A Brief Summary on Waivers in Immigration Law

Immigration law can be really confusing especially about the topic of “waivers” or pardons. There are different waivers for different problems. This is a very basic outline of the common waivers foreign nationals need to apply for and does not reflect all waivers available or specific details or exceptions.

I-601 Extreme Hardship Waiver

The most popular and widely-used waiver is the I-601 Extreme Hardship Waiver. It is only used in the context of applying for permanent residence. Therefore, if applying for a temporary visa, like student or visitor it is not relevant. It requires a “Qualifying Relative” to which an “extreme hardship” occurs – such as spouse, parent or child who is a US citizen or legal resident. An I-601 Waiver is used the following admissibility issues:

  • Unlawful Presence in the US – if a foreign national has overstayed their authorized time in the US or had no authorized time at all because undocumented, an accrual of more than 365 days results in a penalty if one exits the US. The penalty is a 10 year wait outside the US from exit date before re-entering. An I-601 Waiver would cure this problem so the person can enter before the 10-year period. There are a multitude of exceptions to accruing unlawful time or presence so it is best to speak to a Colorado immigration lawyer before exiting the US if you have had this much time illegally here and possibly need a waiver.
  • Crime of Moral Turpitude – if a foreign national has committed a crime of “moral turpitude” and does not fit any exception to this rule, then an I-601 Extreme Hardship Waiver can be filed.
  • 30 Grams of Less of Marijuana – if a foreign national has had possession of 30 grams or less of marijuana, he or she can file for an I-601 Extreme Hardship Waiver; otherwise it is a permanent bar to entry
  • Health Grounds – if a foreign national has triggered a public health offense that makes him or her permanently inadmissible, an I-601 Extreme Hardship Waiver can cure the problem.
  • Misrepresentation of a Material Fact – if a foreign national has misrepresented him or herself in front of any immigration agency and it is material to entry or obtaining a visa or immigration benefit, then an I-601 Extreme Hardship Waiver can cure the permanent bar this rule imposes.

In all instances, the “extreme hardship” focuses on the Qualifying Relative(s) and requires evidence more than what would normally be expected for loved ones to live separately – such as financial, emotional, physical burdens if separated for 10 years or permanently. Many cases can compare the standard of living in the foreign national’s home country compared to the US to better prove such a claim. A Qualifying Relative can verify slightly depending on what offense you are trying to waive. For instance, an unlawful presence bar only permits spouses and parents of US citizens and legal residents to qualify – children do NOT qualify.

I-601A Waiver

The I-601A Waiver is a cousin to the I-601 Waiver, and just created in March 2013. The criteria are slightly different than the I-601, but the “Extreme Hardship” standard is exactly the same.

It is only applicable to those applicants standing in the US. It only applies to US citizen spouses, parents, and children – no legal permanent resident families can use it. Anyone with a prior deportation or in deportation proceedings is not eligible. Anyone with any other problem (such as criminal or misrepresentation issues) but for unlawful presence may also ineligible for this waiver.

I-212 Waiver

A separate waiver is used to waive a prior deportation and it is called an I-212 Waiver. There is no requirement of a Qualifying Relative although they help make the case stronger. There is no “Extreme Hardship” litmus test; rather the test is a totality of circumstances analysis weighing the pros and cons of why the US government should let you back in – which in many ways can mirror the Extreme Hardship analysis. This waiver can be applied for at any time after a deportation has been executed. The key however is not so much determining eligibility for the waiver; but determining if the person can meet ALL admissibility requirements before applying for re-entry. Many times such persons were illegally in the US over 1 year and therefore they must file BOTH an I-601 and an I-212 waiver. In any event, a prior deportation is waivable under this format and must be used by anyone trying to get any kind of visa who was previously deported from the US.

212(d)(3) Waiver

A little known waiver named after the statute creating it – the 212(d)(3) Waiver – waives any inadmissibility offense for those trying to re-enter the US on temporary visas. In some ways, this waiver is favorable because it is much broader than the I-601 covering more grounds of inadmissibility and is not as difficult in terms of burden of proof. Here, one is trying to prove that there is 1) good reason to return (employment in US; family) 2) the violation occurred back in time and 3) the person has been rehabilitated or can prove inhibition to repeat the behavior that caused inadmissibility in the first place.

For further assistance on whether you think you or someone else is eligible for a waiver please contact our office or immigration lawyer Catherine Brown at 303-322-2117.

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