By Heidi J Meyers, copyright 2026 © all rights reserved.
THE GOOD NEWS, WAIVERS OF INADMISSIBILITY ARE STILL AVAILABLE!
As of this writing, January 18 2026, waivers of inadmissibility are still available and getting approved (who knows if this will change next week or next month).
The good news is, that waivers are still available and USCIS and DOS are still processing waiver applications. Our firm has had a number of I-212 and I-601A waivers approved and the clients departed the US for consular processing in various countries in Latin America and returned to the US with their immigrant visas as permanent residents, from the Summer 2025, up to this January 2026. Additionally an immigrant visa applicant with a long history of fraud in the US but with very sympathetic factors in his case, was also able to obtain his immigrant visa in South Asia and return to the US after being abroad for a number of years, with an approved I-601 waiver under INA 212(i). While there may now be more push-back by USCIS and reluctance, you may still have your waiver application approved if you have a strong case that is presented properly.
THE DIFFERENCE BETWEEN A WAIVER AND AN EXEMPTION.
Waivers in immigration law differ from exemptions. An exemption is written into the statute, the Immigration and Nationality Act (INA) and if you qualify, you are, well, exempted from whatever rule or ground of inadmissibility. You do not have to make a separate application to USCIS or DOS for an exemption.
EXAMPLES OF EXEMPTIONS FROM BARS IN THE STATUTE
An example of an exemption would be, that immediate relatives of US citizens are exempt from the statutory bars to adjustment of status to permanent residency if they have fallen out of status or worked without authorization. It is written into the statute, and is an exemption, see INA 245(c)(2), 8 USC 1255(c)(2). You do not need to file any form with USCIS or DOS. As long as you can prove that you were inspected by CBP and admitted or paroled into the US, you are eligible for approval of Form I-485 and adjustment to permanent resident as the immediate relative of a US citizen regardless of having overstayed or worked without a work permit.
Another exemption is INA 245(k), 8 USC 1255(k) for applicants adjusting with an approved I-140 employment petition, where the applicant has not continuously maintained their lawful nonimmigrant status or has worked without authorization, if you can prove that it was for 180 days or less, in the aggregate. There is no separate waiver application, but the applicant must extensively document that his or her violation of status or unauthorized work was for a brief period, 180 days or less in the aggregate (meaning USCIS adds up the total of separate periods of say, working without authorization). This documentation is included in the I-485 adjustment application.
Example: Jimmy Jamil has H-1B status through his employer, who has obtained an approved Form I-140 on his behalf. After the I-140 is approved, Jimmy decides to pick up some extra work on the side as an independent contractor, not through his employer. He does these side gigs for 60 days, and then files for adjustment. He has to report the additional income on his Forms 1040 income tax returns. He continues working without authorization on these side jobs and then receives his work permit, EAD card, 30 days after filing for adjustment. He has accumulated an aggregate of 90 days of working without authorization and is eligible for the 245(k) exemption.
EXAMPLES OF WAIVERS
Waivers differ from exemptions in that even if you qualify to apply for a waiver, you still must make an extensively-documented application with USCIS or DOS and the waiver may still be denied. Simply qualifying to apply for a waiver is no guarantee that the waiver will be approved. Unlike an exemption to a bar, USCIS or DOS may deny a waiver in the exercise of discretion.
There is no magic, each waiver application needs to be extensively documented. Also the standards and factors considered may differ depending upon the type of waiver.
For example, if you are in the US on a J-1 and are subject to INA 212(e), the two-year foreign residency requirement, you may apply for a waiver based on exceptional hardship to your US citizen or permanent resident spouse or child, or else based on persecution due to race, religion or political opinion, by filing the Form I-612 with USCIS, which will then send its recommendation to DOS (there are also other waivers available of the 212(e) requirement, such no objection, Conrad 30 etc, which we will not discuss). USCIS sends its waiver recommendation to the DOS Waiver Review Division. DOS then sends back its own recommendation to USCIS.
Since it is a waiver and not an exemption, you must file a Form I-612 waiver application, and then file for adjustment. They are two separate applications.
Similarly, with the Form I-601A provisional unlawful presence waiver, you will need an approval of your unlawful presence waiver prior to departing the US to attend your immigrant visa interview with the US Embassy or consulate abroad. The immigrant visa application, Form DS-260, I-864 and immigrant visa processing with CEAC of the State Dept is a separate process from applying for the I-601A waiver with USCIS.
Even if you meet the basic minimum eligibility requirements to file, i.e. you have an approved I-130, I-140 or I-360 petition, are not in removal proceedings, or removal proceedings have been administratively closed, and you have a qualifying family member, either a spouse or a parent who is a US citizen or permanent resident, that does not necessarily mean that you will be able to show extreme hardship to your qualifying family member or that USCIS will grant your waiver.
There are many different waivers of inadmissibility and exemptions to bars to immigration, these are just a few examples. These remain available to those who may have a ground of inadmissibility or a bar to adjustment or other immigration status.