Extreme hardship (I-601), (I-212) and other waivers

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Extreme hardship (I-601),I-212 Waiver for Reapplication for Admission, and other waivers

Determining whether a ground of inadmissibility applies and how to successfully obtain a waiver around such inadmissibility is a real minefield and  perhaps more than any other aspect of immigration law often requires the services of an experienced and skilled immigration attorney. 

To maximize your chances of success you need to prepare a thorough and well documented waiver application.

Capp and Associates have successfully obtained numerous waiver for our clients and who had previously been denied visas due to various grounds of inadmissibility.

Waivers FAQ

1. Why do some visa applicants need a waiver?

2. Are there any grounds of ineligibility which cannot be waived?

3. Immigrant waivers-the Extreme hardship requirement?

4. How do you prove Extreme hardship?

5. What is a non immigrant waiver?

6. What is a I-212 Waiver for Reapplication for Admission after a prior deportation order?

Why do some visa applicants need a waiver?

In certain circumstances an individual may be deemed inadmissible to enter the US either as an immigrant or nonimmigrant. Various grounds for inadmissibility exist, the most common ones are;

The 3 most common grounds for inadmissibility are:

        (i).      A Prior Criminal History:Where an alien has been convicted of a crime or crimes, even the most minor ones, they will likely have problems gaining admissibility.  In particular if you have been convicted of drug offenses, crimes of moral turpitude, been sentenced 5 years or more for 2 or more offences, been involved in or supported by prostitution, or engaged person trafficking and/or money laundering, you should seek legal advice;

      (ii).     The commission of fraud in obtaining an immigration benefit; and

     (iii).    Unlawful Presence: If you have been unlawfully present (that is without a visa or visa waiver/tourist visa) in the United States for 180 days or more, and voluntarily departed the United States before the commencement of removal proceedings you will be deemed inadmissible for a period of three or 10 years from the date of departure depending on the length of the unlawful presence.

If you think there might be a possibility of you being deemed “inadmissible” on any of the above ten grounds, you should seek legal advice because in certain circumstances you may be eligible for a WAIVER of some of the grounds, also known as I-601 or Extreme Hardship Waiver.   Waivers are mainly available in the case of immediate relatives of citizens or lawful residents. Waivers are available for both immigrant and nonimmigrant visa applicants.

Determining grounds of inadmissibility and the availability of a waiver often requires a complex analysis of your particular case.  We can help.

Are there any grounds of ineligibility that cannot be waived?

Yes, certain past acts serve as  a permanent bar for an immigrant visa (green card), included in these are (a)any controlled substance offense with some very limited exceptions (notably a single possession of less than 30 grams of marijuana), (b) just about any false claim to US citizenship.

Furthermore, some people are barred form applying for a waiver until they have spent 10 years outside of the US and include anyone who having spent one year illegally in the US, tried to re-enter or entered without inspection and anyone who re-entered illegally after a prior deportation.

Note that these persons may still be eligible to apply for a non-immigrant waiver.

(1) Immigrant waivers-The requirement of Extreme Hardship

In these cases an applicant for an immigrant or K visa is required to submit an extreme hardship or I-601 waiver, so called as the form to be submitted is form I-601.

The waiver application has to be extremely well documented to have a good chance of success

Approval of such application requires a finding that the refusal of admission to the United States of such immigrant alien would result in extreme hardship to the United States citizen or lawful permanent resident spouse or parent of the applicant  Approval also requires a favorable exercise of discretion from the Attorney General.  This requires a weighing of all factors, the favorable against the unfavorable, in each case.

All claims of hardship must be supported by documentary evidence or explanation specifying the hardship. Family separation and financial inconvenience, in and of themselves, do not necessarily constitute extreme hardship. Therefore, it is important for your spouse or parent to describe and document any other claim that might be a hardship. The above-requested information is necessary to render an equitable and fair decision on your Application for Waiver of Grounds of Excludability (I-601).

A waiver of section 212 of the Immigration and Nationality Act  is dependent first upon a showing that the bar imposes an extreme hardship on a qualifying family member. Congress provided this waiver but limited its application. By such limitation it is evident that it did not intend that a waiver be granted merely due to the fact that a qualifying relationship existed. The key term in the provision is "extreme" and thus only in cases of real actual or prospective injury to the United States national or lawful permanent resident will the bar be removed. Common results of the bar, such as separation, financial difficulties, etc., in themselves are insufficient to warrant approval of an application unless combined with much more extreme impacts. Matter of Ngai, 19 I & N Dec. 245. With this qualification in mind, furnish documentary evidence proving that failure to receive the waiver requested would result in extreme hardship to your US citizen spouse or parent.

How do you document extreme hardship?

Extreme hardship can be demonstrated in many aspects of your spouse or parent’s life such as:

1. HEALTH - Ongoing or specialized treatment requirements for a physical or mental condition; availability and quality of such treatment in your country, anticipated duration of the treatment; whether a condition is chronic or acute, or long-or short-term.

2.  FINANCIAL CONSIDERATIONS - Future employability; loss due to sale of home or business or termination of a professional practice; decline in standard of living; ability to recoup short-term losses; cost of extraordinary needs such as special education or training for children; cost of care for family members (i.e., elderly and infirm parents).
   
   c. EDUCATION - Loss of opportunity for higher education; lower quality or limited scope of education options; disruption of current program; requirement to be educated in a foreign language or culture with ensuing loss of time for grade; availability of special requirements, such as training programs or internships in specific fields.
   
   d. PERSONAL CONSIDERATIONS - Close relatives in the United States and /or your country; separation from spouse/children; ages of involved parties; length of residence and community ties in the United States .
   
   e. SPECIAL FACTORS - Cultural, language, religious, and ethnic obstacles; valid fears of persecution, physical harm, or injury; social ostracism or stigma; access to social institutions or structures.
   
   f. Any other situation that you feel may help you meet the burden of extreme hardship.

Please be very detailed as to how you meet the "extreme hardship" burden.  Keep in mind that the hardship must be to your qualifying family member - not to you.

(2) Non immigrant waivers

Applicants for nonimmigrant visas, such as B1/B2, H-1B, L-1, or J-1  can apply for waivers of inadmissibility, and on that ground can be granted visas or admission to the U.S.  A nonimmigrant waiver is applied for at a U.S. consulate in conjunction with a nonimmigrant visa application and no specific form is required. The standard of proof for a nonimmigrant waiver is often easier easier to meet than for an immigrant waiver. The following factors are considered in granting a nonimmigrant waiver:

1. Risk of harm to society if the applicant is admitted.
2. The seriousness of the applicant’s prior immigration law, or criminal law, violations, if any.
3. The nature of the applicant’s reasons for wishing to enter the United States.

While a nonimmigrant waiver is easier to obtain, the drawback is that it is temporary. It is valid for a maximum five year period but only authorizes nonimmigrant admissions. It does not authorize an alien to apply for permanent residence. Only the immigrant waiver can accomplish that.

What is a I-212 Waiver for Reapplication for Admission after a prior deportation order?

People who have been deported are typically banned for a period of time form being re-admitted to the United States. The period during which the deportee is barred can be either 5, 10 or 20 years depending on the circumstances of and reasons for the deportation.

In such a case, in order to be readmitted during the period of the bar, an I-212 Waiver for Reapplication for Admission must be sought. Often this is done in conjunction with an I-601 waiver application.

Depending on the applicant’s circumstances this application must be made either at the same consulate which will be issuing the visa or at the USCIS office having jurisdiction over the place of the original deportation.

Whether or not the waiver is granted is entirely within the discretion of the adjudication officer. Often a favorable recommendation is needed from the consular officer who interviews the applicant at the overseas US Consulate.

General criteria have been established to determine whether the favorable factors outweigh the unfavorable factors, such as;

·       Moral character of the applicant

·       Recency of deportation

·       Need for applicant’s services in the US

·       Applicant’s contention that s/he did not know s/he was deported

·       The length of time that the applicant had been in the US

A significant unfavorable factor will be the Applicant’s disregard of the US immigration laws.

Before undertaking any visa application or waiver application, you should be prepared for the type of questioning you may be subjected to and the types of documents that you might be required to provide.  It is crucial that you do not make an appointment until you have a fully documented waiver application packet.  We can help prepare you so that your application will have a greater likelihood of success.  

FOR A FREE INITIAL CONSULTATION CALL (760) 231 6498/ (800) 568 7601 or email: info@usvisasolutions.com  In the UK call 0207 193 3751