I-601 Application for Waiver of Grounds of Inadmissibility

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:

1. You have a Form I-485, Application to Register Permanent Residence or Adjust Status, pending with USCIS;
2. You are in removal proceedings, unless your removal proceedings are administratively closed AND have not been placed back on the Department of Justice, Executive Office for Immigration Review (EOIR), calendar to continue your removal proceedings at the time of filing of Form I-601A. Removal proceedings are not considered terminated until EOIR terminates or dismisses the case. This involves taking your case off of the EOIR calendar for a hearing. If you are unsure if this is the case, please contact the EOIR or consult an accredited attorney to verify this for you.;
3. You are subject to a final order of removal, exclusion, or deportation that has been entered or issued against you, or you are subject to reinstatement of a prior order under INA section 241(a)(5);
4. DOS initially acted before January 3, 2013, to schedule your immigrant visa interview for the approved immediate relative petition upon which your Form I-601A is based;
5. You fail to establish the extreme hardship component to an I-601A provisional waiver application and that your case warrants ‘favorable exercise of discretion’ by providing documented evidence of your good moral character, contribution to your community, ties to the United States, achievements, and other favorable characteristics. In order to qualify, you must establish that refusal to admit you to the United States would result in extreme hardship to your U.S. citizen spouse or parent if the U.S. citizen spouse or parent chooses to remain in the United States without you or chooses to relocate abroad to reside with you outside of the United States. and
6. USCIS has reason to believe that you may be subject to grounds of inadmissibility other than unlawful presence under INA section 212(a)(9)(B)(i)(I) or (II) at the time of your immigrant visa interview for consideration of the provisional waiver with a consular officer;

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:

1. INA section 212(a)(1) Health-related grounds of inadmissibility;
2. INA section 212(g)(1) Health-related grounds of inadmissibility due to a communicable disease of public health significance defined in 42 CFR 34.2(b) including Class A tuberculosis, chancroid, gonorrhea, granuloma inguinale, lymphogranuloma venereum, syphilis (infectious), leprosy (infectious), etc;
3. INA section 212(g)(2)(C) LPR applicants seeking an exemption of a vaccination requirement based on religious beliefs or moral convictions;
4. INA section 212(g)(3) Physical or mental disorder associated with harmful behavior that poses, has posed, or will pose a threat to your safety, property, or welfare and that of others;
5. INA section 212(2)(2) Certain criminal grounds of inadmissibility;
6. INA section 212(a)(6)(c) Immigration fraud and misrepresentation;
7. INA section 212(a)(3) Immigrant membership in a totalitarian party;
8. INA section 212(a)(6)(E) Alien smugglers;
9. INA section 212(a)(6)(F) Aliens subject to a civil penalty;
10. INA section 212(a)(9)(B) Aliens subject to the 3-year or 10-year bar due to unlawful presence in the United States;

• Temporary Protected Status (TPS) applicants may use Form I-601 to obtain relief from most grounds on INA section 212(a). TPS applicants that are inadmissible because they are found to be a public charge INA section 212(a)(4), in violation of INA section 212(a)(5), present without admission or parole INA section 212(a)(6)(A), stowaways INA section 212(a)(6)(D), student visa violators INA section 212(a)(6)(G), have been previously removed, or unlawfully present (with or without prior immigration violations) do not need to file an I-601 waiver. Certain crimes and violations make a TPS applicant ineligible for an I-601 waiver. An I-601 waiver is only valid in connection with an application for TPS. Applications for other immigration benefits require additional waivers;
• Aliens who are applying for permanent residence under the Nicaraguan Adjustment and Central American Relief Act (NACARA) 202 or Haitian Refugee Immigration Fairness Act (HRIFA) 902 may use Form I-601 to obtain relief from all of the above grounds of inadmissibility except for item g in addition to INA section 212(a)(9)(A) previously removed aliens, and INA section 212(a)(9)(C) unlawful presence following previous immigration violations;
• Applicants for an immigrant visa or adjustment of status as a Violence Against Women (VAWA) self-petitioner or children of VAWA self-petitioners may use Form I-601 to obtain relief from all grounds of inadmissibility listed above and INA section 212(a)(9)(C)(i) unlawful presence following previous immigration violations. If you are a VAWA self-petitioner and you believe you are inadmissible based on any of the above grounds, please contact our office to discuss your grounds of inadmissibility. In some cases, VAWA applicants may not need to file an I-601 waiver;
• Adjustment of status applicants applying for permanent residence based on T nonimmigrant status or as a Special Immigrant Juvenile (SIJ) based on an approved I-360 may use Form I-601 to obtain relief from most grounds on INA section 212(a). T waiver applicants may not be required to file an I-601 waiver under INA section 212(a)(9)(B) for unlawful presence and departure if the subject’s victimization was a central reason for the unlawful presence. Special Immigrant Juveniles that are inadmissible because they are found to be a public charge INA section 212(a)(4), in violation of INA section 212(a)(5), present without admission or parole INA section 212(a)(6)(A), stowaways INA section 212(a)(6)(D), student visa violators INA section 212(a)(6)(G), have been previously removed, or unlawfully present (with or without prior immigration violations) do not need to file an I-601 waiver.

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:

Biographical Documents

• Proof of the qualifying relative’s legal status (copy of U.S. birth certificate, naturalization certificate, or U.S. passport for US Citizens or copy of LPR green card);
• Copy of Petitioner’s and Beneficiary`s marriage certificate;
• Copy of Beneficiary`s birth certificate, passport ID page, U.S. visa ID page and I-94 (if applicable);
• Copies of birth certificates of any children born to the marriage of the petitioner and beneficiary;
• Beneficiary`s previously filed paperwork with USCIS (any receipt notices, approval’s etc.) if applicable;
• Color photographs of the Beneficiary and Petitioner together along with friends and family members (if you have children, of all family members together, pictures from the holidays with family and friends together, family events, pictures of involvement in the community, etc.);
• Please make sure to indicate on the back of each photo, the date and the names of the people in the photo, location where the photograph was taken, and the cause for the event;

Petitioner’s Documents

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

• As the Qualifying Relative (spouse or parent) are you working for a company where it has taken you years to reach the position you have? Did you just recently get promoted into management? How long did it take you to reach this point? Are you a valued employee? Will your employer write a letter stating so? How would you feel about losing everything you worked for? Do you have a unique career path?
• Are you in School? How far along are you? What are you studying? Are you the first in your family to go to college? Will this help you to improve your standard of living? Will you be able to pay for school abroad; how? Will you lose job opportunities if you are forced to leave the U.S.?
• Financial Aid - Do you have Student Loans? Will you (the petitioner) be able to pay back student loans (It’s important to realize that a lower standard of living or the inability to pay U.S. debts if you move abroad is NOT in itself a good argument but can contribute to the overall hardship);
• In general, will the Petitioner (Qualifying Relative) have the same opportunities in the Beneficiary`s country?
• Are you in the Military? How will this affect your career? Are you allowed to travel to the beneficiary’s country (some countries require you to obtain permission from your command);

B. Financial Hardship

• What are your financial responsibilities/debts? Provide supporting evidence with statements of credit cards, mortgage payments, medical debt, etc.;
• Are you supporting two households? Provide rent receipts for both, utility bills, telephone, medical, etc.;

C. Depression

• Does the petitioner have a history of depression, anxiety, stress? How will this event contribute to the petitioner’s depression? What type of therapy has been received? What are the prescribed medications?

D. Petitioner`s health issues:

• Does the petitioner have any medical issues? Is medical insurance provided through the petitioner’s employer? How will the petitioner be able to pay for ongoing medical services in the Beneficiary’s country? What will this mean to the Petitioner’s overall health?

E. Petitioner’s family related issues:

• Any other family related issues: like Petitioner’s elderly parents, siblings or other relatives who may be ill or dependent on the Petitioner;

F. Petitioner cannot remain in the U.S. without Beneficiary Spouse.

• Is the Petitioner financially dependent on the Beneficiary?
• Is there documentation indicating spouse`s contribution to the Petitioner`s basic needs: education, expenses, etc.?

Any other affidavits/ letters from family, close friends:

Letters should address concerns for the Qualifying Relative NOT for the beneficiary including:

• A description of your relationship to the qualifying relative;
• Whether or not the Beneficiary is taking care and supporting the Petitioner in a significant way;
• How it would affect the Petitioner if the Beneficiary is forced to leave the country;
• If you are in the Military, obtain a letter from your commanding officer and/or military chaplain explaining the hardship to you as a member of the military;
• Letters/evaluations from doctor, psychiatrist, psychologist or licensed therapist for the Petitioner;
• Doctor’s psychological evaluation –indicating your level of stress and depression should the Beneficiary have to leave back home; (See us for a list of items required in the evaluation or a suggestion for a doctor or psychologist).

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;

• How did you meet the qualifying relative?
• Why did you decide to marry?
• How long had you been in the U.S. when you met?

B. Explain your contribution to the household;

• How will the lack of your contribution affect your family’s household?
• Are you the sole support or major support of the family?
• What will your family need to do if you cannot support them (welfare, food stamps, medi-cal, etc.)?

C. If your Qualifying Relative is going to school, explain how your lack of support will affect their ability to finish school;

• Do you watch the children so he/she can study?
• Can he/she continue to go to school without your help?
• Do you help financially?

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;

• How does your Qualifying Relative handle stress?
• Do they require psychiatric help?
• Are there concerns for the safety of the children?

E. If you Qualifying Relative is in the Military, explain;

• If your Qualifying Relative is not allowed travel to your home country.
• If there are children involved, how your Qualifying Relative will not be able to take care of the children.
• How your Relative’s career will be affected?

F. Health Issues related to the Qualifying Relative;

• Does the petitioner have any medical issues? Is medical insurance provided through the petitioner’s employer or through the applicant’s employer?
• If the applicant and his/her family were eligible for health insurance through the applicant’s employer, please provide proof of insurance coverage.
• F. Qualifying Relative’s family related issues:
• Explain any other family related issues: like your spouse’s elderly parents, siblings or other relatives who may be ill or dependent on the Qualifying relative and how leaving them will affect their overall health.

G. Petitioner cannot remain in the U.S. without Beneficiary Spouse

• Is the Petitioner financially dependent on the Beneficiary?
• Is there documentation indicating spouse`s contribution to the Petitioner`s basic needs: education, expenses, etc.?

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:

1. Affidavits from the qualifying relative or other individuals with personal knowledge of the claimed hardships;
2. Expert opinions;
3. Evidence of employment or business ties, such as payroll records or tax statements;
4. Evidence of monthly expenditures such as mortgage, rental agreement, bills and invoices;
5. Other financial records supporting any claimed financial hardships;
6. Medical documentation and/or evaluations by medical professionals supporting any claimed medical hardships;
7. Records of membership in community organizations, volunteer information, and evidence of cultural affiliations;
8. Birth, marriage, or adoption certificates supporting any claimed family ties;
9. Country-condition reports;
10. Any other evidence supporting the claimed hardships;