May 2017

Published by the Law Offices of Alena Shautsova, 2908A Emmons Ave, Brooklyn, New York 11235

175 Eileen Way, Syosset NY 11791

Subscribe to our monthly free legal updates, SHAUTSOVA’S UPDATE.

Follow our Blog Posts commenting on the latest developments in the immigration and civil rights world

http://www.workharassmentattorneys.com/ 

http://www.russianspeakinglawyerny.com

Hands holding a globe, symbolizing care for the Earth.

“Be the change that you wish to see in the world.”
― Mahatma Gandhi

NEWS Flashes

Objective V. Subjective Fear In Asylum Cases

President Trump H1B Executive Order

Privacy Laws Change For Non-USC And Non-LPR

TPS Holders Can Adjust In The 9th Circuit (Alaska, California, Arizona, Hawaii)

Watch Our Immigration Videos:

Alena Shautsova uploaded and liked 2 weeks ago

 9:50

Legally Speaking: Trump Era US Immigration Policy Changes

Alena Shautsova

Alena Shautsova liked a video 3 weeks ago

 2:43

Срок подачи заявления на политическое убежище в США

Understanding Immigration Waivers

Author: New York Immigration lawyer Alena Shautsova

Two stick figure characters, one standing with a stick and the other kneeling in a submissive position.

An Immigration waiver is a “pardon” for a specific immigration violation. For example, when a person is applying for a US visa or a green card, an Immigration (or consular) officer has to determine if the person violated the US or other laws and is inadmissible. The same process occurs if a green card holder is subject to criminal penalties in the United States: then the government determines if a person is deportable due to criminal/immigration violations.

Let’s say X was found guilty of possession of 10g of marijuana. X has a green card, but due to his criminal convictions he also now might be deportable. Possession of marijuana is a criminal offense under the Federal law. It is also an offense under the Immigration law. If convicted of a crime related to a controlled substance, a person is deportable under INA 237. Luckily for X, there is an “automatic” waiver for this specific violation of Immigration law. X still will have a conviction under Criminal law, but will not be physically deported out of the United States because Immigration law has a waiver (a pardon or forgiveness) for those convicted of a single offense involving possession for one’s use of 30 grams or less of marijuana. This waiver exception is automatic. X would not need to file any special form to utilize it.

So, there are “waivers” that are automatic (like the one related to a single offense involving possession for one’s own use of 30 grams or less of marijuana or a waiver under INA 245K for unlawful presence or work authorization for immediate relatives of US citizens who are in the US), and there are waivers that one has to file for specifically.

The waivers that require application has one more thing in common: it is not enough that an applicant meets the statutory requirements for the waiver (meets the basic criteria allowing him/her to file for a waiver) but the applicant also has to demonstrate that he/she deserves the waiver. Almost all such waivers require demonstration of some hardship to the applicants’ United States citizens or lawful permanent residentsfamily members. For example, there is a waiver for certain criminal convictions, for unlawful presence, for fraud or misrepresentation, for entrance to the US without necessary documents, etc. There are waivers for immigrant visas, and non-immigrant visas (a waiver for a non-immigrant visa) may even waive aggravated felony for the specific non-immigrant visa).

Now, the important part here is the same conduct may fall into more than one inadmissibility category. For example, a person did not state on his/her application that he was participating in combat groups at the time of atrocities in his country. A person is inadmissible/deportable due to fraud and due to being an alien who “committed . . . assisted, or otherwise participated in” extrajudicial killings under color of law of any foreign nation. While there is a waiver for fraud, there is no waiver for the second ground of inadmissibility. Even if a person files for fraud waiver, he/she will still be inadmissible due to the second ground of inadmissibility.

The provisions about waivers are “scattered” around various Immigration regulations. One has to be fairly versed in Immigration law to know if there is a waiver for a specific immigration problem.

There are conduct or Immigration violations for which there are no waivers at all. For example, submitting false or frivolous asylum claim leads to a permanent bar that cannot be erased by any waiver. Claiming US citizenship (not counting certain exceptions) also does not allow any waivers.

Finally, the timing of filing for a waiver is important. Some waivers can be filed together with adjustment of status package. Some may be filed only after the consul determined that a person is inadmissible. An I-601A provisional waiver has to be filed in the “middle” of the process. And very rarely, a person is allowed to file a nunc pro tunc waiver.

Here is a sample Table of Various Immigration Waivers:

Violation Non-Immigrant Purpose Immigrant Purpose

Aliens Previously  Removed  (INA 212(a)(9)(A));  (9 FAM 40.91)	INA 212(d)(3)(A) waiver is available. Factors to be considered in deciding whether to recommend the waiver include the nature and date of the offense, possible rehabilitation of the alien’s character, and the necessity for, or urgency of, the alien’s proposed trip to the United States. Additionally, an approved Form I-212, (Permission to Reapply for Admission into the United States after Deportation or Removal) removes this ground, but not the circumstances which led to it.	No waiver, but DHS may grant permission to reapply for admission to the United States to an alien otherwise inadmissible under this section. (Form I-212, Permission to Reapply). However, such permission to reapply does not remove the grounds which led to the alien’s denial of admission to or removal from the United States. The reason for such denial of admission or removal may lead to another ground of inadmissibility.
Aliens Unlawfully Present  (INA 212(a)(9)(B)); (9 FAM 40.92 Notes)	INA 212(d)(3)(A) Factors to be considered in deciding whether to recommend the waiver include the nature and date of the offense, possible rehabilitation of the alien’s character, and the necessity for, or urgency of, the alien’s proposed trip to the United States. Additionally, an approved Form I-212 (Permission to Reapply) for Admission into the United States after Deportation or Removal) removes this ground, but not the circumstances which led to it.	DHS has sole discretion to grant a 212(a)(9)(B)(v) waiver in the case of an immigrant who is the spouse, son, or daughter of a U.S. citizen or LPR, if refusal of admission to such immigrant alien would result in extreme hardship to the citizen or lawful resident spouse or parent of such alien.
Aliens Unlawfully Present After Previous Immigration Violations  (INA 212(a)(9)(C));  (9 FAM 40.93 Notes)	INA 212(d)(3)(A) waiver is available. Factors to be considered in deciding whether to recommend the waiver include the nature and date of the offense, possible rehabilitation of the alien’s character, and the necessity for, or urgency of, the alien’s proposed trip to the United States.	No waiver, but DHS may grant permission to reapply for admission to the United States to an alien otherwise inadmissible under this section provided at least ten years have passed following the alien’s last departure from the United States. (Form I-212, Application for Permission to Reapply)

Aliens Present Without Admission or Parole  (INA 212(a)(6)(A));  (9 FAM 40.61)	This ground does not apply at time of visa application.	This ground does not apply to visa applicants.
Failure to Attend a Removal Proceeding  (INA 212(a)(6)(B));  (9 FAM 40.62)	INA 212(d)(3)(A) waiver is available. Inadmissibility applies for 5 years following departure or removal subsequent to removalhearing.	No waivers available. Inadmissibility apples for 5 years following departure or removal subsequent to removalhearing.
Fraud and Misrepresentation  (INA 212(a)(6)(C)(i));  (9 FAM 40.63)	INA 212(d)(3)(A) waiver is available. Factors to be considered in deciding whether to recommend the waiver include the nature and date of the offense, possible rehabilitation of the alien’s character, and the necessity for, or urgency of, the alien’s proposed trip to the United States.	INA 212(i) waivers are available if she or he is the spouse, son, or daughter of a U.S. citizen or of an LPR, but only if the petitioner would suffer extreme hardship if the waiver were not granted; or, if a VAWA self-petitioner, the alien demonstrates extreme hardship to the alien, or the alien’s U.S. Citizen or LPR relative.
False Claim of Citizenship  (INA 212(a)(6)(C)(ii)); (9 FAM 40.63)	INA 212(d)(3)(A) waiver is available. Factors to be considered in deciding whether to recommend the waiver include the nature and date of the offense, possible rehabilitation of the alien’s character, and the necessity for, or urgency of, the alien’s proposed trip to the United States.	No waiver available.
Stowaways  (INA 212(a)(6)(D));  (9 FAM 40.64)  Applies only to aliens seeking admission at a port of entry. You are not to refuse visas under this provision.	This ground does not apply at time of visa application.	This ground does not apply at time of visa application.
Smugglers (Knowingly Assisted)  (INA 212(a)(6)(E));  (9 FAM 40.65)	INA 212(d)(3)(A) waiver is available. Factors to be considered in deciding whether to recommend the waiver include the nature and date of the offense, possible rehabilitation of the alien’s character, and the necessity for, or urgency of, the alien’s proposed trip to the United States.	1. INA 212(d)(11) waiveravailable. DHS maygrant a waiver to an applicant for family-based immigration if the alien applicant had aided an individual who at the time of such action was the alien’s spouse, parent, son, or daughter entering or attempting to enter the United States in violation of the law. The brother or sister of a U.S. citizen is not eligible for this waiver.  2. DHS may grant an INA 212 (c) waiver to a LPR who is returning to the United States after a temporary absence abroad; had illegally assisted only his or her spouse, son, or daughter, or parent, and no others; and is otherwise eligible for admission. In this way, DHS avoids penalizing too heavily aliens already admitted to the United States who were not ineligible prior to the 1990 amendments to the law, who would now be inadmissible because of the 1990 amendments, and who had assisted only a close family member’s entry into the United States.
Subject of Civil Penalty or Final Order Under Section 274C (Document Counterfeiting)  (INA 212(a)(6)(F));  (9 FAM 40.66 Notes)	INA 212(d)(3)(A)waiveravailable. Factors to be considered in deciding whether to recommend the waiver include the nature and date of the offense, possible rehabilitation of the alien’s character, and the necessity for, or urgency of, the alien’s proposed trip to the United States.	INA 212(d)(12) waiver is available.  DHS may grant a waiver to:  1. Certain permanent resident aliens who have been abroad temporarily and are not under order of deportation; or  2. To aliens seeking admission or adjustment of status as immediate relatives or family-based beneficiaries (but for aliens seeking adjustment it must have been committed solely to assist, aid, or support the alien’s spouse or child).
Student Visa Abusers  (INA 212(a)(6)(G));  (9 FAM 40.67)	INA 212(d)(3)(A) waiver is available. Factors to be considered in deciding whether to recommend the waiver include the nature and date of the offense, possible rehabilitation of the alien’s character, and the necessity for, or urgency of, the alien’s proposed trip to the United States.	No waiver.
Crimes Involving Moral Turpitude  (INA 212(a)(2)(A)(i)(I);  9 FAM 40.21(a))	For those who do not fall under the exceptions to inadmissibility listed in 9 FAM 40.21, INA 212(d)(3)(A) waivers are available. Factors in considering whether to recommend a waiver include the nature and date of the offense, possible rehabilitation of the alien’s character, and the necessity for, or urgency of, the alien’s proposed trip to the United States.	1. INA 212(h) waiver is available in cases where the alien’s admission to the United States would not be contrary to the national welfare, safety and security of the United States and the applicant has been rehabilitated, and the activities for which the applicant is inadmissible occurred more than 15 years before the date of visa application; or  2. For the spouse, parent, son, or daughter of a U.S. citizen or legal permanent resident (LPR) if, in the opinion of DHS, not granting the waiver would result in extreme hardship to the U.S. citizen or LPR; or 3. The alien is a VAWA self-petitioner.  No waiver is available if the applicant has been convicted of (or has admitted committing acts that constitute) murder, criminal acts involving torture, or conspiracy to commit either murder or criminal acts involving torture.
Controlled Substance Violators  (INA 212(a)(2)(A)(i)(II));  (9 FAM 40.21(b))	INA 212(d)(3)(A) waiver is available.  Factors to consider in deciding whether to recommend the waiver include the nature and date of the offense, possible rehabilitation of the alien’s character, and the necessity for, or urgency of, the alien’s proposed trip to the United States.	1. INA 212(h) waiver is available if the alien’s admission to the United States would not be contrary to the national welfare, safety, or security of the United States; and the alien has been rehabilitated and the inadmissible act occurred more than 15 years before the visa application; or  2. For the spouse, parent, son, or daughter to the U.S. citizen or LPR if, in the opinion of the Secretary of Homeland Security, refusing the waiver would result in extreme hardship to the U.S. citizen or LPR; or 3. The alien is a VAWA  self-petitioner.  INA 212(h) is only available if the violation relates to a single offense of simple possession of 30 grams or less of marijuana.
Multiple Criminal Convictions  (INA 212(a)(2)(B));  (9 FAM 40.22 Notes)	INA 212(d)(3)(A) waiver is available.  Factors to consider in deciding whether to recommend the waiver include the nature and date of the offense, possible rehabilitation of the alien’s character, and the necessity for, or urgency of, the alien’s proposed trip to the United States.	1. INA 212(h) waiver is available if: activities for which the alien is inadmissible occurred more than 15 years before the date of the alien’s application; the alien’s admission to the United States would not be contrary to the national welfare, safety, or security; and the applicant has been rehabilitated; or 2. For the spouse, parent, son, or daughter to the U.S. citizen or LPR if, in the opinion of the Secretary of Homeland Security, refusing the waiver would result in extreme hardship to the U.S. citizen or LPR; or 3. If the alien is a VAWA self-petitioner.  No waiver is available if the applicant has committed murder, criminal acts involving torture, or conspiracy to commit either murder or criminal acts involving torture.
Controlled Substance Traffickers and the Spouse, Son, or Daughter of Substance Traffickers Who Obtained Financial or other Benefit and Knew or have Known that the Financial Benefit was the Product of Illicit Activity within the Past Five Years  (INA 212(a)(2)(C));  (9 FAM 40.23 Notes)	INA 212(d)(3)(A) waiver is available.  Factors to consider in deciding whether to recommend the waiver include the nature and date of the offense, possible rehabilitation of the alien’s character, and the necessity for, or urgency of, the alien’s proposed trip to the United States.	No waiver is available.
Prostitution and Commercialized Vice Within the Past 10 Years of the Date of Application for a Visa, Admission, or Adjustment of Status  (INA 212(a)(2)(D); and INA 212(a)(2)(A)(i)(I))  (9 FAM 40.24)	INA 212(d)(3)(A) waiver is available.  Factors to be considered in deciding whether to recommend the waiver include the nature and date of the offense, possible rehabilitation of the alien’s character, and the necessity for, or urgency of, the alien’s proposed trip to the United States.	1. INA 212(h) waiver is available in cases of prostitution (D)(i)or procuring (D)(ii) if the alien’s admission to the United States would not be contrary to the national welfare, safety, or security, and the alien has been rehabilitated. In cases of other commercialized vice (D)(iii), 212(h) is available if the two conditions above are met, and all relevant criminal acts took place more than 15 years before the date of application; or  2. Available to IV applicants with a close family relationship (spouse, parent, son, or daughter) to a U.S. citizen or LPR, if, in the opinion of DHS, not granting the waiver would result in extreme hardship to the petitioning U.S. citizen or LPR and the alien has been rehabilitated; or  3. The alien is a VAWA self-petitioner.
Certain Aliens Involved in Serious Criminal Activity Who Have Asserted Immunity from Prosecution  (INA 212(a)(2)(E))  (9 FAM 40.25)	INA 212(d)(3)(A) waiver is available. Factors to be considered in deciding whether to recommend the waiver include the nature and date of the offense, possible rehabilitation of the alien’s character, and the necessity for, or urgency of, the alien’s proposed trip to the United States.	1. INA 212(h) waiver is available if the activities for which the alien is inadmissible occurred more than 15 years before the date of the alien’s application, the alien’s admission to the United States would not be contrary to the national welfare, safety, or security, and the alien has been rehabilitated; or  2. For applicants with a close family relationship (spouse, parent, son, or daughter) to a U.S. citizen or LPR, if, in the opinion of DHS, refusing the waiver would result  in extreme hardship to the U.S. citizen or LPR; or  3. The alien is a VAWA self-petitioner.  Neither waiver is available if the alien has committed murder or criminal acts involving torture, or conspiracy to commit either murder or criminal acts involving torture.
Foreign Government Officials Who Have Committed Particularly Severe Violations of Religious Freedom  (INA 212(a)(2)(G));  (9 FAM 40.26)	INA 212(d)(3)(A) waiver is available. Advisory Opinion from VO/L/A is mandatory.	No waiver is available.
Significant Traffickers in Persons and Beneficiaries, Certain Family Members of Trafficker Who Obtained Financial or Other Benefit and Knew or Have Known that the Financial Benefit was the Product of Illicit Activity in Past 5 Years  (INA 212(a)(2)(H));  (9 FAM 40.27 Notes)	INA 212(d)(3)(A) waiver is available. Advisory Opinion from VO/L/A is mandatory.	No waiver is available.
No Entry Documents – Immigrants  (INA 212(a)(7)(A));  (9 FAM 40.71)	Not applicable.	No waiver is available at time of visa application. However, under INA 212(k), DHS may waive this inadmissibility for an IV holder at the port of entry.
Nonimmigrants Not in Possession of Passport Valid for Six Months of Nonimmigrant Visa or Border Crossing Card  (INA 212(a)(7)(B));  (9 FAM 40.72 Notes)	INA 212(d)(4) waiver is available:  1. On the basis ofunforeseen emergency in individual cases; or  2. On the basis ofreciprocity to nationals of a foreign contiguous territory or of adjacent islands (and residents of those territories or islands having a common nationality with such nationals).	Not applicable.
INA 212(a)(1)(A)(i) – Communicable Disease of Public Health Significance (INA 212(a)(1)(A)(i); (9 FAM 40.11)	INA 212(d)(3)(A) waiver is available.	INA 212(g) waiver is available for: 1. The spouse, unmarried son or daughter, or minor unmarried lawfully adopted child of: a U.S. citizen, an alien who has been issued an immigrant visa, or an alien who has been lawfully admitted for permanent residence; or 2. The parent of a son or daughter who is: a U.S. citizen, a lawfully admitted permanent resident alien, or an alien who has been issued an immigrant visa; or 3. A Violence Against Women Act (VAWA) self-petitioner.
Failure to Submit Proof of Vaccination INA 212(a)(1)(A)(ii)  (INA 212(a)(1)(A)(iii); (9 FAM 40.11)	Not Applicable.	1. If alien receives vaccines that are initially missing, a waiver may be approved by the consular officer under a blanket delegation of authority by USCIS. (9 FAM 40.11 N12.5-1; INA 212(g)(2)(A))  2. If the panel physician determines required vaccinations would be medically inappropriate, a waiver may be approved by the consular officer under a blanket delegation of authority by USCIS. (9 FAM 40.11 N12.5-2; INA 212(g)(2)(B))  3. If there is a religious or moral objection to vaccination, a waiver may be approved by Department of Homeland Security (DHS). (9 FAM 40.11 N12.5-3 and INA 212(g)(2)(C))
Physical or Mental Disorder and Behavior Associated with the Disorder Which May Pose, or Has Posed a Threat, to Property or Safety, of the Applicant or Others and Which is Likely to Recur  (INA 212(a)(1)(A)(iii);  9 FAM 40.11)	212(d)(3)(A) waiver is available, subject to conditions proposed by the Department of Health and Human Services (HHS), such as a requirement that a family member or medical escort accompany the applicant.  (9 FAM 40.11 N13)	INA 212(g)(3) waivers are granted at the discretion of DHS in consultation with HHS. Waivers may be subject to conditions proposed by the Department of Health and Human Services, such as the giving of bond or requirement  that a family member or medical escort accompany the applicant.
Drug Abuser or Addict, one who has engaged in “non-medical use of a controlled substance.”  (INA 212(a)(1)(A)(iv);  (9 FAM 40.11 N12)	212(d)(3)(A) waiver available upon recommendation of the consular officer to DHS/USCIS. (9 FAM 40.11 N13.2 and N14)	No waiver is available. However, a “CLASS A” inadmissibility finding by the panel physician may be overcome in the future according to CDC guidelines. (9 FAM 40.11 N13.2)

Class of Inadmissibility	NIV Waivers	IV Waivers
General Prejudicial Activities: Espionage, Sabotage, or Prohibited Export of Sensitive Technology, or Sensitive Information  (INA 212(a)(3)(A));  (9 FAM 40.31)	No waiver is available but the inadmissibility applies only to current circumstances.  Mandatory Security Advisory Opinion (SAO)  required for inadmissibility finding.	No waiver is availablebut inadmissibility applies only to current circumstances.
Terrorist Activities  (INA 212(a)(3)(B)); (9 FAM 40.32)	INA 212(d)(3)(A) waiver is available. SAO to VO/L/C is mandatory.	No waiver is available.
Entry Would Have Potentially Serious Adverse Foreign Policy Consequences  (INA 212(a)(3)(C));  (9 FAM 40.33)	No waiver is available but inadmissibility applies to current circumstances. SAO is mandatory for inadmissibility finding.	No waiver is availablebut inadmissibility applies to current circumstances. SAOmandatory.
Membership or Affiliation with Communist or Other Totalitarian Party, Domestic or Foreign (applies only to immigrants)  (INA 212(a)(3)(D));  (9 FAM 40.34)		INA 212(a)(3)(D) waiver available. Also, there are exceptions contained in INA 212(a)(3)(D) relating to past membership and/orinvoluntary membership.
Participation in Nazi Persecutions or Genocide and Commission of Acts of Torture or Extrajudicial Killings  (INA 212(a)(3)(E));  (9 FAM 40.35(a) and 9 FAM 40.35(b))	INA 212(d)(3)(A) waiver is available for acts of torture or extrajudicial killing.  SAO mandatory for finding.	No waiver is available.
Associations with Terrorist Organizations  (INA 212(a)(3)(F));  (9 FAM 40.36)	INA 212(d)(3)(A) waiver is available.  SAO mandatory	No waiver is available.
Recruitment or Use of Child Soldiers  (INA 212(a)(3)(G));  (9 FAM 40.38)	INA 212(d)(3)(A) waiver is available.  SAO mandatory	No waiver is available.
Aliens Entering the United States to Perform Skilled or Unskilled Labor Whose Intended Employment Has Not Been Certified by the Department of Labor or Who is Unqualified for His/Her Certified Employment.  (INA 212(a)(5)(A));  (9 FAM 40.51)	Not applicable to NIV.	No waiver is available at time of visa application. However, under INA 212(k), DHS may waive this inadmissibility for an IV holder at the port of entry.
Unqualified Physicians  (INA 212(a)(5)(B));  (9 FAM 40.52)	Not applicable to NIV.	No waiver is available.
Uncertified Foreign Health Care Workers  (INA 212(a)(5)(C));  (9 FAM 40.53 Notes)	Discretion must be applied on a case-by-case basis; reference 9 FAM 40.53 N3.	No waiver is available, but this can be overcome. See 9 FAM 40.53 N1.
Practicing Polygamists  (INA 212(a)(10)(A));  (9 FAM 40.101)	Not applicable.	No waiver is available.  INA 212(c) relief is available for certain returning residents.
Guardian Required to Accompany Helpless Alien (INA 212(a)(10)(B));  (9 FAM 40.102)	Not applicable at time of visa application. This is applied only at the port of entry (POE) by DHS.	Not applicable at timeof visa application.
International Child Abduction  (INA 212(a)(10)(C));  (9 FAM 40.103 Notes)	212(d)(3)(A) waiver is available.  Factors to be considered in deciding whether to recommend the waiver include the nature and date of the offense, possible rehabilitation of the alien’s character, and the necessity for, or urgency of, the alien’s proposed trip to the United States.	No waiver is available.
Unlawful Voters  (INA 212(a)(10)(D));  (9 FAM 40.104 Notes)	212(d)(3)(A) waiver is available.  Factors to be considered in deciding whether to recommend the waiver include the nature and date of the offense, possible rehabilitation of the alien’s character, and the necessity for, or urgency of, the alien’s proposed trip to the United States.	No waiver is available.
Former Citizens Who Renounced Citizenship to Avoid Taxation  (INA 212(a)(10)(E));  (9 FAM 40.105 Notes)	212(d)(3)(A) waiver is available.  Factors to be considered in deciding whether to recommend the waiver include the nature and date of the offense, possible rehabilitation of the alien’s character, and the necessity for, or urgency of, the alien’s proposed trip to the United States.	No waiver is available.
Educational Visitor Status: Foreign Residence Requirement; Waivers  (INA 212(e));  (9 FAM 40.202)	The foreign residence requirement of INA 212(e) may be waived by the Department of Homeland Security (DHS) upon recommendation from CA/VO/L/W.	The foreign residence requirement of INA 212(e) may be waived by the DHS upon recommendation from CA/VO/L/W.
Presumption of Immigrant Status  (INA 214(b));  (9 FAM 40.203 Notes)	No waiver is available.	Not Applicable.
Alien Who Knowingly Made a Frivolous Application for Asylum  (INA 208(d)(6));  (9 FAM 40.206)	No waiver is available.	No waiver is available.
Aliens Involved in Confiscation of Property of U.S. Nationals  (Section 401 of Public Law 104-114);  (9 FAM 40.207 Notes)	Where the Secretary of State finds, on a case by case basis, that the entry into the United States of the person who would otherwise be inadmissible under this section is necessary for medical reasons or for purposes of litigation of an action under Title III.	No waiver is available.
Aliens Involved in Confiscation of Property of U.S. Nationals  (Section 401 of Public Law 104-114);  (9 FAM 40.207 Notes)	Where the Secretary of State finds, on a case by case basis, that the entry into the United States of the person who would otherwise be inadmissible under this section is necessary for medical reasons or for purposes of litigation of an action under Title III.	No waiver is available.
Aliens Involved in Political Killings  (Section 616 of Public Law 105-277);  (9 FAM 40.208)	No waiver is available.	No waiver is available.
Suspension of Entry or Imposition of Restrictions by President  (INA 212(f))	No waiver is available.	No waiver is available.
Visa Overstay  (INA 222(g));  (9 FAM 40.68 and 9 FAM 41.101)	No waiver except where extraordinary circumstances are found by the Secretary of State to exist.	Not applicable.
Persons Engaged in Forced Abortions or Sterilization  (8 U.S.C. 1182(e))	If the Secretary of State determines that it is important to the national interest of the United States to do so and provides written notification to the appropriate congressional committees containing a justification for the waiver.	Not applicable.
Chinese and Other Nationals Engaged in Coerced Organ or Bodily Tissue Transplantation  (8 U.S.C. 1182(f))	If the Secretary of State determines that it is important to the national interest of the United States to do so, and no later than 30 days after the issuance of a visa, the Secretary provides written notification to the appropriate Congressional committee containing a justification for the waiver.	Not applicable.
Persons Credibly Alleged to Have Aided and Abetted Colombian Insurgent and Paramilitary Groups  (Section 3205 of Public Law 106-246)	1. If the Secretary of State finds, on a case by case basis, that the entry into the United States of a person who would otherwise be inadmissible under this section is necessary for medical reasons.  2. To permit the prosecution of such person in the United States or when the person has cooperated fully with the investigation of crimes committed by individuals associated with the Revolutionary Armed Forces of Columbia (FARC), the National Liberation Army (ELN), or the United Columbian Self DefenseOrganization (AUC). 3. The President may waive the limitation if he determinesthat the waiver is in the national interest.	No waiver.
Aliens Entering the United States to Perform Skilled or Unskilled Labor Whose Intended Employment Has Not Been Certified by the Department of Labor or Who is Unqualified for His/Her Certified Employment.  (INA 212(a)(5)(A));  (9 FAM 40.51)	Not applicable to NIV.	No waiver is available at time of visa application. However, under INA 212(k), DHS may waive this inadmissibility for an IV holder at the port of entry.
Unqualified Physicians  (INA 212(a)(5)(B));  (9 FAM 40.52)	Not applicable to NIV.	No waiver is available.
Uncertified Foreign Health Care Workers  (INA 212(a)(5)(C));  (9 FAM 40.53 Notes)	Discretion must be applied on a case-by-case basis; reference 9 FAM 40.53 N3.	No waiver is available, but this can be overcome. See 9 FAM 40.53 N1.

[Text Wrapping Break]

2. U.S. Citizenship Without English Language Knowledge

Author: Citizenship Attorney Alena Shautsova

One of the qualifications for naturalization or citizenship in the United States is applicant’s ability to write, read and understand English. There are waivers of the English test for those who reached a certain age (50, 55 or 60) and have resided in the United States as permanent residents for certain amount of years (20, 15 and 20 years respectfully). Those waivers allow applicants to pass the Civic test in their language rather than English. But what to do if a person simply cannot learn English? Will this person be barred from becoming a US citizen forever? Luckily, it is not the case. In fact, if a person has medically recognized conditions that prevent this person from being able to learn English, such a person may be granted a waiver of the English test and US history test requirements.

However, it is not easy to receive such a waiver. A person would have to be examined by a doctor who will need to complete a special form and explain how person’s conditions prevent him/her from learning English. Often, a doctor simply does not know how to fill out the form correctly, and an applicant is denied the waiver unjustly.

An applicant for citizenship can bring this special waiver form with him/her at the time of the interview, re-interview or by sending it to the USCIS together with N400 application. At the time of the interview, USCIS officer will first determine if the form is filled out accurately and sufficiently permitting the waiver to be granted. If the form does not correspond to the standards established by USCIS regulations, the form will be rejected, and the applicant will be tested as a regular applicant.

It is possible to submit the waiver form even during the rehearing for citizenship denial.

USCIS Practice manual directs officers to accept the waiver form if the form is filled out correctly and with specificity explains how diagnosed medical conditions prohibit a person from learning English. See:https://www.uscis.gov/policymanual/HTML/PolicyManual-Volume12-PartE-Chapter3.html.

Finally, a simple unwillingness to learn English is not enough for the waiver to be granted. Applicant’s age is also irrelevant here. Let’s say a parent of a US citizen immigrated to the United States from Ukraine and the parent is now 75 years old and has been in LPR status for 5 years. This parent still has to pass the English language, and US history test before his/her citizenship application be granted. Only applicants with medically recognized conditions that lasted or expect to last for at least 12 months can qualify for the such a waiver.

3. SUCCESS STORY: I140 ALEIN OF EXTRAORDINARY ABILITY GRANTED IN TWO WEEKS

Client Y contacted me requesting some clarifications regarding his O status. His qualifications were truly outstanding, but he was not sure if he had enough to sponsor himself for a green card as an alien of extraordinary ability. In fact, he shared with me that he tried applying himself but received a denial.

After I had learned more about his experience and achievements, I advised him that he should be able to qualify for the E1 1 category (alien of extraordinary ability). We started to prepare a new petition. Even though this client already proved to USCIS that he was an alien of exceptionally ability (because he was granted an O status), he would still have to meet all the criteria for E1 1. I 140 self-petition and I 129 petition filed for him by his O employer are two separate applications, and quite different eligibility criteria have to be met. If one is familiar with what USCIS is looking for, and how to organize necessary evidence, it is “easy” to win one’s case. The key is preparation and explanation of how the applicant meets each of the proposed criteria. A detailed research of each point has to be made and presented to USCIS officer so that the officer does not have to guess whether or not the criterion is met. My client also requested that we file his I 140 using premium processing. Generally, I advise my clients to stay away from this option because often it results in unwarranted RFEs. We took a risk here, however. To both of our satisfaction, in about two weeks we received an approval of his I 140.

4. Tricky Immigration Questions Answered

Author: Immigration Attorney Alena Shautsova

Have you tried filling out immigration forms by yourself? Have you ever wondered if some of the questions you saw on those forms were prepared by LSAT or GRE examiners? Sometimes, you read a question, and it feels you need to utilize your entire brain power to understand its meaning, and you only wish you could provide an answer that, hopefully, would be considered accurate by USCIS….

For example, let’s take form I 864 affidavit of support. First, it asks you to identify who you are (the signed): the petitioner, … or the joint sponsor. Many answers the joint sponsor because they feel that because they are helping their family member to immigrate to the US, they are “joining” them as a sponsor. However, if you are the person who is sponsoring the immigrant (the person who filed the document- petition for this immigrant to begin with), you need to check “the petitioner.” Sometimes, the petitioner’s income is not enough to sponsor an immigrant. In such cases, the petitioner will find a “joint sponsor” who together with the petitioner will be sponsoring the immigrant. The joint sponsor will have to fill out the form I 864 as well and will check “the joint sponsor” field.

Another “interesting” question on form I 864 is in Part 5, Sponsor’s Household Size. If you read the question and count everyone in your family (let’s say it is only you and your wife), you will always get 3 instead of 2 people. The question is unclear, and the form’s direction “do not count anyone twice” is unclear and causes constant confusion.

Let’s look at form I 485. Part 2 is asking an applicant to check off the box that described the basis for his/her green card application. Many spouses of US citizens, instead of the first choice choose “other” basis. In fact, they should choose choice No. 1 “ An immigrant petition giving me an immediately available immigrant visa number…” because when a US citizen is sponsoring his/her spouse, the “visa” number” is always immediately available, even if the two applications (1 130 and I 1485) are filed at the same time.

Finally, we can also “pick on” form I 130, Part 4, Question 61: “If beneficiary is in the United States and will be filing for adjustment of status to that of lawful permanent resident in USCIS office in”… Well, the thing is that all filings for adjustment of status (or most of them) have to be made though a “Lockbox,” meaning that if you reside in NY, for example, your application will have to be mailed to Chicago. The question is confusing because one may not be sure how to answer it: Chicago, IL or New York, NY… I have seen practitioners answering both ways…