WAIVERS OF INADMISSIBILITY
WAIVERS OF INADMISSIBILITY (Forms I-601, I-601A & I-212)
A good portion of our practice is work involving the preparation of Waivers (also called Pardons)
How to Become a US Lawful Permanent Resident
For a person who is living in the United States illegally, an I-601 or I--601A waiver can change a person's life. Everyone living in the US illegally who is either married to a US citizen or US Permanent Resident, or who has a parent who is either a US citizen or a US Permanent Resident, or is the fiancee of a US citizen, should consider this process.
Note: If you have an immigrant petition or a Labor Certification that was filed on your behalf or on behalf of one of your parents, on or before April 30, 2001, you may qualify for INA section 245(i) eligibility that allows you to adjust your status from within the United States despite an entry without inspection or a visa overstay. Please call our office to discuss this option.
When Do I Need an I-601 or I-601A Waiver?
When you are seeking to "adjust your status" from being undocumented to becoming a Permanent Resident, you must meet certain legal requirements, including being "admissible to the United States." This is true when you are applying for lawful immigrant status at the US Consulate in your home country too.
If you are undocumented because you either entered the United States without a visa, or you arrived with a visa but overstayed your time allowed, you are "inadmissible" because of your "unlawful presence" and will need that inadmissibiliity to be waived or pardoned before you can become a US Permanent Resident. This is the most common reason for being inadmissible.
There are other reasons that a person may be considered to be "inadmissible." The reasons that are listed below are eligible to have a waiver filed that will allow your case to be granted.
The following waivers exist for these inadmissibility issues:
212(a)(9)(B)(v) Waiver For Unlawful Presence INA §212(a)(9)(B)(v) (Form I-601A and Form I-601) If you have been in the United States unlawfully, either because you entered without permission or a visa, or because you overstayed your permitted time, there is a 3-year-bar from returning if your unauthorized stay was more than 180 days. If your period of unlawful presence in the United States was for more than one year, there is a 10-year bar prohibiting your re-entry. A waiver removes these bars. You must have either a spouse or a parent who is a US citizen or lawful Permanent Resident who will suffer extreme hardship if you cannot return to the United States. If this is the only reason you are inadmissibile, if your spouse or parent is a US citizen, and you are currently living in the United States, you qualify to apply for a Provisional Waiver I-601A and depart the US for your visa only after your waiver has been approved. Please see the page entitled Provisional Waivers for more information. If you also have other inadmissibility issues or if you are living in Mexico at this time please see the page, entitled, Mexico for further information.
212(h) Waivers For Certain Criminal Conduct INA §212(h) (Form I-601): If you have ever been convicted any of the following crimes, anywhere in the world, you may need a waiver to enter the United States. Your qualifying relative can be either your spouse, parent or child who is a US citizen or lawful Permanent Resident. Drug crimes not listed here, and aggravated felony convictions cannot be waived. Crimes more than 15 years old have a different criterion for a waiver. Please see the page called Criminal Conviction Waivers.
- crimes involving moral turpitude except murder or torture
- single offense of simple possession of marijuana
- commission of more than one crime
212(i) Waivers For Fraud Or Misrepresentation INA §212(i) (Form I-601): If you have been charged with wilful misrepresentation or false testimony to a U.S. government official while trying to obtain a visa, other documentation, or admission to the United States (such as a re-entry permit, border-crossing card, U.S. Passport) or other benefits provided under the Immigration and Nationality Act. Note that any claim to be a US citizen cannot be waived. Your qualfying relative must be either your spouse or parent who is a US citizen or lawful Permanent Resident.
212(a)(9)(A)(iii) and 212(a)(9)(C)(ii) Consent To Reapply For Admission After Deportation (Form I-212): If you have been deported from the United States and wish to re-apply prior to the amount of time that you were ordered to remain outside the U.S. you may file an I-2121 Request. See the page with this title for information regarding when you may apply for re-admission to the United States after you have been deported.
212(d)(11) Waivers of Alien Smuggling Ground (Form I-601) Can be waived only when accused of smuggling a relative. If the alien that you smuggled or tried to smuggle into the US was your spouse, parent, or child, you qualify to apply for a waiver.
212(d)(3) Waivers For a Nonimmigrant Visa INA 212(d)(3) (Form I-192): If you have been found to be inadmissible but wish to be allowed to enter the United States temporarily in a non-immigrant status, such as a visitor, you may request this waiver. The following factors are considered in determining the waiver request:
1) The recency and seriousness of the activity or condition causing your inadmissibility;
2) The reasons for your proposed travel to the United States; and
3) The positive or negative effect, if any, of your planned travel on U.S. public interests.
212(g) Waivers For Health-Related Grounds INA 212(a)(1)(A); INA 212(g) (Form I-601): If you have been found to be inadmissible due to: a) Communicable Disease,Tuberculosis; or b) Physical or Mental Disorder with Associated Harmful Behavior; or c) are requesting a Waiver of Vaccination Requirement. These waivers do not require hardship to be proven, but instead deal with proving that applicant can pay for medical issue and is not a danger to the public.
Where Do I File the I-601 Waiver?
The I-601 is typically filed with the Nebraska Service Center or the National Benefits Center in the United States, no matter what is your home country. If your waiver is only for "unlawful presence" you may file your waiver request while in the United States. If you are inadmissible for any other reasons, you will have to depart the United States and attend a visa interview at the US Consulate in your home country. Only after your interview will you be allowed to submit your waiver request. Sometimes a waiver is requested by an adjudicator at your Adjustment of Status interview in the United States if you have made that application within the US. These waivers are usually for fraud or a criminal history and will be filed in the United States as directed by the adjudicator. Sometimes we prepare the waiver packet in advance of the interview when we know it will be requested.
What if I Was Previously Deported?
Those who have been deported or removed from the United States by the courts or by a border patrol officer are prevented from returning for a certain length of time. The length of time can be 5, 10, 20 years, or even permanently. If you desire to enter the US during the time you are barred from entering, you will need to file your request on the Form I-212 Application for Permission to Return After Deportation or Removal. Typically you will also need to file the I-601 Waiver request at the same time to waive your ground of inadmissibility that caused you to be deported. If both are needed you will file them jointly after being asked to do so at your US Consulate interview. If you do not have issues of inadmissibility and are only requesting permission to return after removal or deportation, the I-212 Application is filed within the United States with the USCIS office having jurisdiction over the place of the original deportation.
PROOF OF EXTREME HARDSHIP IS REQUIRED TO WIN A WAIVER APPLICATION
The law provides that you can apply for a waiver of the grounds of inadmissibility by demonstrating that your "qualifying relative" will suffer "extreme hardship" if you are denied your request for Permanent Resident status.
What is Extreme Hardship?
The existing standard is met by identifying broad factors that would result in extreme hardship to the applicant's qualified relative. These factors are:
(1) the age of the applicant, both at the time of entry to the United States and at the time of application- did you arrive as a child; or are you young enough to start again in another country; have a lengthy marriage?
(2) the age, number, and immigration status of the alien's children and their ability to speak the native language and adjust to life in another country-
(3) the health condition of the alien or the alien's child, spouse, or parent and the availability of any required medical treatment in the country to which the alien would be returned-are you receiving ongoing treatment for a physical or mental condition; anticipated duration of the treatment, whether your condition is chronic, long-term, short-term.
(4) the qualifying relatives's ability to obtain employment in the country to which the applicant would be returned- what the job market is in home country; what the drop in income would be;
(5) the length of residence in the United States of the qualifying relative and the applicant;
(6) the existence of other family members who will be legally residing in the United States;
(7) the financial impact of the applicant's departure-whether you support the family or assist in its support; whether you can afford two homes; whether you have savings to afford a move; what the cost of airfare will be to visit; what the cost of child-care is; the amount of money lost due to selling home or business; drop in income; cost of unusual needs
(8) the impact of a disruption of educational opportunities- whether you have career goals requiring more eduction; whether you or spouse is currently enrolled in school; whether your children are of school age; loss of opportunities for children's higher education; requirement to be educated in a foreign language to be able to enroll in school; availability of specific fields of education
(9) the psychological impact of the applicant's departure-emotional ties between applicant, you, and your children
(10) the current political and economic conditions in the country to which the applicant would be returned- unusual unrest, political upheaval, discrimination, violence, crime, unemployment, in home country.
(11) family and other ties to the country to which the applicant would be returned-whether there is a parent's home to return to; whether any other relatives live there to assist you.
(12) contributions to and ties to a community in the United States, including the degree of integration into society-Have you have attended college, paid your taxes, attend a church, mosque or synagogue, have friends or neighbors with whom you have close friendships; play sports, go to PTA meetings, always had employment, been promoted at work?
(13) immigration history of the applicant - were there numerous encounters with USCIS or the Immigration Court? Or was there only one problem?
(14) Special Factors-Language, culture, religious, ethnic obstacles or differences for qualifying relative; fears of persecution, harm, injury, social ostracism; access to institutions for education, health.
Who is Your Qualifying Relative?
If your reason for being inadmissible is because of unlawful presence or misrepresentation, your qualifying relative is a US citizen or US Permanent Resident spouse or parent. Your fiance/fiancee is also a qualifying relative
If your reason fore being inadmissible is for prior criminal history or a conviction, your qualifying relative can be a US citizen or US Permanent Resident spouse, parent, or child. Your fiance/fiancee is also a qualifying relative.
How Do I Prove Extreme Hardship?
A properly prepared I-601 or I-212 waiver request should show that not only would extreme hardship be suffered by a qualifying relative if the applicant is living in another country apart from them for ten years, but also that the qualifying relative will also suffer extreme hardship if they chose to move to another country to be with the applicant for a period of ten years. Your qualifying relative must write a letter explaining your lives together. Your other relatives must do the same. You must write a letter too. Then you must present documentation to prove everything that you say in your letters.
Ultimately, "extreme hardship" is evaluated on a case-by-case basis after a review of all the circumstances in the case, and none of the listed factors alone, or taken together, automatically establishes a claim of extreme hardship. The listed factors should not preclude consideration of other factors raised by an applicant, nor is an applicant required to show that each of the listed factors applies in the applicant's case, in order to establish extreme hardship. This is why it is essential that your waiver packet be carefully prepared.
In addition to proving that "extreme hardship" would be the result, the applicant must also prove that they deserve a favorable exercise of discretion, by showing that they can contribute to the US with good moral character, and other positive attributes, (including rehabilitation if a crime waiver).
Who Makes the Decision Regarding My I-601 Waiver?
The waiver is adjudicated by USCIS in the United States. The US Consulate does not make this decision but are notified by USCIS whether you have been approved. You are then asked to return to the Consulate to complete the visa application process. If you filed an I-601A, after being notified you have been approved you will then make an appointment with the US Consulate in your home country and make arrangements to attend that interview.
This office continually works with many clients on the above listed I-601 , i-601A, and I-212 waivers so that they may have their visa application or adjustment of status request approved. Please call our office for requirements, procedures, and fees.
Our Office Has Proven We Have the Ability to Win
We will evaluate your situation and advise you whether you will be able to win your waiver request. We do not take cases that we do not believe we will win. We rarely lose a waiver case. Our success stories are listed on the Waivers Approved page and on the Testimonials page.