What is an I-601 Waiver?
If you are a U.S. citizen or legal permanent resident who is married or engaged to an undocumented immigrant you may think you can easily legalize your spouse. This may be harder than you thought. There are times when your loved one will be deemed “inadmissible” and therefore unable to simply file through you for a green card. In such a situation it may be possible to file an I-601 Application for Waiver of Grounds of Inadmissibility for them. This consists of filing an I-601 immigration form and evidence of hardship.
There are different sections of immigration law that allow for this, they are under the Immigration and Nationality Act (INA) section 212. Under that section some undocumented immigrants can file for a waiver if they have a “qualifying relative” that will suffer “extreme hardship” if the loved one is not admitted.
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”?
The heartache and difficulties that normally happen when a couple are 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 you need continual treatment for.
FINANCIAL – Future employability and financial losses if the waiver of inadmissibility is not approved.
PERSONAL – Hardships that your close relatives will suffer if the waiver of inadmissibility is not approved.
EDUCATION – If you cannot continue with your education goals and the impact it would have on your earnings.
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. For more on arguments click here.
Should I file An I-601 Waiver?
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 still in the U.S. and not in immigration proceedings 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.
Some times when a waiver is not an option:
Sometimes an I-601 waiver is not an option. You are not eligible for a waiver (but there may be other options) under the following circumstances:
1.If you are subject to a permanent bar due to:
a. Unlawful presence in the United States for more than one year after April 1, 1997 followed by a departure from the U.S. and a return to the U.S. without inspection; or
b. Removal from the U.S. after April 1, 1997 and a return to the U.S. without inspection.
However, after 10 years outside the U.S. a waiver is available and no qualifying relative is necessary. Also, VAWA can help abuse victims with a (9)(C) bar gain access to a waiver immediately.
2. If you have falsely claimed to be a U.S. citizen. There is a very narrow exception to INA §212(a)(6)(C)(ii), which was implemented by the Child Citizenship Act of 2000, wherein you are not barred if:
- Each natural parent of the alien (or, in the case of an adopted alien, each adoptive parent of the alien) is or was a citizen by birth or naturalization;
- The alien permanently resided in the United States prior to attaining the age of 16; and
- The alien reasonably believed at the time of making such representation that he was a citizen.
3. If you have been a member of a criminal gang. Unfortunately even having gang related tattoos can keep you from being able to apply for an I-601, as the medical examiner may see them and decide that they need to tell the government you are a gang member.
4. If you have a drug conviction or a guilty plea after the age of 18. There is one exception: if the drug involved was simple possession of less than 30 grams of marijuana for personal use.
5. If you failed to attend a removal hearing in the United States and have not been outside the U.S. for five years.
6. If you have a previous finding of marriage fraud in a prior immigration application.
7. If you filed for asylum in the past and the application was found to be a frivolous asylum application.