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.

Source