Waivers

Waivers

Immigration Waivers

In the United States, there are several types of immigration waivers available. Here are some of the common waivers:

  1. I-601 Waiver (Waiver of Grounds of Inadmissibility): The I-601 waiver is an immigrant waiver that allows individuals who are deemed inadmissible to the U.S. to request forgiveness for specific grounds of inadmissibility. These grounds may include criminal convictions, immigration violations, health-related issues, or other factors that would typically prevent someone from obtaining an immigrant visa. The waiver requires demonstrating that the denial of the waiver would result in extreme hardship to a qualifying U.S. citizen or lawful permanent resident spouse or parent.
  2. I-601A Waiver (Provisional Unlawful Presence Waiver): The I-601A waiver, also known as the Provisional Unlawful Presence Waiver, is available to immediate relatives of U.S. citizens who would face a bar from reentering the U.S. due to unlawful presence. This waiver allows eligible applicants to request forgiveness for their unlawful presence before departing the U.S. for consular processing of an immigrant visa. The waiver requires demonstrating that the denial of the waiver would result in extreme hardship to a qualifying U.S. citizen spouse or parent.
  3. 212(d)(3) Waiver (Nonimmigrant Waiver): The 212(d)(3) waiver is a nonimmigrant waiver that allows individuals who are inadmissible to the U.S. to enter on a temporary basis with a nonimmigrant visa. This waiver is associated with specific nonimmigrant visas, such as tourist visas (B-1/B-2), student visas (J-1), or work visas (H-1B). It is discretionary and typically requires demonstrating a legitimate purpose for entering the U.S., such as tourism, business meetings, medical treatment, or family visits.

These are just a few examples of immigration waivers available in the U.S. The specific waiver options and requirements can vary depending on the individual's circumstances, immigration status, and the grounds of inadmissibility involved. It's important to consult with an experienced immigration attorney to determine the appropriate waiver and to navigate the waiver process successfully.

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I-601A WAIVER LAWYER

Determining whether you meet all of the basic requirements for the I-601A waiver for unlawful presence so you don't waste your time, money, and energy Screening your I-601A waiver case for red flags, hidden issues, complications, and other problems that you, without knowledge of immigration, experience, or legal training, would be unlikely to spot Showing, persuasively, that your I-601 waiver for unlawful presence is a sympathetic case, deserving of favorable discretion Demonstrating, through extensive documentation, that your US citizen spouse or parent would truly suffer "extreme hardship" if USCIS were to deny your I-601A waiver for unlawful presence Providing advice, strategy, and guidance from the beginning of the process to the end.

On March 4, 2013, U.S. Citizenship and Immigration Services (USCIS) began accepting Form I-601A, a waiver application program formally referred to as a "Provisional Unlawful Presence Waivers of Inadmissibility for Certain Immediate Relatives" with stateside processing. Most I-601A waiver applicants will be those who snuck into the U.S across the Canada or Mexico border, i.e., who entered the U.S. without inspection, and who then continued to live and work here without legal permission to do so and so accrued "unlawful presence." The I-601A waiver will allow certain immediate relatives of U.S. citizens who are present in the United States to seek a waiver for unlawful presence ground of inadmissibility before going outside the United States to obtain immigrants visas (and, therefore, permanent residency status) at a U.S. consulate abroad.

WHAT ARE THE REQUIREMENTS FOR THE I-601A UNLAWFUL PRESENCE WAIVER?

To qualify for the I-601A provisional waiver for unlawful presence, you must meet all of the following requirements:

  • Be physically present in the United States
  • Be at least 17 years old
  • Be the beneficiary of an approved I-130 visa petition
  • Have a U.S. citizen parent or spouse
  • Show that if USCIS were to deny your I-601A waiver, your U.S. citizen parent or spouse would suffer "extreme hardship," an elusive term not defined under U.S. immigration law (USCIS has broad discretion to decide whether you meet the "extreme hardship" standard)
  • Be willing to leave the United States to return to the U.S. Consulate to seek an immigrant visa
  • Have no other grounds of inadmissibility such as fraud, misrepresentation, or convictions of crimes involving moral turpitude
  • Have never received an order of removal (or accepted voluntary departure without departing as required)
  • Are not in removal or deportation proceedings
  • Are not an applicant for adjustment of status
  • Are not scheduled for a visa interview at a US consulate abroad

USCIS says that this program may later be expanded to cover also immediate relatives who are permanent residents and possibly other grounds of inadmissibility such as fraud, misrepresentation, or crimes involving moral turpitude.

WHY IS THE UNLAWFUL PRESENCE WAIVER IMPORTANT?

Before the I-601A waiver came along, overcoming the unlawful presence inadmissibility problem would require an applicant to leave the United States and file an I-601 abroad, waiting indefinitely for a decision while separated from their U.S. citizen family.

This waiver for unlawful presence keeps families together by allowing for "stateside processing." That means that applicants can wait for a decision while in the United States. Once USCIS adjudicates the application, the applicant must go to a U.S. consulate abroad for immigrant visa application processing.

CONTACT AN I-601A WAIVER ATTORNEY

Whether you’re simply curious about the I-601A waiver or you’re ready to hire an immigration lawyer, Goldstein Immigration lawyers have guided countless families through the immigration waiver process. We understand what you’re going through and is eager to help. Contact us today to schedule a consultation.

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WHO NEEDS A 212(D)(3) NONIMMIGRANT WAIVER?

When it comes to nonimmigrant applicants who wish to enter the United States on a limited basis, a 212(d)(3) waiver becomes crucial. Unlike immigrant applicants seeking permanent residency, nonimmigrant applicants are foreign nationals looking to visit the U.S. for a short period. In cases where an immigrant waiver is unavailable, individuals who are inadmissible but still desire to visit the U.S. should consider the 212(d)(3) waiver.

Our team of experienced attorneys has extensive knowledge and expertise in handling nonimmigrant waivers, including the 212(d)(3) waiver. We understand the concerns and complexities involved in immigration cases, and we are committed to providing an honest and comprehensive evaluation of your unique situation.

Typically, the 212(d)(3) waiver is applicable to specific types of nonimmigrant visas, such as tourist visas (e.g., B-1/B-2), student visas (e.g., J-1), or work visas (e.g., H-1B). Attorneys at Goldstein, have years of experience assisting families in various visa applications, can determine whether a waiver is necessary when applying for a qualifying nonimmigrant visa.

WHAT TO KNOW WHEN APPLYING FOR A WAIVER

To apply for a 212(d)(3) waiver, you have three options:

  1. Customs and Border Patrol (CBP): You can apply at a port of entry, field office, or admissibility review office.
  2. U.S. Citizenship and Immigration Services (USCIS): In cases involving U visas or T visas, you can apply through USCIS.
  3. U.S. Department of State Consulate: You can also apply for the waiver at a U.S. Consulate abroad.

Regardless of where you choose to apply for your 212(d)(3) waiver, our skilled attorneys can guide you through the process and help present your case in the best possible light. However, it's important to note that this type of waiver cannot be obtained for political or security grounds, which include activities like espionage or sabotage, unlawful acts, planning to overthrow the government by force, or membership in the Nazi Party.

THE PROCESS OF SEEKING A 212(D)(3) WAIVER

If you haven't obtained a visa yet, you can request a 212(d)(3) waiver concurrently while applying for a visa at a U.S. consular post. On the other hand, if you already have a valid nonimmigrant visa but believe you are inadmissible to the U.S., you can apply for the waiver at a U.S. port of entry. The temporary waiver application is made through Form I-192, the "Application for Advance Permission to Enter as Nonimmigrant [Pursuant to Section 212(d)(3) of the INA]." In addition to the application, we recommend submitting:

  • An affidavit explaining any previous criminal and/or immigration violations and the reasons for seeking entry into the U.S.
  • A clear statement in the affidavit that you intend to depart the U.S. at the end of your authorized stay.
  • Evidence of ties to your current country of residence, such as employment, education, or community involvement.
  • Evidence of reform and rehabilitation, if applicable, such as treatment or counseling.
  • Previous immigration and/or criminal records.
  • Letters of support attesting to your good moral character.

It's important to understand that immigration officials have discretionary power when approving or denying the waiver application. Unfortunately, there is no option to appeal or challenge an unfavorable decision by an immigration official.

WHAT IS EXTREME HARDSHIP IN IMMIGRATION CASES?

Extreme hardship is a matter of discretion

One defining characteristic of extreme hardship is that it is a legal standard that is completely discretionary. For I-601 and I-601A immigration waiver cases, an Immigration Judge or USCIS adjudicator makes a personal, subjective decision as to whether he or she thinks that you’ve established extreme hardship, which, again, is an undefined legal term of art. So effectively, “extreme hardship” is whatever the Immigration Judge or USCIS adjudicator thinks it is in his or her wide, discretionary authority. Like beauty, “extreme hardship” is in the eye of the beholder.

Extreme Hardship is determined on a case-by-case basis

The Board of Immigration Appeals has said that extreme hardship depends on the facts and circumstances of each particular case. Establishing extreme hardship and preparing a successful I-601 immigration waiver involves storytelling. To win approval of your waiver, you have to introduce yourself and your family, explain your particular family dynamics and personal circumstances and how the denial of your I-601 waiver would negatively impact your family (especially your qualifying U.S. citizen relative). And since each family is completely different, each I-601A or I-601 immigration waiver will take a unique angle.

Factors for Determining Extreme Hardship

Rather than looking for a precise definition, extreme hardship is better understood as a series of factors. The regulations on suspension of deportation at 8 C.F.R. 1240.58, list the following 14 relevant factors to examine when determining whether extreme hardship would result from a deportation:

  1. The age of the alien, both at the time of entry to the United States and at the time of application for suspension of deportation;
  2. The age, number, and immigration status of the alien’s children and their ability to speak the native language and to adjust to life in the country of return;
  3. The health condition of the alien or the alien’s children, spouse, or parents and the availability of any required medical treatment in the country to which the alien would be returned;
  4. The alien’s ability to obtain employment in the country to which the alien would be returned;
  5. The alien’s length of residence in the United States;
  6. The existence of other family members who are or will be legally residing in the United States;
  7. The financial impact of the alien’s departure;
  8. The impact of a disruption of educational opportunities;
  9. The psychological impact of the alien’s deportation;
  10. The current political and economic conditions in the country to which the alien would be returned;
  11. Family and other ties to the country to which the alien would be returned;
  12. Contributions to and ties to a community in the United States, including the degree of integration into society;
  13. Immigration history, including authorized residence in the United States; and
  14. The availability of other means of adjusting to permanent resident status.

This list is not exhaustive or in any way intended to cover all of the various forms of hardships that your family would face if your I-601 or I-601A waiver were denied. Rather than using this as a checklist, you should consider this list to be merely a few examples of the type of equities that an Immigration Judge or USCIS adjudicator would weigh in making the extreme hardship determination.

Keep in mind that all factors relevant to extreme hardship must be taken into consideration. Even if no single factor rises to the level of “extreme hardship,” the cumulative effect of all the hardships could meet the standard. This is why it’s essential to bring all factors to the attention of the USCIS adjudicator or Immigration Judge, even if you think that the hardship doesn’t seem to meet the “extreme hardship” standard.

Economic hardship alone is not enough

The denial of an I-601 or I-601A waiver resulting in deportation would create a financial disaster for most waiver applicants and their families. But it is a mistake to focus solely or excessively on the economic hardship. According to the Board of Immigration Appeals, financial difficulties alone may not rise to the level of extreme hardship. But economic hardship in conjunction with other impacts may, in the aggregate, establish extreme hardship.

Focus on extreme hardship to your qualifying relative

By statute, an I-601 or I-601A waiver requires persuasive evidence that your qualifying U.S. citizen or legal permanent resident immediate relative would suffer if the person applying for the waiver were deported. Obviously, the negative impact of any deportation would most directly fall on the beneficiary of the waiver who would be forced to leave the United States. Yet to meet the legal standard, hardship to the beneficiary of the waiver should not be the sole focus of your documentation.

Don’t forget to include “extreme hardship” to other family members

Under U.S. immigration laws, the “extreme hardship” suffered by the beneficiary of the waiver, his or her friends or family members (other than the qualifying relative) is technically irrelevant. But any evidence of hardship to anyone should be documented. It’s relevant as a matter of discretion and should be brought to the attention of the Immigration Judge or USCIS adjudicator.

Explain any negative equities

The need for an I-601 hardship waiver is caused by a mistake, misdeed, or negative equity such as a criminal conviction, fraud, or immigration violations. The beneficiary of the I-601 or I-601A waiver should address these negative equities by describing what happened and, if necessary, taking responsibility for his or her actions. Don’t sugar coat what you’ve done wrong or try to gloss over it. The Immigration Judge or USCIS adjudicator is making a discretionary decision and evidence of contrition and rehabilitation can play a role in whether or not the waiver is granted.

Examine extreme hardship from two perspectives

It’s important to explore the extreme hardship that would occur in two hypothetical possibilities:

  1. If your I-601 or I-601A waiver were denied and you were deported back to your home country, how would your qualifying relative suffer if he or she remained in the United States without you?
  2. What hardship would your qualifying family member suffer if, after the hypothetical denial of your I-601 waiver, he or she were forced to leave the United States to live with you abroad in the country to which you were deported to?

Single most important tip when it comes to extreme hardship

Never–never!–assume that you and your family’s circumstances would not meet the extreme hardship standard. Many people who are faced with the I-601 or I-601A waiver problem believe that they will be unsuccessful and so they give up before they even begin. Don’t get distracted by fear of losing or deportation.

Explaining the unique hardship that you and your particular family would suffer if your I-601 or I-601A waiver were denied is a massive project that is best handled by a skilled immigration lawyer. At the Goldstein Immigration Lawyers, our immigration attorneys have considerable experience preparing successful I-601 immigration waivers for unlawful presence, fraud, and criminal grounds of inadmissibility. We take a creative approach to I-601 waivers. And we stand ready to help you with the time consuming, complex task of preparing a compelling, sympathetic, well-documented waiver application.

To learn more about how to prove “extreme hardship” and the I-601 waiver process, please click the button below to answer some questions and schedule a time with our team. We welcome difficult immigration cases and we’re ready to help.

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