Hardship Waiver I-601 Denied, What Are My Options?
If your hardship waiver I-601 was denied, you have a few options depending on the circumstances of your case.
Sometimes the immigration process doesn’t go smoothly for many people and you may be required to request a hardship waiver (form I-601) for inadmissibility. There are many circumstances where you may not be eligible to enter the United States such as a previous overstay, illegal immigration or a criminal background.
What Is The I-601 Waiver?
If you (the U.S. citizen or legal permanent resident) are married or engaged to an undocumented immigrant you may think you can easily give them a legal status now that you are married. However, this is actually harder than you think.
There are times when your spouse will be deemed “inadmissible” and therefore unable to file the immigration paperwork with you for a green card. In these situations, it may be possible to file an I-601 Application for Waiver of Grounds of Inadmissibility for your spouse. You will need to file form I-601 and include enough evidence of hardship.
Under section 212 of the INA (Nationality Act) some undocumented immigrants can file for the I-601 waiver if they have a “qualifying relative” that will suffer “extreme hardship” if they are not admitted into the U.S.
Who Is A Qualifying Relative For The I-601 Waiver?
It depends on why you are considered to be inadmissible.
If you are inadmissible for a prior unlawful presence (INA 212(a)(9)(B)(v)) or misrepresentation (INA 212(i)), then a qualifying relative is a citizen or lawful resident spouse or parent.
If you are inadmissible for past criminal history (INA 212(h)), then a qualifying relative is a citizen or lawful resident “spouse, parent, son, or daughter of such alien.” A US citizen fiancé(e) may also be a qualifying relative under certain circumstances [9 FAM 41.81 N9.3(a) and 8 CFR 212.7(a)(1)(i)].
What Exactly Is “Extreme Hardship”?
The normal heartache and difficulties that occur when a couple is separated is not enough to meet the required “extreme hardship” level that the USCIS requires for approving I-601 Waivers of Inadmissibility. However, any other hardships your US relative faces can be added together to meet the level of hardship needed.
Some Factors That The USCIS Considers Are:
- Health– A physical or mental condition that requires continual treatment.
- Financial – Future employability and financial losses if the waiver of inadmissibility is denied.
- Personal – Hardships that your relatives will suffer if the waiver of inadmissibility is denied.
- Education – If you cannot continue with your education goals and the impact it would have on your future earnings.
- Special factors – Cultural, language, religious, and ethnic issues.
These are only some of the hardships that can be accumulated to show “extreme hardship”. It is best to use the factors that are the strongest for your case and gather as much documentation as possible to show proof of each hardship. A longer list of not very strong issues is not half as powerful as a short, direct strong hardship evidence presented for your waiver.
Should I file An I-601 Waiver?
If you are an immigrant already outside of the country then you may have no other choice than to file for a I-601 waiver. However, if you are still in the U.S. and not in immigration/removal proceedings you may be able to file an I-601A provisional waiver.
The law has recently changed and if you still not had your immigrant visa appointment, you can now remain in the United States while you await the results of your I-601A waiver if your ONLY inadmissibility is for unlawful presence. You will still need to have an immediate relative petitioner (such as a spouse) and you must show that you meet all other criteria.
If you do not qualify for an I-601A, you may still qualify for an I-601 waiver, but there is a higher chance of it being denied and being placed on removal proceedings. Every situation is different and you may want to consult with an attorney before you file an I-601 Waiver. An attorney can review your case and tell you your chances of success and you can make an informed decision about whether you want to move forward with the I-601 Waiver process.
When A I-601 Waiver Is Not An Option:
Sometimes an I-601 waiver is not an option for you because you may not be eligible for the waiver.
- If you are subject to a permanent bar due to:
- 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 can help abuse victims with a (9)(C) bar gain access to a waiver immediately.
- If you have 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 they were a citizen.
- If you have been a member of a criminal gang.
- Unfortunately, just having gang related tattoos can keep you from being able to apply for an I-601 waiver, as the medical examiner may see them and decide that they need to tell the USCIS you are affiliated with a gang.
- If you have a drug conviction or a guilty plea after the age of 18.
- There is one exception: if the drug involved was simple possession of less than 30 grams of marijuana for personal use.
- If you failed to attend a removal hearing in the United States and have not been outside the U.S. for five years.
- If you have a previous finding of marriage fraud in a prior immigration application.
- If you filed for asylum in the past and the application was found to be a frivolous asylum application.
What If My I-601 Waiver Is Denied?
Your qualifying relative may truly experience extreme hardship if you are denied a visa or green card, or if they had to leave the U.S. to be with you, but if you did not provide enough evidence with your application to convince the adjudicator reviewing your case, the result could be that your application gets denied.
If your case is denied, you can file a motion to reopen or reconsider, or you can file a new waiver application with the additional documentation that will demonstrate extreme hardship.
In some cases, the adjudicator may determine that, even though you submitted plenty of documentation, none of it convincingly shows extreme hardship. If your relative would be forced to move outside the U.S., a denial is more likely if your relative is from the same country as you, speaks your native language, and has family in your home country.
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