I-601 Waiver Filing Process

Unfortunately, most green card applicants who file their cases without a green card attorney do not realize that they are inadmissible to the United States and, therefore, need an I-601 waiver until they are literally at the immigrant visa interview at a US Embassy or Consulate abroad. By then, the green card applicant has usually waited many months from the time the original petition was filed with USCIS. If the applicant did know, in advance, that he or she needed an I-601 waiver, it may be possible to turn the waiver in right then at the interview. However, for most applicants, they must be given time to work on the waiver and will return to the US Embassy or Consulate at a later time to turn it in or, in rare cases, be allowed to mail it in. Given the complexity of preparing a winning I-601 waiver, this period of time can be anywhere from a couple of weeks to up to a year.

Once the waiver is prepared, paid for, and turned in, the applicant must now wait for a decision. In most parts of the world, processing for a I-601 waiver can take months. In some locations, such as Mexico, an I-601 waiver can take over a year.

I-601 Waiver Expedite Process

Given that most I-601 waivers are filed when the green card applicant is outside the US, the time it takes to get a decision on the waiver often poses a hardship on family members whose lives are on hold until a decision is made. For example, if the husband of a US Citizen is waiting in Mexico for his I-601 waiver to be decided, his wife and children may be residing in the United States without him. His absence may create serious financial consequences for the family as the mother may need to pay for child care so that she can get a job to support the family while he is away.

As a green card lawyer, I field many questions about how to speed up the process when a family is waiting for a loved one to return. The simple answer is that many do not qualify for speedier, or expedited, processing. Although the absence of a loved one, provider, or supporter may be dire in a family’s eyes, this situation is the rule rather than the exemption. If USCIS were to grant an expedite whenever the absence created hardship, there would not be many cases left to process through regular channels.

However, there are some I-601 waiver cases that do warrant expedited process. Those cases usually involve life-threatening illnesses or imminent military deployment. In a nutshell, the circumstances must be extraordinary. Up until now, there has been no formal process that a green card lawyer could undertaken in order to request an I-601 waiver expedite. Instead, the requests are made informally in formats that may vary from country to country. Prior to requesting an expedite, the green card lawyer must research the informal procedures utilized by the USCIS office in question.  What’s worse is that there is typically no response to an expedite request. If it is approved, the client will receive a decision on the I-601 waiver faster than everybody else. If it is denied, the green card lawyer will be able to (eventually) tell based on the fact that no decision is forthcoming.

USCIS proposes implementation of a formal I-601 waiver expedite process

In early January 2011, USCIS posted a draft policy memo that, if implemented, will formalize the way applicants can request an expedited decision on an I-601 waiver that has been filed outside the US. The policy would give USCIS managers overseas the authority to, in extraordinary circumstances, exercise discretion to expedite form I-601 on a case-by-case basis. Right up front the memo reminds us all that the desire to enter the United States as soon as possible is not, without more, “extraordinary.”

What is “extraordinary”, then? The USCIS defines extraordinary situations as those that are time-sensitive and compelling to the point where the applicant’s presence in the US is required sooner than would be possible if the I-601 waiver were processed normally. The situations include, but are not limited to:

• When the applicant has urgent and critical medical needs that can’t be addressed in the home country;
• When a family member in the US has a life-threatening medical condition and needs help;
• When a family member in the US had died or has a terminal illness;
• Either the applicant or qualifying family member is particularly vulnerable due to age or disability;
• Applicant is at risk of serious harm due to personal circumstances if he/she remains in the home country;
• It would be in the US’s interest for the applicant to be here;
• The qualifying relative is in the US military and is either deployed or will be deploying soon and needs the applicant here to deal with deployment-related issues;

In order to request an expedite, the green card lawyer should present sufficient evidence to support the request or explain why evidence is not available. Each USCIS office abroad will post instructions for submitting expedite requests. Upon submission of an expedite request, the USCIS will send a receipt to the applicant. All requests will then be reviewed within five business days and, if approved, the applicant will be notified within ten business days. However, USCIS will not provide notification that the expedite was denied. Therefore, applicants should assume a denial if no response is received within 15 days of the notice of receipt.

How can a green card lawyer help with an I-601 waiver expedite request?

Whether or not your I-601 waiver expedite request will be approved is almost entirely dependent on the qualify of evidence you provide to the USCIS office abroad. A green card lawyer can be instrumental in determining 1.) what aspects of your individual situation is compelling enough for an expedite and 2.) what type of evidence should be collected and submitted to support the claim. If you would like to discuss your chances of an I-601 waiver expedite, contact us today at 800.989.6842 and speak with a green card lawyer.

What does an applicant need to prove in a 601 Waiver?

When a US green card applicant is denied based on inadmissibility, he or she may be allowed to file a 601 waiver. If the 601 waiver is granted, the applicant will get a green card. If the waiver is denied, however, the person must either re-apply, appeal, or give up on their dream of obtaining an American green card.

A successful 601 waiver application consists of more than just USCIS Form I-601. Although this form is required, significant documentary evidence must be submitted in support of the application. The documentary evidence will likely be more important to winning the applicant’s case that the actual I-601 form. Given the importance of the waiver package, it is recommended that an immigration attorney be hired to prepare the 601 waiver package.

When a USCIS adjudicator is reviewing a 601 waiver package, he first looks to see if the applicant has proven that a US citizen or lawful permanent resident spouse, parent or (sometimes) child would suffer extreme hardship if the waiver were not granted. If extreme hardship is proven, the adjudicator then balances the favorable factors (including the extreme hardship) against the unfavorable factors (including the wrong committed by the applicant). If the good outweighs the bad, the officer will grant the waiver in the exercise of his discretion.

What is extreme hardship?

In order to prove that the qualifying relative will suffer extreme hardship, the applicant must prove that 1.) extreme hardship exists if the qualifying relative were to remain in the US without the applicant and 2.) extreme hardship exists if the qualifying relative were to move to the applicant’s home country to be with him. A 601 waiver applicant MUST prove both parts of the extreme hardship test.

Extreme Hardship for a Lima, Peru I-601 waiver for misrepresentation under 212(a)(6)(C)(i)

The Officer in Charge of the USCIS office in Lima found that the applicant was not entitled to a waiver for the prior misrepresentation. However, the Administrative Appeals Office (AAO) disagreed with the officer and eventually approved the applicant’s waiver request. In support of the appeal, the applicant had submitted various affidavits, wage statements, letters, financial documents, medical records, photos, and documentation regarding conditions in Peru.

The AAO found that the applicant’s 62-year-old US citizen father and 60-year-old LPR mother would suffer extreme hardship if the waiver were not granted. First, the applicant’s sister had recently become a Carmelite nun and was no longer available to help the parents with the mortgage payment on their house. Although the applicant’s brother had been helping out with finances, he felt that he was no longer able to support his parents. The father worked a low-wage job and suffered from depression due to his financial situation. The family needed the income that the applicant was likely to make after immigrating to the US, in order to continue to survive.  Further, the father suffered from a medical issue that he would likely not receive proper treatment for in Peru, nor would he want to move away from the son that lives in the US. Finally, the AAO found that the employment prospects for the father in Peru were bleak. In finding for the applicant, the AAO held that this extreme hardship combined with the applicant’s steady work record and length of time since the misrepresentation occurred (9 years) overcame the seriousness of the applicant’s misrepresentation.

The above case study is provided for informational purposes only. Millie Anne Cavanaugh, Esq. had no involvement in the handling of this case.

Processing Time for 601 Waiver Filed in the United States

601 waivers filed during the adjustment of status green card process in the United States are typically decided by the USCIS offer who is handling the adjustment application and interview.  An “in-country” 601 wavier can be filed at three different times in the process. The applicant can file the 601 waiver along with the I-485 adjustment of status application, at the adjustment interview, or at a later date. If the waiver is filed prior to the date of the interview, there is a chance that the officer will already have decided whether to grant the waiver and can give you an answer in person at the adjustment of status interview. If filed at or after the interview, or if the officer has not adjudicated the already-filed application prior to the interview, it is almost impossible to predict how long it could take.  Some 601 waivers can stay pending for a year or more. However, since the adjustment of status application will not have been denied yet, the person will likely be permitted to remain and work in the US during the wait.

Processing Time for 601 Waiver Filed Outside the United States

Processing times for 601 waivers filed outside the US is likely more important to applicants as they are typically not permitted to enter the US until the waiver is approved. If the 601 waiver is filed for a green card application while outside the United States, the processing time will depend first on which USCIS field office will be deciding the waiver. For instance, a 601 waiver for an applicant filed in Brazil will then be forwarded to the USCIS office in Peru for processing. As such, the time it takes the file to go through government channels from Brazil to Peru needs to be factored in to total processing time. Once in Peru, you can expect to wait at least 6 months or more for a response. On the other hand, waivers filed in Mexico will first be evaluated by a USCIS official in Mexico and if, readily approvable, can be granted in as little as a week. If not readily approvable, however, the file may be forwarded to an office in the US or another foreign location for processing. If this happens, the decision could take as long as 18 months. Whether or not the deciding officer needs to order up a copy of a deportation record or asylum record from the US in order to evaluate the petition may also negatively affect processing time.

In September 2009, the Administrative Appeals Office (AAO) of the USCIS upheld the decision of the local immigration officer in Mexico City denying a 601 waiver due to an EWI (enter without inspection) and subsequent 5 year overstay. The waiver was filed pursuant to INA 212(i) and 212(a)(9)(B)(v). Mexico waiver cases typically involve unlawful presence or visa overstay.

Mexico Green Card Denial

The green card applicant was a Mexican national, and the wife of a US citizen.  She had entered the US without inspection (EWI) in 2000. The husband filed an I-130 spousal visa application for her and, because she had entered without inspection, the wife had to return to Mexico to attend her green card interview at the US Consulate in Ciudad de Juarez (CDJ). Due to the five years of unlawful presence, the consular officer denied her green card application under INA 212(a)(9)(B)(i)(II), but informed her that she was eligible to file a 601 waiver to overcome the 10 year inadmissibility bar.

601 Waiver

Upon filing the 601 waiver, it was forwarded to Mexico City for adjudication. This is a common practice at CDJ, as the staffing levels are often inadequate to handle the volume of 601 waivers that are submitted there.  The USCIS district director in Mexico City denied the 601 waiver, finding that the applicant had failed to prove that her husband would suffer extreme hardship if her green card application was not approved.

In order to successfully obtain a 601 waiver, an applicant must prove that a qualifying relative (i.e. her US citizen husband) would suffer an extreme hardship if he were forced to live in the US without his wive and, in the alternative, that he would suffer extreme hardship if he were forced to move to Mexico to be with her. Extreme hardship suffered by the couple’s US citizen children is not relevant to the waiver evaluation, except to the extent that the children’s hardship would affect the husband. Typical extreme hardship factors include the husband’s ties to the US and Mexico, the financial ramifications of the visa denial and any major health issues that have a direct or indirect affect on the husband.

In support of the 601 waiver, the applicant had submitted both a brief prepared by her 601 waiver attorney and a hardship letter drafted by her husband. Although the AAO declined to publish the contents of the documentary evidence, the decision does seem to indicate what evidence was NOT submitted in support of the 601 waiver. For instance, the applicant failed to show that there were no family members in the US that could care for the children in her absence or that the husband could not afford to pay for child care on his own. Further, there was no evidence of the current conditions in Mexico to support arguments regarding hardship if the family relocated there, nor was there evidence of financial dependence on the applicant such as mortgage/rent bills, utility bills, credit cards bills, etc. While there applicant argued that there would be a lack of educational or health care opportunities for the children in Mexico, she failed to explain how this would be extreme hardship for her husband.

How could a 601 Waiver Attorney help this family?

Although a waiver in Mexico for simple unlawful presence is relatively easy to obtain, as compared to a waiver for criminal history or misrepresentation, this is not to say that the 601 waiver attorney need not submit any evidence to support the extreme hardship claim. In this case, the 601 waiver attorney submitted a brief and a hardship letter. However, a complete waiver package would have included evidence of financial hardship (budget, copies of bills, paystubs,), educational issues (school records, educational evaluations) and medical problems (health records, doctors notes).  If this couple came to me after receiving this AAO denial, I would encourage them to refile the Mexico waiver case with a comprehensive evidence package that supported each one of their extreme hardship claims. Unless this applicant has a criminal history or other significant immigration violations, obtaining approval of a 601 waiver is not an impossible endeavor.

How Extreme Hardship Relates to the 601 Waiver

Green card applicants who are inadmissible to the United States due to prior immigration violations, misrepresentation or criminal history must have a 601 waiver approved by immigration officials before they will be approved for a green card. When adjudicating the 601 waiver, immigration officials first look to see if the applicant has proven that a qualifying relative would suffer extreme hardship if the alien were not given a green card. If the applicant proves extreme hardship, the adjudicator will then weigh the hardship against the wrong committed by the alien. If the official believes that the scale tips in favor of the hardship, the 601 waiver will be granted and the applicant will get a green card.

Proving Extreme Hardship

In order to prove that the qualifying relative would suffer extreme hardship, the 601 waiver attorney will develop a package of evidence that shows the type of and severity of issues and problems that will arise if the alien were not allowed back into the US or the qualifying relative were forced to move to the alien’s home country. Decisions about what evidence to gather and, ultimately, include with the 601 waiver are made only after the immigration attorney has fully interviewed the applicant and qualifying relative to determine how the family’s particular circumstances mirror the situations of other families who have successfully proven extreme hardship for a 601 waiver. To discuss how we can help with your 601 waiver package, please contact us today for a free consultation.

An immigration lawyer will likely discuss all the ways he can get a green card including adjustment of status (if he’s already in the US), consular processing of the spousal visa, and consular processing of a K-3 visa. The conversation comes to a screeching halt, however, when you offhandedly mention that your new hubby was charged with misrepresentation during his last attempt at entering the United States because he lied about the purpose of his visit. Now the conversation turns from how wonderful it is to be a newlywed to the need for a 601 waiver in order to get a green card through marriage.

Needing a 601 waiver to get a green card through marriage is no insignificant thing.  The proper preparation of a waiver will require many hours of work on the part of both the immigration lawyer and his clients. And yes, you should hire a  lawyer to prepare the waiver. If you go it alone, and get rejected, you must start all over again if you want your husband to ever be able to get his green card.

Foreign nationals applying for a visa or green card in the UK may be in for a treat. The US Department of State has initiated the planning stage for a new US Embassy in London and recently sponsored a contest for the design of the building.

US taxpayer watchdogs are up in arms over the recently revealed winner of the US Embassy London design contest, given the devastating recession and massive unemployment back home. With a price tag of $1 billion, the high-tech crystal cube features a rather medieval 100-foot security moat. Yes, a moat.

The Ambassador to the Court of St. James’s is the official title for the US government presence in the UK.  The current US Embassy in London is located in the Mayfair district at Grosvenor Square and handles both US citizen services and visa services for foreign nationals, including UK green card applications, non-immigrant visitor and work visas, and immigration from the UK. There is also a USCIS field office located in the building, which handles adjudications of (among other things) I-601 & I-212 waivers for applicants from the UK, Denmark, Finland, Iceland, Repubic of Ireland, Norway and Sweden.

The proposed location of the new American Embassy in London is in the Battersea neighborhood, along the Thames. Although the cost of building the new US Embassy may seem excessive, officials site security concerns, decaying conditions, and overcrowding at the 50-year old present location.  Even though work has yet to begin on the new building, the present Embassy was sold for more than $1 billion last year; the Qatari company that bought it plans to turn it into a luxury hotel.

The new US Embassy London will be 500,000 square feet and much more modern than the stark architecture of the current building.  It is likely to be the most expensive embassy the US has ever constructed — even more than the $700 million US Embassy in Iraq or the proposed $850 million US Embassy in Pakistan.

The I-601 waiver is typically used for prior unlawful presence (ULP) or overstay in the United States, misrepresentation or fraud in applying for US immigration benefits, and certain criminal history. The 212 waiver, on the other hand, is a type of hardship waiver used to overcome certain deportation or removal-related offenses. To qualify for a 601 waiver for unlawful presence, overstay, misrepresentation or fraud, it must be proved that a US citizen or lawful permanent resident (LPR) spouse or parent of the applicant would suffer extreme hardship if he or she would have to live in the United States without the applicant or if he or she would have to move to a different country to live with the applicant.

If applying for an immigrant visa abroad, a consular officer will notify the applicant of his or her inadmissibility to the US during the immigrant visa interview. If the applicant’s ground of inadmissibility is one for which an I601 waiver is available, the consular officer will notify the applicant. Although the consulate decides whether or not to issue a visa, the USCIS field office handling the applicant’s country of residence will decide whether or not to approve the I-601 waiver. Once the visa application is denied, the applicant will submit the 601 waiver, which consists of USCIS form 601 plus documentary evidence, and fee to the consulate; the 601 waiver will then be forwarded to USCIS for adjudication.

If applying for adjustment of status (AOS) in the United States, the in-country 601 waiver is typically decided by the immigration officer who conducts the adjustment interview at the local USCIS field office.

Certain aspects of a person’s criminal, physical, social or economic background can cause them to be inadmissible to the United States for the purposes of immigration. Certain of these grounds of inadmissibility may be waived at the discretion of USCIS immigration officers, while others act as a complete, permanent bar to obtaining the right to permanently live and work in the United States. In order to obtain a waiver, an applicant must prove that a qualifying relative will suffer extreme hardship if the applicant is not allowed to immigrate to the US. Certain US consulates and embassies abroad, such as the US consulate at Ciudad de Juarez, Mexico have special programs to handle an extreme hardship waiver. See Waiver Mexico.

Section 212(a) of the Immigration & Nationality Act lists the various ways in which a green card applicant could be inadmissible to the US. Evidence obtained from oral questioning, written documents, medical exams and background checks aid the immigration officials in determining an applicant’s eligibility to immigrate to America. A DHS or Consular officer will notify a visa or green card applicant if they require a waiver of inadmissibility.

There are two common types of immigration waiver available to those applicants who are deemed inadmissible to the US, the 601 waiver and the 212 waiver. Each hardship waiver covers different grounds of inadmissibility. The 601 waiver is most commonly submitted to overcome an inadmissibility bar for a prior visa overstay (ULP or unlawful presence), misrepresentation, fraud, or certain crimes. A 212 waiver is used to overcome inadmissibility bars for prior deportations. Further, foreign nationals who seek to temporarily visit the United States (NIV or non-immigrant visas), but who are subject to one or more bars of inadmissibility, can can file a 212(d)(3) waiver.

How can an immigration attorney help with the hardship waiver process? Although many immigration forms can be filed by applicants without the aid of an immigration lawyer, a hardship waiver requires the applicant to prove extreme hardship by submitting written evidence. An immigration lawyer can assist in this process by identifying an applicant’s best arguments, planning and directing the collection of written evidence, drafting a professional brief, and preparing the final package to be submitted to the immigration officer.

Horacio’s case took a tragic turn when he lied during his green card visa interview. When asked if he had any prior problems with the law, he answered no. However, he had several traffic violations that the officers discovered during his background check. His visa application was denied, and he had to start the process all over again. He is stuck in Mexico until his waiver is approved, which could take up to a year; his triplets were born in Kentucky in the meantime. In order to qualify for the 601 waiver, he will have to prove that his American citizen wife will suffer extreme hardship if he is not allowed to return, or if she is forced to move to Mexico. Although by no means a slam dunk, three infants with presumably precarious medical status will certain give him a good shot at waiver approval.

Rebollar claims that his immigration lawyer told him to lie about his criminal history. Any reputable immigration attorney, especially a 601 waiver attorney, will tell you that lying to a consular or USCIS official is a very bad idea. These government officials have virtually unlimited access to all information available about an applicant, and they have no qualms about using it to deny an application. If the information is discoverable, assume immigration officials will discover it. Had Rebollar simply admitted his criminal history, he would have been given leave to file a waiver for that as well, if it was severe enough to even require a waiver.

Rebollar’s wife now fears that he will EWI again by crossing the border illegally using a coyote. If he does this, he will be facing a permanent bar (“9C”) that will bar him from admission for life; a waiver for this bar is not available until he has lived outside the US for ten years. Once he has accumulated one year of unlawful presence, or been deported, he cannot EWI again without being subject to this dreaded permanent bar.

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