WAIVERS OF INADMISSIBILITY (Forms i-601 & i-212)

A good portion of our practice is work involving the preparation of Waivers (also called Pardons): In certain circumstances, individuals who have been found ineligible for an immigrant visa under the Immigration and Nationality Act (INA) may be eligible to apply for a waiver of the ineligibility. A waiver of inadmissibility may be submitted in the context of an immigrant or non-immigrant visa application at a U.S. Consulate outside the United States.  It many also be submitted when in the United States, either when applying for Adjustment of Status to Permanent Resident with USCIS, or when in Removal Proceedings with the Immigration Court.

For a person who is living in the United States illegally, an I-601 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.

The following waivers exist for inadmissibility issues:

212(a)(9)(B)(v) Waiver For Unlawful Presence INA §212(a)(9)(B)(v) (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. Please see the next 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."

• prostitution
• 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.

EXTREME HARDSHIP IS THE LEGAL STANDARD -PROOF IS REQUIRED TO WIN A WAIVER APPLICATION

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

(2) the age, number, and immigration status of the alien's children an d 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;

(4) the qualifying relatives's ability to obtain employment in the country to which the applicant would be returned;

(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;

(8) the impact of a disruption of educational opportunities;

(9) the psychological impact of the applicant's departure;

(10) the current political and economic conditions in the country to which the applicant would be returned;

(11) family and other ties to the country to which the applicant would be returned;

(12) contributions to and ties to a community in the United States, including the degree of integration into society;

(13) immigration history of the applicant.

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.

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.)

This office consistently works with clients on the above listed I-601 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.