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I-601 Immigrant Waivers

Reasons for Inadmissibility

There are a variety of reasons why a person might be deemed inadmissible to enter the US. The most common grounds for inadmissibility are:

  1. A prior history of criminal activities;
  2. The commission of fraud or material misrepresentation in obtaining a US visa;
  3. Prior periods of unlawful presence in the US longer than 6 months, subjecting applicants to a mandatory 3 to 10 year bar from entering the US;
  4. Alien smuggling; and
  5. Expedited removal.

Under certain circumstances it is possible for those applying for immigrant visas to obtain a waiver of inadmissibility. However, each case is unique and often requires a detailed analysis in order to determine the factual basis of inadmissibility, whether the consular decision is correct, the availability of a waiver, and the likelihood of a successful waiver application.

Who Can Apply?

The availability of an immigrant waiver to applicants for immigrant or K visas depends on the category of inadmissibility. The following table details the availability of an immigrant waiver and the standard that applies:

Provision of Immigration and Nationality ActDescription of InadmissibilityAvailability of Waiver
212(a)(2)(A)(i)(I) Admission or conviction of crime of moral turpitude and petty offense exception not applicable

3 cases:

1) Admission to US would not be contrary to US national interests, safety and security, applicant has been rehabilitated; and more than 15 years has elapsed since the incident in question;
2) Spouse, parent, child of US citizen or LPR if refusal of waiver would result in extreme hardship to USC or LPR
3) VAWA self-petitioner

No waiver available for murder, torture, or conspiracy to commit murder or torture.

212(a)(6)(C)(i) Willful, Material Representation or Fraud

Spouse or child of US citizen or LPR if refusal of waiver would result in extreme hardship to USC or LPR petitioner; VAWA self-petitioner if extreme hardship to applicant or USC/LPR relative.

This waiver is not available to parents of USCs or LPRs.

212(a)(9)(B) Unlawful Presence

Spouse or child of US citizen or LPR if refusal of waiver would result in extreme hardship to USC or LPR spouse or parent

212(a)(6)(E) Alien Smuggling

Family-based immigration waiver available if the smuggling action took place while the applicant was the spouse, child, or parent of the individual who was being smuggled. Not available to siblings of USC.

212(a)(9)(A) Expedited Removal

Can apply for permission to reapply for admission to the United States.

Proving Extreme Hardship

In order to prove "extreme" hardship, an applicant must demonstrate hardship to a qualifying relative (US citizen, or legal permanent resident, spouse or parent) that is unusual and exceeds the suffering that would normally be expected as a result of inadmissibility. The USCIS considers economic detriment; the uprooting of family and separation from friends; and emotional suffering caused by severing of family and community ties to be common results of inadmissibility. This is not enough. Extreme hardship can be severe medical or psychological problems; tremendous financial hardship; family socialization issues; and conditions associated with relocating to a third country. In making this determination, USCIS will also consider the applicant’s family ties to the US; how long the applicant lived in the US and from what age; the negative impact a denial would have on the relative in the US; the applicant’s business, employment, and property ties to the US; and the applicant’s contributions to US society while was located there. Extreme hardship is a difficult standard to satisfy. Therefore, it is imperative that the hardship waiver be well- documented and carefully prepared.

What is the Process?

After a consular officer makes a finding of inadmissibility and the applicant does not seek to challenge that finding, the applicant will file an I-601 Application for Waiver of Grounds of Inadmissibility form along with supporting documentation to USCIS for its review. If the application is denied, an appeal may be submitted to the Administrative Appeals Office, which may take up to two years to review.

How Does W&A Help?

Because of the complexity and the high stakes of these waivers, it is advisable to retain qualified legal counsel. White & Associates is experienced in dealing with Inadmissibility Waivers. For some of our successful waiver experience, please see the Case Studies section of this website.

Sometimes an instance may be resolved relatively easily, such as when an erroneous finding of inadmissibility has been made by a consular officer; for example, the reviewing officer mistakenly believed that a person was unlawfully in the United States or inaccurately counted the time of unlawful presence. It is possible to present additional evidence to the officer, his superior, and/or the Department of State in Washington, and the officer can then nullify his original decision.

If it is not possible to have a finding rescinded, then comprehensive legal support is needed to prepare the waiver application. We are able to formulate a strategy, clarify and re-construct events, and represent your interests. Preparation of affidavits, legal memoranda, scientific/forensic/medical testimony and opinions, and voluminous supporting evidence are often an integral part of the representation process. Please feel free to contact us so that we may be able to assess your case. Even if you have been found inadmissible under a section of law not included in the above table, please contact us to discuss the availability of a waiver.

Case Studies

In a highly unusual case, Mr. A. was a recently-landed immigrant from Uzbekistan who found out that he had won the Lottery. Because his 21 year old son was stranded in his home country but was included in his Lottery entry, Mr. A. decided to obtain another green card so that his son would be eligible to immigrate as well. The problem arose, first, when he was advised by the Kentucky Consular Center that his son was no longer allowed to immigrate as his dependent because he had turned 21. Later the consulate advised Mr. A. that he was not able to obtain another green card, that he had to petition for his son separately, a process which could take several years. Mr. A. then contacted our firm, and we were able to successfully petition for review of both of these decisions, with the end result that Mr. A. received another green card and his son was allowed to immigrate.

Case of Y.A.