by Brandon Gillin, Immigration Lawyer at Genesis Law Firm
One of the most complicated and mysterious areas of immigration law, the I-601 Waiver of Grounds of Inadmissibility (“Waiver”) process can be a daunting, painstaking, and lengthy one. The process is complicated because it requires a careful balance of argumentation based upon creativity and court precedent. It is mysterious because Waivers are most often adjudicated by officers of the United States Citizenship and Immigration Service (“USCIS”), and they do not operate based upon any stringent standard; rather, they have a large amount of personal discretion in their decision-making. An individual faced with the task of petitioning for an I-601 Waiver ought to take the process very seriously, and should consult with an experienced immigration attorney.
What is a Waiver?
A Waiver is a mechanism by which an applicant for admission to the U.S. who has been denied admission based upon some sort of “ground of inadmissibility” can “waive” the ground of inadmissibility by proving certain things, which will be discussed below.
What is a “Ground of Inadmissibility”?
There are numerous grounds of inadmissibility; some of them can be cured by Waivers, and some of them cannot. Therefore, it is crucial to know which specific ground of inadmissibility is the basis of the alien’s denial to the U.S. before undertaking the laborious I-601 process Waivers can be used, in some circumstances, for the following grounds of inadmissibility: (a) unlawful presence in the U.S.; (b) misrepresentation or fraud; and (c) prior criminal history. Waivers cannot, however, be used for certain more egregious and serious matters, such as (a) drug trafficking; and (b) certain false claims to U.S. citizenship.
How can a Waiver be Granted?
If you determine that an I-601 Waiver is in order in your case, you will want to take painstaking efforts to make sure that the application touches on, and indeed exhaustively argues the most poignant elements of your case. In other words, think of your best arguments and hammer them home in your application. Your argument must contain three elements: (1) you have a Qualifying Relative in the U.S.; (2) who will suffer “extreme hardship” if you are unable to join him/her in the U.S.; and (3) reasons that the USCIS officer adjudicating the I-601 should view your application with positive discretion.
What is a “Qualifying Relative”?
Typically, a qualifying relative is the U.S. citizen or Legal Permanent Resident (“LPR”) spouse or parent of the alien applying for the Waiver. This is true when the Waiver sought is in regard to inadmissibility to the U.S. because of misrepresentation or unlawful presence. A Waiver for criminal history, in addition to a spouse or parent, includes the child of the alien as a qualifying relative. Moreover, a U.S. citizen fiancé(e) of an alien is also a qualifying relative, and is applicable with K-1 petitions.
What is “Extreme Hardship”?
While several court decisions have helped define what “extreme hardship” is, there is no one exact definition nor are there exact ways the standard may be met. This makes sense, since each case is different and presents unique elements of hardship. What is known is that “extreme hardship” is more than “normal hardship.” Normal hardship would constitute something along the lines of a husband missing his wife because he just misses her. This will not satisfy the extreme hardship standard for purposes of a Waiver. Instead, the alien must prove the following: (1) why the qualifying relative cannot move abroad; and (2) why the qualifying relative cannot live in the U.S. without the alien.
Proving extreme hardship can be difficult to do. There must be a compelling argument to support the contention of extreme hardship. The most compelling arguments have to do with medical or psychological issues that the qualifying relative has, which make it extremely difficult for the qualifying relative to live by himself in the U.S. without the help of his alien spouse, and that the medical facilities in the alien spouse’s country are so sub-bar that the qualifying relative ought not move there. There are many arguments that may be made that have nothing to do with medical issues, but they are generally less persuasive. That is not to say those other arguments will fail; it all depends on the situation of the parties and countries involved.
What is “Positive Discretion”?
The USCIS officer adjudicating the Waiver has almost unfettered discretion to accept or deny the application. It is important to remember, at the outset, that the USCIS officer is human and has feelings just like everyone else. Keep this in mind when you present your Waiver application. Be honest and up front in everything you say and argue. Do not give the USCIS officer any reason whatsoever to doubt your sincerity, honesty, and integrity. This is what is meant by “positive discretion.” Each case will be different, so think of ways that you can maintain positive discretion for yourself throughout the Waiver application.
A Waiver is a major undertaking. Do not take it lightly. If a Waiver is denied, there is a strict appeals process with the Administrative Appeals Office (“AAO”), but as with all discretionary appeals, winning is difficult. That is why it is important to get the Waiver right the first time you apply. Consulting an experienced immigration lawyer is the smartest thing you can do when faced with an I-601 Waiver.
This article is not exhaustive and is not meant to constitute full and complete legal advice; rather, it is only a primer on the matter discussed.