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Grounds of Inadmissibility: Illegal Presence and the 601-Waiver

Thumbnail image for Thumbnail image for Thumbnail image for BORDER PIC.jpgIn my previous blog I discussed unlawful presence (ULP) and how leaving the country with ULP can trigger the 3 and 10-year bars to returning to the United States in any legal capacity. However, under certain conditions, USCIS can waive the inadmissibility bar if the applicant meets certain criteria of an I-601 waiver application. Currently, the waiver applicant must process in his own country, waiting up to two years for waiver approval. The new rule proposed by the Obama administration will, if ratified, allow the recipients of an approved I-130 or I-360 immigrant visa to apply for a provisional waiver while remaining in the United States. The proposed rule requires that the applicant be the beneficiary of an approved immediate relative petition and that the qualifying relative must be either a U.S. citizen spouse or U.S.C. parent. Among other qualifications, the applicant for a 601 waiver must be at least 17 years old and not have a pending immigrant visa interview already scheduled at the consulate.

If a non-citizen qualifies for the 601 waiver, he must then prove extreme hardship to a USC spouse or parent. “Extreme Hardship” is the threshold requirement, and must be proven before the USCIS looks at discretionary factors. The applicant must satisfy the USCIS that the unlawful presence bar to returning to this country will cause extreme hardship to a qualifying relative who must be a U.S. citizen spouse or parent. Hardship to the applicant, and hardship to the applicant’s USC children are not relevant to the extreme hardship requirement. Extreme hardship can be shown by documented factors including family ties to the United States, age, and health of the U.S. citizen spouse or parents, employment and country conditions. It is important to note that “normal” hardship is not enough proof for the waiver, so it is not enough to say that the qualifying relative will miss the deported spouse or child. One must show by documented evidence why the qualifying relative cannot live in the United States without the undocumented relative, and why the qualifying relative cannot live overseas.

A comprehensive waiver packet includes the I-601 form, an attorney letter or brief in support of the petition, and documents, letters and pictures that support all of the claims in the application. One should consider getting psychologist reports describing the psychological effects on the qualifying relative if the undocumented relative cannot receive legal status in the United States. The packet could also include country adverse conditions that would make it difficult for the qualifying relative to live overseas. Doctor’s reports should be included if the qualifying relative has a medical condition, that describe the condition and current and future treatment needs. You should consider hiring an attorney to assist you in processing your immigrant visa application if you have periods of unlawful presence in the United States. A qualified attorney experienced in the waiver process can be essential to a successful petition. In some cases, applying for a waiver for ULP can be detrimental, particularly if you have other grounds of inadmissibility. An attorney experienced in immigration law and consular processing will evaluate your case to determine your best course of action.