I-601

i 601 is a form for Immigrants faced with inadmissibility to the U.S. Applicants can apply to the United States Citizenship and Immigration Service (USCIS) for an or Application for Waiver of Grounds of Inadmissibility, on Form I-601. The adjudication process for an I-601 waiver application is somewhat subjective; legal interpretation of circumstances can change according to law. Immigration laws have undergone reform recently, barring citizens of certain countries from the United States. If aggravating factors are present in a country of origin, and nationals of that state are not on the U.S. Homeland Security bar list, they may be good candidates for I-601 application.

“Extreme hardship” due to political circumstances, religious persecution, war, or famine qualify for consideration of immigrant applicants who are family members of U.S. citizens or permanent residents. The probability that an I-601 application will be approved depends on the strength of the evidence submitted with the waiver request. Inadequate evidence of extreme hardship is a common reason for USCIS denial of an I-601 applicant. Appeals of denials to waiver of inadmissibility can be filed with a motion to reconsider an application based on additional documentation.

Successful waiver is less likely if an applicant has a record of fraud, criminal conviction, or willful misrepresentation. Evidence of applicant participation in a rehabilitation program is an example of a mitigating factor that could strengthen an application that might otherwise be denied based on grounds of criminal record. Unlawful presence in the U.S. is another common reason for denial and deportation. An immigration attorney can assist in advising a USCIS applicant when filing an I-601 application.

What Is an I-601 Waiver?

Applicants denied a visa or other immigration benefit, can resolve the issue with an I-601 waiver. Eligibility for filing an I-601 requires a relative that has lawful permanent residence. USCIS K or V nonimmigrant visas are filed outside of the U.S., and require an interview. The I-601 application is filed if the visa interview was found inadmissible. The application supports explanation of the rationale to the request for waiver. Grounds of Inadmissibility that May be Waived: Heath grounds, certain criminal grounds, Alien smuggler grounds, Immigration fraud and misrepresentation, Labor certification, Immigrant membership in a totalitarian party, Being subject to civil penalty.

Temporary Protected Status is offered to waiver applicants on the grounds of inadmissibility that may be waived. An immigrant visa or adjustment of status on the grounds of Violence Against Women Act (VAWA), allows a self-petitioner or the child of a VAWA self-petitioner, waiver of inadmissibility. Requests for adjustment of status as a Special Immigrant Juvenile based on an approved Form I-360 - Grounds of Inadmissibility that May be Waived are selective categories of persons considered by the USCIS for I-601 waiver approval.

Other factors to eligibility for an I-601 are vaccinations, affiliation with a Communist or any other totalitarian party, or immigration officer's opinion about an applicant's undesirability. Filing of a I-601 with the USCIS enables a person who has been deemed inadmissible to file correction to previously denied visa application, or contest an immigration officer’s decision on grounds of extreme hardship.

Finally, a 3-year or 10-year bar as result of previous unlawful presence in the U.S., can be reconsidered for a waiver of inadmissibility. Foreign nationals are inadmissible for 3 years if they have resided unlawfully in the U.S. for an uninterrupted period or more than 180 days, and less than one year, followed by voluntary departure before removal proceedings were initiated against them in court.

The filing fee for USCIS Form I-601 is $585, and is nonrefundable and payable by check or money order. Applicants found to conceal or misrepresent material fact on a I-601 waiver, or to have submitted false documents may be denied waiver, and subject to penalties and criminal prosecution. Waiver appeal by filing Form I-290B, Notice of Appeal, with the USCIS Administrative Appeals Office is the proper due process to respond to what is believed by the applicant to be unwarranted denial.

I-601 Waivers

When spouses or other loved ones are deemed “inadmissible” by the USCIS, and therefore unable to simply file for a green card, a I-601 will allow the “qualifying relative” to be considered under the rules of “extreme hardship”. The I-601 can be filed when the applicant is in the U.S., not undergoing immigration proceedings (i.e. deportation). An immigration attorney can provide advice on the I-601A and I-601 processes. If you have falsely claimed to be a U.S. citizen there is a very narrow exception to INA §212(a)(6)(C)(ii), implemented by the Child Citizenship Act of 2000, wherein you are not barred if one or both parents is a U.S. citizen or permanent resident.

Sometimes an I-601 waiver is not an option. You are not eligible for a waiver (but there may be other options) under the following circumstances - If you have been a member of a criminal gang. Unfortunately, even having gang related tattoos can keep you from being able to apply for an I-601, as the medical examiner may see them and decide that they need to tell the government you are a gang member.

Sometimes an I-601 waiver is not an option. You are not eligible for a waiver (but there may be other options) under the following circumstances: 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.

Sometimes an I-601 waiver is not an option. You are not eligible for a waiver (but there may be other options) under the following circumstances: If you failed to attend a removal hearing in the United States and have not been outside the U.S. for five years.

Sometimes an I-601 waiver is not an option. You are not eligible for a waiver (but there may be other options) under the following circumstances: If you have a previous finding of marriage fraud in a prior immigration application.

Sometimes an I-601 waiver is not an option. You are not eligible for a waiver (but there may be other options) under the following circumstances: If you filed for asylum in the past and the application was found to be a frivolous asylum application.

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.

Legal Requirements of the I-601 Waiver

Approval of a provisional waiver by the USCIS allows the spouse and children of U.S. citizens or lawful permanent residents to support a request for a full waiver. This reduces the risk of application for an immigrant visa abroad, as the provisional waiver is already approved with an immigrant relative petition (family-based) or employment-based petition, or selection by the Diversity Visa Program and record payment for the immigrant visa fee with the U.S. Department of State’s National Visa Center.

Introduction to the I-601 Waiver

The I-601 (under Section 212(a)(9)(B)(v) and Section 212(i))of the Immigration and Nationality Act) waives the “unlawful presence” and “misrepresentation” grounds of inadmissibility for foreign nationals if they can prove that their U.S. citizen or lawful permanent resident spouse or parent would suffer “extreme hardship” if the foreign national isn’t permissible to stay in (or return to) the U.S.

Foreign nationals who willingly leave the U.S. after accumulating over 6 months of “unlawful presence” in the U.S. are considered ineligible to re-enter the United States for three years starting from the date of their leaving. Foreign nationals who leave the U.S. after accumulating over 12 months of “unlawful presence” in the U.S. are considered ineligible to re-enter the United States for 10 years starting from the date of their leaving.

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).

This “unlawful presence” ground of inadmissibility normally poses an issue for spouses of United States citizens who arrived in the United States illegally without inspection (e.g. through the U.S-Mexican border).

Although these spouses are qualified to apply for U.S. lawful permanent residency through their marriage to a United States citizen, they can’t alter their status while staying in the United States (with the minor exception of those who qualify under the INA 245(i)). These spouses have to eventually return to their home country for an interview at the United States embassy/consulate as part of the process of attaining United States lawful permanent residency. This leaving from the United States and application for (re)admission activates the “unlawful presence” bar described above.

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