Criminal
and Related Grounds:
The
Act also allows for a waiver under section 212(d)(3).
Under this provision, a nonimmigrant, otherwise inadmissible,
may be allowed into the United States for a temporary
period at the discretion of the Attorney General. The
test to be used in determining eligibility for this
waiver involves three factors that must be considered
in making the determination. The first factor involves
the risk of harm to society if the applicant is admitted.
The second factor involves the severity of the applicant's
immigration law or criminal law violation, if any. Finally,
the court should look at the nature of the applicant's
reasons for wishing to enter to the United States.
A
waiver may also be sought for inadmissibility on criminal
grounds under code section 212(h). This waiver is authorized
for crimes deemed morally reprehensible, a one-time
violation involving the possession of marijuana for
personal use, multiple convictions, prostitution and
serious crimes committed by an individual who has asserted
immunity. The individual is eligible for a waiver under
section 212(h)(1)(A) if the crime committed was committed
more than fifteen years prior to the date of application
for admission, the admission would not be contrary to
the national welfare and the individual can demonstration
his rehabilitation. Section 212(h)(1)(B) provides another
waiver if the individual is a spouse, parent or child
of a United States citizen or LPR and if denial of admission
would cause an extreme hardship to the United States
citizen or LPR.
Fraudulent Misrepresentation:
A
waiver may be granted in the case of an individual who
fraudulently procured a visa if the individual is the
spouse or child of a U.S. citizen or an LPR and the
US Government is satisfied that the refusal of the individual's
admission to the United States would result in extreme
hardship to the U.S. citizen or LPR spouse or parent
of such individual. There is no longer a waiver for
the parents of a U.S. citizen or LPR, nor is there a
waiver for misrepresentations which occurred more than
ten years ago. For those falsely claiming U.S. citizenship,
there is only one exception to the finding of inadmissibility;
if each natural parent of the individual is or was a
citizen, the individual permanently lived in the US
prior to attaining the age of 16 and the individual
justifiably believed at the time of making such representation
that he or she was a citizen. Otherwise, there is no
waiver for those claiming U.S. citizenship falsely.
Lack
of Proper Documentation (i.e. valid passport or visa):
Only the Attorney General and Secretary of State acting
jointly under I.N.A. section 212(d)(4) may provide a
waiver to the ground for inadmissibility resulting from
an individual not possessing a valid passport, a valid
visa or border crossing identification. This waiver
is authorized on the basis of an unforeseen emergency
in individual cases. Additionally, there exits an I.N.A.
section 212(k) waiver for inadmissibility based on the
fact that the individual was unaware of his or her ineligibility
for admission to the United States. This waiver is only
available if the Attorney General, in his discretion,
finds that the individual who was unaware of his ineligibility
for admission could not have discovered this ineligibility
by an exercise of reasonable diligence.
Hardship
of a spouse:
An
individual can become removable from the United States
if she or he violates the condition of maintaining his/her
marriage to a United States citizen prior to the passage
of two year's time. There is a hardship waiver available
in this particular scenario. In order to qualify for
this waiver, the individual must prove that a resulting
hardship would occur if he or she were removed, that
the marriage was a good faith marriage, and the condition
of maintaining the marriage was violated through no
fault of that individual. There is also an exception
made in the case of a battered spouse who entered into
a good faith marriage.
