Innocent Visa Applicants Applying for Nonimmigrant and Immigrant Waivers

With the dramatic upsurge in consular decisions to permanently bar visa applicants from the United States, the question of applying for an immigrant or nonimmigrant waiver has become more and more acute.  Many immigration lawyers will advise to just accept the decision, admit that you were wrong, say you are sorry, and apply for the waiver. They say that your chances of receiving the waiver will be increased if you admit your guilt and express remorse, even if you did not do anything wrong. But what if you are not “guilty”?  What if you did not commit a material misrepresentation (Section 212(a)(6)(C)(i))? Or engage in alien smuggling (Section 212(a)(6)(E))? Or commit a crime of moral turpitude (Section 212(a)(2)(A)(i)(I))?  Should you admit you were wrong?

Of course not. There are legal mechanisms to challenge such lifechanging decisions, such as a Request for Reconsideration.  Sometimes, the supervisor of the consular officer or the Department of State’s lawyers will overturn a mistake made by a consular officer.  In such cases, a waiver is not needed. Our Case Studies page illustrates many such situations. Even if the consular officer is not inclined to overturn the decision – for example, if the decision was fact-intensive and made 10 years ago and the consular officer doesn’t want to overturn such a decision – that consular officer may be more inclined to recommend a nonimmigrant waiver if the circumstances of the case are sympathetic.  And once you receive a nonimmigrant waiver, it should be approved in the future without a problem.

In I-601 immigrant waiver cases, in which USCIS makes the final decision, such challenges should be teamed with the request for a waiver. The first part of the case should discuss why the decision was wrong and why the decision should be overturned. The second part of the case should be framed as “in the alternative”: “If you find that the decision was correct…, then” this is why “the waiver should be granted” anyway.  By convincingly describing the applicant as the victim of an injustice in the first part of the case, it is possible that the applicant will elicit sympathy for the immigrant waiver request in the second part of the case.

Such a tactic also has a strategic benefit: if the immigrant waiver request is denied, the applicant can appeal to the Administrative Appeals Office. The AAO can re-open the decision to permanently bar an applicant. For example, it may find that a determination by the consular officer or a Customs and Border Protection official that the applicant had been convicted for a crime of moral turpitude was erroneous.   In such a case, the waiver would no longer be needed.

If you have been found permanently inadmissible and you do not agree with the decision, or if you do need a waiver, please contact us to discuss your options.