Getting a Hardship Waiver After Deportation or Unlawful U.S. Presence

If you or a member of your family have been deported (removed) from the United States or spent time in the U.S. without lawful permission to be there, obtaining the legal right to return will not be easy. U.S. federal immigration law has placed various barriers in your way. Although some of these can be overcome with a request for a waiver (legal forgiveness), others cannot.

We will briefly describe the situation here, but you should consult with a U.S. immigration attorney for a full analysis of your personal situation.

Bar on Returning to the U.S. After Deportation

Someone who has been removed (deported) from the U.S. is legally considered inadmissible for a period of time after that, under Section 212 of the Immigration and Nationality Act (I.N.A.). The exact length of time that you're inadmissible for depends upon the reason for which you were removed.

For most people who have actually spent time in the U.S. (as opposed to having been stopped upon arrival at an airport or other border or entry point) the inadmissibility period is ten years. However, the bar becomes 20 years for someone who has been deported more than once and, and permanent (lifetime) if the person was deported for an aggravated felony, or stayed in the U.S. unlawfully for an aggregate of one year and then reentered or attempted to enter illegally, without lawful admission.

You are also considered permanently inadmissible if you were deported and then re-entered or attempted to enter the U.S. without inspection before the period of inadmissibility for your deportation had expired.

It is possible to apply for a waiver of your inadmissible status. This is referred to as an I-212 application, named for the government form on which the waiver application is made. For immigrant visa applicants, an I-212 waiver does not, like other waivers, require showing that the deported immigrant has a qualifying U.S. relative who would suffer hardship, although this is one factor that is considered.

Instead, decisions on I-212 waivers depend on factors like the reason for deportation, how recently you were deported, your length of legal residence in the United States before being deported, your moral character and respect for law and order, your family responsibilities, and the hardship you and any relevant others would face if you were denied reentry to the United States.

Immigrant visa (green card) applicants who are permanently inadmissible because of unlawful re-entry into the U.S. after a deportation or one year of unlawful presence in the U.S. cannot file the I-212 waiver until they've been outside the U.S. for ten years.

Nonimmigrant visa applicants (such as for visitor, student, or temporary work visas) ordinarily do not need to file the I-212 waiver. Instead, a consular officer will send the waiver request on your behalf, when you apply for your visa, if the visa is otherwise approvable. There is one exception to this, if you were deported and then re-entered the U.S. unlawfully within the five- or ten-year period that you were barred from re-entry, you will have to wait ten years from the time you departed the U.S. and will also need an I-212 waiver.

Bar on Returning to the U.S. After Unlawful Presence

You become inadmissible to the U.S. under a completely separate section of the law if you have spent more than six months (180 days) in the United States with no valid visa or other right to remain here. The penalty in this case is that if you:

• accrued continuous unlawful presence in the U.S. of more than 180 days but less than one year, and then leave the U.S. voluntarily before any immigration proceedings began, you will be inadmissible for three years, or
• accrued continuous unlawful presence in the U.S. of more than 180 days but less than one year, and leave voluntarily or under an order of removal, you will be inadmissible for ten years.

If you were in the U.S. unlawfully while under the age of 18, that time does not count against you for this purpose. (For further detail, see Understanding the Three and Ten-Year Bars for Unlawful Presence.)

What Waiver Is Available to Immigrant Visa Applicants for Unlawful Presence?

Immigrant visa applicants can apply for a waiver if they are the spouse, son or daughter of a U.S. citizen or green card holder and that person would face extreme hardship if the applicant were denied U.S. reentry.

This is referred to as an I-601 waiver, which is again the name of the form you would file with DHS. The important things to realize are that:

• the hardship that you claim the qualifying U.S. relative would face must be more severe than the anxiety and sadness that anyone would face upon separation from a family member.
• You'll need to back up your claim of extreme hardship with documentary evidence, including detailed explanations and personal testimony, and ideally backup from authoritative sources such as medical professionals and educators.
• If you are in the U.S. and your only ineligibility for the immigrant visa is related to unlawful presence, you might be able to apply for an advance, provisional waiver on USCIS Form I-601A, while you wait for your consular interview to be scheduled. This can reduce the amount of time that you are separated from your family while waiting on your waiver approval, which can take six to 12 months. But if you must ask for a waiver of any other ground of inadmissibility, your only choice is to apply on Form I-601, through the U.S. consulate handling your case.

I-601 waivers are difficult, but not impossible, to obtain. If, for example, your U.S. citizen spouse has a medical condition that cannot be treated in your home country and you are also your spouse's primary source of financial support and you could not earn enough in your home country to continue to support your spouse back in the U.S., you might have a good case for waiver.

Similarly, if the immigrant's home country is in civil and political turmoil and would be dangerous for the U.S. family members to stay in, that might be good grounds for a waiver. Although economic hardship alone is not usually enough to meet the "extreme hardship" requirement, it will be taken into account in combination with other factors.

If you need an I-601 or I-601A waiver, you should consult with an immigration attorney, as these requests are likely to be denied unless the request contains strong legal arguments supported by facts and evidence.

How Can Nonimmigrant Visa Applicants Apply for a Waiver of Unlawful Presence?

Nonimmigrant visa applicants do not need to use form I-601. When you have your visa interview, if your visa is approvable, the consular officer will request the waiver for you. Still, it can be difficult to show sufficiently strong social and economic ties to your home country (as is required for most nonimmigrant visas) if you have recently been unlawfully present in the United States. If you can demonstrate strong ties, and meet the other qualifications of the visa, the consular officer will consider factors such as the recency of your unlawful presence, the purpose of your travel, whether you have a criminal history, and your other life circumstances, when deciding whether to recommend the waiver.

For example, if you overstayed your U.S. tourist visa seven years ago when you were in your early twenties, but now you are 30 and work as a senior accountant for Microsoft UK and are being sent to the U.S. for training, you might be a good candidate for a waiver.

Still, you might want to consult with an experienced immigration lawyer to get the skinny on how to prepare your application and what its likely chances of success are.