601 and 601a Waivers

Q: How can I apply for an I-601 “Extreme Hardship” Waiver?

A: You could be on of the individuals who are eligible for a green card but are facing immigration bars on grounds of unlawful presence or fraud. The way out of this is seeking the approval of an I-601 waiver so that you can get permanent resident status.

People who have attained over 180 days of illegal presence in the U.S. on or after April 1, 1997 and have proceeded to leave the country will be barred from coming back to the United States for up to 3 years. For those who have attained more than one year of illegal presence in the U.S. on or after April 1, 1997 and leave the country only to return without notice or deportees who enter the United States without inspection will be required to stay outside the U.S. for a minimum of 10 years before they can even seek application of a waiver. In the case of those who have committed immigration fraud and, therefore, are barred for life from the U.S., they can only return upon obtaining the I-601 waiver in a attempt to become a permanent U.S. citizen.

This I-601 waiver is based on “extreme hardship" to qualifying family members: a legal permanent citizen or a U.S citizen parent(s)/spouse(s). Being separated from your family/ family members is hardship. However, you have to convince the USCIS that your hardship is otherwise “extreme.” To successfully do so, you will need the following evidence:

  • You will have to provide evidence that establishes your family status and relationship; for instance, providing marriage certificates, birth certificates, and any other documents as the case may be.
  • Evidence that you are legally permitted to be a permanent U.S. resident or have U.S. citizen ties in the United States.
  • Evidence of your family ties outside the United States.
  • Country regulations in the country that you have to leave to, as well as the qualifying relative’s ties to the family in the stated country.
  • The financial impacts of departure from the United States.
  • Significant health condition; for instance, the kind of treatment and medical care that is accessible in that country.

Before you decide on an I-601 waiver, you should first consider some of these alternatives: Consider a scenario when the qualifying relative has to remain and live independent of the intending immigrant in the U.S. Another scenario is when the qualifying relative departs to live in their native country with the intending immigrant.

The USCIS will have to prove existence of extreme hardship in case the qualifying relative and the kids are not fluent in their home country’s language. Another consideration is if they will not manage living in their native country without enduring significant financial hardships. Another factor includes illness or disability of the qualifying relative, particularly if the country that he/she is intending to live lacks proper and accessible medical care. Also, the USCIS will have to prove beyond reasonable doubt that the intending immigrant is the provider or caregiver for the relative. Standards required for demonstration of extreme hardship can be very high. So, before deciding to present your waiver case and other supporting documents, make sure you are fully prepared and that they contain sufficient and compelling evidence.

For detailed information on the options available to you and for expert help on your immigration process, you should contact our office and speak with our experienced and professional attorney.

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Q: What are some of the circumstances that rule out an I-601 Waiver as an option for me?

A: In case you are an immigrant who has found him/herself outside the country, then you could have the option remaining in order to return to the U.S. of filing a waiver. However, if you are still living in the U.S. and you are not facing any immigration proceedings then, then you should consider filing an I-601A waiver application. In the event that you do not qualify for the I-601A waiver, then you can apply for the I-601 waiver. However, this may be a risky undertaking.

Every situation and every family is different, and it is therefore crucial that you consult with a lawyer before you proceed to file an I-601 waiver. The lawyer may help evaluate the probability of your success. This will also be imperative in helping you make better, informed decisions on whether or not you want to proceed with the I-601 waiver process. At times, the I-601 waiver is not an option. There are circumstances, therefore, that rule out your eligibility for a waiver application. They are listed below:

  1. In the event that you have a permanent bar due to:
    • Being illegally in the United States for a period of more than one year after April 1, 1997, followed by your departure and return to the United States without inspection: or
    • Facing removal or deportation from the U.S. after April 1, 1997 and then a return back to the United States without inspection.

    However, after a 10 year bar period outside the United States you may regain the eligibility of applying for a waiver. It is made available without any requirement to provide the qualifying relative. Still, VAWA will assist abuse victims with their (9)(C) bar to regain access to an immediate waiver access.

  2. If at one point in time you have lied about being a U.S. resident when you are actually not. This case provides for a rather shallow exemption to INA §212(a)(6)(C)(ii), that the Child Citizenship Act of 2000 implemented, which provides that you are not barred if:

    The natural parent of the foreigner/natural parent (or each adoptive parent of the foreigner in the case of the adopted alien) was or is a citizen by naturalization or birth:

    • The foreigner permanently lived in the U.S. prior to his/her attainment of 16 years; and
    • The foreigner reasonably believed that he/she was a United States citizen at the time of making the representation.
  3. If at any point in time you have been part of a criminal gang. Sadly, having tattoos on your body that reflect a criminal personality could rule out your eligibility for application of an I-601 waiver. The medical examiner will know you have them and could leak this information to the government, citing that you could be a member of a criminal gang.
  4. In case you have a pending drug conviction or have ever been convicted of drug-related offence or plead guilty after attaining the age of 18. However, there is an exception: in case the drug used was 30 g of marijuana or less meant for purely personal use.
  5. If you did not attend your deportation proceedings in the U.S.
  6. If you have had a previous case of marriage fraud prior to an immigration application.
  7. In case you previously applied for asylum but after scrutinizing the application it was discovered to be a frivolous application.

For detailed information on the options available to you and for expert help on your immigration process, you should contact our office and speak with our experienced and professional attorney.

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Q: What are some of the new USCIS guidelines on I-601A Waivers?

A: On January 24, 2014, USCIS issued directions on the arbitration of Form I-601A waivers in cases that involved applicants with a criminal record. To fully comprehend the importance of this direction, let us begin by understanding the standards on Form I-601A waivers. On January 3, 2013, USCIS gave the Final Ruling on Provisional Unlawful Presence Waivers on Grounds of Inadmissibility for Specific Immediate Relatives, undertaken on March 4, 2013. Principally, foreigners seeking immigrant visas abroad, but are inadmissible, must proceed to file a waiver application. This implies that these foreigners would need to spend some time abroad in expectation of a favorable outcome of their waiver applications. The new provisional waiver guideline gives a narrow special exception. A foreigner is qualified to seek a Form I-601A waiver in the event that he or she is:

  • Physically present in the United States.;
  • Not less than 17 years old at the time of filing the case;
  • Is the beneficiary of a confirmed immediate relative appeal;
  • Has a visa case that is pending with the Department of State and the visa fees have been paid;
  • Upon leaving the U.S., would have his/her status changed to inadmissible for illegal presence under this INA 212(a)(9)(B)(i);
  • Meets the prerequisites for a waiver under INA 212(a)(9)(b)(v);
  • Will leave the U.S. to acquire an immigrant visa abroad. In the event that USCIS favors the provisional waiver, this waiver does not immediately become effective unless the foreigner leaves the U.S. and then comes for a visa interview at the U.S. Consulate abroad.

USCIS will reject provisional waiver applications if aliens do not meet the aforementioned requirements or the foreigner:

  • Has a pending conformity of status application;
  • Has been in deportation proceedings, unless they are officially closed;
  • Is supposed to be deported, removed, or excluded from the United States;
  • Is eligible for reinstatement of a prior deportation;
  • Scheduled for an interview on immigration visas before January 3, 2013; or
  • USCIS has grounds to believe that the foreigner is also inadmissible on account of other grounds, apart from illegal presence.

The last basis for rejection of the waiver application is facing heated discussions. USCIS has rejected this provisional waiver application when the applicants on grounds that USCIS has proven beyond doubt that these foreigners are inadmissible on the basis of other grounds other than inadmissibility. Criminal basis for inadmissibility incorporates, among others: crime convictions involving moral turpitude (CIMT), violations on controlled substances, more than two convictions for which the total sentence was over 5 years, prostitution, and controlled substance trafficking.

Regardless of the possibility that an alien is indicted on a CIMT, he/she would not be inadmissible in the event that he falls under special cases and exceptions; for example, the “youthful criminal offence” exemption under the INA 212(A)(2)(a)(ii)(i) and the “petty offense” exemption under this INA 212(a)(2)(a)(ii)(ii). The “youthful criminal offense” exemption provides that the foreigner is not inadmissible in case:

  • He has committed just one offense;
  • His wrongful act happened when he had not yet attained 18 years;
  • He committed this offense more than 5 years prior to admission into the United States or application of a Visa.

Under the “petty offense” exemption, an alien may be inadmissible if:

  • He has just committed just one crime;
  • The greatest punishment meant for this offense does not surpass one year detainment;
  • The foreigner was not detained for a period of over 6 months.

USCIS has now changed its stand. Under the January 24, 2014 guidelines, USCIS will not have the capability to deny a waiver application focused around reasons to believe that alien may be inadmissible due to a CIMT in the event that proof demonstrates the criminal’s offense:

  • Falls within the boundary of a petty or youthful offense exceptions;
  • It is not a CIMT. This is a change in the policy that should instead sway more aliens to apply.

Individuals who are qualified ought to exploit this favorable policy before USCIS chooses to revert to its old policy because of the unforeseen issues.

For detailed information on the options available to you and for expert help on your immigration process, you should contact our office and speak with our experienced and professional attorney.

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Q: What are the procedures involved in carrying a 3 and 10 year bar waiver application for the I-601 and I-601A Waivers?

A: Traditionally, in the event that a foreigner enters the U.S. without notice and cannot provide documentation regarding his presence in the U.S., he/she will not be permitted to submit a green card application in the United States through the process of status adjustment. However, they can undergo an interview process in order to get a green card from the consulate abroad. Once you depart the U.S., you may find yourself triggering the 10 year bar for re-entry and, therefore, prompting you to apply for the 10 year bar waiver.

The consulate will then schedule an interview for a green card application. At this point, the immigrant will not be given a visa but is allowed and told to apply for a waiver, meaning the relative in the United States files the case in the United States for the immigrant. However, the immigrant has to remain outside the country until approval of the waiver is reached and decided. Then, the foreigner is contacted once more by the consulate to either attend another interview, to update the waiver case, or to submit more documents in order to complete the processing and ensure the foreigner is allowed to enter the United States after approval of the waiver application.

This application process can take up to 6 months before the immigrant can be allowed to enter the United States. He/she is required to be out of the United States during this period, plus another 2 months until the immigrant’s visa is finalized by the consulate. Afterwards, the immigrant will be issued the visa and then allowed into the country. This may be a long time for a decision to be made and therefore a long time for one to be away from his/her family in the United States.

USCIS announced a new regulation that reduced the number of months that married U.S. citizens had to wait before they could they could be allowed to reunite with their loved ones in the U.S. until approval of the application. This provisional waiver process permits immigrants to apply for the I-601 waiver on grounds of illegal presence in the U.S. (whether a 3 or 10 years immigration bar) while in the U.S. and before the day of the consulate interview.

The foreigner is therefore permitted to stay in the U.S. until the application is approved or decided upon. This has drastically reduced the time period that the immigrant will be away from his/her family. Once the waiver application is accepted, the immigrant is allowed to then attend an interview at the consulate abroad. If the immigrant is able to rebut the charges and no grounds of inadmissibility are found then the immigrant will be abroad for just a couple of days.

For detailed information on the options available to you and for expert help on your immigration process, you should contact our office and speak with our experienced and professional attorney.

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Q: What documents or information do I need in order to apply for an I-601 Hardship Waiver?

A: There are two basic requirements that you will need in order to apply for an I-601 hardship waiver. They include:

  • You should have a “qualifying relative.” A qualifying relative is a person who would experience extreme hardship in case your waiver application is unsuccessful.
  • You should also show that you are eligible and therefore deserving of a discretionary approval for your waiver application.

Remember that not all relatives will be considered qualifying relatives. Also, it will depend on the type of waiver for one to be considered a qualifying relative. There are usually three types of waiver applications. They include:

  • The Unlawful Presence Waiver: For a person to be a qualifying relative, he/she will have to be a permanent resident spouse, parent, or a qualifying U.S. citizen. Children, sisters, brothers, as well as other relatives will not qualify in regards to this kind of waiver.
  • Misrepresentation or Fraud Waiver: For this kind of waiver, the qualifying relative is a permanent resident of the U.S. or a United States citizen. Children, sisters, brothers, and any other relatives will not be considered as qualifying relatives for this particular type of waiver.
  • Criminal Immigration Waiver: For this particular type of waiver application, qualifying relatives are permanent U.S. citizens or permanent resident spouses. Parents, children, sisters, and brothers are not qualifying relatives for criminal immigration waivers.

There are some details that are crucial in relation to extreme hardship waivers. They include:

  • In order for your waiver application to be granted, you will have to prove that your qualifying relative would have to experience extreme hardship as compared to the “normal” hardship experienced when there is a family separation. This term “extreme hardship” should not just be used to mean the family financial hardship. Also, it will not be enough to state that you or the qualifying relative will be heartbroken or very upset in case you are separated.
  • You should show and convince USCIS that you and the qualifying relative will both experience “extreme hardship” in case your separation is eminent or if the relative relocated with you back to your native country.
  • It is not enough to show that you will experience extreme hardship. It is only the hardship that your qualifying relative will experience that will count.
  • You will have to submit evidence, documentation, and convince USCIS of the existence of extreme hardship for the qualifying relative. So, when writing the letter to show and provide the hardship experience, make sure that the evidence provided is solid.

Before you begin your I-601 waiver application, make sure that you fully understand the entire process as well as what will be required of you. This way, you will make better decisions in regard to hiring an attorney and what you need to know before you select one to work with you.

For detailed information on the options available to you and for expert help on your immigration process, you should contact our office and speak with our experienced and professional attorney.

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Q: What information will I be required to provide for the I-601A Waiver?

A: The following is a list of the information that you will be required to provide for an I-601A waiver application:

  • Your personal identifying information. This information will include your Alien number, or A#. You will be required to give the A# only if you have in the past provided previous applications for benefits of immigration or have been in deportation/removal proceedings.
  • Your address. You are permitted to use your mailing address, but it has to contain your actual address. The Department of Homeland Security (DHS) particularly stated that it does apply this information as a means to remove immigrants unless they qualify to be criminals threatening public security.
  • Your contact details, which include your email address and telephone number.
  • Your citizenship and country of origin information.
  • Details on your latest arrival in the U.S. You will also be required to enter the place, date (U.S. state and city), about your entry, which in most cases would be "Entry Without Inspection” or EWI. (In case you arrived in the U.S. legally, with a visa waiver or visa, there is a possibility that you can adjust your status without having to leave the U.S., hence no need of a provisional waiver.)
  • Information regarding your previous arrivals to the U.S. However, this section is somehow problematic. You may face a permanent bar to the U.S. if you consistently arrive in the U.S. several times without inspection.
  • Information regarding your criminal or immigration history. Truthfully answer these questions regarding previous violations, crimes, fraud, as well as other issues apart from unlawful presence in the U.S. Answering truthfully may result in rejection of your provisional waiver but resist any attempts to lie. If you lie, you could face worse consequences than that of inadmissibility.
  • Petitioner information. Use the details you gave when filling form I-360 or that of the relative who filed the visa petition on your behalf.
  • Additional information. This section will require that you give information relevant to your waiver application. Another alternative is attaching a written statement that summarizes your request.
  • Signature. Always remember to sign the waiver form. The USCIS will return it if you fail to add your signature.
  • Signature of the preparer of the application. If an accredited representative or attorney is assisting you, get him/her to sign and fill in the required information.

Note that filling out this form does not guarantee you direct qualification for the provisional waiver of illegal presence. The information you will provide will end up determining the status of your I-601 waiver case.

For detailed information on the options available to you and for expert help on your immigration process, you should contact our office and speak with our experienced and professional attorney.

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Q: What will be considered sufficient evidence for an I-601 Waiver application?

A: As a waiver applicant, you should make sure that all the arguments you present for the I-601 waiver are all backed with sufficient evidence and supportive documents. You should include psychological letters and doctors’ letters or non-personal documents and country reports instead of personal documents. You should cite the U.S. government as the source of your non-personal documents. There are several common sources of these such as CIA factsheets, Consular Information Sheets, and the National Institute of Health Medical encyclopedia.

While gathering your documents, keep in mind the fact that the OIC will most likely be familiar with the country’s conditions, especially in the countries that he/she has jurisdiction over, meaning he/she does not need to see all the documents of the same countries’ reports every month. So, in the case of the Consular Information Sheet and the CIA Factsheet, you will only need to add a reference or a web link. Avoid printing it.

These country reports are much more crucial for I-601 filings in the United States. So, when filing any case for any national from whichever country, the OIC may only succeed in seeing just a few of the waiver applicant’ applications. Use NGO reports as well as newspaper articles sparingly whenever the information is required cannot be obtained from the U.S. government source. It is evident that some adjudicators have without fear “dismissed” these lawyer’s non-U.S. government sources, especially in their denials, even when these reports originate from reputable sources like the Amnesty International.

For documents that are personal, confirm that all letters are dated and also signed. These documents do not have to be notarized unless it is difficult to believe the individual who signed it. You may send attorney-certified copies, but always but keep the originals. The letters from your doctor should help describe the patient’s physical limitations clearly. For instance, it could specify no driving, the need to be assisted, the need for prolonged medical attention (if necessary), and the doctor’s personal knowledge of the foreigner before his/her role of providing direct help to the patient.

Psychologist letters are supposed to describe the physical condition, the manner in which the psychologist arrived at diagnosis, the relationship between the waiver applicant’s condition and process, the potential psychological impacts of waiver denial, how often the waiver applicant seeks attention, the current treatment/medications of the patient (if any), as well as any plan for future medication. Psychological assessments are not always a requirement and should therefore be done only in the event that the waiver applicant’s psychological condition is unusual or severe. Psychological and medical evaluations should be accompanied with letters from acquaintances as well as friends. They should state observations corroborating the professional evaluation examinations and additional detail. Some lawyers include the psychologist or doctor’s resume. Some medical notes or lab reports may be proper depending on the nature of your waiver case.

For detailed information on the options available to you and for expert help on your immigration process, you should contact our office and speak with our experienced and professional attorney.

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Q: What are some of the ideal legal arguments that I can present for an I-601A waiver application?

A: Almost all the arguments for I-601A waiver applications depend on the precept that there exists a qualifying relative who will be negatively impacted by suffering “extreme hardship” in the event that the waiver application is rejected. However, this term “extreme hardship” is vaguely defined to mean a greater that normal hardship that a qualifying relative can endure in case the waiver is denied admission. It is therefore crucial to prove why the qualifying relative cannot reside in the U.S. without the foreigner and why the qualifying relative could not live outside the U.S. Saying that the qualifying relative will “miss” the company of the alien is never “extreme hardship.”

Discussed below are some of the I-601A waiver arguments that can be presented in regard to Extreme Hardship. They are subdivided into levels. Level one is strongest, while level four is the weakest. In case you have mitigating factors particular to your case, like being brought into the United States while still young, one argument from level 3 and a couple arguments from level 4 may be enough to assist you in your defense. In case of aggravating factors, like double DUI convictions, approving the application will not take place until one of the arguments from level one is presented. Majority of the people prefer having a minimum of 2 arguments from level 2 as well as a couple arguments from level 3 presented in the waiver. Keep in mind that this list is not exhaustive.

Level 1 Arguments:

  1. In case the relative has a medical condition that can be considered major. For instance, brain tumor, cerebral palsy, multiple sclerosis, etc. which makes him/her unable to travel abroad and also for which the relative really needs the foreigner in the U.S. to be around him/her;
  2. In the event that the relative takes care of the elderly, the chronically ill, or even disabled relative(s) who constantly need care and whose physical or mental condition is worse, thereby prompting the alien to stay and help with crucial things such as physical therapy and hygiene. Or;
  3. The foreigner’s native country is currently experiencing turmoil or major political upheavals that could potentially spark war.

Level 2 Arguments:

  1. In the event that the relative is the primary caregiver for his/her child; the child’s other parent will not permit his/her child to leave the U.S. and the child has already bonded emotionally with the alien;
  2. The relative is undergoing serious medical conditions that make it impossible for him/her to leave and the relative really needs the alien or help (for instance, the relative needs to undergo a major surgery sometime in the following year, with recovery expected to last several months);
  3. In case the relative cannot be detached from his/her physically-challenged relative who can take care of him/herself but then experiences episodes in which he/she requires dire help from the relative and also in instances when the relative, in turn, requires help from foreigner;
  4. The relative is abnormally dependent on the relative financially (e.g. in case the relative’s mother is just recovering from a divorce with the relative’s father whereby he/she is left with nothing and has never worked before, so the alien is the one reason for the relative’s survival;
  5. Relative has child(ren) that he/she is intending to send to college. Note some offices consider this a strong argument while others do not. Or;
  6. The foreigner's native country is experiencing major political unrest, turmoil, negative political changes, or the country is well known for issues surrounding oppression of any form or another (for instance, the relative is a Christian man and foreigner from Saudi Arabia), or the country is in its early stages of after-war recovery.

Level 3 arguments include:

  1. The relative is not the custodian parent of a child(ren) from a prior marriage and a relationship with the child and that the other parent will not allow his/her kid(s) to leave the U.S. despite lack of a relationship between the alien and the kid at this point in time.
  2. In case the relative has been diagnosed with critical depression by a licensed psychiatrist/psychologist, perhaps due to the foreigner's immigration issues – note: thoughts of suicide will not raise this to level 2.
  3. The alien and relative have young kids together. Also, if the alien has full custody of the relative’s child and can bring him/her over and that the foreigner’s native country has poor education and health conditions.
  4. The relative's job needs a license in the U.S. as well as abroad making it virtually impossible to be licensed back home; for example, medical doctors and attorneys.
  5. In case the relative’s job skills are attached to just the U.S., meaning he/she may not be employed elsewhere. (E.g. tax accountants with knowledge of the U.S. tax laws.) (f) In the event that the alien’s native country has one of the worst economies in the world.
  6. The relative has close relatives who are either partially or fully dependent on him/her financially.

Level 4 arguments include:

  1. The relative has many debts that need to be paid and moving them out of the country will mean avoiding them.
  2. The foreigner’s country is experiencing an abnormal rate of unemployment and the salary or wage rate is also low.
  3. In case the foreigner’s country has high rates of kidnapping and/or violent crimes.
  4. In the event that the relative has since been despondent because of the situation, but has not sought for professional help,
  5. In case the relative's parents are old and cannot take care of themselves,
  6. The relative’s parent or relative him/herself, child ,or parent is experiencing high blood pressure, diabetes, allergies, asthma, Asperger’s/autism, ADD/ADHD, or high cholesterol.

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For detailed information on the options available to you and for expert help on your immigration process, you should contact our office and speak with our experienced and professional attorney.

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