Generally speaking, if a visa applicant is ineligible or denied for criminal or related grounds, the applicant may apply for a waiver of the law that is preventing the applicant from being eligible for the visa. Not all grounds of ineligibility qualify for the opportunity for a waiver. This short article will specifically focus on an applicant who is otherwise eligible for a visa, but is denied because he/she overstayed on a previous trip to the U.S. (unlawfully present).
The Immigration and Nationality Act (INA) defines unlawful presence as any period in which a noncitizen is present in the US after the expiration of the period of stay authorized…or is present in the US without being admitted or paroled (INA §212(a)(9)(B)(ii)). Furthermore, this INA section also states that if a person is unlawfully present for more than 180 days but less than a year, and voluntarily departs the US, then that person is essentially banned for 3 years (from the date of the last departure or removal), but can reapply for admission to the US after those 3 years. In addition, if a person is unlawfully present for more than 1 year and voluntarily departs the US, then that person is banned from applying for admission for a period of 10 years from last departure or removal. It is important to note that voluntarily departing also means leaving the US before any commencement of immigration proceedings against him/her. Therefore, it is important to advise applicants that if he/she is denied entry to the US at a port of entry, it is essential that they request to withdraw their application for admission, and thus voluntarily depart the US.
Now, let’s look at the example of a family applying for an immigrant visa through the Diversity Visa program, and the spouse was unlawfully present/banned from the US. Even if the principal applicant and children were approved their immigrant visas, it is possible (and likely) that the spouse (who is still banned admission to the US) will be denied the visa. Therefore, the banned spouse will now have to apply for a waiver of this law (INA §212(a)(9)(B)(ii)), by filling out and sending Form I-601 and supplemental documentation to the United States Citizen and Immigration Services (“USCIS”), and reviewed by the Department of Homeland Security (DHS).
In considering the application for a waiver, factors to be considered in deciding whether to recommend the waiver include the nature and date of the offense, possible rehabilitation of the alien’s character, and the necessity for, or urgency of, the alien’s proposed trip to the United States. Furthermore, supporting documentation will have to convince DHS that refusal of admission to the immigrant alien would result in extreme hardship to the citizen or LPR spouse.
In addiiton, it is important to note that the waiver requires a US Citizen or Lawful Permanent Resident (LPR) to act as the sponsor for the banned applicant. Therefore, in the case of our Diversity Visa family example, the principal applicant (who was approved) will have to enter the US first, in order to activate his/her permanent resident status before application of the waiver. Furthermore, since the waiver application process can take many months (or even a year) to be completed, it is essential that the applicants move quickly with the process, because no immigrant visa will be approved after the yearly September 30 deadline under the Diversity Visa program. If the Embassy that approved/denied the visas does not receive the waiver approval before this deadline, no visa will be issued. Finally, it is important to note that an application for a waiver will be accepted and reviewed only if there is an existing and pending visa application. Therefore, if the September 30 Diversity Visa program deadline has passed, and there is no waiver decision yet, then the waiver process will end at that point because there is no pending or existing visa application anymore.
In conclusion, it is essential that applicants know that they should almost always request to formally withdraw their application for admission if they are denied entry into the US, because it may be the difference between a temporary or permanent bar of admission to the US. Finally, anytime that a person is denied a visa due to unlawful presence, he/she should immediately determine if a waiver is available, and if so, begin the waiver process as soon as possible.
The information contained in this article does not constitute a legal opinion nor does it serve as replacing a proper individual legal consultation. Any use of this information shall be entirely at the risk of the reader.
This article was written by Dotan Cohen Law Offices, an immigration law firm that handles legal matters related to the United States, Australia, United Kingdom, Canada, and Israel. Our contact details are:
Tel. +1-646-797-5717
e-mail: [email protected]
