Individuals who are considered inadmissible in accordance to the criteria as stated in the Immigration and Nationality Act (INA) are not permitted by law to enter or remain in the United States.
The general categories of inadmissibility include the following:
- Inadmissibility Due to Health
- Inadmissibility due to criminal reasons
- Inadmissibility due to national security reasons
- Inadmissibility due to likelihood of becoming a public charge
- Inadmissibility due to lack of labor certification (if required)
- Inadmissibility due to fraud or misrepresentation
- Inadmissibility due to prior removals and/or unlawful presence
- Miscellaneous grounds of inadmissibility
For certain grounds of inadmissibility, it may be possible for a person to obtain a waiver of that inadmissibility. In some cases, exceptions are applicable and no waiver is required to overcome the inadmissibility.
Examples include exceptions for aliens who have been battered, abused or subjected to extreme cruelty, who are victims of severe forms of trafficking, and who are minors.
Provisional Unlawful Presence Waiver
Persons who are in the United States and believe they are or will be inadmissible for three or ten years upon their departure because they accrued more than 180 days of unlawful presence in the United States, may be eligible for a provisional unlawful presence waiver. The provisional unlawful presence waiver only applies to those who are in the United States but are seeking an immigrant visa through the consular process at a U.S. Embassy or consulate abroad and are relatives of (a) U.S. citizens or resident spouses or (b) U.S. citizens or resident parents and can demonstrate extreme hardship to the qualifying relative. The individual applicant for a provisional unlawful presence waiver must be requested before they depart the United States by submitting Form I-601A, Application for Provisional Unlawful Presence Waiver, with USCIS and obtain the approval of the waiver prior to departure.
If granted, the waiver is provisional and does not take effect until the individual leaves the United States, appears for his or her immigrant visa interview and the Department of State consular officer determines that they are otherwise admissible to the United States. The waiver only covers one ground of inadmissibility – unlawful presence. An individual who may be subject to multiple grounds of inadmissibility will not be eligible for the provisional unlawful presence waiver but may still seek a waiver through the Form I-601, Application for Waiver of Grounds of Inadmissibility, waiver process.
An immigrant visa applicant who is seeking an waiver of inadmissibility while outside the United States, or if the individual is seeking adjustment of status or temporary protected status while in the United States, or if an individual is an applicant for a K visa abroad, the form that they should use to overcome certain grounds of inadmissibility is the Form I-601, Application for Waiver of Ground of Inadmissibility.
If you are seeking adjustment of status, TPS, or a K visa, you can file the Form I-601 with your request for an immigration benefit or after you have filed your request.
If you are seeking an immigrant visa at the U.S. consulate, you can only file the Form I-601 after you are interviewed by a Department of State consular officer who found you to be inadmissible to the United States.