Application For Waiver of Inadmissibility
An I-601, Application for Waiver of Grounds of Inadmissibility, is filed to permit an alien who has been denied admission to the United States to gain admission under certain circumstances.
If an alien is abroad, and a U.S. consular officer has determined that he/she is ineligible for an immigrant visa or non-immigrant K-1 or V visa because he/she is inadmissible to the United States, then he/she may be able to apply for a waiver of inadmissibility. Those individuals who have been previously removed from the United States and plan to reapply, may file Form I-212, Application for Permission to Reapply for Admission to the United States After Deportation or Removal, and together with Form I-601.
Any individual applying for adjustment of status can file I-601 along with Form I-485; applicants for Temporary Protective Status (TPS) can file Form I-601 together with Form I-821, Application for Temporary Protective Status.
The I-601 waiver application is based on extreme hardship to United States citizen or lawful permanent resident relatives of the alien which would result if the alien's inadmissibility cannot be waived.
Each waiver case is very specific to the circumstances of each alien and their family. Additionally, all I-601 waivers are discretionary, and require the alien to establish their eligibility based on statutory grounds and, further, establish that the alien merits an exercise of favorable discretion by the appropriate immigration authorities.
While each case is fact specific, the following information provides a general overview of the I-601 Application for Waiver of Grounds of Inadmissibility process and qualifications.
Types of I-601 Waivers and Eligibility
| Waiver | Examples of Immigration Violations: | Qualifying Relative |
| The INA § 212(i) Fraud Waiver | Misrepresenting facts in order obtain a visa or to gain entry to the United States | United States citizen or lawful permanent resident spouses and parents may claim extreme hardship due to the fact that relative has been denied admission to the U.S. |
| The INA § 212 (a)(9)(B)(v) Unlawful Presence in Excess of 180 Days Waiver | Entering the United States without inspection or overstaying an authorized period of stay by more than 180 days. | United States citizen or lawful permanent resident spouses and parents may claim extreme hardship due to the fact that relative has been denied admission to the U.S. |
| Health Related Grounds | - Communicable diseases of public health significance
- Lacking proof of vaccinations
- Physical or medical disorder and potential behavior posing threat
- Currently drug abuser or addict
| Various waivers of inadmissibility are available, such as HIV and tuberculosis waivers. These waivers do not always require a qualifying United States citizen or lawful permanent resident relative. |
| The INA § 212(h) Waiver For crime related grounds | - One crime of moral turpitude
- One controlled substance violation
- Exceptions:
- Single crime, while under 18 years old and out of confinement for five years
- Single crime, maximum penalty not exceeding one year and any sentence served did not exceed six months
- Multiple criminal convictions with aggregate sentence of five years or more
- Controlled substance trafficking
- Prostitution or procurement of prostitution
- For aliens denied admission for criminal reasons, United States citizen and lawful permanent resident spouses, parents, and children may claim extreme hardship due to the alien's prospective inadmissibility. Fiancé(e)s who are United States citizens also may qualify in certain circumstances.
| |
Discretionary Factors In Obtaining Approval of an I-601 Waiver
Because the relief afforded by an I-601 waiver is discretionary, an alien must show not only that she meets the statutory requirements and hardship to the qualifying relative, but also that (s)he is worthy of a favorable exercise of discretion. Therefore, a number of factors can either help or hinder the exercise of favorable discretion by U.S. Citizenship and Immigration Services. Below is a non-exhaustive list exemplifying the types of positive and negative factors the adjudicators of I-601 waiver applications take into account.
- Positive Factors
- Alien voluntarily pursued waiver process
- Alien had a bona fide and reasonable belief(s) he/she complied with the law
- Alien has been married and/or had U.S. citizen or lawful permanent resident children for a lengthy period of time
- Alien has U.S. citizen children in common with the qualifying spouse
- Alien has been involved in community service or volunteer programs
- Alien has affidavits attesting to good moral character and exemplary service to others in the community
- Alien had affidavits from priests, ministers, nuns, etc., who attest he/she is a valued member of a religious organization
- Negative Factors
- Qualifying relative is a native of alien's home country and immigrated to the U.S. as an adult
- Waiver unavailable to aliens committing similar violations under current law
- Alien ignored an order of removal or violated voluntary departure
- Alien previously married to a different U.S. citizen
- Alien has a significant history of misrepresentations
- Alien accused of marriage fraud
- Alien or qualifying spouse/fiancé(e) has multiple previous marriages
- Alien or qualifying spouse/fiancé(e) divorced immediately preceding current marriage
A waiver is not available:
Sometimes an I-601 waiver is not an option. An individual is not eligible for a waiver under the following circumstances:
- Unlawful presence in the United States for more than one year after April 1, 1997 followed by a departure from the U.S. and a return to the U.S. without inspection; or removal from the U.S. after April 1, 1997 and a return to the U.S. without inspection. However, after 10 years outside the U.S. a waiver is available and no qualifying relative is necessary. Also, VAWA victim can help abuse victims with a (9)(C) bar gain access to a waiver immediately.
- Individual has falsely claimed to be a U.S. citizen. There is a very narrow exception to INA §212(a)(6)(C)(ii), which was implemented by the Child Citizenship Act of 2000, wherein you are not barred if:
- Each natural parent of the alien (or, in the case of an adopted alien, each adoptive parent of the alien) is or was a citizen by birth or naturalization;
- The alien permanently resided in the United States prior to attaining the age of 16; and
- The alien reasonably believed at the time of making such representation that he was a citizen.
- Individual has been a member of a criminal gang.
- Individual has a drug conviction as an adult with the exception of simple possession of less than 30 grams of marijuana for personal use.
- Individual failed to attend a removal hearing and has not been outside the U.S. for five years.
- Individual has a previous finding of marriage fraud in a prior immigration application.
- Individual filed for asylum in the past and the application was found to be a frivolous asylum application.
