Strategies for Waivers of Ineligibility, A Process in Three Stages, Part 2

Clients with 212 (a) ineligibilities, both acknowledged and potential, must be well-prepared for their visa interviews.  If the record confirms or the intake process elicits information that points to ineligibility, the focus must then shift to ensuring that the client is fully aware of what is at stake, understands what the consul will be evaluating, and what the possible outcomes will be.

Being well prepared means several things.  First, it requires a full understanding of what is going to take place at the interview.  For clients facing possible 212 (a) inadmissibility , this means educating them to the fact that all of their interactions with U.S. officials–at prior visa interviews,  at ports of entry, at adjustment hearings, and even local arrest records–are available to the adjudicating consul.  There is no point in denying what the record reveals to have taken place.

Secondly, they need to understand the consequences of their actions or omissions under the law. Although some clients may already know they are inadmissible and will reveal this when they engage counsel,  it’s more likely that they will  be unaware of the potential consequences of their past actions, or even seek to conceal them.  For this reason it is crucial that counsel be able to get to the truth of the matter–both to ensure proper representation, and to protect the client’s interests when they reappear before either a consul or immigration official.  This requires clear explanation of some rather vague legal concepts–such as “crimes of moral turpitude,” “misrepresentation,” “alien smuggling,”  and “unauthorized stay.”  In seeking to help a client understand how the law applies to his or her actions,  it’s important to keep in mind how arcane much of the subject matter can appear to a layman.  Stick to what makes sense–“some crimes can make you ineligible for a visa;”  “telling a U.S. official something that is not true or is misleading can make you ineligible for a visa”;  “Staying in the US for too long after your stay expired can make you ineligible for a visa “;  “Helping a friend or family members get into the U.S. improperly can make you ineligible for a visa”.

If you’ve educated your client on the risk he or she faces of being denied the ability to travel to the U. S., the next step is to explain the waiver process.  There’s lot of misleading information out there about waivers, and it is a complicated process.  A consul makes the decision whether or not to recommend a waiver, but only the Department of Homeland Security (DHS) in the United States can make the final decision, and it may not go along with a consular recommendation.  A consul may recommend a waiver if she determines that the applicant has a valid reason to travel and, except for the 212(a) inadmissibility would otherwise be qualified for a visa (e.g., meets the other statutory requirements for the visa).

Accordingly, it is a waste of time and potentially counterproductive for a client or his counsel to make a legal case for a waiver to the consul.  The objective instead should be to demonstrate a legitimate purpose for travel, lack of immigrant intent, and only then to request consideration of waiver relief.  If an applicant fails to overcome the statutory presumption of being an intending immigrant under section 214(b), or fails to meet the statutory requirements for issuance of an L or E visa, for example, his or her application will be denied under that section of the law, and the question of whether or not waiver relief is available and should be recommended will not be considered by the adjudicating consul.

Another common misconception is that a waiver of ineligibility is a right, or that the granting of it is pro forma.  Timing matters.  A waiver request too soon after a finding of inadmissibility can result in a consular decision not to recommend it to DHS.

Moreover, obtaining a waiver is not a get out of jail free card or a license to engage in any permissible activity while in the US.  A waiver is tied to the specific purpose for seeking admission.  It does not remove inadmissibility permanently.  Once someone is found inadmissible, he or she will always require a waiver for future travel, with rare exceptions, such in the case of someone whose inadmissibility under 212 (a)(9) is limited to either three or ten years.  Also, someone who has previously qualified for waiver relief can, at a future visa application, be denied it.  This can happen if the applicant engaged in activities while in the U.S. that were inconsistent with his or her statements or claimed purposes for travel made at the time of his initial waiver request, or if the Department of State obtains newly sourced information casting doubt on the client’s actions or intentions .  For example, someone who requires a waiver and obtains one after asserting the need to travel to the US for a one week business meeting in New York can sabotage his or her ability to obtain a future waiver if they end up staying for a month, or if they spend their time in the US on tourism at a different location.  In each instance, the applicant’s credibility and ability to acknowledge the seriousness of their inadmissibility status has been damaged.

Persuading a consul to recommend waiver relief is but the first and necessary step to restore a client’s  ability to travel to the U.S. in future.  In  the next part of this series, I will talk about strategies for persuading a consular officer to recommend to DHS that waiver relief be granted to an inadmissible client–and what to do when a client who is inadmissible fails to overcome section 214(b).





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