There are two types of waivers: waivers of inadmissibility and waivers of deportability. Waivers of inadmissibility are for aliens who are not permanent residents and who cannot otherwise get their immigrant visa, for example, because they were unlawfully present in the United States for more than a year and thus subject to the ten year bar to reentering the United States, because they made a misrepresentation to gain an immigration benefit or engaged in other conduct that bars them from gaining permanent residence. The waiver of deportability under INA 237(a)(1)(H) is a waiver of the fraud grounds for deporting a permanent resident. These two types of waivers are very different.

An alien usually applies for a waiver of inadmissibility at a US consulate abroad using form I-601, but may apply for this waiver in removal proceedings before an immigration judge.  When a foreign national is "inadmissible," the Department of Homeland Security will not let that person into the United States, or will start a proceeding to "remove" him if he is already inside the United States.  Common reasons that a foreign national is "inadmissible" to the United States fall into six major categories: (1) health-related, (2) criminal-related, (3) misrepresentation, (4) alien smuggling, (5) subject of a civil penalty, and (6) unlawful presence.  There are other categories, but they are rare.

The United States Consulate at Ciudad Juarez, Mexico

The grounds of inadmissibility are set out at 8 USC 1182.  Some grounds of inadmissibility are waivable, and some are not.  A waiver is an application made to US Citizenship and Immigration Services asking it to exercise statutory authority to waive, or agree not to apply, a penalty that is otherwise required by law.  Most foreign nationals who are in the United States and who intend to apply for a waiver make their application at the US Consulate at Ciudad Juarez, Mexico.  The applicant makes his waiver application to USCIS, which has an office at the Consulate.

The Consulate at Ciudad Juarez is dangerous, so it's wise for visitors unfamiliar with that area to be very careful and prepared before visiting for a consular interview.  We discuss Ciudad Juarez in more detail here.

A waiver of inadmissibility requires the applicant to demonstrate extreme hardship to a US citizen or permanent resident spouse or parent.  A good waiver application should include a lot of evidence of how the qualifying US relative will suffer extreme hardship if the alien is not granted the waiver.  This means evidence that the qualifying relative will suffer hardship if she must remain in the United States in the absence of the alien and also hardship if she joins the alien and moves to live in the country to which the alien is removed.  No amount of blowhard discussion from an attorney will secure an approval.  Waivers are a little about the law and a lot about the evidence.

Under established law, the judge is supposed to consider the extreme hardship to the qualifying US relative and also consider the severity of the bad conduct that the alien engaged in.  It is important to remember that waivers of inadmissibility are discretionary: the immigration judge (or USCIS if you apply a US consulate abroad) has absolute discretion whether to grant the waiver.  The case that defines the standard for reviewing waivers of inadmissibility is Cervantes-Gonzales, 22 I&N Dec. 560 (BIA 1999).

It is important to remember that "marriage fraud" - a fraudulent marriage entered into for immigration purposes bars an alien from obtaining future benefits as the beneficiary of an I-130 petition or I-140 petition for life.  Inadmissibility for engaging in marriage fraud is defined at INA 204(c) and is not waivable.  You cannot obtain a waiver of inadmissibility for marriage fraud.

Interestingly, case law in the Ninth Circuit has held that it is possible to waive marriage fraud under INA 241(f) as a ground of deportability in the case where the alien already gained residence based on the fraudulent marriage, but only if the fraud occurred at the time of admission and not after the alien was admitted.  Virk v. INS, 295 F. 3d 1055 (9th Cir. 2002).  In other words, if the alien entered the United States as a permanent resident after applying for an immigrant visa at a US consulate abroad, the waiver is available, but if the alien entered the United States, for example, as a tourist and engaged in marriage fraud to gain residence, then the waiver is not available.  The Fourth Circuit Court of Appeals does not think this waiver is available for marriage fraud at all, so if you live in Maryland, North Carolina, South Carolina, Virginia, or West Virginia, this waiver is not for you.

The 237(a)(1)(H) waiver of deportability requires that a permanent resident was inadmissible at the time of admission and that the alien accomplished the admission due to fraud or misrepresentation.  Therefore an entry without inspection will not qualify for this waiver because the illegality of the entry was not based on fraud or misrepresentation.  The 237(a)(1)(H) waiver operates to waive the ground of deportation at 237(a)(1)(A) which renders deportable a person who at the time of entry (or possibly adjustment of status) gained that admission by fraud or misrepresentation.

Also, as of January 4, 2010, testing positive for the Human Immunodeficiency Virus (HIV) is no longer a ground of inadmissibility and therefore no waiver is required for HIV+ applicants.