What are immigration waivers and appeals?
Immigration waivers and appeals are the ways to move a case forward after the law, or a decision, has closed the direct route. A waiver removes an obstacle before or during an application. An appeal or motion challenges a decision that has already gone against you. An immigration waiver lawyer works out which route applies, and in what order.
The two often meet in the same case. A spouse refused an immigrant visa at the consulate in Yerevan because of past unlawful presence needs a waiver. A person whose removal case closed in their absence needs a motion to reopen first, and may need a waiver inside the reopened case. Knowing which comes first, and which office decides each one, is most of the strategy. The removal proceedings page explains how the court side works.
None of these routes is automatic. Each has eligibility rules, a standard of proof and, in almost every case, an element of discretion. The work is in meeting the rules precisely and then giving the decision-maker good reasons to exercise discretion in your favor.
Which problems can an immigration waiver fix?
A waiver of inadmissibility can excuse many, but not all, of the grounds in INA § 212(a). Which waiver applies depends on the ground, so an immigration waiver lawyer starts with the exact section cited in the refusal.
- Unlawful presence The three- and ten-year bars in INA § 212(a)(9)(B), triggered by leaving after an overstay. Waived under § 212(a)(9)(B)(v) on Form I-601 or on the I-601A provisional waiver.
- Fraud or misrepresentation A material misrepresentation to obtain an immigration benefit, under § 212(a)(6)(C)(i). Waived under § 212(i) on Form I-601.
- Certain criminal grounds Crimes involving moral turpitude, multiple convictions and a single simple possession of a small amount of marijuana, for example. Waived under § 212(h) on Form I-601.
- A prior removal A past removal order or departure under one. Permission to reapply comes on Form I-212, often filed alongside a waiver.
- Grounds with no waiver Form I-601 cannot waive the permanent bar under § 212(a)(9)(C) before ten years abroad. Nor can it waive a false claim to US citizenship, or certain drug trafficking and security grounds.
What does extreme hardship mean for a waiver?
Extreme hardship means hardship to a qualifying relative that goes beyond the ordinary disruption of a family member being refused or removed.
USCIS sets out the factors in its Policy Manual, Volume 9, Part B. Officers consider two scenarios. The first is the hardship if the qualifying relative stays in the United States without you; the second is the hardship if they relocate abroad with you. You need to show extreme hardship in at least one, and explain why the relative would not choose the other.
The factors include family ties here and abroad, serious health conditions and access to treatment, and financial dependence. Education and career disruption, and conditions in the country of relocation, count too. USCIS weighs them together, which is why an extreme hardship waiver is built from the whole family’s circumstances. Evidence that is specific, documented and personal carries far more weight than general statements about a country or an economy.
How do you challenge an immigration decision?
The route for challenging an immigration decision depends on who made it, and each route has its own form and deadline.
| Decision by | Route | General deadline |
|---|---|---|
| USCIS, most benefit denials | Appeal to the AAO, or motion to reopen or reconsider, on Form I-290B | 30 days (33 if mailed) |
| USCIS, I-130 family petition denial | Appeal to the Board of Immigration Appeals on Form EOIR-29 | 30 days |
| Immigration judge | Appeal to the Board on Form EOIR-26 | 30 days, received |
| Board of Immigration Appeals | Petition for review in the Ninth Circuit | 30 days |
| Judge or Board, after a final order | Motion to reopen (new facts) or reconsider (errors) | 90 days or 30 days, with exceptions |
The BIA appeals page covers appeals from an immigration judge in detail. Consular refusals are different. There is no formal appeal, and an immigration waiver lawyer will usually answer with a waiver, new documents, or both, before the case returns to consular processing.
When is a motion better than an appeal?
Usually a motion is the better route when the problem is new evidence, or a clear mistake the original decision-maker can correct. An appeal fits when the decision-maker applied the law wrongly and will not change its mind.
A motion to reopen brings in facts that were not available before: a marriage to a US citizen, an approved petition, changed conditions in the home country, or proof that a hearing notice never arrived. By contrast, a motion to reconsider argues that the decision misread the law or the record as it stood.
Sometimes both are possible, and sometimes the deadlines force a choice. Filing a motion does not always pause the time to appeal. For that reason, an immigration appeal lawyer plans the two together from the date of the decision. USCIS motions and AAO appeals both use Form I-290B.
What goes wrong with waivers and appeals?
Most waivers and appeals that fail do so because of timing, the wrong qualifying relative, or evidence that is too general. An immigration waiver lawyer checks for all three before anything is filed.
- A missed deadline Thirty days pass quickly, and many deadlines count from the date on the decision, not from when it arrived.
- The wrong relative For unlawful presence and misrepresentation, hardship to a US citizen child does not count on its own. Only a spouse or parent qualifies.
- A second ground nobody found The I-601A covers unlawful presence only. If the consular officer finds another ground at the interview, the provisional waiver no longer protects you.
- Generic hardship Letters that say the family would be sad or poorer describe every case. Medical records, financial documents and specific facts describe yours.
What do waivers and appeals cost?
When you hire an immigration waiver lawyer here, we quote waivers, motions and appeals each as a flat fee per matter, agreed in writing before any work begins. Some cases need more than one filing, such as a motion to reopen followed by a waiver. We then quote each one separately so you can see the cost of each step. USCIS or EOIR sets the government filing fees, and you pay them separately. See the fees and consultations page for how the firm charges for each kind of matter.
The first consultation is free and takes about thirty minutes, in English, Armenian, Russian or Spanish.