are not easy to get. You need to apply for the correct one, and you need to know what you will need to prove in order to get it. If you are facing obstacles with your immigration status, call or email us to schedule a time to discuss your case and how we can help.