I-601 Waiver of Ground of Inadmissibility
When an immigrant visa petition is approved by USCIS, the foreign relative who is the beneficiary of the visa petition is granted the privilege of interviewing at a consular post abroad. An Application for Waiver of Grounds of Inadmissibility (Form I-601) becomes necessary when a visa applicant has been determined to be “inadmissible” based on one more grounds of inadmissibility.
The most common ground of inadmissibility is undocumented presence or prior visa overstay. If the undocumented presence was more than 180 days but less than a year, the alien will be subject to a 3-year ban. If the undocumented presence was more than 365 days, the alien will be subject to a 10-year ban. The ban takes effect when the person leaves the United States.
Note: undocumented presence under 180 days does not hold a ban and does not require a waiver. Also, presence under the age of 18 does not count.
An approved waiver overcomes the ban and results in visa issuance. However, certain past acts serve as a permanent bar from ever receiving an immigrant visa (green card). For example, if you have acquired one year of unlawful presence after April 1, 1997, left the United States, and then attempted to re-enter the country illegally, you are subject to the permanent bar. The permanent bar means that you will never be able to re-enter the United States legally. There is a waiver available, but only after you have stayed outside the United States for ten years.
The visa interview
At the visa interview, the consular officer determines if the applicant is ineligible for the visa because of a ground of inadmissibility that may be waived. For this reason, waivers cannot be submitted until the visa interview has taken place and the application has been denied. If you know in advance that a waiver will be required, it is in your best interest to have the waiver completely prepared and ready after the denial of the visa application. Consular officers usually provide Form I-601 to the applicant along with a letter outlining the reason why the visa petition was denied.
Extreme Hardship
The law requires the “Qualifying U.S. Citizen” to prove “extreme hardship” if the visa for the foreign relative is not ultimately approved. “Extreme hardship" is vaguely defined as “greater than normal hardship.” At some consulates, it is necessary to prove both why the U.S. citizen cannot move abroad and why the U.S. Citizen cannot simply live in the U.S. without the foreign relative.
The U.S. citizen needs to write a clear and detailed letter explaining each situation and circumstance that will cause “extreme hardship.” The details provided in the letter as well as the evidence submitted are vital in the waiver process. The letter and evidence should be approached with the perspective that the adjudicator knows nothing about your situation, be it medical, financial, safety, education, employment, etc.
The best way to approach the hardship letter and evidence is for the U.S. citizen to think about every aspect of how his/her life would change if he/she had to relocate permanently abroad. These arguments form the basis of the hardship letter and must be supported by evidence. As an example, extreme hardship can be demonstrated in any of the following ways:
Note: some consulates require a letter from the visa applicant in addition to the letter from the U.S. citizen.
Waiver adjudication is generally slow and varies by consulate. Some consulates have an on-line tracking system such as London, while others provide no updates or information until a decision has been made. Once a waiver has been approved, it means the inadmissibility has been “waived” and a visa can now be issued. A date is set up for visa pick-up or delivery (depending on the consulate’s procedure). Once the visa has been received, the foreign relative can legally enter the United States and continue the next steps in the visa process (if any).
Denials and Appeals
If an I-601 is denied, the applicant may appeal the denial to the Administrative Appeals Office (AAO) within USCIS. Appeals must be filed within 30 days of the date of the denial. As the waiver decision is discretionary, it is very difficult to win an appeal. AAO does not like to overturn the discretionary decision on I-601 waivers. AAO discourages new arguments being presented on appeal that were not in the original I-601 packet, but new or updated evidence is generally acceptable.
While the appeal is pending, it is possible to request a new I-601 appointment. The applicant should first contact the call center. They are required to submit a new immigrant visa application, new fees, have a new medical, etc. Basically they have to repeat the whole Immigrant Visa process. However, there is no need to file a new I-130 visa petition. After the new Immigrant Visa interview, the applicant can schedule a new I-601 appointment. The applicant does not have to withdraw a pending I-601 appeal before submitting a new I-601.
I-601 Waivers in Ciudad Juarez
There are presently 3-5 full time I-601 adjudicators, and 3 staff who are on duty. There is a backlog of 7,000 - 9,000 waiver applications. The applicant has to make his I-601 appointment through the Call Center. He can call to make his I-601 appointment as soon as he knows when his Immigrant Visa interview will take place (as long as his I-601 waiver appointment is for a date after his Immigrant Visa interview).
When an applicant arrives for his or her appointment, a clerk will take the I-601 packet. It is given to an adjudicator who spends approximately 10-15 minutes reviewing it. The adjudicator does not speak with the applicant. The applicant is then told to pay a fee of 80 pesos at a kiosk inside the facility. This fee pays for the DHL delivery of the preliminary I-601 decision. The next day, the applicant can go to the DHL office (which is close to the Consulate) and pick up the preliminary decision. He will either be informed that the I-601 was granted, and given instructions on how to obtain the actual immigrant visa, or he will receive a letter telling him that he has 30 days to submit additional information to support his I-601 application (in other words, the waiver has been "backlogged").
If his case is not granted right away, the applicant can supplement the I-601 waiver application at any time up to the day he receives a decision. Between 50% and 60% of I-601 waivers are approved upon filing. There is no information on what percentages of backlogged cases are ultimately approved, but cases in the "backlog" are taking about 13 to 15 months to be adjudicated.
Expedited Processing
Expedited processing is available for serious medical conditions. This excludes mental or psychological conditions that have come about due to the separation. If you have a physical medical condition, or a pre-existing mental condition, you can request an expedited decision on your waiver petition.
I-212 Waiver for Permission to Reapply for
Admission after a Prior Deportation Order
Aliens who have been deported from the United States are typically barred for a period of time before they can be re-admitted. The period during which the deportee is barred can be either 5, 10 or 20 years depending on the circumstances of, and reasons for, the deportation. In order to be re-admitted during the period of the bar, an I-212 Waiver for Reapplication for Admission must be filed. Frequently, this is done in conjunction with an I-601 waiver application.
Depending on the facts of the deportee's case, this application must be made either at the same consulate which will be issuing the visa or at the USCIS office having jurisdiction over the place of the original deportation.
I-212 Applications in Ciudad Juarez: In Ciudad Juarez, the government only adjudicates I-212 applications (Application for Permission to Reapply for Admission into the United States after Deportation or Removal) in conjunction with an I-601 waiver application. The consular office will adjudicate the I-601 first. Because the I-601 standard is higher, if the I-601 is granted, approval of your I-212 is pretty much a given.