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The I-601 Waiver: Strategies for Success

Introduction

One of the most complicated and mysterious areas of immigration law, the I-601 Waiver of Grounds of Inadmissibility (“Waiver”) process can be daunting, laborious, and lengthy. The process is complicated because it requires a careful balance of argument based on creativity and judicial precedent. It is mysterious because the waivers are most often adjudicated by officials of the United States Citizenship and Immigration Services (“USCIS”), and they do not operate based on any strict standard; rather, they have a great deal of personal discretion in their decision making. This article is intended to demystify the process to some degree, although it is not a substitute for legal advice.

What is a waiver?

A waiver is a mechanism by which an applicant for admission to the US who has been denied admission based on some type of “ground of inadmissibility” can “waive” the ground of inadmissibility by proving certain things, which will be discussed below.

What is a “ground of inadmissibility”?

There are numerous grounds of inadmissibility; some of them can be cured with waivers and some cannot. Therefore, it is crucial to know what specific ground of inadmissibility is the basis for the alien’s refusal to enter the US before embarking on the laborious I-601 process. Waivers may be used, in some circumstances, for the following grounds of inadmissibility: (a) unlawful presence in the US; (b) misrepresentation or fraud; and (c) previous criminal history. However, the exemptions cannot be used for certain more egregious and serious matters, such as (a) drug trafficking; and (b) certain false claims of US citizenship.

How can a waiver be granted?

If you determine that an I-601 Waiver is in order in your case, you’ll want to go to great lengths to ensure that the application touches on, and indeed fully argues, the most compelling elements of your case. In other words, think of your best arguments and apply them to your application. Your argument must contain three elements: (1) you have a qualifying relative in the US; (2) that you will suffer “extreme hardship” if you cannot join him/her in the US; and (3) the reasons why the USCIS officer adjudicating the I-601 should view his application with positive discretion.

What is a “qualifying relative”?

Generally, a qualifying relative is the US citizen or lawful permanent resident (“LPR”) spouse or parent of the alien applying for the exemption. This is true when the requested Waiver pertains to inadmissibility to the US due to misrepresentation or unlawful presence. A Criminal Record Waiver, in addition to a spouse or parent, includes the alien’s child as a qualifying relative. In addition, a US citizen fiancé(e) of an alien is also a qualifying relative and applies to K-1 petitions.

What is “extreme hardship”?

While various court decisions have helped define what “extreme hardship” is, there is no exact definition or exact ways in which the standard can be met. This makes sense, as each case is different and presents unique elements of difficulty. What is known is that “extreme difficulties” are more than “normal difficulties”. Normal difficulties would constitute something like a husband missing her wife because he simply misses her. This will not meet the extreme hardship standard for the purposes of a Waiver. Instead, the alien must prove the following: (1) why the qualifying relative cannot move abroad; and (2) why the qualifying relative cannot live in the US without the alien.

Demonstrating extreme hardship can be difficult to do. There must be a compelling argument to support the extreme hardship claim. The most compelling arguments have to do with the medical or psychological problems the qualifying relative has, which make it extremely difficult for the qualifying relative to live alone in the US without the help of their foreign-born spouse, and that medical facilities in the foreign country of the spouse are so far below the bar that the qualifying relative should not move there. Many arguments can be made that have nothing to do with medical issues, but they are generally less convincing. That’s not to say that those other arguments will fail; it all depends on the situation of the parties and countries involved.

What is “Positive Discretion”?

The USCIS officer who adjudicates the Waiver has almost unlimited discretion to accept or reject the application. It is important to remember, from the beginning, that the USCIS officer is human and has feelings just like everyone else. Keep this in mind when he files his waiver application. He is honest and direct in everything he says and discusses. Do not give the USCIS officer any reason to doubt his sincerity, honesty, and integrity. This is what is meant by “positive discretion.” Each case will be different, so think about ways he can maintain positive discretion during the Waiver application.

Conclution

A waiver is an important task. Don’t take it lightly. If a Waiver is denied, there is a strict appeals process with the Administrative Appeals Office (“AAO”), but as with all discretionary appeals, winning is difficult. That’s why it’s important to get the right Waiver the first time you apply.

This article is not exhaustive and is not intended to constitute full and complete legal advice; rather, it is just an introduction to the topic discussed.

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