Immigration Waivers and Inadmissibility

An I-192 waiver is available to Canadian citizens who are inadmissible to the U.S. and who are seeking to enter the United States for nonimmigrant purposes. This waiver is available for all inadmissibility grounds, with the exception of national security and drug trafficking.

The Canadian applicant should submit Form I-192, Application for Advance Permission to Enter as a Nonimmigrant, together with supporting documentation, directly to U.S. Customs & Border Protection.

The granting of an I-192 waiver is discretionary to U.S. immigration authorities, and involves balancing the positive and negative factors in the applicant’s case. Accordingly, when submitting an I-192 waiver application, an applicant should present as many positive factors as possible. In a 2012 case known as Matter of Hranka, the Board of Immigration Appeals outlined the following three factors to be considered by an immigration authority in deciding whether or not to grant an I-192 application:

• The risk of harm to society if the applicant is admitted
• The seriousness of the applicant’s prior immigration law, or criminal law, violations, if any
• The nature of the applicant’s reasons for wishing to enter the United States

The Hranka decision affirms that an applicant’s reasons for seeking a waiver need not be “compelling,” and that U.S. immigration authorities have broad discretion in deciding whether to grant or deny the waiver.

An I-192 application filed with CBP is forwarded to the Admissibility Review Office for processing. Since 2020, CBP has required online filing via the e-SAFE portal. Particularly since the COVID pandemic, processing times have varied, but they have typically been much faster than filing at a Port of Entry. Waiver applications should be submitted as early as possible to allow adequate processing time before the intended date of travel.

Following the submission of all materials via e-SAFE, applicants have 45 days to appear at an e-SAFE-designated Port of Entry to present a complete copy of their application. Failure to appear at a Port of Entry within this period of time will result in the abandonment of the waiver application. If an emergency necessitates that a foreign national enter the U.S. while his or her Form I-192 application is still pending, the applicant may apply for immigration parole to enter the U.S. Immigration parole is granted to certain non-citizens, allowing them to temporarily live and, in some cases, work in the United States without fear of deportation.

If a waiver is approved, the Canadian citizen will be issued a Form I-194, which must be carried whenever seeking entry into the U.S. While the waiver is initially approved for one year, subsequent renewals can be for a period of two or three years, with a maximum of five years. Depending on the reasons for the Canadian citizen’s inadmissibility, they may require waivers for the rest of their life or may only require waivers for a few years.

Foreign nationals who have been deported or removed from the United States, or who violated the terms of a voluntary departure order by not timely departing the United States, are inadmissible for a specified period of years.

Should the foreign national wish to re-enter the U.S. prior to this specified time period, he or she must seek permission to reapply by submitting, to the appropriate agency, Form I-212, Application for Permission to Reapply for Admission into the United States After Deportation or Removal. The I-212 application is a one-time application and is valid for both immigrant and non-immigrant purposes.

In reviewing a Form I-212 application, the adjudicating agency will consider the applicant’s:

• Moral character
• Knowledge of deportation
• Length of time in the U.S.
• Reason for removal
• Hardships resulting from deportation
• Date of the deportation or removal order
• Evidence of reformation and rehabilitation
• Family responsibilities and ties in the U.S.
• Existence of an approved immigrant visa petition

As with most waiver applications, permission to reapply for admission is within the discretion of the immigration authority, which will seek to balance the positive and negative factors in the applicant’s case. Repeated and significant immigration violations are negative factors that will be taken into account, as well as whether the applicant is inadmissible based on other grounds for which there is no waiver.

A Form I-212 should be filed for a person who was removed from the U.S. as an inadmissible alien through removal or expedited removal proceedings, or violated the terms of a Voluntary Departure order by not timely departing from the U.S.

A Form I-212 must be filed prior to obtaining either a non-immigrant visa or obtaining permanent resident status (either through Adjustment of Status or Immigrant Visa Processing). Unlike some waivers, the I-212 waiver is applicable for both non-immigrant and immigrant purposes.

Form l-601 can be used to apply for a waiver for foreigners who have been found to be ineligible to enter the U.S. for specific grounds of inadmissibility.

For the waiver to be approved, an applicant must prove that his or her U.S. citizen or Lawful Permanent Resident spouse or child will suffer extreme hardship if the applicant is denied either entry into the U.S. as an immigrant or adjustment of his or her status to that of a lawful permanent resident.

Hardship factors include the following:

• The age of the applicant
• The age of the qualifying relatives
• The applicant’s length of residence in the U.S. over the statutory minimum
• The applicant’s ties, both to the U.S. and his or her home country
• The health of the applicant and qualifying relatives
• The applicant’s financial status
• Any disruption in education opportunities
• Adverse psychological impact of deportation

The following factors, taken alone, will not establish extreme hardship:

• Birth of a United States citizen child
• Significant reduction in the foreign national’s standard of living
• Difficulty in readjusting to life in the foreign national’s native country
• Lower quality medical or educational facilities in foreign national’s native country

The grant of a waiver is discretionary. Thus, it may be denied even if the applicant meets all statutory requirements. The following is a list of factors that will be viewed favorably by the immigration authorities:

• Family ties within the U.S.
• Residence of long duration in the U.S.
• Hardship that would result if denied permanent residence
• Military service
• Employment history
• Property or business ties
• Genuine rehabilitation
• Payment of taxes
• Evidence of good character

The I-601A Provisional Waiver deals exclusively with inadmissibility for “unlawful presence.” Specifically, an applicant who has, after the age of 18, been unlawfully present in the U.S. for 180 days or more, but less than 365 days, and who then leaves voluntarily, is barred from returning to the U.S. for three years. Applicants who have accrued “unlawful presence” of 365 days or more and then left the U.S. voluntarily are barred from returning for ten years.

To be eligible for the waiver from unlawful presence, applicants must:

• Be in the U.S.
• Have immediate family members who are citizens or green card holders
• Leave the United States and apply at a U.S. Embassy or Consulate