By Reeves Miller Zhang & Diza
The already difficult process of immigrating to the United States can be greatly complicated and delayed when the government decides that the noncitizen is inadmissible – a finding which often necessitates the filing of an application for a waiver of inadmissibility. The most common grounds of inadmissibility (i.e., ineligibility to be admitted to the United States) which require a waiver include unlawful presence in the United States in excess of 180 days, the commission of fraud to gain an immigration benefit, and certain criminal convictions. Unfortunately, not all applications for a waiver of inadmissibility are granted. In fact, a significant percentage of such applications are denied. Fortunately, for many, the denial of an application for a waiver need not be the final word on an individual’s attempt to immigrate to the United States. For many, options still remain which keep alive their prospects of immigrating.
Any review of the denial of an application for a waiver of inadmissibility begins with a basic question – is the applicant inadmissible to the United States? To put it simply, there are instances when an individual is found by the government to be inadmissible to the United States when in fact he is not. While an individual may have filed an application for a waiver because he or she was directed to do so by the government, in some instances the correct course of action would have been to legally and/or factual argue that no such application was required. Unfortunately, without competent representation, the basic mistake of failing to contest an initial finding of inadmissibility is more likely to occur. Where it can (and should) be argued that an application for a waiver never should have been requested in the first instance, an experienced and knowledgeable immigration attorney can pursue a variety of options to redress such an error. These options include the timely filing of a motion with the government to rectify such an error, or through the refiling of the case with a legal brief addressing the issue of inadmissibility. Both of these options often prove successful.
In those instances in which an application for a waiver was properly requested by the government, a significant number of these applications are ultimately denied because they are inadequately prepared. Filing an application for a waiver of inadmissibility is complicated – the legal standard for the granting of the waiver must be met, and this must be accomplished through the presentation of legally sufficient supporting evidence. Even minor defects in an application can result in a denial. As a result, individuals who have a strong legal and factual basis for the granting of a waiver of inadmissibility often have their applications denied because their applications were not adequately prepared. However, the denial of an application for a waiver of inadmissibility does not preclude the filing of subsequent application. This point is extremely significant for those who have had their applications for a waiver denied – there is still hope even after a denial. As the preparation of an application for a waiver of inadmissibility is a complex endeavor, with little margin for error, the best chance an individual has to obtain an approval of his or her application is through retaining an experienced and knowledgeable immigration attorney. While it is preferable to do so at the onset of the process, even once an application for a waiver is denied, an experienced and knowledgeable immigration attorney can prepare a superior subsequent application which will afford an applicant a much higher chance of obtaining an approval.
The approval or denial of an application for a waiver of inadmissibility will in most instances decide whether an individual will immigrate to the United States. Too often, individuals receive denials of their applications; and many of these applications were not required in the first instance, or could have been approved if they had only been adequately prepared. Fortunately, most of these individuals have options regardless of when their waivers were denied – days, weeks, or even years ago. An experienced and knowledgeable immigration attorney can advise an individual of his or her options, and pursue the appropriate course of action to overcome a prior denial. The process of immigrating to the United States seldom affords second chances. One of the few exceptions is for applicants seeking a waiver of inadmissibility. For waivers of inadmissibility, the old adage proves true – if at first you don’t succeed, try, try again.