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I-601 Waivers
Welcome!
This section is designed to give you a general idea about the I-601 Application for Waiver of Grounds of Inadmisibility and the road to becoming a Lawful Permanent Resident. My hope for the reader is that you use this information as a starting point. I know how daunting and frightening this journey can be, and hope that you allow me to share the experience with you, to empower you with knowledge, to guide you through this complex and confusing process, and lead you to the ultimate goal of safety, prosperity, and unity of family. That is what life is all about!
Where do I file the I-130 Petition if the Petitioner resides overseas?
As of August 15, 2011, Petitioners residing in countries without USCIS offices must file the I-130 Petition with the appropriate Chicago Lockbox. To find out if there is a USCIS office in your country, please visit the USCIS website's foreign USCIS office locator. There are limited exceptions to this rule.
Becoming a Lawful Permanent Resident
Many people become lawful permanent residents (or get their "green card") by applying for adjustment of status with the U.S. Citizenship and Immigration Services while in the United States. Contrary to popular belief, however, there are times when this route isn’t available for all persons and they have to apply for a green card at the U.S. Consulate in their home country. The most common reason for this is that the person is "inadmissible" to the U.S. and needs to also file an I-601 Waiver of Grounds of Inadmissibility.
Helpful note: always consult with an attorney if you are going through this process and before you leave the country because the consequences can be serious!
How do I apply for a Green Card in the US?
The process of applying for a "green card" can be broken into four basic steps:
1. The filing of an I-130 Petition for Alien Relative with certain supporting documents (for a list of documents, visit the USCIS website for more information);
2. The filing of an I-485 Application to Adjust Status with certain documents (for a list of documents, visit the USCIS website for more information);
3. Fingerprinting and background check; and
4. Green card interview.
Helpful note: Always do your homework first to ensure that you are eligible to apply and to avoid unnecessary complications!
How do I apply for an Immigrant Visa at the U.S. Consulate?
The process of applying for an immigrant visa (the "green card" relative) can be broken into four basic steps:
1. The filing of an I-130 Petition for Alien Relative with certain supporting documents (for a list of documents, visit the USCIS website for more information);
2. Once the I-130 is approved, it is forwarded to the National Visa Center for the collection of certain fees and documents. Visit the NVC; and
3. If the NVC is satisfied with all the documents AND a visa number is available in your family-based category, it will send you a visa appointment notice and forward the file to the U.S. Consulate in your home country; and
4. Appearing at the U.S. consulate for the visa appointment with the required documents (and after completing a medical exam).
You keep referring to visa number availability. What does this mean?
Each year, thousands of immigrants come to the United States based on a family-based immigration system. The government has placed limits on the number of people that can immigrate to the U.S. during any given year. The only people who are not subject to these limits are "immediate relatives," which includes spouses, children, and parents of U.S. citizens. The rest fall into what is known as Family-Sponsored Preference System. If a person falls within one (or more) of the following categories, they are allowed to immigrate to the U.S.:
1st Preference: unmarried sons and daughter of U.S. citizens;
2nd Preference:
Category A: spouses and children of lawful permanent residents;
Category B: unmarried sons and daughters (over the age of 21) of lawful permanent residents
3rd Preference: Married sons and daughters of U.S. citizens;
4th Preference: Siblings of adult U.S. siblings.
Visa numbers are limited in each of these categories and sometimes one has to wait for a long time until a visa number becomes available.
To find out if a visa number is available for you in your category, you need to consult the Visa Bulletin published monthly by the Department of State.
The things you need to know:
1. What is your preference category?
2. What is your priority date (the date the I-130 petition was filed).
Example:
David, a U.S. citizen, filed an I-130 Relative Petition for his brother John on June 1, 2002. The I-130 petition was approved a long time ago and the brothers have been waiting for a visa number to become available or "current" for many years. They want to find out when John will be able to immigrate to the US. What do they do?
1. They will visit the Department of State's Visa Bulletin and look at the latest monthly Bulletin (we'll be working with the Visa Bulletin from November 2011);
2. They know that siblings of U.S. citizens are categorized as 4th Preference Category;
3. They know that John's priority date is June 1, 2002 (this date is the "receipt date" on Form I-797, the I-130 approval notice);
4. By looking at the chart, they will see that visa numbers are available or "current" in this category for individuals with priority date of June 15, 2000. Based on this information and current trends, the brothers learn that they will have to wait approximately two more years until John will be able to apply for an immigrant visa to the U.S.
Helpful note: this can be a very complicated process because things change and these changes can impact the immigration process. For example, lawful permanent residents become U.S. citizens (and change categories), children marry (and change categories), etc. There are many rules that govern these changes and it's important to know how they may effect you!
Requirements for applying for a "green card" in the United States
January 6, 2012: USCIS Announces Proposed Changes to the I-601 Waiver Process
We are pleased to announce that the long-awaited announcement regarding a change to the I-601 waiver process has arrived. This morning, USCIS announced that it intends to change the I-601 waiver process. The full details have not yet been released and the new program is not yet in effect. In fact, the reports indicate that it may take as long as a year before the program goes into effect. In the meantime, here are a few points to consider:
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The proposed change will allow certain individuals to file the I-601 application in the U.S. The eligible individuals will have a decision in hand prior to traveling abroad to attend their immigrant visa appointment at the consulate.
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Only those who are inadmissible to the U.S. because of unlawful presence (under INA Section 212(a)(9)(B)(v)) will be able to file the I-601 in the United States. The proposed rule makes it clear that all others, including those inadmissible for misrepresentation or criminal grounds, will continue following the current procedure of filing the I-601 abroad.
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Only those whose qualifying relatives are U.S. citizen spouses or parents will be able to file the I-601 in the U.S. Spouses or children of lawful permanent residents or fiancés of U.S. citizens will continue following the current procedure of filing the I-601 abroad.
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The program is NOT effective immediately. In fact, according to the reports, it appears that it may take as long as one year for the program to be implemented.
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This is NOT a change in the law; it is a change in procedure.
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The program DOES NOT give additional rights meaning that eligible individuals filing in the U.S. will not likely be given official permission to stay (they could still be deported) and they are not likely to receive any benefits such as work authorization.
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The program DOES NOT eliminate the 3/10-year bars or the permanent bar for certain repeat immigration law violators.
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The program DOES NOT eliminate the requirement that each applicant proves extreme hardship to a qualifying relative.
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The program WILL NOT allow applicants to receive their immigrant visas in the U.S. Each person will still have to travel abroad for the issuance of the immigrant visa by the U.S. consulate in their home country.
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BEWARE OF NOTARIOS: be extra vigilant as you move forward! Unfortunately, there is a historical prevalence of abuse during times of immigration-related changes.
And stay tuned for updates!
Where do I file the I-601 Waiver Abroad?
The I-601 Application is typically filed at the U.S. Consulate or Embassy of the country of the applicant's residence. Over the last few months, the government has been implementing various changes on where to file the I-601 waiver. There has even been talk of having I-601 applications filed in the U.S. - for both those who are residing in the U.S. and those residing abroad. This has not yet happened.
For now, please visit U.S. Embassy/Consulate's website in your home country to find out where to file the I-601 application. For example, if you are processing your immigrant visa at the U.S. Embassy in New Delhi, India and the consular officer found you eligible to file an I-601 waiver, you will need to file it with the USCIS foreign office (in the same building as the Embassy) on any working Monday between 9:00am to 12:00pm. If you are processing your immigrant visa case in Ciudad Juarez, Mexico, you can continue to file the application at the consulate.
What if I Was Previously Deported?
Individuals who are deported or removed from the US are prevented from returning (are "barred) for a certain period of time. The particular length of time varies and depends on certain factors. Typically, however, this period can be 5, 10, or 20 years. If the person wants to return to United States before the expiration of this period of time, she will need to file an I-212 Application for Permission to Return After Deportation or Removal. In a typical situation, the person will need to file both, the I-601 Waiver to waive his ground of inadmissibility AND an I-212 Application to ask for permission to return if he was previously deported or removed. If both are needed, both are filed JOINTLY abroad at the U.S. Consulate or Embassy of the consulate issuing the visa. IF, however, the applicant does not have issues of inadmissibility and is only requesting permission to return after deportation or removal, the I-212 Application is filed within the US with the US Citizenship and Immigration Service (USCIS) office having jurisdiction over the place of the original deportation.
Helpful Note: an I-212 applicant does not need to have a qualifying relative; an I-601 applicant does!
Sometimes, an applicant may be eligible to file the I-601 Waiver in the US with the USCIS office adjudicating his adjustment of status application or with the Immigration Judge as part of removal/deportation proceedings. This topic is beyond the scope of the present discussion, but here's a common example:
John came to the U.S. on a visa in someone else's name, but was admitted into the U.S. by the Border Patrol. He is now married to Elena, a U.S. citizen and the couple wants to apply for his green card. Can they? Probably so because John was admitted into the U.S. and is married to a U.S. citizen (meaning an immigrant visa is immediately available to him). The problem is that using a visa in someone else's name is technically fraud and would likely require a waiver, which he should be able to file in the U.S. without having to leave the country.
Helpful note: Fraud and misrepresentation issues are often complex and should always be considered carefully.
Who Makes the Decision Regarding the I-601 Waiver?
The Consular Processing involves two primary agencies: the Department of State (a U.S. Consulate or Embassy) and the U.S. Citizenship and Immigration Services. Keep in mind that while many applicants pay the I-601 filing fees and file the I-601 application with the U.S. Consulate, the decision to approve or deny the I-601 application is made by the U.S. Citizenship and Immigration Services' office abroad.
What are some examples of grounds of inadmissibility?
When Can I Not Apply for a Waiver of Grounds of Inadmissibility?
AKA The “Permanent Bar”
The hardest part for me as an immigration practitioner is receiving an urgent call from a loved one telling me that his or her husband or wife, child or sibling, just finished the immigrant visa interview and has been not only denied a visa, but found ineligible to apply for the I-601 Waiver of Grounds of Inadmissibility under Section §212(a)(9)(C) of the Immigration and Nationality Act. My reaction is two-fold: I’m so sorry you find yourself in this situation, and I wish you spoke to me beforehand.
You see, Section 212(a)(9)(C) was designed to penalize those whom the government considers to be repeat immigration law violators. The section applies in two scenarios:
1. A person entered the U.S. unlawfully and remained for an aggregate period of one year or longer and who subsequently enters or attempts to enter the U.S. without being lawfully admitted (only entries and time in the U.S. after April 30, 1997 count), OR;
2. The person was deported and subsequently enters or attempts to enter without being lawfully admitted.
In this situation, the person is "permanently" barred from applying to return to the U.S.
The reason I am using parenthesis is that one can ask for permission to return, but only after a period of 10 years. Please note that the person has to live abroad for the entire 10 years.
This is serious business, so speak to me in advance so I can help you!
Other examples of Grounds of Inadmissibility for which a Waiver May Not Be Available:
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False claims to US citizenship made after September 30, 1996;
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In absentia order of removal. If a person was ordered removed by an Immigration Judge in absentia (meaning the person did not appear for his or her immigration court date), this person is not eligible to apply for a waiver until five years after actually leaving the United States. This means that if you were ordered removed in absentia in 1996, but did not actually leave the United States until 2010, you will be eligible to apply for a waiver in 2015. If you have been removed in absentia, there are certain options available to you, so call me today and find out (also, please read "Other Services" section for more information).
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Almost all drug convictions!
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Suspicion of Drug Trafficking
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Prior gang membership
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Prior frivolous asylum claims (filed after April 1, 1997).
What is an I-601 Application for Waiver of Grounds of Inadmissibility? Are you sure that your loved one can't adjust status? Is
So, you have initiated (or preparing to) the process of legalizing your loved one status by filing an I-130 Petition for Alien Relative. This petition has been approved and a visa number is available. After a thorough consultation with me, you now know that you cannot simply file an I-485 Adjustment of Status to Lawful Permanent Residency for your loved one because: (1) He or she entered the United States without inspection, and (2) There are no exceptions in his or her case allowing you to apply for a "green card" despite his or her unlawful entry (for example, under certain circumstances you could still apply for a green card EVEN IF he or she entered the US unlawfully IF your loved one had an immigrant visa petition or a labor certification filed on his or her behalf prior to April 30, 2001. You may have heard about 245(i)?), and that your loved one has to travel abroad to apply for an immigrant visa at a US consulate. You also now know that he or she will need to submit an I-601 Waiver for Grounds of Inadmissibility. So, what is this Waiver?
The law provides that certain foreign nations can apply for a waiver of the grounds of inadmissibility upon showing all of the following:
she "grandfathered" under Immigration and Nationality Act Section 245
(i)? Is he a victim of domestic violence? Is it possible that he is a US
Citizen and doesn't know it? I can help you answer these questions!
Who is the qualifying relative?
That depends on why the foreign national is inadmissible!
IF the ground of inadmissibility is for prior unlawful presence or misprepresentation, THEN the qualifying relative is a US Citizen or Lawful Permanent Resident spouse or parent.
Note: just because children are not expressly included does not mean that their hardships don't count. Ask me how!
IF the ground of inadmissibility is for prior criminal history, THEN the qualifying relative is a US citizen or lawful permanent resident spouse, parent, or child.
BUT REMEMBER FIANCÉES/FIANCÉS!
What is "extreme hardship"?
The law vaguely defines "extreme hardship" as greater than the normal hardship the qualifying relative can be expected to experience if the applicant is denied admission.
It is important to adequately demonstrate BOTH why the qualifying relative cannot simply live in the US without the applicant AND why the qualifying relative cannot move abroad to be with applicant.
I believe this is when my clients benefit from my knowledge and experience the most. After all, there is little point of going through this onerous legal process if in the end you cannot or do not establish sufficiently this requirement. My position is this: you and I are a team working towards a common goal - the approval of the I-601 Waiver application and the ultimate reunification of your family - and together, we can make it happen!
What evidence should I provide?
Each client is unique and no two cases are the same. Thus, there is no specific formula to prepare a successful application. Our goal is to provide the US Citizenship and Immigration Service sufficient proof explaining each situation and circumstance that will cause "extreme hardship" to the qualifying relative.
We know that a letter from the qualifying relative alone is not enough. We know that showing that the qualifying relative will feel sad or miss his or her spouse or parent is not enough. We know that everyone undergoing this process is feeling stressed, pressed, and depressed. We also know that typically, the government considers these to be "normal" hardships and not "extreme" hardships.
Our goal is to provide clear and detailed evidence substantiating each situation and circumstance that will cause "extreme hardship" to the qualifying relative.
I will encourage and guide you to evaluate every aspect of how your life (if you're the qualifying relative) or the life of your spouse or parent would change should they need to relocate permanently to their spouse's country.
These arguments form the basis of your hardship application! Let my experience help you present these arguments in the strongest way possible! *
Do you want to learn more? Do you have questions? It's time to speak to me today! Call to schedule your consultation at 713.335.5505 or contact me by email today!
