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, i.e. a U.S. citizen or permanent resident spouse, parent or minor child. Inadmissibility might be waived if the applicant can prove their relative will face extreme hardship in the United States without their presence. Conversely, the applicant can demonstrate their relative will suffer extreme hardship should their relative follow them back to their homeland.
What Constitutes Extreme Hardship
“Extreme hardship” is not defined by statute or regulation but rather by case law. What exactly constitutes “extreme hardship” is entirely dependent upon the discretion of the adjudicating officer or the immigration judge. Typically, extreme hardship is hardship that is greater than what your relative would experience under normal circumstances if you were not allowed to come to or stay in the United States. The Board of Immigration Appeals (BIA) first enumerated a list of hardship factors including family ties in the United States and abroad, length of residence in the United States, health conditions, country conditions in the country in which the applicant is returnable, financial status, and position in the community. Since USCIS recognizes that at least some degree of hardship to qualifying relatives exists in most, if not all, cases in which individuals with the requisite relationships are denied admission, the applicant must prove that the hardship to the qualifying relative is more significant than that which is usual or expected.
Proving Extreme Hardship
A good hardship waiver will argue both why the qualifying relative can’t move abroad and why the qualifying relative can’t remain in the United States without the foreign national. The waiver must include a compelling and detailed declaration from the qualifying relative(s). In general, it is also advisable to include a comprehensive declaration from the non-citizen. The practitioner’s most important job is to investigate and explore all issues of the qualifying relative’s life and put together a unique and compelling declaration that will stand out from the rest. Every argument made in either statement should be supported by thorough documentation. It is crucial that all supporting documentation ties back to the hardship of the qualifying relative. You do not want to have a well-documented declaration and then not elaborate on that documentation or forget to tie all of the information back to the qualifying relative. Lastly, it is vital that immigration practitioners carefully review the applicant’s background. A common denial issued by the DOS consular officer is for allegations of smuggling family members into the United States. Thus, it is imperative to inquire about the immigration status of the individual’s spouse and children. If they entered the United States without inspection, then the consular officer will likely allege smuggling.
Different Types of Waivers
If you are hoping to overcome inadmissibility, you will typically work with either an I-601 Waiver or an I-601A Waiver. The most notable difference between the two waivers is that I-601A waivers allow applicants to stay in the country during processing, while I-601 waivers typically require applicants to complete the process overseas. Furthermore, I-601A waivers are available only to those whose qualifying relative is a U.S. citizen or permanent resident spouse or parent, and who is seeking to waive grounds of inadmissibility pertaining to unlawful entry or presence. In some cases, one may qualify for a hardship waiver 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 hardship can be used to strengthen a case.
Watch Out for Other Inadmissibility Issues
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.