WAIVER OF GROUNDS OF INADMISSIBILITY
Having a I-601 WAIVER OF GROUNDS OF INADMISSIBILITY, or other EXTREME HARDSHIP WAIVERS granted requires the experience of a seasoned lawyer. Call Francis Jerome Shea 904-399-1966
Certain foreign nationals can be denied entry into the U.S. based on “grounds of excludability” or “grounds of inadmissibility.” These two terms are used synonymously and refer to aliens that may be denied entry into the U.S. or cannot adjust his or her status to become permanent residents in the U.S. Inadmissibility and waivers that are available are governed under INA Section 212. Other foreign nationals are “deportable” aliens and are under different standards under INA Section 237. To be deported from the U.S., the person must be an unlawful person (EWI), violates his or her immigration or non-immigrant status, or be convicted a crime involving moral turpitude (including immigration frauds) or an aggravated felony, as proscribed under IIRIRA. However, an inadmissible alien need not have been convicted, but any information that shows the person may be a danger to the public or to the security of the U.S. may be excluded and is inadmissible. For more information regarding “inadmissibility” vs. “deportability,”
Who May File an I-601 Inadmissibility Waiver or Extreme Hardship Waiver?
Generally, all immigrant applicants, whether filing abroad with the U.S. Consular Office or in the U.S. with the Department of Homeland Security (USCIS), may file an Extreme Hardship Waiver. Any K-1 Fiancé Visa Holder or K-3 Spouse Visa Holder may file for an I-601 Extreme Hardship Waiver to overcome any K-Visa violations. Foreign nationals who entered the country without inspection that belong to a group of people that qualify for Temporary Protected Status (TPS) may file for a I-601 Inadmissibility Waiver. The same can be said for those that are qualified for the Nicaragua Adjustment and Central American Relief Act (NACARA). In addition, Haitian refugees under the Haitian Refugee Fairness (HRIFA) who enter U.S. territorial waters and the U.S. may file an Extreme Hardship Waiver upon entering the U.S. along with their I-539 Application for asylum. Further, victims of domestic violence who received an approved immigrant self-petition application may file for an extreme hardship waiver along with their application for adjustment of status (I-485) application. Finally, juveniles under Special Immigrants may file for I-601 Extreme Hardship Waivers.
What Are The Grounds of Inadmissibility in Which a Person Must File an Extreme Hardship Waiver?
An application for an I-601 Inadmissibility Waiver may be required for both non-immigrant and immigrant applicants. Immigrant applicants who have a criminal background, health related issues, previous illegal entry into the U.S., immigration violations or removals, or association with certain groups, organizations, or with a totalitarian State may need to file an inadmissibility waiver with the U.S. Consular Office. Such application would be filed after an I-130 Immigrant Petition or Alien Relative or an I-140 Immigrant Petition for Alien Worker by the USCIS and concurrent with the immigrant visa application with the U.S. Consular Office abroad.
Non-immigrant applicants may need to file an I-601 Inadmissibility Waiver based on their previous illegal entry, violation of the Immigration & Naturalization Act (ACT), such as having over-stayed their visa status, or having been convicted of a minor crime. The most common reason for filing an I-601 Inadmissibility Waiver by non-immigrants (B-1 and B-2 visitor visas, H-1B Temporary Professional Worker Visas, L-1A and L-1B intra-company transferees) is because of a 3-year or 10-year bar based on the applicant’s overstay of their non-immigrant visas while in the U.S.
What Are The Requirements for Filing an Extreme Hardship Waiver?
Although both non-immigrant and immigrant applicants file the same I-601 Inadmissibility Waiver, either at the consular office, with the USCIS, or with the Immigration Judge, the standards for each are very different. The requirements for an inadmissibility waiver for an immigrant application are much more difficult to prove than for non immigrant applications.
Applicant Requirements for an I-601 Inadmissibility Waiver for an Immigrant
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Health Related Issues – Chronic or specialized treatment requirements for a physical or mental condition for your U.S. citizen or permanent resident
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spouse, children, or parents that are under your care or supervision and the availability and quality of such treatment in your home country. Whether a condition is chronic or acute, or long-or short-term. If such illness is not chronic or life-threatening, anticipated duration, and the extent of such treatment. Also, consider the poor healthcare standards of the home country and the ability to which your immediate relatives may be cared for.
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Financial Considerations & Economic Conditions – If you are the primary contributor to the financial welfare of your U.S. citizen and permanent resident immediate relatives, consider the loss of opportunity or the inability for you to support your relatives in case you are removed from the U.S. Also consider the loss due to the sale of your home or business or termination of a professional practice, the inability to recoup short-term losses, the cost of extraordinary needs such as special education or training for children; cost of care for family members. Further, consider the decline in standard of living for your relative should they be required to relocate with you to your home country.
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Educational Factors – Consider the loss of opportunity for a higher standard of education for your relatives and for higher education, the lower quality or limited scope of education options, the disruption of current programs and curriculum; the need to learn a foreign language associated with the time loss in learning the second language to continue education, the unavailability of special requirements, such as job training programs or internships in specific fields.
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Special Factors – Consider the cultural and language barrier for your spouse, children, and parents in moving to a new country. Cultural barriers may include religious, ethnic customs, traditions, and assimilation to such new culture. Language barriers may affect your relatives’ opportunity for education, training, and the ability to obtain a job. Further, your family may have valid fears of persecution, physical harm, or injury based on your cultural or religious difference. Your relatives may also face social, racial, or cultural ostracism, prejudice, and stigma. Lastly, consider the ability or inability to which your relatives may have access to social and governmental support as they immigrate to a new country.
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Personal Factors – Consider ties your family has to the community, including but not exclusive to close friends, relatives, associations, religious groups and institutions in the United States. Consider the separation from spouse and/or children should you leave your family behind, the ages of and needs to the relatives; and the length of residency in the United States.
Requirements for an I-601 Inadmissibility Waiver for an Non-Immigrant Applicant
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Security Issues – Consider the risk of harm to the general public and the security of the U.S. should you be admitted into the U.S.
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Previous History and Violation – Consider the seriousness of the prior violation of the Immigration and Naturalization Act (INA), including illegal entry, overstaying your visa, or a violation of the Act such as not marrying the intended K-1 fiancé sponsor. Further consider your previous criminal violations, if any, (irrespective of whether such crime resulted in a conviction or plea bargain), and whether such violation is a serious crime that could be construed as an aggravated felony or a crime involving moral turpitude.
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The Nature of The Application – Consider the nature of the nonimmigrant application and the reasons why you are seeking to come into the U.S. or to stay in the U.S. State the specific duration, if known, or special assignment in which you seek to accomplish during your stay.
Each I-601 Inadmissibility and Extreme Hardship Waiver is unique in facts and circumstances. Please consult with FRANCIS JEROME SHEA for more information and guidance. If you are not sure whether an I-601 waiver is applicable, please feel free to contact my office at: 904-399-1966.
