If you or your loved one applied for entry into the United States or for permanent residence and was found ineligible because of past acts that are considered violations of U.S. Immigration Law, a Waiver of Inadmissibility may need to be filed.  This article will discuss various grounds of inadmissibility to the U.S. and ways to seek forgiveness or to waive those violations.

Section 212 of the Immigration and Nationality Act provides the grounds by which an applicant for entry into the U.S. or for permanent residence may be denied.  Although the list of grounds for inadmissibility is quite long, the most common grounds for preventing an applicant for permanent residence or for entry into this country are 1)criminal convictions 2)fraud or misrepresentation 3) trying to enter the U.S. after being here illegally for more than six months.

Fortunately, the law provides for forgiveness of these acts by permitting a violator to file a waiver.  A waiver is filed on USCIS form I-601 and the same form is used whether the applicant is filing in the U.S. or while at a U.S. Consulate abroad.  Filing fees often change for this form so it is best to check with the USCIS website for the latest fee structure at www.uscis.gov.

The form I-601 is called an Application for Waiver of Grounds of Inadmissibility. In keeping with the overall theme of U.S. immigration law of family unity the basis for granting a waiver is proving extreme hardship to a close qualifying relative, usually limited to a parent or spouse who is a U.S. citizen or lawful permanent resident.

Who is the qualifying relative?

It depends on why the undocumented immigrant is being told they are inadmissible.

• For a person who is inadmissible for prior unlawful presence (INA 212(a)(9)(B)(v)) or misrepresentation (INA 212(i)) a qualifying relative is a citizen or lawful resident spouse or parent.
• For a person inadmissible for criminal history (INA 212(h)) a qualifying relative is a citizen or lawful resident “spouse, parent, son, or daughter of such alien.”
• A US citizen fiancé(e) may also be a qualifying relative [9 FAM 41.81 N9.3(a) and 8 CFR 212.7(a)(1)(i)].

What is “extreme hardship”?

“Extreme hardship” is very vaguely defined as greater than the normal hardship the qualifying relative can be expected to experience if the Alien is denied admission. It is important to prove both why the qualifying relative cannot move abroad AND why the qualifying relative cannot simply live in the US without the Alien. It is not enough to say that the qualifying relative will miss the Alien’s company as this is considered “normal” hardship, not extreme hardship.

The heartache and difficulties that normally happen when a couple is separated are not enough to meet the required “extreme hardship” level that the government requires for approving I-601 Waivers of Inadmissibility. However, the hardships you have can be added together to meet the level of hardship needed. Some factors that the government considers are:

HEALTH – A physical or mental condition that your qualifying relative needs continual treatment for. (A serious illness is an important possible factor.)

FINANCIAL – Future employability and financial losses to the qualifying relative if the waiver of inadmissibility is not approved.

PERSONAL – Hardships that your qualifying relatives will suffer if the waiver of inadmissibility is not approved. (The ties that the qualifying relative has to the U.S. and the difficulty in severing those ties.)

SPECIAL FACTORS – Cultural, language, religious, and ethnic issues.

These are only some of the hardships that can be aggregated to show “extreme hardship”. It is always best to work with an attorney who can help you focus on your strongest arguments. A longer list of not very strong issues is not half as powerful as a short, direct argument presented for your waiver.

Should I file An I-601 Waiver?

Just because you have a criminal conviction does not automatically mean you need a waiver.  Many criminal convictions such as many misdemeanors and certain felonies will not result in you being ineligible for admission to the U.S.  Also just because the USCIS claims that you engaged in misrepresentation or fraud does not automatically mean that you need a waiver.  There are certain circumstances where the USCIS may be mistaken or where the immigration fraud you committed is not fatal to your application such as fraud that was committed when you were a minor.

If you are an immigrant already outside of the country then you may have no other choice than to file for a waiver. However, if you are inadmissible for fraud or a criminal conviction and are in the U.S. and not in removal proceedings before you decide to file for an immigration benefit such as permanent residence you should consider your chances of securing an I-601 waiver. Remember, that granting such as waiver is entirely within the discretion of the USCIS.  You may have a weak case and get approved or you may have what you think is a strong case and get denied. Consider this before you proceed as it may be a risk you are unwilling to take. Every family and every situation is different and it is imperative you consult with an attorney before you file an I-601 Waiver. An attorney can evaluate your chances of success and you can make an informed decision about whether you want to move forward with the I-601 Waiver process.

Again, here at the Law Office of David M. Sturman we believe in preventative lawyering. This is why we always offer Free Consultation. We can advise you in advance if your actions may result in a finding of inadmissibility and whether a waiver can and should be filed.  We have years of experience dealing in this area and we can provide seasoned guidance.