Waivers for Immigrant Visa Applicants with Unlawful Presence, Misrepresentation or Criminal Problems: I-601 Extreme Hardship
An application for a Waiver of Grounds of Inadmissibility (I-601) is filed in the event that an Applicant for an Immigrant Visa (Green Card) has been denied admission to the United States. There are many reasons a person can be denied entry, but the most applicable are for two “unlawful presence” bars that bar entry for three years or ten years due to illegal status in the United States and for “misrepresentation.” This waiver requires that a certain type of relative or a “qualifying relative” must suffer “extreme hardship” if the Applicant is not admitted or able to reunite in the United States. The qualifying relative must be a U.S. citizen spouse or parent or legal permanent resident spouse or parent. Children of the foreign national do not qualify for these violations.
Another common reason for denial is a criminal offense called a crime of moral turpitude. This offense does not necessarily have to be a conviction – it can also be an admission on the foreign national’s part. In any event, if an exception does not apply then an applicant can waive the crime of moral turpitude offense with an I-601 Waiver. In this situation, the qualifying relative can be a U.S. citizen spouse, parent or child or LPR spouse, parent or child. Children qualify.
The waiver is available and adjudicated after the Applicant is found inadmissible in undergoing the permanent residence process—either within the United States or in the Applicant’s home country. This waiver cannot be filed ahead of the adjudication of the permanent visa or adjustment of status process, but see the I-601A Provisional Waiver process recently implemented in March 2013.
The waivers are now filed in the United States as of early 2013 and processed at the Nebraska Service Center.
Waivers for Immigrant Visa Applicants with Only Unlawful Presence Problem And Living in the US: I-601A Extreme Hardship
Effective March, 2013, the Provisional Waiver allows for a foreign national applicant present in the US to file a Provisional Waiver in the United States PRIOR to a departure to attend an immigrant visa interview abroad. This is only applicable for qualifying relatives who are US citizens (not LPRs). This change allows for a largely anticipated reduced amount of time of separation between the foreign national and US relative(s) while the foreign national tries to obtain legal residence from abroad.
The Provisional Waiver is only for those applicants that would trigger a bar based on unlawful presence – not for criminal or removal issues or any other issues . Those eligible family members who have had removal proceedings administratively closed and whose cases have not been re-calendared at the time of filing the provisional waiver application are eligible. However, anyone with a final order of removal, or who has been previously removed, will not be eligible.
The Provisional Waiver is filed in the United States and processed at the Nebraska Service Center.
Eligibility of Extreme Hardship for Both I-601 and I-601A
The waiver’s main requirement is that the U.S. citizen or legal permanent resident will suffer “extreme hardship” as a result of the Applicant being denied entry into the United States. Extreme hardship is defined as more difficulties than what is expected from being separated from a close family member. It is a conglomerate of financial, emotional, physical and other factors and does not necessarily require a family member to be really ill to qualify. It is fact specific.
There is not an exhaustive list and therefore all facts and history should be reviewed by an immigration attorney like Colorado attorney Catherine Brown to to provide the strongest “extreme hardship” case. It is critical for the success of the waiver to have sufficient evidence documenting the extreme hardship, both personal and non-personal evidence.
If you want to build a strong I-601 waiver case and understand eligibility and the process, contact Colorado law firm, Law Office of Catherine Brown LLC or Denver and Boulder immigration attorney Catherine Brown to schedule a consultation. Contact us online or at 303-322-2117.