Waivers

Waiver applications (I-601, I-212, 212(d)(3), etc.) are used to request the U.S. Government to issue a visa when the visa applicant is legally ineligible for the visa requested. Once the consular officer has informed the visa applicant that he or she has the right to request a waiver, we strongly recommend that visa applicant to seek an immigration lawyer’s guidance to prepare the waiver.

Carlos Mauricio Duque, Esq. (immigration lawyer) has represented hundreds of foreigners in a wide diversity of immigration proceedings from his main office in Miami, Florida, and from his satellite office in Bogotá, Colombia. You may consult your case with Carlos Mauricio Duque, Esq., by calling one of the following telephone numbers:

• Miami, Florida +1 305 436 0155
• Bogotá, Colombia +57 1 426 3975
• México, D.F., México +52 55 4170 3632
• San Salvador, El Salvador +503 2113 3858
• Panamá, Panamá +507 836 5750
• Lima, Perú +51 1 707 5967
• Madrid, España +34 911 239 941
• Buenos Aires, Argentina +54 11 5218 4068
• Caracas, Venezuela +58 212 7715900

Below you will find additional information about waivers.

THE CONSULAR OFFICER DECIDES IF THE APPLICANT NEEDS A WAIVER

When the consular officer examines a visa application, he or she bears two things in mind: (1) whether the visa applicant meets the legal requirements of the visa he or she is requesting, and (2) whether the visa applicant is admissible to the United States.

In the analysis of the second criterion, the consular officer refers to section 212(a) of the Immigration Law which enlists all the behaviors and circumstances that lead to the applicant´s inadmissibility. Some examples of this kind of behaviors are: conviction for crimes related to controlled substances, money laundering, committing fraud in a past visa application, having declared to be a U.S. Citizen without being so, having stayed in the U.S. unlawfully for more than six months, having been deported from the U.S., among others.

DO YOU HAVE THE RIGHT TO APPLY FOR A WAIVER?

When a foreigner has been declared inadmissible by a consular officer, it is necessary to determine if the foreigner has the right to claim the waiver. Normally the same consular officer that has concluded that the foreigner is ineligible for a visa for any of the reasons listed in section 212(a) also informs the applicant whether he or she has the right to apply for a waiver. The availability of a waiver depends on the type of behavior that led to the finding of inadmissibility and on the type of visa that the foreigner is applying for. Immigration law is more restrictive on the availability of waivers when the person is asking for an immigrant visa (permanent residence) than when the visa asked for is a temporary (tourist visa, student visa, temporary work visa, etc.)

DIFFERENT KINDS OF WAIVER

There are basically two types of waivers:

  • Waivers for immigrant visas (visas that lead to permanent residence)
  • Waivers for temporary visa (non-immigrant visa)

WAIVERS FOR PERMANENT RESIDENCE VISA (IMMIGRANT VISA)

The consular officer determines whether the immigrant visa applicant is eligible for the visa he or she has applied for. If the consular officer decides that the applicant is ineligible, the consular officer should also inform the immigrant visa applicant if there are any waivers made available to the applicant by the immigration law.

Imagine that Pedro Martínez, a Colombian-born citizen is married with Fernanda Parra, a U.S. Citizen. Fernanda initiates the immigrant visa process by filing an I-130 visa petition and everything goes fine until the day of the appointment at the U.S. Embassy in Bogota, Colombia. During the interview, Pedro tells the consular officer that he had been sentenced twice for stealing high amounts of money in Miami, Florida. Based on this information, the consular officer determines that Pedro is ineligible for the immigrant visa he requested. The consular officer will then deny the visa application filed by Pedro.

However, the consular officer should also tell Pedro that, under the specific circumstances of his case, he has the right to file a waiver. If Pedro files the waiver with USCIS and USCIS approved it, he will be able to come back to the Embassy in order to receive the immigrant visa he applied for initially.

Each behavior mentioned in section 212(a) (reasons for inadmissibility) has specific rules. Some of these behaviors do not allow the immigrant visa applicant to claim a waiver. For example, waivers are not available to immigrant visa applicants who have been sentenced for drug dealing, money laundering, human trafficking, terrorism, etc.

There are other behaviors mentioned by section 212(a) that allow you immigrant visa applicants to request waivers.

WAIVERS FOR TEMPORARY VISAS (NON-IMMIGRANT VISAS)

Waivers can also be requested when the foreigner applies for a non-immigrant visa, e.g., tourist visa (B1/B2), temporary work visas (H-1B), student visa (F-1), investment visa (E1 and E2) among others. These waiver applications are known as “212(d)(3) waivers” for the section of the law that regulates them. Different from the waivers available for immigrant visa applicants, 212(d)(3) waivers are much broader and allow the nonimmigrant visa applicant to overcome almost all grounds of inadmissibility. “212 (d)(3) waivers” may be used to overcome inadmissibility resulting from drug dealing, crimes involving moral turpitude, fraud, among many others. These waivers are adjudicated by Customs and Border Protection (CBP) in an office called Admissibility Review Office (ARO).

LEGAL REPRESENTATION FOR FILING A WAIVER

If you are preparing to file a waiver please contact us. Carlos Mauricio Duque, Esq. has represented hundreds of foreigners in a wide diversity of immigrant-related matters from his main office in Miami, Florida, and from his satellite office in Bogotá, Colombia. You may consult your case with Carlos Mauricio Duque, Esq., by calling one of the telephone numbers provided below:

• Miami, Florida +1 305 436 0155
• Bogotá, Colombia +57 1 426 3975
• México, D.F., México +52 55 4170 3632
• San Salvador, El Salvador +503 2113 3858
• Panamá, Panamá +507 836 5750
• Lima, Perú +51 1 707 5967
• Madrid, España +34 911 239 941
• Buenos Aires, Argentina +54 11 5218 4068
• Caracas, Venezuela +58 212 7715900

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