An applicant’s 601 waiver was denied at Lima, Peru, resulting in his inability to get a green card. Some years before, the man had submitted fraudulent employment references to the US Embassy when applying for an E-3 visa. As a result, the man was inadmissible to the United States for misrepresentation under INA section 212(a)(6)(C)(i).
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.