How Is an Immigration Waiver like a “Monopoly” Card?

How Is an Immigration Waiver like a “Monopoly” Card?

So your first question must be:  “What is an ‘immigration waiver’?”  

Let me answer, in terms of what an immigration waiver does.  A waiver sets aside a legal obstacle to getting a visa, or to being allowed (“admitted”) into the United States, or to becoming a permanent resident (i.e., a “green card” holder).

What kinds of “legal obstacles” are we talking about?

The Immigration and Nationality Act (INA), the statute that forms the basis for the US immigration laws, lays down the ground rules for immigration benefits — who is eligible to apply for them, and who is disqualified from applying, and things that can get you disqualified.  These grounds for disqualification, or obstacles, are known as “grounds of inadmissibility.”  They are listed in section 212 of the INA.  They include criminal convictions, acts of immigration fraud and misrepresentations, health and safety dangers, drug violations, national security issues, and immigration violations.

The INA allows, in some instances, an otherwise-disqualified foreign national to apply for a waiver of a ground of inadmissibility.  These waivers are often premised on the basis of the disproportionate harm to a close US relative that will result, if the waiver is not approved.

In instances where the foreign national is attempting to apply for permanent residence, he or she must nearly always demonstrate some degree of unusual hardship to a “qualifying relative” who is a US citizen or permanent relative.

For example, the foreign spouse of a US citizen, who entered the United States illegally, is generally prevented or “barred” for 10 years from applying for permanent residence — yes, despite being married and even having US citizen children —  and the 10 year “penalty” period must be spent living outside the United States.   Section 212(a)(9) of the INA provides, however, that the US immigration authorities have discretion to set aside, or waive, this penalty, based on the anticipated “extreme hardship” that the US citizen spouse will face, if the 10-year bar were enforced.  The US spouse must demonstrate such hardship in terms of two scenarios:  (1) If he or she were to remain in the United States for the 10 years and (2) if he or she were to join the foreign spouse and wait out the 10 years in a foreign country.

 If it’s all about applying for a visa for a visit or short-term job in the United States, the law provides for an all-purpose “nonimmigrant” waiver, under section 212(d)(3) of the INA, without the need of a qualifying US relative.  (“Nonimmigrant” means “temporary” as in “not immigrating permanently.”)  Suppose a foreign company wants  to transfer a manager or a technician to the United States for a three-year assignment, and that this worker has a conviction for a minor crime such as simple possession of a small amount of marijuana, or has two shoplifting convictions.  These convictions would normally bar the foreign national from getting a visa, or from traveling without a visa on the ESTA program, because they are “grounds of inadmissibility.”  Arranging for a waiver, in connection with a visa application or request for entry into the United States, can overcome these legal obstacles.

So, in a sense, an immigration waiver is like a “Monopoly” card.  We’re all familiar with this popular board game.  When a player lands on a “Chance” square, he or she draws a card.  When a foreign national applies for a visa, or for entry into the United States, or permanent residence, he or she makes an application for the particular immigration benefit.

Assume the foreign national is burdened by one or more of the legal obstacles — the “grounds of inadmissibility” — I discussed earlier.  In that event, it is likely that he or she will be refused the immigration benefit.  In Monopoly, it’s like drawing the card that reads:  “Go to Jail.  Go Directly to Jail.  Do Not Pass Go.  Do Not Collect $200.”

That’s what can happen when you’re attempting to navigate the immigration maze, or scale the massive immigration “pyramid,” without proper protection — you lose your freedom.

Much better to seek the help of an immigration professional, and prepare a good waiver application.  Then your “Chance” card is much more likely to read, “Get Out of Jail Free.”