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615-530-5360
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[email protected]
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Mon - Fri 09:00-17:00
Request A consultant

WAIVERS

WAIVERS

Some of the waivers require an application form and a fee, some do not. For many waivers, extreme hardship to a qualifying relative is needed to be shown. As a rule, a qualifying relative would be a person’s US citizen or lawful permanent resident spouse or parent. In the US, often, the same immigration form is used to waive various grounds of inadmissibility.

How To Prove Extreme Hardship For Immigration Waiver

Many waivers require that an applicant proves extreme hardship to a qualifying relative, who is often a spouse or parent holding US citizenship status or green card status.

I601 Immigration Hardship Waiver

I 601 is a US Immigration form that is required to be filed when a person is charged with inadmissibility based on certain grounds. For each ground, there are its own qualifications as to who can apply and who qualifying relatives can be, and also other limitations. This form is used by an applicant for an adjustment of status, an immigrant visa (at times, only family-based!), or K or V visa, TPS applicants, etc. It can be used to waive:

    • Health-related grounds of inadmissibility (INA section 212(a)(1)): this waiver helps those who were found to have a communicable disease, dangerous physical or mental disorders, if you are seeking a waiver of the vaccination requirements, etc. Generally, there is no waiver for those who were found to have a drug addiction or drug abuse. A drug abuse determination is done by a civil surgeon according to the strict guidelines. Only if a person can prove that his/her addition is in remission, will be the person be able to overcome this inadmissibility charge.
    • Some criminal grounds of inadmissibility (INA section 212(a)(2)): please note that for most controlled -substance-related offenses there is no immigrant waiver!
    • Immigration fraud and misrepresentation (INA section 212(a)(6)(c)): for example, if one was found to present untruthful information at the entry (fraudulent visa, passport (but not a US passport!), or during immigration filings for a visa or green card (false employment or marriage documents, etc. Please note that there is no waiver for marriage fraud 204(c) ground, but in a certain limited situation, a person may qualify for a non-immigrant waiver.
    • Immigrant membership in totalitarian party (INA section 212(a)(3))
    • Alien smuggler (INA section 212(a)(6)(E)): this waiver is available only to those who are sponsored by close family members (not brothers or sisters!) and the persons one tried to smuggle were a spouse, parent, son or daughter only. An Immigration Judge may grant this waiver as well.
    • Being subject to civil penalty (INA section 212(a)(6)(F))
    • The 3-year or 10-year bar due to previous unlawful presence in the United States (INA section 212(a)(9)(B)): this is one of the most common grounds of inadmissibility. At times, rather than naming a form that is used to file for a waiver, lawyers, USCIS officers, and people will use the A VAWA self-petitioner is also eligible but does not need to have a USC/LPR family member and need not be an LPR at the time she asserts the waiver. A conditional resident whose I 751 was denied to marriage fraud can apply for this waiver!

Hardship Waivers: I 601A Provisional Waiver, How And When To Apply

Since March 4th, 2013, “miracle” waivers have been available to immigrants who resided in the country without authorized or lawful status, had an approved petition allowing them to seek immigrant visas, but could not otherwise adjust their status. The difficulty before these waivers became available for most immigrants came from a requirement to have a “legal entry” when adjusting status in the US and being in lawful non-immigrant status continuously from the date of entry. The provisional waiver allowed these immigrants to complete most of the immigration steps in the US, and leave the US only for about 2 weeks to obtain an immigrant visa and return to the US as green cardholders.

But for those who accumulated 180 days and more of unlawful presence, when they leave the US, they will trigger an automatic bar on re-entering the country for a minimum of 3 years and a maximum of 10 years. The I-601A waiver helps to “waive” or forgive the unlawful presence and remove the automatic bar due to the unlawful presence. The good news is, anyone eligible can apply for an I-601A waiver while they remain in the US, and it does not trigger an automatic referral to immigration court. If a person is subject to other grounds of inadmissibility, such as misrepresentation/fraud, for example, I 601A will not help by itself. An additional waiver will have to be submitted as well, usually after a denial of a visa at the interview. It is crucial to determine if a person can be subject to other grounds of inadmissibility: an unsuspected person may file and receive an approval for I-601A waiver, leave the US for an interview, and nevertheless would not be able to return to the US because other grounds of inadmissibility were found to apply to him/her: claim of a US citizenship; fraud/misrepresentation; health grounds.

I 601A waiver can be used in combination with other waivers. But a filer needs to remember that various waivers have different qualifying relatives and standards for approval. For example, if a person has a previous unexecuted removal/deportation order, a person would have to file an I 212 waiver first. That waiver has its own standard for approval. Only if I 212 waiver is granted, a person may file then I 601A waiver. If a person has waivable criminal issues or fraud/misrepresentation issues, he/she can file for the I 601 waiver after the interview at a consulate. Of course, it means longer wait times before a person can come back to the US, but it can be a solution rather than none.

If you need help with waivers, please call our experienced Waiver Attorneys at 615-530-5360 Before filing for a waiver, one should consult with an attorney!