The concept of waiver pervades almost all aspects of immigration law, particularly in family immigration matters. It is closely aligned with concepts such as "extreme hardship," "exceptional and extremely unusual hardship," and related phrases that are legal tests to determine whether or not a foreign citizen's immigration violations may be forgiven, so that he or she can either come to the United States or remain here.
There are numerous waivers available in immigration law. Almost all involve harm not to the alien, but to his or her US citizen immediate relatives. Thus, if a US citizen spouse would suffer "extreme hardship" because his or her alien spouse cannot be with the US citizen in the United States, a waiver may (or may not!) be available.
The grant of waivers by either the immigration service (United States Citizenship and Immigration Services, USCIS) or by an Immigration Court (EOIR) typically involves two basic elements. First is statutory eligibility, which is inflexible (either one is eligible to apply for the waiver, or not!) For example, a waiver could be granted on grounds of "extreme hardship" may never get to the adjudication stage if, for example, a foreign citizen has a criminal conviction. The second element involves an exercise of discretion by the adjudicator: if the foreign citizen is statutorily eligible to apply for the waiver, does he or she "deserve" it relative to their immigration law violations and harm to his or her immediate relative?
Success in prosecuting immigration waivers is strongly dependent on immigration counsel's expertise in knowing the the elements of statutory eligibility inside out, and even more importantly knowing what adjudicators look for in finding sufficient "hardship." Brian O'Neill and his team have had years of experience dealing with such issues, and are well respected for their creativity developing mental health issues into sufficient hardship and establishing both physical and financial hardships to a US citizen as grounds for grant of a waiver.