An Overview of I-601 and I-601A Waivers and Extreme Hardship
The Law Office of Laurel Scott, PLLC
State Bar of Texas
2013 ADVANCED IMMIGRATION LAW COURSE
Written January 14, 2013
With the Immigration and Nationality Act of 1996 Congress created or expanded various grounds of inadmissibility, allowing for a waiver of some of the grounds. The standard for approval described by Congress depends on the ground of inadmissibility. In this memo I will address the most common waivers where approval requires that the applicant prove extreme hardship to a qualifying relative. These waivers, collectively known as the “Extreme Hardship Waivers” are described under INA § 212(a)(9)(B)(v), 212(h), and 212(i).
On January 4. 2013 the final rule for a new program, known as the Provisional Waiver program, was published in the Federal Register. The program does not change the law, but does introduce a new procedure and a new form. The program instantly rendered my prior memos on this subject completely outdated, prompting this latest revision to the memo.
Court decisions addressing the extreme hardship waivers may change the existing law or create new law. Counsel are advised to independently confirm whether the law in their circuit or BIA decisions have changed existing law or precedent since the date of this memo.
In this memo there is reference to forms I-601 and I-601A. While the latter form is only used for Provisional Waivers, a type of extreme hardship waiver, the former may be used for many different types of waivers, including those that do not require a showing of extreme hardship. In this memo I am only covering waivers under INA § 212(a)(9)(B)(v) for unlawful presence, 212(h) for criminal history, and 212(i) for misrepresentation, and only those that require a showing of extreme hardship to a qualifying relative. Other types of waivers such as medical waivers, smuggling waivers, “(9)(C)” waivers for VAWA applicants, etc. are not covered.
It is critical for an attorney embarking on a waiver case to have a firm grasp of the rules of inadmissibility. A ground of inadmissibility is something about the alien or the alien’s history, usually a prior immigration violation or criminal conviction, that makes it so the person is not allowed to enter the United States. If the person cannot enter the country, he/she cannot get a visa. And Congress has determined that if a person would not be allowed to enter the country if he were outside the US, that person cannot adjust status to that of a permanent resident from within the US. An alien only needs a waiver if he/she is inadmissible, but not every violation of immigration law or criminal law makes an alien inadmissible. Some violations not only make the alien inadmissible, they make the alien ineligible to apply for a waiver. Still other violations create bars to benefits other than inadmissibility. All grounds of inadmissibility are found in INA §212. If the “problem” the alien faces is not found in INA §212, then it’s not a ground of inadmissibility. Forms I-601 and I-601A only resolve problems under INA §212 . Below are some basic descriptions of the most common grounds of inadmissibility. A comprehensive description is beyond the scope of this paper.
Unlawful presence under INA §212(a)(9)(B) occurs either when a person enters the country unlawfully or when a person’s lawful status lapses. If the person is unlawfully present more than 180 days, but less than a year, the person is inadmissible for three years from the date of next departure. If the person is unlawfully present more than one year, that person is inadmissible for ten years from the date of next departure. Waivers are available for these three and ten year bars. There are many exceptions to unlawful presence described at length in a gigantic 51-page USCIS memo published in May of 2009. Studying the memo is essential for anyone wishing to prepare unlawful presence waivers. I’m not going to present the entire contents of the memo here, but below are some of the highlights of unlawful presence. Despite having been unlawfully present in the US, the person is not inadmissible if the total unlawful presence was less than 180 days, happened before April 1, 1997, or if the time was accumulated while the person :
• Was under age 18
• Had a bona fide, timely-filed change of status or extension of status application pending
• Was in “duration of status” (normally granted to F students and Canadian visitors)
• Had an asylum application pending
• Had an adjustment of status application pending
• Was in valid TPS Status
• Was in DACA status or had a DACA application pending
There are some other exceptions to unlawful presence, but the above are the most common. The three and ten year bars are not “triggered” until the person actually departs the country, so someone who entered on a valid visa, overstayed for a lengthy period of time and is eligible to adjust status through, for example, a US citizen spouse, that person will be able to avoid triggering the unlawful presence ground of inadmissibility because he/she can adjust status without departing. Just as the three and ten year bars are not “triggered” until the person departs, they also do not begin to run until the person departs, so someone who was unlawfully present for more than a year before gaining TPS status, has not run out the bar after being in lawful TPS status for ten years. The waiver for this ground of inadmissibility is by far the most common waiver application filed, with more than ten times more applications made than for the next most common type of waiver application filed. The waiver applicant must have a qualifying relative, who is the applicant’s US citizen or permanent resident spouse or parent.
9C: EWI after Unlawful Presence or Removal
If a person has been unlawfully present for more than a year after April 1, 1997 and subsequently enters or attempts to enter without being inspected, the person is not only inadmissible under INA §212(a)(9)(C)(i)(l), but is ineligible to apply for a waiver for ten years from the date of next departure. Likewise, if the person has been removed or departs under an outstanding order for removal including prior to April 1, 1997, and subsequently enters or attempts to enter without inspection after April 1, 1997, the person is inadmissible under INA §212(a)(9)(C)(i)(ll) and ineligible to apply for a waiver for ten years from the date of next departure. It is very important to be mindful of this ground of inadmissibility due to the unavailability of a waiver for ten years from the date of next departure. More immigrant visa applicants are found inadmissible at the consulate on this ground than for either misrepresentation or criminal grounds. Due to the commonality of the finding and the catastrophic effect on the client’s case, it is imperative that attorneys who work on waiver case be able to correctly identify a possible “9C” issue. Where the applicant has been unlawfully present for more than a year and subsequently entered or attempted to enter without inspection, it is important to note that while most of the unlawful presence exceptions apply to 9C, the one exception that does not apply is time accumulated as a minor. Even a child who is unlawfully present more than a year who departs and re-enters without inspection will be found inadmissible under 9C. If one reads the statute, one will see that the language used indicates that the finding will be made if the person enters or attempts to enter “without being admitted”, rather than using the language “without being inspected”, but the May 2009 memo [cited above] clarified that those who are paroled do not trigger 9C and Matter of Quilantan, 25 I&N Dec. 285 (BIA 2010), clarified that if one is inspected, one is admitted, with rare exception. Sometimes “9C” is erroneously referred to as “the multiple EWI” ground. In fact, one person can enter many times in a year without inspection and not trigger 9C, while another person can overstay a visa and subsequently enter without inspection and trigger 9C. It is triggered by an EWI or attempted EWI after more than a year unlawful presence or after a removal. After the person spends ten years outside the US, he/she is still inadmissible, but becomes eligible to apply for a waiver (not covered in this paper as there is no extreme hardship requirement). This ground of inadmissibility is sometimes referred to as “the permanent bar”, but it should be noted that many grounds of inadmissibility are permanent.
Misrepresentation occurs whenever a person intentionally presents false information in order to obtain an immigration benefit. While fraud is technically different from misrepresentation, the difference for inadmissibility purposes is moot as they are treated the same under INA §212(a)(6)(C)(i). Misrepresentation can be oral, written or implied. The third of these occurs when the person enters the country with an intention inconsistent with the status sought. For example, if the person enters with a visitor’s visa with the intent to violate the terms of the visa by working, there is an implied misrepresentation. The accusation of implied misrepresentation often occurs at the consulate when it is revealed that the applicant previously worked or went to school within sixty days of entering the country in visitor status, or when the person was previously turned away at the border or airport for attempting to enter as a nonimmigrant with immigrant intent, even when CBP made no such finding. Such findings are not always made by the consulates in these situations if CBP did not make the finding as it will be up to the consular officer to determine what the person’s intent was at the time. Misrepresentation does not make one inadmissible if it was not material. Misrepresentation is considered material if the official would have made a different decision if he/she had the true information, or if the false information had a tendency to cut off a line of inquiry relevant to the decision. A person who has presented false information can avoid committing misrepresentation if he/she makes a timely withdrawal, i.e. informs the official of the “error” or falsity before the official relies on the information to make a decision, before the benefit is accorded, or before the official confronts the person about the falsity of the information, whichever comes first. Because of the intent requirement, young children will not be found to have committed misrepresentation. Government officials have orally stated at attorney conferences that if the information was presented when the person was between the ages of 14 and 17, the official reviewing the case will determine whether the decision to present the false information was the child’s decision, though I have been unable to locate this policy in writing. Misrepresentation is a lifetime bar with a waiver available. The waiver applicant must have a qualifying relative, who is the applicant’s US citizen or permanent resident spouse or parent.
False Claim of US Citizenship
False claim of citizenship is similar to misrepresentation except there is no intent requirement and the type of benefit sought is broader; whereas regular misrepresentation under INA §212(a)(6)(C)(i) is only applied when the person seeks an immigration benefit, false claim of citizenship under INA §212(a)(6)(C)(ii) is applied when the person makes a false claim for any purpose or benefit under federal or state law. Only false claims made after September 30, 1996 result in a finding under INA §212(a)(6)(C)(ii). The stance of the government is that because there is no intent requirement specifically described in the statute, there is no minimum age for a finding under this section. In other words, a young child who presents someone else’s US birth certificate at the border may be found inadmissible under this section. At the time this article is being written, there is some unofficial indication that the Department of Homeland Security is working on a new policy for false claims of citizenship and minors. This is a permanent ground of inadmissibility with no waiver.
Criminal Threat to Public Safety
Criminal inadmissibility under INA §212(a)(2) is a beast in itself. For most clients with criminal history, one can easily determine whether the person is inadmissible, but for others, research into case law will be required. The main types of criminal activity that lead to possible inadmissibility are crimes involving moral turpitude (CIMT), drug offenses, prostitution, drug trafficking, and gang membership. There are some other ones, such as trying to kill the President, that are so unusual I will not go over them here. To the lay person or newer attorney, the term “crime involving moral turpitude” sounds like something serious. In fact, it generally refers to any crime with an intent requirement, which would be the vast majority of crimes. A simple shoplifting conviction is a crime of moral turpitude. An example of a common crime that is NOT a crime of moral turpitude is a DUI as normally the government only has to prove that the accused has been drinking and driving, but the government does not have to prove that the accused actually meant to do either. An important exception to the inadmissibility for CIMT is the “petty offense exception”: one is not inadmissible for a CIMT if there is only one CIMT conviction, the maximum possible sentence is not greater than one year, and the actual sentence to incarceration is not greater than six months. A sentence of probation is not considered a sentence of incarceration, but a suspended sentence to incarceration is. If the person admits to the essential elements of a crime where the maximum possible sentence is greater than a year, no conviction is required to find the person inadmissible. Any drug conviction or confession makes one inadmissible under a different section of law; there is no intent requirement. If the person admits to the essential elements of the crime, no conviction is required to make the finding. Prostitution or hiring out prostitutes (“pimping”) within the past ten years makes one inadmissible even if there is no arrest and even if it was legal in the place where it occurred. Hiring a prostitute (“the john”) only makes one inadmissible if it is a CIMT that doesn’t qualify for the petty offense exception. For drug trafficking, only “suspicion” by the relevant government official is required for a finding of inadmissibility. There has to be something in the person’s history to support “suspicion” of drug trafficking, but that something does not have to be a drug-related arrest. The suspected trafficker’s spouse and adult children may also be found inadmissible as beneficiaries of trafficking. Gang members and former gang members are inadmissible as people suspected of coming to commit crimes in the future. As with drug trafficking, the government official only needs a suspicion that the person is or was a gang member to make the finding, and there is no required arrest. Waivers are available for most CIMTs, for prostitution, and for simple possession of marijuana less than 30 grams. There are no waivers for any of the other criminal grounds of inadmissibility. For CIMTs, there are no waivers for murder, attempted murder, torture or attempted torture, and there is no waiver for certain permanent residents convicted of aggravated felonies for fifteen years from the date the person completed his/her sentence. Where a waiver is available, if the event leading to the criminal ground of inadmissibility is within the past fifteen years, the waiver applicant must have a qualifying relative, who is the applicant’s US citizen or permanent resident spouse or parent or child. After those fifteen years, no qualifying relative is required.
Medical Threat to Public Safety
Medical inadmissibility under INA §212(a)(1) does not require intent and is not meant to be a punishment for poor behavior. Medical inadmissibility is about protecting the public safety and the public health. For example, someone infected with the Ebola virus is inadmissible. But it is rare for someone with a catastrophic, highly infectious disease to attempt to enter the US, mostly because the person would be too ill to travel. Of the people found medically inadmissible, it is almost always because of active, infectious Tuberculosis, lack of required vaccinations, drug abuse within the past year, and mental illness that poses a threat to the applicant and/or the public. The last one is more common than it may initially seem from the description, as for immigration purposes drinking and driving is considered to be a mental illness (alcohol abuse) that threatens the public safety. Waivers for active, infection Tuberculosis are available, but are extremely hard to obtain because of concerns for public health. A waiver for vaccination requirements is available for those with a long-held religious or moral opposition to vaccinations, though most people found inadmissible for lacking a vaccination simply go and get the missing shots. There is no waiver for drug abuse within the past year, but the ground of inadmissibility lapses one year after the last reported use, so that ground of inadmissibility is overcome by simply waiting one year . For mental illness, there is a waiver available, but it is difficult to get as the applicant must prove that he/she will report to a mental health facility immediately upon entry into the US, that he/she has the means to pay for treatment, and the facility has agreed in advance to send a report on the applicant’s progress to DHHS after treatment has commenced. For the drinking and driving variety of mental illness, the foreign affairs manual states that one must be evaluated for medical ground of inadmissibility if there is an alcohol-related arrest within the past five years or if there are two or more alcohol-related arrests in the past ten years. Generally, attorneys should expect any client with a DUI within the past two years to be found inadmissible on this ground, though I have been unable to locate a written policy describing this two year rule. Medical waivers are not about extreme hardship and are not covered in this paper.
A person does not have to be a professional human smuggler or “coyote” to be found inadmissible for alien smuggling under INA §212(a)(6)(E). In fact many – if not most – of the people found inadmissible under this section were “smuggling” their own children. There is a waiver available if and only if the person who was smuggled was the alien’s child (or stepchild), spouse, or parent at the time the smuggling occurred. If the person was the alien’s fiancé(e), sibling, best friend, niece/nephew, grandchild or any other person, it is a lifetime bar with no waiver. For those who do need a waiver, the standard of approval is “in the interest of family unity or for humanitarian concerns”, not “extreme hardship”, so that waiver is not covered here.
Removals and Failure to Attend a Removal Hearing
It should come as no surprise that one is inadmissible if one has been removed/deported . INA §212(a)(9)(A). An expedited removal occurs at the border or within 100 miles of the border and occurs without the involvement of an immigration judge. A person is inadmissible for five years for a first expedited removal and 20 years for a second one. A regular removal must be ordered by an immigration judge. A stipulated removal is an agreement by the alien to accept a removal order without a hearing. A removal order or stipulated removal lead to a ten year ban for a first removal and a twenty year ban for a second one. In lieu of removal, an alien may be allowed to withdraw his application for admission, may be granted Voluntary Return, or may be granted Voluntary Departure. Withdrawal of application for admission usually occurs at the airport after CBP interrogates the person and gives him/her the option to either withdraw the application for admission or be expeditiously removed. CBP is not required to make the offer. There is usually a signed document provided to the alien after the withdrawal is made. Voluntary Return is like a withdrawal for application for admission, but normally occurs at a land border and there is usually no paperwork provided to the alien. In both of these two situations, the alien is almost always accompanied by CBP officials back to the airplane or back to the contiguous country. Voluntary Departure is granted by an immigration judge only. The alien is normally afforded 90 to 180 days to close his affairs and depart the country unaccompanied by government officials. If the alien does not comply with the deadline, Voluntary Departure automatically converts into a removal order. Withdrawal of application for admission, Voluntary Return, and Voluntary Departure are NOT removals/deportations and do not lead to inadmissibility. While an EWI after a removal will trigger 9C, an EWI after withdrawal of application for admission, Voluntary Return or Voluntary Departure will NOT trigger 9C. As it can be difficult for an alien to tell the difference between a Voluntary Return and an Expedited Removal at the border, often an FBI fingerprint check and/or CBP FOIA (freedom of information act request) would be prudent to determine which event occurred and whether 9C applies if there was a subsequent EWI. There is a waiver for removal, though the standard is pure discretion, as opposed to extreme hardship, and the form is an I-212, not an I-601 or I-601A, so that waiver is not covered in this paper. If the alien failed to attend a removal hearing without reasonable cause, he/she has an additional five year bar under INA §212(a)(6)(B) for which no waiver is available. This additional un-waivable five year bar only applies if the Notice to Appear was issued after April 1, 1997.
Sham Marriage and Frivolous Asylum Claim
While not technically grounds of inadmissibility, sham marriages and frivolous asylum claims can defeat a potential waiver case. If the government finds that one entered into a marriage primarily for immigration purposes, that person can never again get an immigrant visa petition approved. The finding can be made at any time, including on a subsequent application/petition for an immigration benefit. So, if a person previously had an I-130 filed on his/her behalf by a US citizen spouse, abandoned the process and is now married to a different US citizen spouse, the government can now find that the prior marriage was a sham and deny the current marriage based visa. There is no waiver for this. If the person is attempting to immigrate through a means other than an immigrant visa petition, such as the diversity visa lottery, then the prior sham marriage does not bar the benefit, but there may be a misrepresentation finding for which a waiver will be required. For immigrant visa cases the finding of prior sham marriage is often made at the consulate, and the petition is sent back to USCIS for readjudication, as opposed to the finding being made on the initial adjudication of the petition. For the frivolous asylum application bar to benefits, the finding must be made by an Immigration Judge or the Board of Immigration Appeals and the word “frivolous” must be used. A finding that the asylum applicant is not credible is not a finding that the application was frivolous. The consulate or USCIS may not make the finding. The frivolous asylum application bar only applies to asylum applications made after April 1, 1997. This finding is a bar to any and all immigration benefits ever with no waiver.
EWI, K entrants and Crewmen
Three issues come up that are often mistaken for waiver issues, but are not. If someone entered without inspection, the person is inadmissible under INA §212(a)(6)(A) but only as long as the person remains in the US. That ground of inadmissibility expires as soon as the alien departs the country. The ground is redundant as someone who entered without inspection is already barred from adjusting status under INA §245(a). Even though one of the general principals of American legal theory is that no statute or section of a statute should ever be redundant, I have personally always failed to understand how INA §212(a)(6)(A) is not redundant and therefore irrelevant given INA §245(a). I have seen the occasional consular officer try to tell an applicant that under INA §212(a)(6)(A) he/she is not eligible for a waiver because of a prior EWI. It’s just wrong. The problem disappears when the alien departs the country. A second issue that is non-waivable when the alien is present in the US but ‘disappears’ when he/she departs is that someone who entered on a K visa can only adjust status through the K visa petitioner. This is found in INA §245(d). While it prevents adjustment of status and cannot be waived, it is not a ground of inadmissibility and is not a bar to obtaining a visa at the consulate. The final one I’m going to mention here is similar to the K visa issue: someone who entered as an alien crewman cannot adjust status and there is no waiver for that. INA §245(c). But as it is not a ground of inadmissibility, it ‘disappears’ when the alien departs the US to apply for a visa at the consulate.
The procedure for applying for an immigrant waiver will depend on the type of waiver sought and on the context of the underlying immigrant status process. An immigrant waiver application is never made independently. It must be filed in conjunction with an immigrant visa application, a K visa application, or an adjustment of status, whether the adjustment is done administratively or in front of an immigration judge. Furthermore, the procedure will vary depending on the ground of inadmissibility and the qualifying relative. Generally, there are five procedures available: Standard Waiver, Provisional Waiver, Adjustment of Status (AOS) Waiver, Foreign Expedite Waiver, and In-Court Waiver. I will not cover the final one as I generally do not handle court cases and the procedures are outside my area of expertise. Except for in-court waivers, the adjudicating agency for extreme hardship waivers is always USCIS.
There’s really no current name for this type of waiver. I believe USCIS is referring to these as “waivers filed under the new centralized processing system”. I have referred to them in the past as foreign-filed waivers, consular waivers, and “Lockbox” waivers, though none of these names is official or – in my humble opinion – quite satisfactory. I have liked the term “Lockbox” waivers, but technically the ones filed in conjunction with an adjustment of status application are also filed at a “Lockbox”. For purposes of this paper, I will refer to them as Standard Waivers as until recently it was the most common filing procedure for an immigrant waiver application. Under this procedure, an immigrant visa applicant or K visa applicant files the waiver application following the immigrant visa or K visa interview. Even though a fiancé(e) is not a qualifying relative under the statute, USCIS recognizes that the fiancé(e) will be a qualifying relative and no one benefits if the alien is permitted to enter the US only to be denied a waiver during the adjustment of status process. 9 FAM 41.81 N9.3(a). The waiver for a K visa applicant is granted conditionally with the condition being that the two will marry and the waiver will be revoked if they fail to marry. At the consular interview, the consular officer finds the applicant otherwise admissible except for the ground upon which the waiver is sought. The waiver application is then sent to an address in the US, currently in Phoenix, and is then forwarded to a USCIS office for adjudication, currently the Nebraska Service Center. The alien generally must remain outside the US while the waiver application is pending. Waiver applications can take anywhere from a month to 18 months to adjudicate, though four to eight months is more common. After the waiver application is approved, the case is sent back to the consulate and the alien is notified of any follow-up processing that must be done before the visa can be issued. It can take a month or more from waiver approval to follow-up procedures with the consulate. The most common follow-up processing is a new medical exam if the prior has expired, which usually occurs six months after the prior medical exam, depending on the prevalence of Tuberculosis in that country. If it has been more than a year since the last consular interview, the applicant may be required to submit a new immigrant visa application (DS-230/DS-260) or K visa application (DS-156 or DS-160 and DS-156K), new financial documents, and possibly a new interview at the consulate with the full set of supporting documents for the visa, e.g. birth certificates, divorce decrees, new police certificate, etc. The visa is then issued and the alien enters the US. This procedure is available to any visa applicant with a ground of inadmissibility where a waiver is available and the applicant has the required qualifying relative for the waiver. Many potential waiver applicants find the process extremely difficult due to the time the alien must spend outside the US while the waiver application and the associated family separation and lost income.
On January 4, 2013 USCIS published the final rule for the Provisional Waiver program. The program goes into effect March 4, 2013, which will be after this paper is initially published. The government had announced its plans for the new rule in January of 2012, but had been working on the new rule for at least a year prior to that. Under the new rule, certain applicants may apply for the waiver using form I-601A (instead of I-601) prior to departing the US. After the immigrant visa bill is paid, the applicant will send the waiver application to an address in the US (to be announced), which will forward it to a USCIS Service Center (to be announced) for adjudication. The applicant will attend a biometrics appointment scheduled by USCIS after the waiver application is filed, mostly likely four to eight weeks after filing. While the pending application will not give the applicant any right to remain in the US or any official protection from removal proceedings, there will be no legal advantage to departing before the waiver application is approved and the consular interview is scheduled. Applicants who are able to participate will most likely spend only a few days to a few weeks abroad instead of many months. Eligibility for the program is limited to people meeting the following criteria:
• The applicant is present in the US at the time the waiver application is filed and remains in the US at least until biometrics are taken in the US.
• The only ground of inadmissibility is unlawful presence. If USCIS determines that the consulate may make an additional finding of inadmissibility on another ground, the waiver application will generally be denied.
• The applicant is the beneficiary of an approved I-130 filed by an immediate relative US citizen, i.e. spouse, parent if the applicant is under 21, or child if the child is at least 21
• The qualifying relative for the waiver is a US citizen spouse or parent. It is not required that the qualifying relative and the I-130 petitioner be the same person, though in nearly all cases, it will be the same person, and in fact it will almost always be the spouse.
• The applicant either has never been in removal proceedings, or proceedings have been terminated, or ICE has cancelled the NTA, or proceedings have been administratively closed and not re-calendared, or proceedings were administratively closed but re-opened so that an order for Voluntary Departure can be entered.
• The immigrant visa bill has been paid to the NVC.
• A consular interview was not scheduled before January 4, 2013 , except that one may still qualify for the program if the prior immigrant visa registration is cancelled at the consulate, a new I-130 is filed and approved, and the waiver application is filed after the immigrant visa bill is paid for the case associated with the newly-filed I-130.
After the waiver is approved, the applicant proceeds with the immigrant visa process, attends the immigrant visa interview and is issued the visa. This new process will all but eliminate family separation and lost income for the vast majority of waiver applicants.
The adjustment of status (AOS) waiver is similar to the standard waiver in that it is available for any ground of inadmissibility for which there is a waiver and there are no restrictions on the qualifying relative beyond what appears in the statute for the waiver. If a waiver is being filed with an AOS, the I-601 is sent to an address in the US, presently in Chicago, either with the I-485 or while the I-485 is pending. It is adjudicated at the local USCIS office by the same adjudicator who adjudicates the I-485. Some attorneys prefer to wait until the immigration officer requests the I-601 at or after the AOS interview. The officer may either issue a Request for Evidence and give a deadline of 84 days or may issue a Notice of Intent to Deny and give a deadline of 30 days. Rarely, the officer will outright deny the I-485 without first requesting a waiver (which is not the correct procedure, IMHO), in which case the attorney has 30 days to file a Motion to Reconsider (MTR) on the I-485. The attorney may either wait for the I-485 to actually be re-opened before filing the I-601 or may file immediately with the MTR. I usually do the latter. It is unclear whether it is better to send the entire waiver packet with the I-601 form and filing fee to the Chicago Lockbox or send the form and filing fee to Chicago and send the packet to the adjudicator at the local office. I usually do both, especially when there is a looming deadline. AOS waivers are almost always for fraud or criminal history as the unlawful presence ground is not triggered until the alien departs and then usually the alien is not let back in the country. Remember that a waiver does not resolve adjustment of status problems associated with entry without inspection, entry on a K visa where the applicant is trying to adjust through a means other than via the K visa petitioner, or entry as a crewman. After the waiver is approved, the I-485 is normally approved and a permanent resident card issued. Processing times vary dramatically, from one day to four years depending on the individual immigration officer.
Before USCIS began having Standard Waiver applications sent to the US to be adjudicated in Nebraska, waiver applications filed in conjunction with an immigrant visa application or K visa application were normally adjudicated at a USCIS office abroad. When the procedure changed so that the applications were normally adjudicated in the US, the government stated that if the applicant had a bona fide expedite request, the applicant could ask for the waiver application to be adjudicated at the USCIS office abroad in lieu of sending it to the US. Procedures for making this request remain unclear as the process is relatively new and bona fide expedite requests are rare. If one believes that the case merits an expedite, I would recommend contacting the USCIS office abroad in advance of the consular interview to describe the details and request assistance in determining procedure at that locale as it may vary from location to location. I would presume that if after hearing a summary of the expedite factors, the USCIS office is unresponsive, then that USCIS office is also unlikely to agree to expedite the case.
IV. Aggravating Factors
There is no case law or memo stating explicitly how significant the aggravating factors are to the adjudication of waiver applications. In fact case law and the statutes imply that aggravating factors are an afterthought to be evaluated only after there is a finding on extreme hardship. Specifically, case law indicates that a waiver application may be denied as a matter of discretion even if extreme hardship is found. But my own experience and statistics from the Department of State (DOS) indicate that aggravating factors are more significant than hardship factors. DOS publishes an annual report on how many people were found inadmissible for a given ground of inadmissibility and how many overcame that ground in that year. While the statistics are not presented in a fashion that clearly describes a waiver approval rate , it is not unreasonable to infer from the statistics that the approval rate for simple unlawful presence waivers is at least double the approval rate for misrepresentation waivers, even though the extreme hardship standard for the two is supposed to be the same according to the statute. The most reasonable explanation is that extreme hardship is not the most important factor in the adjudication of the case. In my personal experience with my clients and in reading denial narratives , I believe that the following are significant aggravating factors on a waiver case:
• Criminal history, even if it does not make the applicant inadmissible on criminal grounds and even if there was no conviction. The adjudicator will be interested in the facts surrounding the events that led to the arrest. Even if there was no conviction, it behooves the waiver applicant to explain what happened and either take responsibility or prove innocence. Violent crimes such as domestic violence, sex offenses and multiple instances of drinking and driving should generally be considered major aggravating factors for the waiver. For domestic violence, a statement from the victim that it was ‘no big deal’ or ‘really her fault’ will generally be insufficient to eliminate the issue as an aggravating factor.
• “Fishy” prior applications for immigration benefits. The applicant’s entire immigration history is relevant to the adjudication of the waiver, including prior applications or petitions that were withdrawn prior to adjudication. The adjudicator can and will review prior asylum applications and prior marriage-based petitions or fiancé(e) petitions or applications. If the adjudicator believes the application was not entirely bona fide, i.e. it was “fishy, even if no finding of fraud was ever made, the adjudicator will be less likely to approve the waiver application.
• Deportation absconders. If the applicant was ordered removed and failed to depart or overstayed a voluntary departure order, this is a huge aggravating factor on a waiver case.
• Misrepresentation/fraud. Not all misrepresentation is the same. If there is an implied misrepresentation because the applicant tried to enter as a visitor when the plan was to marry a US citizen and adjust status, this will not be a major aggravating factor. But if the applicant has multiple instances of fraud, used fake documents to enter the country especially more than once, or was caught lying in part of the current visa process or adjustment of status process that serves as the underlying case for the waiver, this could be a major aggravating factor. The more instances of fraud or the more severe, the greater the impact on the waiver case.
• Applicant is only eligible for waiver because violation occurred before Congress eliminated the waiver for that type of violation. The adjudicator will note that subsequent to the applicant’s actions, Congress decided that the violation was so severe, the waiver was eliminated.
• Petitioner spouse or fiancé(e) previously had a “fishy” spouse/fiancé(e) either as the petitioner or the beneficiary. While the petitioner’s entire immigration history is unlikely to be reviewed, attention will be paid to whether the petitioner previously filed a petition for a different spouse/fiancé(e) beneficiary or him/herself immigrated through marriage. If the prior relationship does not appear to be entirely bona fide, it could become a problem on the beneficiary’s waiver application.
• Qualifying relative participated in the events leading to the alien’s ground of inadmissibility. As the waiver is meant to be merciful to the qualifying relative, it will impact the case if the qualifying relative committed such acts as arranging for the alien’s false documents to enter the US or smuggled the alien into the US or was a co-defendant in the alien’s criminal trial. Residing with the unlawfully present alien in the US and making his/her life livable while he/she is unlawfully present will not be considered an aggravating factor for the case. The issue usually arises if the marriage existed prior to the immigration violation.
• The applicant has public records that tend to bring moral character into question, such as outstanding tax liens, unpaid child support, restraining orders filed against him/her, multiple civil suits filed against him/her, or excessive traffic tickets.
• Repeat violations of the Visa Waiver Program. An alien from a Visa Waiver country (e.g. UK, France, Japan, etc.) who violates the strict terms of the program by working or overstaying, departs, returns on the Visa Waiver program, and again violates is considered a repeat violator of the Visa Waiver Program.
Additionally, while it is not technically an aggravating factor, a case is less likely to be approved if the qualifying relative is from the same country as the alien, having entered as an adult, as it may be presumed that extreme hardship will be low if the person must return to the country he/she originally came from. Whether or not a given aggravating factor should be an aggravating factor is beyond my control. Even if I think it shouldn’t be an aggravating factor, if I’ve seen it used against the applicant in the narrative of a denial, it made it onto my list here. Aggravating factors do not preclude approval, but the more aggravating factors one has, the more extreme hardship one must show in order to win approval of the waiver.
V. Extreme Hardship
The BIA has avoided ever clearly defining extreme hardship, insisting that it is up to each individual adjudicator to decide . “Extreme hardship” can very vaguely be defined as greater than the normal hardship the qualifying relative can be expected to experience if the alien is denied admission. It is important to prove both why the qualifying relative cannot move abroad AND why the qualifying relative cannot simply live in the US without the alien. The extreme hardship must always be to the qualifying relative. Extreme hardship to others, such as the alien him/herself or the alien’s children will only be considered insofar as it is an extreme hardship to the qualifying relative. It is insufficient to prove that the qualifying relative has elderly or sick relatives; one must show the link between the medical condition and the waiver, i.e. one must prove how the problem is made better by the alien’s presence or qualifying relative’s presence in the US or made worse by said person’s absence from the US. If the argument is that someone related to the case requires care due to a medical issue, one must prove why the person’s siblings, parents or adult children are unable to provide the care in the absence of the alien or qualifying relative. The best arguments for the case will always be unique to the facts of the case. There is not standard set of hardships to be argued in any case and in fact two cases may have an entirely different set of arguments with no overlap. As was described above, the more aggravating factors there are in a case, the stronger the extreme hardship must be in order to expect approval. A case without aggravating factors may win with a weak hardship case, and in fact most of my approvals have what I would consider to be weak hardship cases. Just to give the reader an idea of what some stronger arguments might be and what some weaker arguments might be, I’ve provided some examples below, categorizing them by the strength of the argument. A case may still be approvable even if none of the arguments used appear on the lists below. For the lists below, “QR” = qualifying relative.
(a) QR has a MAJOR medical condition (e.g. brain tumor, multiple sclerosis, cerebral palsy) which makes QR unable to move abroad and for which QR absolutely needs Alien in the US to help take care of him/her,
(b) QR is caring for an elderly, chronically ill, or disabled relative who needs constant care and whose condition is bad enough that QR either MUST live with the relative or QR MUST spend at least an hour a day assisting the relative with things like hygiene or physical therapy, and this makes QR unable to move abroad and makes him/her really need Alien in the US to help him/her care for his/her relative and manage his/her other responsibilities, or
(c) Alien's country is in a state of active war or major political upheaval .
(a) QR is the primary caregiver for his/her child(ren) from a prior relationship and the child(ren)'s other parent will not allow the children to be taken out of the country AND the child(ren) have formed an emotional attachment to Alien
(b) QR has a serious medical condition that makes it very difficult for QR to move abroad and QR needs Alien to provide help (e.g. QR needs to have major surgery sometime in the next year, with an expected recovery time of several months),
(c) QR is caring for a moderately disabled relative who normally can care for him/herself but occasionally has episodes in which he/she needs a lot of help from QR and during those times QR, in turn, needs help from Alien,
(d) a relative is unusually financially dependent on QR (e.g. QR's mother has just gone through a nasty divorce with QR's father in which she got nothing and because she has never worked, she doesn't qualify for social security, so QR is supporting her in the entirety for the rest of her life), or
(f) Alien's country is on the verge of major political unrest or negative political change or the country is known for oppression of one sort or another (e.g. QR is a Christian woman and Alien is from Saudi Arabia), or it is in the infant stages of post-war recovery.
(a) QR is the non-custodial parent of a child from a prior relationship and has an actual relationship with that child and the child's other parent will not allow QR to take the child out of the country but Alien does not have a relationship with the child at this time,
(b) QR been diagnosed by a licensed psychologist/psychiatrist with clinical depression due to Alien's immigration problems and has been attending regular therapy sessions for a period of six months or more at the time the waiver application is filed,
(c) QR and Alien have young children together or QR has full custody of QR's child and can bring him/her abroad and Alien's home country has bad public health conditions and bad public education,
(d) QR's job requires a license in both the US and abroad and it will be very difficult to get licensed abroad (e.g. attorney, medical doctor),
(e) QR has job skills that are very specific to the US (e.g. a tax accountant with extensive familiarity with US tax law),
(f) Alien's country has one of the very worst economies in the world,
(g) QR has a close relative who is partially dependent on QR financially (e.g. QR's mom gets social security but needs QR's extra $500 per month to stay in her present apartment) or physically (e.g. QR's mother functions well now, but her health has been declining and it is expected she will need more of QR's help in the near future), or
(h) QR has a child that he/she is about to put through college (note, some offices consider this a stronger argument, some consider it a weaker one).
(a) QR has debts he/she wouldn't be able to pay if they moved abroad,
(b) Alien's country has a high unemployment rate and wages are low,
(c) Alien's country has a high rate of violent crime and/or kidnapping ,
(d) QR has been depressed or anxious due to the situation , but has not been attending regular therapy sessions for a period of six months or more at the time the waiver application is filed,
(e) QR's parents are aging,
(f) QR wife is getting older and wants to have children, or
(g) QR or QR’s parent or child has high blood pressure, high cholesterol, diabetes, asthma, allergies, autism/Asperger’s, or ADD/ADHD.
VI. Character and Real Relationship
The aliens’ character is irrelevant unless there is evidence of bad moral character, such as restraining orders or criminal history. There is no indication anywhere in the case law that simple unlawful presence is considered proof of bad moral character and in fact some waiver adjudicators have candidly and privately said they are just not interested in the alien’s character in a simple unlawful presence case. Letters saying what a great person the alien is just aren’t useful for the case. It is not necessary for the alien to apologize for his immigration violations (though if there is criminal history or very extensive misrepresentation, it might be necessary to prove rehabilitation). Not only is it not necessary to apologize for the transgression, it can be challenging to make such apologies appear sincere, so I personally find it is best to leave them out as there is no requirement that the applicant write a letter. Likewise, where the qualifying relative is the applicant’s spouse, it is not necessary to prove real marriage as the adjudicator will presume that real marriage was already proven as part of the adjudication of the immigrant visa or adjustment of status. The only time it may be necessary to prove real marriage is if there is some reason to believe that it is not a real marriage or if there is reason to believe the relationship is not very strong, for example if the couple has never cohabitated or if the two have been living apart for many years. Adjudicators have stated at some attorney conferences that they are not interested in letters stating what a great person the alien is and what a great marriage the couple has. Proof of legal relationship between applicant and qualifying relative and/or immigration status of the qualifying relative is only required where the qualifying relative is not the petitioner.
A waiver packet must include: I-601 or I-601A, filing fee, qualifying relative letter, criminal records if there is criminal history and translations of any documents not in English. Those are the only required documents for the waiver packet. But I would also recommend a form G-28, attorney brief or letter, and ample supporting documents. I usually supply an attorney’s brief of around 10-15 pages and the supporting documents of about 20-50 pages. That being said, there are attorneys that have repeat success with briefs shorter than 5 pages. If it is absolutely necessary to supply more than 100 pages of supporting documents, then do so, but at some point one will experience the law of diminishing returns where there is the risk of annoying the adjudicator with too much to read , thereby outweighing any or all benefits of including a given document.
Types of hardship evidence
For any argument presented in the case, it is best to support the argument with more than one type of evidence as each type of evidence has pluses and minuses. Types of evidence can be categorized as follows:
• Professional and expert opinions. These are letters from doctors, mental health professionals, and other experts. The positive of these opinions is that the person may possess the unique license or expertise to make the assessment. The negatives of these opinions are (a) the professional or expert does not usually know the alien or qualifying relative very well, and (b) the person is usually paid for the testimony, which may lead the adjudicator to believe the payment biased the content of the testimony.
• Quasi professional opinions. These are letters from people such as clergy or school peer counselors, who have some training in counseling, but do not hold a mental health license. The positives of these opinions are that their training is often recognized by adjudicators, and the authors of the letters are normally not paid for the letter. The negatives is that the person does not, in fact, hold a license, and the person is normally not a daily part of the alien or qualifying relative’s life and may lack some details of daily life.
• Lay letters from disinterested parties. Such letters may be from an employer, co-worker, teacher, landlord, or fellow parishioner. The positives of the letters are that the person usually has no obvious reason to lie for the case, yet the person has some knowledge of the hardships he/she is describing. The negative are that (a) clients often don’t want such parties to be so intimately involved in the client’s personal business, and (b) the people writing the letters don’t always know enough about the client’s personal life to provide a high level of detail.
• Lay letters from interested parties. Such letters may be from family or friends. The positive of such letters is that these people are able to provide a high level of detail of how the matter at hand as they are involved in the client’s day-to-day life. The negative is that bias is often presumed.
• Records, such as medical records and financial records. The positive is that records are unbiased. The negative is that records are about things that have happened in the past and don’t provide detail on how denial of the waiver will impact the qualifying relative in the future.
• Articles, such as medical articles and country condition articles. The positive of the articles is that they are generally unbiased . The negatives are that (a) they are impersonal and don’t describe any hardship to the qualifying relative in and of themselves, and (b) they don’t provide detail on how the denial of the waiver will impact the qualifying relative in the future.
• Photos. A photo may be highly demonstrative of a medical issue, such as a skin condition, or living conditions in the alien’s home country. The positives are that (a) a photo can on occasion make an impression on the adjudicator, and (b) photos are generally unbiased. The negative is that the photo does not in itself describe future hardship to the qualifying relative if the waiver is denied.
Because no type of evidence is perfect and each has positives and negatives, it is best to supply different types of evidence for each argument made, to the extent possible. Letters should be signed and dated. They do not need to be notarized unless it is hard to believe that the person signing the letter would make that statement. Originals of letters are preferred and many adjudicators have said they give less weight to photocopies of letters. Doctors’ letters should describe the medical condition, the patient’s physical limitations (e.g. no driving), the need for assistance, the need for continued medical care, and (if applicable) the physician’s personal knowledge of the alien’s prior role in providing direct assistance to the patient. Psychologist letters should describe the condition, how the psychologist arrived at that diagnosis, the relationship between the waiver process and the condition, the likely psychological effects of waiver denial, the frequency of the patient’s visits, the medications the patient is on (if any), and the plan for future treatment. Psychological assessments are not necessary as a matter of course in every case and the AAO and adjudicators have said time and time again that a psychological assessment is of little probative value if it is based on a single meeting. Cases are proven with the supporting documents, not with the brief. The purpose of a brief is to make sense out of the supporting documents and place the case into legal context. Good supporting documents are paramount to getting approval. Adjudicators are rarely interested in a legal argument unless one is contesting the finding of inadmissibility. Cases are not won with a great “letter” from the qualifying relative. Such a letter is required, but it is one of many supporting documents for the case.
Types of rehabilitation evidence
If the alien is inadmissible on criminal grounds, one must prove that the alien is rehabilitated in order to get approval on the waiver. Even if the alien is not inadmissible on criminal grounds, if the alien has any criminal history – including expunged convictions, convictions as a minor, convictions that qualify for the petty offense exception, DUIs, etc. – then if the alien does need a waiver for a different ground of inadmissibility, such as prior unlawful presence, then the criminal history will be part of the discretionary decision and you need to provide documentation on the conviction and evidence of rehabilitation. Such evidence may include:
• Time since last conviction, generally more serious convictions and/or repeat offenses require more time since last conviction.
• Statements of the criminal court regarding chances of alien repeating the crime (sometimes the court actually comes out and says the defendant is unlikely to reoffend).
• Expungements and pardons (don't get you out of ground of inadmissibility, but they're great proof of rehabilitation, 9 FAM 40.21(b) N4:1-3(b)(4) actually refers to them as "rehabilitative" statutes).
• Letter from parole officer, policeman, judge or other law enforcement official stating that from their experience they 'know' when someone is likely to reoffend and this guy won't reoffend.
• Letter from psychologist stating that crime was result of psychological problem and now the person is better (this is especially useful for history of shoplifting without economic motivation).
• Evidence of changed life conditions, e.g. alien committed offenses when he/she was young, foolish, unemployed, childless, and/or single, but now person is older, wiser, married, employed and/or has kids.
• Letter from clergy stating this person has changed.
• Evidence that alien is in position of trust with money (if financial crime) or trust with children (if violent or alcohol-related crime) and that the people who placed him in this position of trust KNOW the alien's criminal history.
• Evidence of successful completion of alcohol or drug treatment program if alcohol or drugs were a factor in the crime (BEWARE OF ADDICTION GROUNDS OF INADMISSIBILITY - ALIEN MUST BE CLEAN AND SOBER FOR A YEAR).
• For recent first-and-only offenses of a less serious nature, if the punishment was light, bring that up
VIII. Contesting Ground of Inadmissibility
Where the applicant or attorney believes that the consulate or immigration officer has made an error in the finding of inadmissibility, that can be challenged either with the consular officer or immigration officer on a Motion to Reconsider or on the waiver application or both. It is a judgment call for the attorney whether to do one or the other or both. While nothing precludes the consulate from reviewing grounds of inadmissibility after a waiver is filed, as a practical matter, consular officers usually decline to review the MTR while the waiver application is pending. When completing the form where one plans to contest the finding, a problem arises as the I-601 form does not ask what finding the consulate has made, but instead asks what grounds of inadmissibility the applicant has. In other words, the form appears to require that the applicant concede the ground. You may answer ‘no’ to the question, handwrite an asterisk and include an addendum, or answer ‘yes’ to the question and state clearly on the brief that the applicant does not concede the ground. One should not answer ‘no’ without further explanation as such an action may lead to a request for evidence or other complications. When contesting the ground of inadmissibility, a detailed legal argument from the attorney is appropriate and warranted. USCIS has stated that if the agency agrees that the consulate erred in its finding, USCIS will work with the consulate to attempt to change the finding. USCIS claims it cannot over-rule the consulate’s finding. I disagree as a matter of law and believe USCIS can over-rule the consulate’s finding of inadmissibility, but my friends at USCIS have privately told me that until I run USCIS, the agency will take its opinion over mine.
The biggest risk in any case involving a trip to the consulate is that the client will be found inadmissible on a ground for which no waiver is available. The Doctrine of Consular Nonreviewability applies at the consulate, meaning there is no appeal of a consular officer’s finding. Keep in mind that consular interviews are not independently recorded and at many consulates, attorneys and other witnesses are not allowed into the consular interview. Confessions of certain violations do not have to be signed by the client in order to be entered into the DOS database. Where the consulate claims that the client admitted to a certain event or timeline, and the client contests that he/she made any such statement, the client almost invariably has no remedy. The risk of something “going wrong” at the consulate exceeds the risk of denial for the waiver, as waiver denials can be appealed to the AAO, except for Provisional Waivers. When a Provisional Waiver is denied, there is some risk that the applicant will be placed into removal proceedings, but USCIS said this will normally only occur if the alien is on ICE’s priority list for removal, e.g. the alien has significant criminal history. While this policy may offer the applicant little assurance, aliens unlawfully present in the US are always subject to apprehension and removal anyway.
X. Expedites and Inquiries
Every client wants his/her case expedited. The government cannot expedite every case. An attorney wants to be a zealous advocate for the client, but it is best for one to try not to make expedite requests unless there is a truly urgent, serious situation as compared to all the other families applying for a waiver. For example, if the applicant is outside the US and his/her US citizen child has just been diagnosed with Leukemia, that would constitute an expedite request. Conversely, the qualifying relative’s stress and financial problems due to the separation almost never constitute an expedite request. It takes time for the government to respond to expedite requests and inquiries. This is often time that the adjudicator would otherwise spend adjudicating the case. Making an expedite request on every case interferes with the efficiency of any office and slows down the procedure for everyone. Now that cases are tracked with the USCIS online case status system, it has become less necessary to make inquiries on the status of the case. As cases don’t all take the exact same amount of time, it is best to wait until a case is at least thirty days outside of normal processing time before making an inquiry.
If a Provisional Waiver is denied, the applicant is permitted to attempt a re-file of the Provisional Waiver application, but is not allowed to file a Motion to Reconsider or Reopen (MTR) nor may the applicant appeal the denial. The subsequent remedy would be for the applicant to file a Standard Waiver application after the consular interview. If any type of waiver other than a Provisional Waiver is denied, the applicant may re-file, appeal or file an MTR. Currently, appeals are taking longer than two years to adjudicate though USCIS has stated that the AAO is making efforts to reduce the processing time for appeals. Until this occurs, an appeal is rarely the best option. A re-file is often the best option, but it depends on the exact circumstances for the case and the reason for denial. At this time, a new consular interview is not required before filing a new waiver application as long as the immigrant visa or K visa case is still open at the consulate; one should contact the consulate to be sure the case is still open. If a waiver filed with an AOS is denied, the law is unclear on whether the I-485 remains open while the appeal on the I-601 is pending. The AAO has stated several times (sometimes with apparent anger at the local USCIS office) that the I-485 does remain pending while the I-601 is pending, but many local offices continue to insist that it does not. At the time this paper is published USCIS did not have a consistent policy on this issue. Whether the I-485 remains pending is critical to the issue of whether the applicant’s EAD remains valid and can be renewed.
XII. Conclusion and Closing Statements
The waiver process is complex, difficult and stressful, but it is a way to resolve a serious immigration problem when an immigrant does not have a lot of other options. Approval rates for simple unlawful presence are high in spite of the complexity of the cases. One can be optimistic about waiver cases, but should not presume that a high approval rate means they are not a lot of work. A typical waiver case from I-130 or I-129F filing until visa issuance takes about 20 to 50 attorney hours and about 20 to 30 paralegal or assistant hours, though some cases can take upwards of 100 attorney hours. More experienced attorneys and less complicated cases take fewer hours while less experienced attorneys and more complicated cases take more hours. The firm should estimate the attorney and paralegal or assistant’s hourly rate and charge accordingly.