A person may be found to be inadmissible to the United States for many different reasons. These include three- and ten-year bars for unlawful presence; crimes involving moral turpitude (CIMTs); prostitution; simple possession of less than thirty grams of marijuana; certain medical inadmissibility; and misrepresentation. To overcome such an inadmissibility, an I-601 Waiver will need to be filed. The primary basis to qualify for an I-601 Waiver is to show “extreme hardship” to a qualifying relative. In some cases, one may also qualify by showing there has been criminal rehabilitation. If someone had been previously removed from the United States, an I-212 Waiver for prior removal is necessary and is not based only on extreme hardship to a qualifying relative, although such a hardship can be used to strengthen a case.
Sometimes there are complications that result in a waiver not being an option. Some of the worst complications are those that create permanent inadmissibility. These include false claims to U.S. citizenship, drug convictions or guilty pleas after age eighteen, gang memberships, and previous findings of marriage fraud or frivolous asylum. There is very little to be done after a finding was made in a prior immigration proceeding that there was a frivolous asylum claim made after April 1, 1997. However, in other instances it may be possible to challenge a finding of permanent inadmissibility. For example, it may actually be possible to show that a finding of marriage fraud was an error, especially if the marriage is still intact. It may be possible to argue that a vague drug crime is not a crime pertaining to possession of a controlled substance. A person who had made a claim to citizenship may have been completely unwilling. A person may truly not be a gang member. These are difficult cases but may be worth pursuing as it may very well be someone’s only opportunity to return to his or her family.
The waiver process changes constantly, as does immigration law itself. If you feel that you or someone you know requires assistance in this area please contact our office.
On Friday, June 26, 2015, the U.S. Supreme Court ruled in the case Obergefell v. Hodges that same-sex marriage is now legal nationwide. The below article was written prior to the issuance of this decision and will be updated accordingly to reflect the current state of the law.
Like many areas of law, immigration is dynamic. U.S. Citizenship and Immigration Services (USCIS) monitors relevant case law and makes changes to immigration policy accordingly. Same-sex couples have made significant legal strides in the past decade, and these victories are reflected in current USCIS policy. It is crucial that anyone with immigration issues who is in a same-sex relationship finds an attorney who understands how LGBT (lesbian, gay, bisexual, and transgender) immigrants and their partners are affected by new regulations and procedures.
A Brief History of Immigration Law for LGBT People
LGBT foreign nationals were considered excludable from the U.S. on medical grounds until 1991. This was due to the historical classification of homosexuality as a mental illness. The psychological and medical fields evolved and changed their stance, and public acceptance of homosexuality as a normal human variation has followed. From the mid-1990s, individual states began allowing same-sex marriage or alternatives like domestic partnerships or civil unions.
Until recently, same-sex couples were unable to utilize their marital relationship as the basis for applying for immigration benefits, even if they were married abroad or in a state where the marriage was legal. Under the 1996 Defense of Marriage Act (DOMA), the federal government was prohibited from recognizing same-sex marriages for federal programs like Social Security benefits or income taxes. This prevented USCIS from considering a same-sex spouse as an immediate family member for immigration purposes. Similarly, any immigration benefit that would normally be derivatively available to the spouse or children of a nonimmigrant or an immigrant visa applicant was withheld from same-sex couples. Immigration benefits were also denied for the step-children of same-sex partners.