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US Immigration Applications and Waivers of Inadmissibility

By Siam Global Associates, Thailand Law firm


Summary: Part 5 provides information for citizens of Thailand and their American fiances or spouses in the event their US K1 or K3 marriage or fiance visa application is denied. Prior to submitting a waiver application to consular officers of the US Embassy in Thailand or the Department of Homeland Securtiy, Bangkok District Office it is useful to understand the methods in which waivers are available in regards to particular grounds for inadmissibility.


Health-Related Grounds:

Individuals who carry communicable diseases that pose potential public threats are inadmissible. However, this ground may be waived if the individual is the spouse or unmarried child of a United States citizen or Legal Permenant Resident (LPR) or if the individual has a child who is a United States citizen or LRP. A lack of a verifiable record of particular vaccinations may also be grounds for inadmissibility. It is a possibility to receive a waiver of this ground if the individual actually receives the vaccine, it is officially and properly certified that the vaccine is not medically necessary, or if the vaccination would violate that persons religious beliefs or moral convictions. If an individual is inadmissible because of mental health related grounds, a waiver may be granted by the Secretary of Health and Human Services.

Criminal and Related Grounds:

The Act also allows for a waiver under section 212(d)(3). Under this provision, a nonimmigrant, otherwise inadmissible, may be alowed into the United States for a temporary period at the discretion of the Attorney General. The test to be used in determining eligibility for this waiver involves three factors that must be considered in making the determination. The first factor involves the risk of harm to society if the applicant is admitted. The second factor involves the severity of the applicant's immigration law or criminal law violation, if any. Finally, the court should look at the nature of the applicant's reasons for wishing to enter to the United States.

A waiver may also be sought for inadmissibility on criminal grounds under code section 212(h). This waiver is authorized for crimes deemed morally reprehensible, a one-time violation involving the possession of marijuana for personal use, multiple convictions, prostitution and serious crimes committed by an individual who has asserted immunity. The individual is eligible for a waiver under section 212(h)(1)(A) if the crime committed was committed more than fifteen years prior to the date of application for admission, the admission would not be contrary to the national welfare and the individual can demonstration his rehabilitation. Section 212(h)(1)(B) provides another waiver if the individual is a spouse, parent or child of a United States citizen or LPR and if denial of admission would cause an extreme hardship to the United States citizen or LPR.

Fraudulent Misrepresentation:

A waiver may be granted in the case of an individual who fraudulently procured a visa if the individual is the spouse or child of a U.S. citizen or an LPR and the US Government is satisfied that the refusal of the individual's admission to the United States would result in extreme hardship to the U.S. citizen or LPR spouse or parent of such individual. There is no longer a waiver for the parents of a U.S. citizen or LPR, nor is their a waiver for misrepresentations which occurred more than ten years ago. For those falsely claiming U.S. citizenship, there is only one exception to the finding of inadmissibility; if each natural parent of the individual is or was a citizen, the individual permanently lived in the US prior to attaining the age of 16 and the individual justifiably believed at the time of making such representation that he or she was a citizen. Otherwise, there is no waiver for those claiming U.S. citizenship falsely.

Lack of Proper Documentation (i.e. valid passport or visa):

Only the Attorney General and Secretary of State acting jointly under I.N.A. section 212(d)(4) may provide a waiver to the ground for inadmissibility resulting from an individual not possessing a valid passport, a valid visa or border crossing identification. This waiver is authorized on the basis of an unforeseen emergency in individual cases. Additionally, there exits an I.N.A. section 212(k) waiver for inadmissibility based on the fact that the individual was unaware of his or her ineligibility for admission to the United States. This waiver is only available if the Attorney General, in his discretion, finds that the individual who was unaware of his ineligibility for admission could not have discovered this ineligibility by an exercise of reasonable diligence.

Hardship of a spouse:

An individual can become removable from the United States if she or he violates the condition of maintaining his/her marriage to a United States citizen prior to the passage of two year's time. There is a hardship waiver available in this particular scenario. In order to qualify for this waiver, the individual must prove that a resulting hardship would occur if he or she were removed, that the marriage was a good faith marriage, and the condition of maintaining the marriage was violated through no fault of that individual. There is also an exception made in the case of a battered spouse who entered into a good faith marriage.