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Waivers are a major focus of my law practice. The first waiver I created was for my husband in 2006, and I have spent many, many hours researching and studying this area of immigration law ever since. My research skills, excellent writing ability, and capacity to develop creative arguments help me put together strong waiver packages for my clients.
What is a waiver? What is an I-601?
There are many types of waivers in immigration law. Waivers are generally needed when a noncitizen is “inadmissible” to the United States. Inadmissible just means that the noncitizen has done something that makes him or her ineligible for the immigration benefit (such as a visa) that they are seeking. The waiver is an attempt to overcome that inadmissibility so that the noncitizen can get the immigration benefit.
Different types of waivers are available for different kinds of inadmissibilities. The most common waivers are for unlawful presence. Many undocumented noncitizens have entered the United States illegally, or, without inspection (EWI). For many, even those married to United States citizens, the unlawful entry means they must leave the U.S. and apply for their immigrant visa in their home country. They cannot adjust status. The process of applying for a visa outside the United States at a person’s home consulate is called consular processing.
Once the noncitizen leaves the U.S., he or she will trigger an inadmissibility “bar” for having been unlawfully present, which prevents the person from getting a visa for a certain period of time. The waiver, often called an “I-601 waiver” because that is the number of the USCIS form, must demonstrate that a qualifying relative will suffer extreme hardship were the noncitizen not allowed to re-enter the United States. USCIS determines whether the qualifying relative has met the burden to show that he or she will suffer extreme hardship in the absence of the noncitizen. Demonstrating “extreme hardship” is a critical part of this process, and also the least understood.
There are also waivers for certain crimes, deportation, for misrepresentation (lying or providing false information to get an immigration benefit) and for health-related or mental disorders. The availability and type of waiver often depends on the type of visa sought (ie. immigrant visa to come live with a spouse or a visitor’s visa for a short trip) and also the type of inadmissibility. Many waivers require proving extreme hardship to a qualifying relative.
There are certain types of inadmissibilities that do not provide any sort of waiver. For example, if a noncitizen makes a false claim to U.S. citizenship or has been convicted of almost any kind of drug offense, he or she is unlikely to ever be eligible for a waiver.
There are also harsh bans for people who have re-entered the country without inspection after deportation or previous unlawful presence, and for people who have skipped an immigration court hearing.
Who can be a qualifying relative?
For unlawful presence and misrepresentation waivers, only lawful permanent resident or United States citizen parents or spouses may serve as qualifying relatives for an I-601 waiver. It is significant that United States citizen children are not qualifying relatives for purposes of unlawful presence waivers. That means an adult citizen son or daughter may not serve as a relative for an unlawful presence for their parent, even though they can petition that parent. For criminal inadmissibilities, however, lawful permanent resident or United States citizen parents, spouses or children may be qualifying relatives. A United States citizen fiancé may also be a qualifying relative for these waivers.
For these types of waivers, generally the qualifying relative must demonstrate that he or she will suffer extreme hardship if the noncitizen is not allowed to return to the United States.
What is extreme hardship?
Extreme hardship is a vaguely defined standard. In general, it means more hardship than the qualifying relative would ordinarily be expected experience in the absence of the noncitizen. However, it is now well established that depending on the inadmissibilities at issue, as well as other relevant factors, the level of extreme hardship required to get a waiver approved can vary greatly.
It is difficult to make generalizations about the level of hardship needed to get a case approved. There are many factors to consider and most are very specific to your individual situation. One near-certainty is that waivers that only address the emotional effects of family separation, general national safety issues, and vague claims of financial hardship are very likely to be denied. It is very important to make specific claims of hardship that are directly related to the noncitizen’s absence.
Our office can help you analyze all the relevant facts in your case and draw out the most important hardship factors. We will help you create the strongest hardship case possible. Arrange a consultation today.
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Please note that everything posted on this website is legal information, not legal advice. The information provided here is very general. Every case is different. Please consult with us or another qualified immigration attorney before making any decisions about your situation.
