Waivers of Inadmissibility
Form I-601 / I-601A
When an applicant for admission to the U.S. is deemed inadmissible by a U.S. immigration agent, the applicant may be eligible for a waiver of inadmissibility to overcome the inadmissibility grounds if certain criteria are met. There are many reasons an applicant may be inadmissible, such as “unlawful presence,” “fraud/misrepresentation,” “membership in a totalitarian party” (oftentimes the Communist Party), “certain criminal convictions,” and “alien smuggling.” There are more grounds of inadmissibility but for purposes of this article I will focus on these five grounds.
Not all grounds of inadmissibility are cured in the same way. The standard to overcome some grounds of inadmissibility is tougher than others. Some grounds of inadmissibility not discussed in this article are not even eligible for a waiver, no matter what (i.e., false claim to U.S. citizenship).
Ground of Inadmissibility #1
Foreign nationals who leave the U.S. after being in the U.S. unlawfully for a period of 180 days to 364 days are deemed ineligible to re-enter the U.S. for three years starting from the date of their departure. This is commonly referred to as the “3-year bar.” The important point to note here is that the 3-year bar is triggered upon leaving the U.S.
If the period of unlawful presence is 365 days or more and the individual leaves the U.S., they trigger the “10-year bar.”
Unlawful presence is any period in which a foreign national is present in the U.S. after expiration of their period of authorized stay (e.g. after the expiration date found on the ir I-94 entry/departure card) or after entering the U.S. without being admitted or paroled (e.g. after entering the U.S. illegally without inspection).
A waiver of the three- and ten-year unlawful presence bars is available for people who are the spouses, sons, or daughters of U.S. citizens or lawful permanent residents (these are called “qualifying relatives”). The qualifying relative, for a waiver to be approved, must show to the U.S. government’s satisfaction that he or she would experience extreme hardship if the inadmissible applicant were denied admission.
There are two different unlawful presence waiver processes—one involves Form I-601 and the other, the provisional waiver, uses Form I-601A. These forms cannot necessarily be used in the same circumstances. The I-601 can be used to waive multiple grounds of inadmissibility, including unlawful presence under 212(a)(9)(B), and in multiple contexts (immigration court, adjustment of status, consular processing). The I-601A provisional waiver, on the other hand, allows applicants in the United States to apply for the waiver of unlawful presence before they leave the U.S. for an interview at a U.S. Consular post abroad. To be eligible for the I-601A, the only ground of inadmissibility the applicant may be subject to is unlawful presence. For example, a Form I-601A could be denied by a consular officer if the applicant also is deemed to be inadmissible for another ground of inadmissibility such as fraud/misrepresentation.
Ground of Inadmissibility #2
Fraud / Misrepresentation
INA 212(a)(6)(C)(i) states:
In general. – Any alien who, by fraud or willfully misrepresenting a material fact, seeks to procure (or has sought to procure or has procured) a visa, other documentation, or admission into the United States or other benefit provided under this Act is inadmissible.
Like the unlawful presence ground of inadmissibility, the legal standard to overcome the fraud/misrepresentation ground of inadmissibility is that of extreme hardship. The qualifying relative (same as above), must show to the U.S. government’s satisfaction that he or she would experience extreme hardship if the inadmissible applicant were denied admission.
Fraud/misrepresentation may be found by an immigration officer in many different contexts. An applicant may have lied about a material fact on his/her B-2 visitor visa application many years ago, an applicant for asylum may have fabricated a story in his/her asylum application, etc.
Ground of Inadmissibility #3
Membership in a Totalitarian Party
Unlike the grounds of inadmissibility discussed above, the standard for curing the ground of inadmissibility for membership in a totalitarian party does not excplicitly involve a showing of extreme hardship to a qualifying relative.
Rather, this ground of inadmissibility may be overcome if you are the parent, spouse, son, daughter, brother, or sister of a U.S. citizen; a spouse, son, or daughter of an alien lawfully admitted for permanent residence; or if you are the K-1 fiancé(e) of a U.S. citizen. The waiver may be granted for humanitarian purposes, to assure family unity, or when it is otherwise in the public interest, if you are not a threat to the security of the United States.
Ground of Inadmissibility #4
Certain Criminal Convictions
Section 212(h) of the Immigration and Nationality Act provides a discretionary waiver for the following criminal grounds of inadmissibility:
- Crimes involving moral turpitude (subparagraph 212(a)(2)(A)(I))
- Multiple criminal convictions (212(a)(2)(B))
- Prostitution and commercial vice (212(a)(2)(D))
- Certain aliens who have asserted immunity from prosecution (212(a)(2)(E))
- An offense of simple possession of 30 grams or less of marijuana (212(a)(2)(A)(i)(II))
INA 212(h)(1)(A) provides that certain grounds of inadmissibility under section 212(a)(2)(A)(i)(I)-(II), (B), and (E) of the Act may be waived in the case of an alien who demonstrates to the satisfaction of the Attorney General that:
- the activities for which he is inadmissible occurred more than fifteen years before the date of the alien’s application for a visa, admission, or adjustment of status;
- the admission would not be contrary to the national welfare, safety, or security of the U.S.; and
- the alien has been rehabilitated.
The Attorney General may also waive the grounds of inadmissibility under section 212(a)(2)(D)(i)-(ii) of the Act with regard to prostitution if the alien establishes to the satisfaction of the Attorney General that the alien’s admission would not be contrary to the national welfare, safety, or security of the U.S., and that the alien has been rehabilitated. INA 212(h)(1)(A).
INA 212(h)(1)(B) provides that certain grounds of inadmissibility under section 212(a)(2)(A)(i)(I)-(II), (B), (D)-(E) of the Act may be waived in the case of an alien who demonstrates that his removal from the United States would result in extreme hardship to his United States citizen or lawful resident parent, spouse, son, or daughter.
Ground of Inadmissibility #5
A charge of alien smuggling can come as a surprise during a consular interview. It might come as the result as a consular officer discovering that a parent who formerly lived in the U.S. had brought her children to the U.S. illegally. Or it might come as a result of a consular officer discovering that an applicant had lied about how many biological children she has in attempt to bring a non-relative to the U.S. as a child.
This ground of inadmissibility may be overcome if you are the parent, spouse, son, daughter, brother, or sister of a U.S. citizen; a spouse, son, or daughter of an alien lawfully admitted for permanent residence; or if you are the K-1 fiancé(e) of a U.S. citizen. The waiver may be granted for humanitarian purposes, to assure family unity, or when it is otherwise in the public interest, if you are not a threat to the security of the United States.
Resources on Waivers of Inadmissibility
We provide the following resources for the prospective I-601 waiver applicant.
“Brandon and his assistant Alisha were great, very professional, knowledgeable and responsive.
My wife and I hired Brandon when we got a notice from USCIS that they were going to deny her green card application because we had never turned in an I-601 waiver (which nobody from USCIS told us we needed over the 2 year process, even at the interview). Brandon helped us complete the waiver packet, and made sure we included any bit of documentation that could help our case. The waiver, and my wife’s green card, were accepted 6 months later!
I only wish we had hired him from the beginning of the green card process, I’m sure he would have saved us a lot of time and headaches. I strongly recommend Gillin Law Group if you are looking for an immigration attorney.”
— Ian S.