Immigration Corner | Does my father have any chance of getting a waiver?

Good Day Mrs Walker-Huntington,

My mother was filed for by her sister. On the filing, along with my mother, were her husband and me. We’ve waited 15 years for this filing to finally come through, and on the day of our interview, we were told that my father was inadmissible because of criminal charges against him from 25 years ago, and another one from 30 years ago for dealing in ganja. His visitor’s visa was stamped ‘cancelled without prejudice’. We were given a letter to apply for a waiver, but was told by a lawyer that there was nothing he could do to help in the situation as he didn’t think Homeland Security would approve the waiver.

My questions are:

• How long after someone has been charged does the US even cosider a waiver?

• Could the consular officer have given us the waiver letter knowing fully well that it would definitely be denied when sent in? Or do we have a chance of getting a favourable response?

• Should we still send in the letter applying for the waiver, taking into consideration what the lawyer said?

• Is there ANY other way out? Does the justice system not forgive?

Please, please help us get out of this messy situation. My father will be the only relative in Jamaica, as his immediate family would’ve migrated.

Thanks so much in advance for reading and replying.

– JG

Dear JG,

Your father is inadmissible to the United States because of his two drug convictions. When a person is found to be inadmissible, the next question to be asked is whether there is a waiver of this inadmissibility. Not every ground of inadmissibility has a corresponding waiver available, and if there is no waiver available, the intending immigrant will not be able to migrate to America.

If there is an available waiver, the qualifying relative (US citizen or permanent resident) has to demonstrate varying levels of hardship and the inability to relocate with the intending immigrant in their home country before US Citizenship and Immigration Services (USCIS) would exercise discretion and grant a waiver. Every case for hardship is different and must be weighed individually to make the best argument to USCIS for a favourable grant of discretion. A waiver is not a letter – it is a factual and legal argument, with supporting documentation, as to why a person who is inadmissible should be granted permission to enter the United States.

Time does not cure the need for a waiver of inadmissibility, unless a person was deported and given a specific amount of time to remain outside the United States – in which case, an additional waiver would be needed if they were applying to return before the time stated.

If you reread the notice from the US Embassy, it should say that the intending immigrant ‘might’ be eligible for a waiver. Although you should take your situation to an immigration attorney who can ask several detailed questions on the eligibility for a waiver, normally there is no waiver for multiple drug offences. Try and obtain the arrest report and disposition orders for your father’s two cases and consult with an immigration lawyer on the details.

Dahlia A. Walker-Huntington, Esq, is a Jamaican-American attorney who practises immigration law in the United States; and family, criminal and international law in Florida. She is a diversity and inclusion consultant, mediator, and former special magistrate and hearing officer in Broward County, Florida. info@walkerhuntington.com