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Waivers

 

Welcome to our waivers page. Below we will discuss immigration waivers, from the 601 extreme hardship waiver to the 601A provisional waiver. Topics such as what constitutes extreme hardship, who needs a waiver, who is not eligible for a waiver, 212 waivers after deportation, are all discussed extensively below. Feel free to read along and contact us if you have any questions.

Who Needs a Waiver

Sometimes, you could not get a green card or immigrant visa due to some violation you committed. It could be that you entered with a fake passport, entered illegally, overstayed your status which incurred either the three or ten year bar, committed or was deemed to have committed some sort of fraud, committed certain crimes which made you inadmissible. In most of these cases a waiver is needed.

The following is a list of grounds causing inadmissibility which thus leads to the need for a waiver application.

  • Fraud Waiver (misrepresenting in order to gain entry or an immigration benefit)
  • Unlawful Presence in Excess of 180 Days Waiver (including those who entered illegally and crossed the border)
  • Health (communicable disease of public health, no proof of vaccinations, disorder that may cause a threat)
  • Crime Related Grounds : (e.g. one crime of moral turpitude, possession of under 30 grams marijuana etc.)

Waivers are not available for the following people:

  • Those who are convicted of aggravated felonies
  • Members of the Communist Party, Nazi, or terrorist group
  • Those who committed unlawful entries AFTER removal or unlawful presence (certain specific exceptions to those who let prior to April 1, 1997)
  • Those who are out of the country after getting ordered removed in absentia who has not been abroad for 5 years
  • Those who had fraudulent marriages
  • Those who committed false claims to US Citizenship

Petition and Qualifying Relative

Other than the basis of inadmissibility, a basic requirement for a waiver to be triggered is an underlying petition and a qualifying relative. You don’t just apply for a waiver only. Usually, this is preceded by a petition, whether it’s an I-140, or in most cases, an I-130 petition. This scenario applies to consular processing situations. Or for those adjusting status in the US and committed some sort of fraud upon entry, filed at the Chicago Service Center simultaneous to the adjustment of status application.

You also must have a qualifying relative for which to show extreme hardship to, depending on the type of waiver. Hardship to a spouse or parent for example is needed for a fraud waiver. Same thing goes for the overstay waiver.

Extreme Hardship

The toughest thing in waiver cases is the issue of extreme hardship. 2 basic things have to be shown for the qualifying relative.

One, we have to show extreme hardship to the qualifying relative if he or she was to move abroad together with the beneficiary at the beneficiary’s home country.

And two, we have to show extreme hardship to the qualifying relative if he or she was to remain in the United States, separated from the beneficiary, while the beneficiary is abroad.

As a primer, a detailed letter from the qualifying relative, signed and dated, is a must for provisional waiver cases. The hardship to be shown is extreme hardship to him or her. So for all these elements that we will discuss, these should also be incorporated in the qualifying relative’s letter.

It is not mandatory to have everything on this list. It’s a subjective standard. So the more we show, the better.

Hardship Factors

  1. Medical conditions. The worse the medical condition is for the qualifying relative, the better it is for the case. The connection between the medical condition and the need for the beneficiary to be with him or her, and the need for the qualifying relative to be in the US for treatment have to be shown. The unavailability of suitable medical care abroad must also be shown. Medical documents, doctor’s letters, articles on the lack of or  inferiority of medical care in the beneficiary’s home country are some documents to support this possible argument.
  2. Family ties. If the US Citizen or Permanent Resident relative has a lot family ties in the US and few or none abroad, showcase this. If the family is instrumental in their daily lives, whether it’s financial or child care, then show this.
  3. Country conditions. If there is a war, or political issue, cultural issue which may affect the qualifying relative, whether it’s a religious affiliation or safety issue, be sure to include these and document it through print outs of recent articles about these issues. The immediate relative’s inability to speak the language should also be mentioned.
  4. Financial dependence. Also show that the qualifying relative is financially dependent on the beneficiary. Copies of food stamps, unemployment benefits, disability documents, a comparison of W2s and paystubs, evidence of expenses for their house, bills, debts, childcare etc. are some documents for this possible argument.
  5. Care for child. We can’t show hardship to the child, because it’s for a spouse or parent, having kids can strengthen the hardship argument for a qualifying relative spouse who is a parent. Copies of their birth certificates, medical records, and school records could be shown. Articles on safety issues for children abroad, pollution, kidnapping, if some are present in the home country can also be shown through highlighted printed articles.
  6. Depression / Psychological Findings: A simple showing of a qualifying relative “missing’ his or her spouse, is not enough. If the “missing “ part goes extreme and requires a visit to a psychologist, who then has a diagnosis of clinical depression or something along those lines, then this is another piece of supporting document that could help meet the extreme hardship requirement.
  7. Jobs and Economic Factors (license / skills / high unemployment abroad). The inability of the qualifying relative to get a job abroad, due to language or unemployment, or maybe discrimination, or even the lack of a license for doctors or lawyers for example is another factor that could be used. Unemployment and a devalued currency can also be shown to emphasize that the beneficiary won’t be able to support the qualifying relative while they are apart. Again, country reports, articles, resumes and licenses to show the line of work of each, degrees, can be submitted in support of this argument.

These are but a sample list of evidence that could be shown to meet the extreme hardship requirement for provisional waivers. They by no means guarantee success. It’s always a toss up with waivers, as you are dependent on the officer’s assessment of your evidence.

Provisional Waiver

On January 2, 2013, Secretary Janet Napolitano announced the posting of the final rules for the provisional waiver process.

An immediate family member of a United States citizen may seek a provisional waiver on on or after March 4, 2013 if he or she:

  • Is physically present in the United States; Is at least 17 years of age;
  • Has an approved immigrant visa petition (I-130) classifying him or her as an immediate relative of a United States citizen;
  • Is actively pursuing the immigrant visa process and has already paid the Department of State immigrant visa processing fee;
  • Is not subject to any other grounds of inadmissibility other than unlawful presence; and
  • Can demonstrate that a refusal of admission would cause extreme hardship to a United States citizen spouse or parent.

An immediate family member of a United States citizen would NOT be eligible for the proposed process if he or she:

  • Has an application already pending for adjustment of status to lawful permanent resident;
  • Is subject to a final order of removal or reinstatement of a prior removal order;
  • Is inadmissible to the United States for reasons other than unlawful presence;
  • Has been scheduled for an immigrant visa interview at a United States Embassy or Consulate abroad prior to January 3, 2013.

The previous procedure caused families to be separated during the waiver application for those qualified – those who crossed the border illegally, came on a C or D visa, and are married to a US Citizen, are some examples of people who may benefit from this new provision.

The former process would require the beneficiary to leave the US and apply for a waiver  abroad, resulting in families being separated while waiting for the waiver to be decided on, or worse, be separated for ten years if the waiver was denied.

But under the provisional waiver, the beneficiary may be able to apply for the waiver in the United States.

This waiver is the toughest part of consular processing for those inadmissible due to unlawful presence, because you have to show “extreme hardship” to your US Citizen or green card immediate relative. We have discussed above the extreme hardship standard.

These beneficiaries still have to leave the US after the provisional waiver is approved but unlike the previous procedure, the toughest part, the provisional waiver, is already done, because you filed it here in the US, and you would know the decision while in the US.

The provisional waiver is filed through Form I-601A with a filing fee of $585 plus $85 for the biometrics fee.

As of the time of this writing, the provisional waiver application is mailed to the to the Chicago Lockbox facility at

U.S. Postal Service

USCIS
P.O. Box 4599
Chicago, IL 60680

USPS Express Mail/Courier

USCIS
Attn: I-601A
131 S. Dearborn, 3rd Floor
Chicago, IL 60603-5517

This provision has been effective since March 4, 2013.

I-212 Waiver for Reapplication for Admission after a prior deportation order

If you have been deported from the United States, you are typically barred for a period of time, either five, ten, or even twenty  years, from being re-admitted to the United States. Note that there are some bases of deportation which permanently bar you from coming back to the United States.

In order to be readmitted within the period of the bar, an I-212 Waiver for Reapplication for Admission must be filed. Most of the time, this is done together with an I-601 waiver application.

This application must be made either at the same consulate which will be issuing the visa or at the U.S. Citizenship and Immigration Services office having jurisdiction over the place of the original deportation.

Our Services

Consultations with our firm are free. So if you have any questions at all with waiver applications, feel free to contact us by phone, email, or even visit our firm.

Should you eventually wish to retain our firm, we are experienced in preparing and filing waiver application.

To us the two most important parts of a waiver application are the hardship evidence, and the US Citizen’s statement showing extreme hardship. The statement is not just a general claim that your US Citizen relative would experience hardship. As you’ve read above, the CIS puts an emphasis on having “exceptional” hardship, not just the normal hardships. More importantly, they ALWAYS emphasize two main burdens in hardship waiver applications: 1. The hardship that your US Citizen relative will face if you are to leave the U.S. and he or she says here, and 2) The hardship your US Citizen relative will face if he or she is to go with you back to your home country.

We will make sure that you provide as much detail as possible in your statement, and that all issues are targeted within your statement and application. We will go over multiple drafts until names, addresses, dates, proper chronology, the origins of the medical condition, country conditions, how your spouse helps you in your daily life etc. are analyzed.

If there are any details that may be relevant to your claim, we will point those out to you and have you remember and add those. How often does he or she go to the doctor? When did she start going there? Who takes her there? How does she go up the stairs? How does she do certain chores? Describe the medical system in your home country?

If there are any specific documents that we believe would strengthen your case, we will also point that out to you.

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If you have any questions, please fill out the free consultation form below, and we will respond as soon as possible privately. 

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