Chapter 6 - Validity of an Approved Waiver
A. Extent of Waiver Validity
In general, an approved waiver is only valid for the grounds of inadmissibility specified in the application. Furthermore, a waiver is only valid for those crimes, events, incidents, or conditions specified in the waiver application. If noncitizen is later found inadmissible for a separate crime, event, incident or condition not already included in the approved waiver application, the noncitizen is required to file another waiver application.
B. Length of Waiver Validity
A waiver’s validity depends on the underlying immigration benefit connected to the approved waiver.
1. Certain Nonimmigrants[1]
An inadmissible applicant seeking to enter the United States as a nonimmigrant generally needs to obtain advance permission to enter the United States as a nonimmigrant.[2] Advance permission to enter as a nonimmigrant[3] despite inadmissibility is referred to as a nonimmigrant waiver. Customs and Border Protection (CBP) generally adjudicates this waiver, which is temporary if approved.[4] This temporary permission does not ordinarily carry over to other benefit categories, such as other nonimmigrant categories, immigrant categories, visas, or adjustment of status.
2. Temporary Protected Status Holders[5]
An applicant seeking temporary protected status (TPS) status in the United States may be inadmissible. In most cases, a waiver is available to a TPS applicant in connection with his or her TPS application. If USCIS approves a TPS applicant’s waiver, the waiver is temporary and lasts for the duration of TPS only.[6]
3. Refugees
An inadmissible refugee must apply for a waiver before seeking admission to the United States.[7] A waiver granted to a refugee for admission to the United States is valid for purposes of seeking adjustment of status as a refugee.[8] In this case, the applicant does not have to file another waiver for the specific inadmissibility ground previously waived.[9]
There is an exception, however, for medical waivers. If USCIS grants the refugee a waiver for purposes of admission to the United States because of a Class A condition, then the refugee is required to submit to another medical examination. If the second examination reveals a Class A condition, the refugee must file another waiver when seeking adjustment of status.[10]
4. Lawful Permanent Residents
An inadmissible applicant seeking lawful permanent resident (LPR) status requires a waiver. As previously explained, the availability of a waiver depends on the specific category under which an applicant seeks LPR status.
A waiver granted in connection with any application for LPR status[11] permanently waives the ground of inadmissibility for purposes of any future immigration benefits application, including immigrant and nonimmigrant benefits. The waiver remains valid even if the LPR later abandons or otherwise loses LPR status.[12]
This rule, however, does not apply to conditional residents or conditional grants issued to K-1 and K-2 nonimmigrants.[13]
5. Conditional Permanent Residents[14]
For most conditional permanent residents,[15] the waiver becomes valid indefinitely when the conditions are removed from the permanent resident status. This is the case even if the LPR later abandons or otherwise loses LPR status.
For certain criminal waivers[16] and a waiver of fraud or willful misrepresentation,[17] the validity of a waiver automatically ends if USCIS terminates conditional residency. There is no need for a separate termination notice and the applicant cannot appeal this waiver termination. If the immigration judge determines during removal proceedings that USCIS incorrectly terminated the conditional residence, the waiver becomes effective again.[18]
6. K-1 and K-2 Nonimmigrants
If the applicant seeks a waiver to obtain a fiancé(e) visa (K-1 or K-2), the waiver’s approval is conditioned upon the K-1 nonimmigrant marrying the U.S. citizen who filed the fiancé(e) petition.[19] If the K-1 nonimmigrant marries the petitioner, the approved waiver becomes valid indefinitely for any future immigration benefits application, whether immigrant or nonimmigrant.
The waiver remains valid even if the K nonimmigrant does not ultimately adjust status to an LPR or if the K nonimmigrant later abandons or otherwise loses LPR status.[20]
If the K-1 nonimmigrant does not marry the petitioner, the K-1 and K-2 (if applicable) remain inadmissible for any application or any benefit other than the proposed marriage between the K-1 and the K nonimmigrant visa petitioner.[21]
7. Inter-country Convention Adoptees
An approved waiver in conjunction with the provisional approval of a Petition to Classify Convention Adoptee as an Immediate Relative (Form I-800) is conditioned upon the issuance of an immigrant or nonimmigrant visa for the child's admission to the United States and final approval of that Form I-800. If Form I-800 or the immigrant or nonimmigrant visa application is ultimately denied, the waiver is void.[22]
Footnotes
[^ 1] Except for K, T, U, and V nonimmigrants.
[^ 2] The application is filed on Application for Advance Permission to Enter as Nonimmigrant (Form I-192).
[^ 3] See INA 212(d)(3)(A).
[^ 4] For more information on when an applicant should file this waiver with CBP and when with USCIS, see Application for Advance Permission to Enter as a Nonimmigrant (Form I-192).
[^ 5] See INA 244(c).
[^ 6] See INA 244(a) and INA 244(c). See 8 CFR 244.3 and 8 CFR 244.13. See Instructions for Application for Waiver of Grounds of Inadmissibility (Form I-601). If the applicant obtains a waiver in connection with an Application for Temporary Protected Status (Form I-821), the waiver is only valid for the TPS application. If granted, the waiver applies to subsequent TPS re-registration applications, but not to any other immigration benefit requests.
[^ 7] See INA 207(c)(3).
[^ 9] If the refugee is seeking adjustment of status on a basis other than INA 209, the refugee must apply for a new waiver as required by that particular benefit.
[^ 10] Refugees seek adjustment of status under INA 209. For more information on Class A conditions, see Volume 8, Admissibility, Part B, Health-Related Grounds of Inadmissibility [8 USCIS-PM B].
[^ 11] This includes applications for an immigrant visa, fiancé(e) visa, legalization, and adjustment of status.
[^ 12] See 8 CFR 212.7(a)(4)(ii).
[^ 13] See 8 CFR 212.7(a)(4)(ii). For K-1 and K-2 nonimmigrants granted a waiver, see Subsection 6, K-1 and K-2 Nonimmigrants [9 USCIS-PM A.6(B)(6)].
[^ 14] See INA 216. See 8 CFR 212.7(a)(4)(iv).
[^ 15] Noncitizens lawfully admitted for permanent residence on a conditional basis. See INA 216.
[^ 16] See INA 212(h).
[^ 17] See INA 212(i).
[^ 18] See 8 CFR 212.7(a)(4)(iv).
[^ 19] See 8 CFR 212.7(a)(4)(iii).
[^ 20] See 8 CFR 212.7(a)(4)(ii).
[^ 21] See 8 CFR 212.7(a)(4)(iii).
[^ 22] See 8 CFR 204.313(g).