An I-601 Application for Waiver of Grounds of Inadmissibility allows a non-citizen alien to immigrate to the United States, adjust their status to permanent residence, or seek admission to the United States in a nonimmigrant status, if certain grounds of inadmissibility, circumstances, or conduct prevent them from being otherwise admissible. The I-601 application applies to certain aliens who believe they are ineligible for admission to the United States based on certain grounds of inadmissibility.
The I-601 and I-601A waiver application process is notoriously complex primarily due to the high level of scrutiny these applications face when under review by an immigration officer. The process is emotionally charged, time consuming, document heavy, and extremely invasive. On average, the process takes approximately 12 months or more. This timeframe does not take into account any delays that may be caused by requests for evidence or any delays that may be caused by the National Visa Center which processes thousands of applications everyday. It is not uncommon for the NVC to misplace or altogether ignore important documents. It is strongly advised that applicants scan and make copies of anything sent to USCIS and the NVC.
If you are seeking a waiver for accrual of unlawful presence which has lasted a period of less than one year during a single stay, or a period of more than one year during a single stay, you CANNOT apply for a waiver using the I-601 application. Instead you must use Form I-601A Application for Provisional Unlawful Presence Waiver. If you are seeking a waiver due to a 3-year or 10-year bar based on your unlawful presence, you may file the I-601 Application for Waiver of Grounds of Inadmissibility under INA section 212(a)(9)(B).
In order to qualify for the I-601 Waiver, you must have at least one qualifying relative through which you are making your claim for the waiver. K visa applicants are exempted from this requirement. In lieu of a qualifying relative, the K visa applicant must only demonstrate that the petitioner is an American citizen. For all other applicants, qualifying relatives may include a US citizen or Lawful Permanent Resident (LPR) spouse, parent, or child.
A crucial component to the success of an I-601 waiver application is to establish that your qualifying relative(s) would suffer an ‘extreme hardship’ if you were to be refused admission to the United States. This requires both the qualifying relative and applicant to submit a detailed declaration describing the extreme hardship the qualifying relative would face and the adverse impact the qualifying relative would suffer in the alien’s absence. The applicant must provide documented evidence where possible to substantiate the claims made in the declarations. For example, if the qualifying relative suffers from a medical condition, is disabled, depends on the alien in a significant way (financial, emotional, parental), or significant obligations exist which cannot be performed in the absence of the alien, evidence should be provided to build a stronger case. The declaration should also describe the different reasons why the application should be approved and the favorable factors which may push a DOS officer to make a favorable decision.
Favorable factors may include evidence of the alien’s good moral character, community service, ties to the community, achievements, and other favorable characteristics the alien possesses. The applicant should include documented evidence of good moral character wherever possible. It is very important that the applicant disclose all of the possible grounds of inadmissibility, circumstances, events, or conduct that may render them inadmissible. Failure to do so may result in future inadmissibility for an undisclosed event or ground that was left out of the waiver application. The I-601 application will require a written statement from the applicant explaining the specific grounds that the alien believes makes them inadmissible.
Applicants should describe any criminal convictions, medical conditions, immigration violations, etc. and provide necessary documentation where needed. Criminal records or conviction records must be certified court documents. Medical records should be provided for health-related grounds of inadmissibility. Certain grounds of inadmissibility require additional evidence to be included. For example, applicants seeking a waiver in connection with a temporary protected status application must demonstrate that the request is for humanitarian purposes to ensure family unity, or that the request is in the public interest. VAWA applicant’s inadmissible under INA section 212(a)(9)(C)(i) must establish a connection between the battery or extreme cruelty that occurred as a basis for the VAWA claim and the self-petitioner’s removal from the United States.
USCIS often considers 1) the qualifying relative’s health especially as it relates to ongoing or specialized treatment for a physical or mental condition, availability and quality of care of such treatment abroad, duration of treatment, duration of treatment, ability for the qualifying relative to take care of themselves criminal history 2) financial hardship especially as it relates to a decline in the standard of living for the qualifying relative and his or her children, protection in a foreign country, financial losses, cost of care for sick, elderly, or special needs children 3) loss of opportunity to receive high quality education 4) availability of similar employment abroad for the qualifying relative 5) the applicant’s immigration history 6) family ties to the United States especially taking into consideration family separation, ages of children 7) good moral character 8) bona fide hardships, the degree of the hardships, evidence in support of the hardship 9) and length of time the applicant has lived in the United States lawfully or unlawfully when reviewing a waiver request.
Generally, when granted the I-601 Waiver of Grounds of Inadmissibility does not expire. Approved waivers are only valid toward the specific grounds of inadmissibility disclosed in the waiver application. Any crimes or incidents that you have not disclosed in your application will not be covered under the waiver. Exceptions exist for waiver applications submitted by 1) a convention adoptee in connection with Form I-800 Petition to Classify Convention Adoptee as an Immediate Relative 2) K nonimmigrant visa applicants seeking admittance to the United States on a K-1 or K-2 nonimmigrant visa 3) conditional residents seeking permanent residence on a conditional basis under INA section 216 and 216A and 4) TPS applicants requesting a waiver to apply for an I-821 TPS application which are subject to validity limitations.
Qualifying immediate relatives including a United States Citizen spouse or parent must file Form I-601A in order to seek a waiver of unlawful presence on behalf of their alien relative based on grounds of inadmissibility under section 212(a)(9)(B) of the Immigration and Nationality Act (INA). To be eligible, the undocumented individual must be a) the beneficiary of an approved Form I-130 Petition for Alien Relative or Form I-360 Petition for Amerasian, Widow(er), or Special Immigrant b) at least 17 years of age at the time of filing c) are physically present in the United States, and d) have accrued unlawful presence for a period of 180 days or more but less than one year for a single stay as required by INA section 212(a)(9)(B)(i)(I)) or for a period of one year or more for a single stay as required by (INA section 212(a)(9)(B)(i)(II). You cannot file the I-601A application with any other applications. If you do, your waiver application will be rejected by USCIS. Once the I-601A provisional waiver is approved, the applicant will need to contact the Executive Office for Immigration Review (EOIR) to obtain an order to dismiss or terminate any removal proceedings. Afterward, the applicant must depart the United States to attend their immigrant visa interview at a U.S. consulate abroad. Failure to do so, will render an I-601A unenforceable. You are not eligible for the I-601A Provisional Waiver if:
Aliens who have been found inadmissible during their consular interview abroad for an immigrant visa classification, the K or V nonimmigrant visa classifications, or aliens found inadmissible for adjustment of status to lawful permanent residence may obtain relief from inadmissibility based on the following grounds as required by INA section 212:
If you have been convicted of a crime of moral turpitude, a controlled substance violation in any country or U.S. state related to a single offense of simple possession of 30 grams or less of marijuana, two or more convictions other than political ones where the sentence or confinement was five or more years, been convicted for prostitution, unlawful commercialized vice, serious criminal activity involving immunity from prosecution you may apply for a waiver of inadmissibility based on criminal grounds if at least 15 years have passed since the activity or event that made you inadmissible, you can prove that you have rehabilitated, and that your admission to the United States would not endanger the national welfare, safety, or security of the United States. You may not qualify if you have been convicted of a violent or dangerous crime that does not warrant an extraordinary circumstance that would allow a favorable outcome. Convictions involving murder, torture, attempts or conspiracy to commit murder or torture prohibit an individual from qualifying for the I-601 waiver.
Note: Certain crimes of moral turpitude do not require filing of the I-601 waiver. Please contact our office to determine if you must file the I-601 waiver based on your criminal record. When in doubt review the I-601 instructions carefully.
The following is a list of some documents that should be included in the I-601 petition. The list is not all inclusive and specific details pertaining to your application should be discussed with a licensed attorney in detail. Additional documents may be necessary depending on the specific case.
The list includes but is not limited to the following items:
Petitioner and/or Qualifying Relative’s Declaration:
Explain how you will suffer an extreme hardship if your spouse or child cannot be with you in the United States; or the extreme hardship you will suffer if you are forced to leave the United States;
This statement is the single most important document. The claims you make must be followed by substantiating evidence; that is evidence in support of the claims.
The statement should address the following issues if any are applicable to you:
A. Your career/education
B. Financial Hardship
D. Petitioner`s health issues:
E. Petitioner’s family related issues:
F. Petitioner cannot remain in the U.S. without Beneficiary Spouse.
Any other affidavits/ letters from family, close friends:
Letters should address concerns for the Qualifying Relative NOT for the beneficiary including:
Declaration from Beneficiary:
Explain your concern for your U.S. Citizen Parent or Spouse and why you feel they are suffering or will suffer extreme hardship if you cannot return to the United States. Do not discuss your needs, your hardships, or your desires. Focus solely on your parent or spouse.
Although the USCIS may not consider the Beneficiary’s declaration, a declaration can be submitted. The declaration should address the following issues:
A. Explain how/when you met, how your relationship developed;
B. Explain your contribution to the household;
C. If your Qualifying Relative is going to school, explain how your lack of support will affect their ability to finish school;
D. If your Qualifying Relative is unable to cope with the stress or your Qualifying Relative suffers from depression explain what you have experienced in the past;
E. If you Qualifying Relative is in the Military, explain;
F. Health Issues related to the Qualifying Relative;
G. Petitioner cannot remain in the U.S. without Beneficiary Spouse
Beneficiary’s Academic Background
If the applicant attended school in the U.S, please provide copies of the person’s attendance or transcripts as provided by the school or school district, in a sealed envelope. If transcripts are not available, a letter from the school district outlining the number of years attended and the dates attended should be provided. If possible, request an unsealed copy of the transcripts.
If the applicant graduated from high school or college, provide graduation photos, diplomas, awards, and report cards.
Beneficiary’s Long Term Residency
Paperwork proving residency will be required if you will be applying for a waiver based solely on the fact that the applicant has been in the United States for over ten years.
If the applicant worked, please provide copies of the last three tax returns filed by the applicant.
Other evidence of extreme hardship may include, but is not limited to: