I-601 Waivers and Challenges to 212(a)(2)(A)(i)(I) Decisions

Posted on April 25, 2022

Heartbreaking are the immigrant visa cases when, because of a youthful indiscretion or transgression, the applicant is denied the visa to join a spouse or parent or child in the United States under Section 212(a)(2)(A)(i)(I) of the Immigration and Nationality Act. This section of the law renders a person permanently inadmissible because of a conviction or admitting to committing a crime of moral turpitude. Thankfully, there are solutions.

One solution is to challenge the decision. In a case we recently handled, the applicant had been denied an immigrant visa as the husband of a Lottery winner on these grounds, and then 10 years later, denied again as the parent of a US citizen on these same grounds. But the criminal case which was the basis for this visa refusal decision had been terminated before a final decision was made by the judge because of an amnesty. We challenged the 212(a)(2)(A)(i)(I) decision, arguing that he had never been convicted, a prerequisite for such a decision if no admission of guilt has been made. Upon review, the visa decision was rescinded. The sad part of the story is that the gentleman lost 10 years to be with his family in the United States — unable to immigrate — as a result of the consular error more than 10 years prior.

Another solution is the submission of an I-601 immigrant waiver application. In a case where the criminal incident took place more than 15 years ago, Section 212(h) of the Immigration and Nationality Act allows for the submission of such an application. We recently successfully represented a gentleman who had a smuggling conviction more than 15 years ago. We showed how he had been rehabilitated, was not a danger to the US, and was an upstanding member of his community. After the approval of the waiver, he was able to join his US citizen wife in the United States.

Where the incident or incidents took place less than 15 years ago, then it is necessary to show extreme hardship to the US citizen relative. One would think that something as relatively minor as shoplifting could not be a reason for a bar to the United States, but that would be a mistake. This is what happened to a client when he was 19 years old and on the Work and Travel program. He ended up with a couple of shoplifting convictions for stealing items valued at less than $200. His case did not qualify for the petty offense exception, and post-conviction relief would have been difficult. So he had no choice but to submit an I-601 application. We were able to marshall evidence showing extreme hardship to his US citizen mother, his application was approved, and he was able to immigrate.

The bottom line is that none of these gentlemen was a serious or hardened criminal. They were not robbers, arsonists, or serial violators of our immigration laws. But they became subject to our severe immigration laws. And while these stories ended well, many years of grief — some of it avoidable — preceded the final issuance of the visa. This again underscores the need to have competent legal assistance. Please feel free to contact us to discuss your situation.

Tags: 212(a)(2)(A)(i)(I), Consular Officers, Department of State, Extreme Hardship, Green Card Lottery, I-601, Immigrant Waiver, Petty Offense Exception, Section 212(h) Waiver