Form I-601, Application for Waiver of Grounds of Inadmissibility
For those foreign nationals who are inadmissible to the U.S. under INA §212 (e.g. due to unlawful presence or for a past criminal conviction) and who are seeking to enter the U.S. with an immigrant visa and/or adjust their status from within the U.S., they must file Form I-601, Application for Waiver of Grounds of Inadmissibility, with the appropriate agency and have it approved prior to being approved for their permanent resident status. In order to be approved for this waiver, an applicant must establish that his or her U.S. citizen or Lawful Permanent Resident spouse or child will suffer extreme hardship if the applicant is denied entry into the U.S. as an immigrant or adjustment of his or her status to that of a lawful permanent resident.
Waivable Grounds of Inadmissibility
- Fraud and Misrepresentation
- Unlawful Presence
- "Permanent" Bar
- Prior Removal Order
Extreme hardship is a statutory requirement for several of the inadmissibility waivers, including the INA § 212(h) waiver for certain criminal grounds; the INA § 212(i) fraud and misrepresentation waiver; and the INA § 212(a)(9)(B)(v) waiver of unlawful presence ground of inadmissibility.
The Board of Immigration Appeals (BIA) stated that extreme hardship depends on the facts and circumstances of each case. In general, extreme hardship is defined as being beyond the ordinary hardship of being separated from an immediate relative.
The following is a nonexhaustive list of hardship factors enumerated by the BIA: The age of the applicant; the age of the qualifying relatives; the applicant's length of residence in the U.S. over the statutory minimum; the applicant's ties, both to the U.S. and his or her home country; the health of the applicant and qualifying relatives; the applicant's financial status; any disruption in education opportunities; and adverse psychological impact of deportation.
Conversely, the BIA has stated that the following factors, taken alone, will not establish extreme hardship: birth of a United States citizen child; significant reduction in the foreign national's standard of living; difficulty in readjusting to life in native country; and lower quality medical or educational facilities in native country.
Exercise of Discretion
Waivers are granted by discretion. Therefore, even if an applicant meets all of the statutory requirements for the waiver, the government may still deny the waiver if it believes that the person does not merit it. The exercise of discretion is based on the balancing of positive and negative factors. Matter of Marin, 16 I&N Dec. 591 (BIA 1978). The following is a list of favorable factors given by the BIA:
family ties within the U.S.;
- Residence of long duration in the U.S.;
- Hardship that would result if denied permanent residence;
- military service;
- employment history;
- property or business ties;
- genuine rehabilitation;
- payment of taxes; and
- evidence of good character.
For our clients, our firm first thoroughly reviews their background (U.S. immigration and criminal) to confirm that the the client truly does need an immigrant waiver before they can obtain their immigrant visa or adjust their status to a permanent resident. For those clients that do require a waiver, we have detailed conversations with the client and their family to explore any and all hardships that the qualifying relative(s) would experience if they were unable to obtain their immigrate to the U.S. We then prepare a detailed list of documents and information that the client and their family should gather in support of the waiver application, including drafting their own personal statements which we review prior to finalizing. Our firm then prepares the legal brief in support of the waiver application which outlines the client's background and the applicable grounds of inadmissibility, thoroughly explains the hardships involved in the client's case, and the relevant case law. We then submit ensure that the application packet is properly submitted to the adjudicating agency and monitor it for adjudication.