People considered inadmissible are prohibited from entering the United States. However, if you are in this situation, there may be a way out—you may apply for an I-601 waiver. If you are already in the United States, you must complete Form I-601A. The form waives the period during which a person is prohibited from re-entering the United States, for example, if they have overstayed their visa. You will submit your form to the USCIS (United States Citizenship and Immigration Services).
Many people ask what the chances are of their I-601 waiver being granted. Well, the chances depend significantly on the individual case facts. Your inadmissibility is mainly due to whether the USCIS will grant your waiver. Also, the type of evidence you submit in your application is essential. Hiring a lawyer to help you prepare the waiver will significantly increase the chances of having your application approved.
The Reason for Inadmissibility Determines Waiver Approval Chances
In the United States, these are some reasons for inadmissibility:
- Persons with communicable illnesses
- Drug addicts or users
- Those with mental or physical disorders who might cause harm
- Drug traffickers
- Those likely to become public charges
- People found guilty of crimes that involve moral turpitude
- Those with no necessary vaccinations
- Violators of immigration law
- Those with multiple criminal convictions
You can also be considered inadmissible if you live in the United States and seek to change your status. Admissibility will also apply if you have permanent resident status and have committed an offense or spent more than one hundred and eighty continuous days outside the United States.
After inadmissibility on the above grounds, you must prove that you need the I-601 waiver. The evidence you provide must match the reason or reasons you were deemed inadmissible and, therefore, unqualified for a green card or the United States Visa, to begin with. For example:
- If you require the vaccination condition for immigration or a United States entry waiver, you must prove you are against vaccinations. You must also show that your objection to vaccinations depends on moral conviction or religious belief.
- Say you need a waiver of an offense you perpetrated fifteen or more years ago. In this case, you must prove you have undergone rehabilitation and that being admitted to the United States will not be contrary to the country's security, safety, and welfare. You also must prove you have an eligible lawful permanent resident (LPR) or United States citizen relative (spouse, prospective spouse (fiancé or fiancée), parent, daughter, or son) who would undergo extreme hardship should you be denied United States admission.
- Say you suffer from a communicable disease like TB and are applying for an inadmissibility waiver for health reasons. In this case, you must provide a statement or report from a doctor from the local medical department of the region where you have planned to live. The statement should explain how the physician will manage and monitor your condition. Also, you must accompany evidence showing you:
- Have an immigrant visa,
- Are the child, parent, or spouse of a United States citizen,
- Are an LPR,
- Are the fiancée or fiancé of a United States citizen or
- You are the fiancé's or fiancée’s child
I-601 Waiver Approval Chances Also Depend on Your Success In Proving Extreme Hardship
Most applications for the I-601 waiver include the “extreme hardship” factor. That means if you seek waiver approval, you would have to prove that:
- Your qualifying relative is a United States citizen or LPR, and
- They would experience extreme hardship should you be denied entry to the U.S. or deported from the country, or
- If the entire family were forced to move abroad to live together
A qualifying relative in this case refers to any member of your immediate family. A spouse, for example, is deemed a qualifying relative. In many cases, children and parents also count as qualifying relatives.
The United States immigration law does not define the word extreme hardship. However, there are different factors the USCIS officer considers based on the case. These factors include, without limitation:
- The alien’s age, both when they entered the U.S. and the time they applied for the waiver
- The immigration status, number, and age of the immigrant's children, plus their capability to communicate in their mother tongue and adjust to the lifestyle in the nation to which they will return
- The alien's health condition or that of their parents, spouse, or children, and the accessibility of any necessary medical treatments in the nation to which they would be deported
- The Immigrant's capability to secure a job in the nation to which they would be deported
- The effect of a disruption of educational opportunities
- The period the immigrant has resided in the U.S.
- The financial effect of the immigrant's departure
- Whether other family members will be or are legally living in the U.S.
- The psychological effects of the Immigrant's removal
- The current economic and political conditions in the country where the immigrant could be deported
- Family, community, or other ties in the country where the immigrant would be deported
- Immigration history, including approved residence in the U.S.
- Ties and contributions to any community in the U.S., including the extent of the alien's integration into society
- Where relevant, the availability of other ways to adjust to LPR status
Not all the factors must appear in a case. Also, some circumstances may create hardship in one particular case and not in another. Moreover, note that some elements may be more essential than others. Generally, mere economic hardships and challenges in adapting to a new lifestyle have less weight than severe health conditions or life-threatening conditions in another country.
The USCIS adjudicator must consider every relevant factor. And even when no one factor qualifies a situation as extreme hardship, the impact of all the difficulties when considered together might suffice. However, two crucial things to consider include the following:
- Extreme hardship necessitates an extent of hardship that surpasses that which is generally linked to removal
- Whether a situation would lead to extreme hardship is entirely within the discretion of the USCIS official handling the waiver request.
Since the definition of extreme hardship under the law is vague, the USCIS has more significant discretion to deny or approve the applications for the I-601 waiver than they have for other United States immigration benefits. Among the most prevalent reasons United States immigration officials deny applications for the I-601 waiver is inadequate evidence that qualifying United States relatives would face extreme hardship. Sometimes, this is merely because the applicants did not present sufficient convincing paperwork.
The qualifying relative may feel unhappy should you be denied a green card or visa (or if they were forced to relocate from the U.S. to live with you). However, regardless of that, immigration officials assume all separated families will feel the same. Therefore, that is not considered extreme enough.
You must provide more compelling evidence with your I-601 waiver application. For example, if the qualifying relative would have to relocate from the United States to a foreign country, you can tell the USCIS that the relative:
- Does not speak or understand the language
- Does not have other friends or family there
- Would face specific health challenges
- Would lose their livelihood
Denials of waivers are more prevalent in situations where the reverse is true; that is, the qualifying relative will be moving to their ancestral nation, and the language spoken there is familiar.
Generally, the evidence you could often provide to prove extreme hardship includes, without limitation:
- Photographs
- Official documents, like adoption papers, marriage certificates, birth certificates, or other court documents
- Mental or medical health evaluations and tests by certified and licensed professionals
- Bank and other financial records
- Expert opinions
- Evidence of business ties or employment, like tax statements or payroll records
- Statements and affidavits signed under penalty of perjury
- Letters from you or any other party. For example, you can submit a letter from the qualifying family member’s employer stating that continuing the same employment abroad would be impossible. Or, you could present a letter from a physician stating that it would be difficult to treat a health condition.
- Personal verbal testimony
- Country reports from private and official organizations
- Newspaper reports and articles
- Membership records in community organizations, cultural affiliations, or confirmation of volunteer activities
The more evidence you provide, the better, and the higher the chances of your waiver application being approved.
If the qualifying relative can stay in the U.S. without you, the USCIS will likely deny your application. That is particularly so if that relative is self-reliant and healthy and does not need your assistance caring for other loved ones in the U.S. The opposite can be said if, for example, you can prove you are the main wage earner and would lose the income. In contrast, the qualifying relative remaining in the United States would be forced to care for a minor (perhaps with special needs) without any income source.
Note that the number of qualifying relatives you have does not matter. You must only prove extreme hardship against just one relative. Alternatively, you can demonstrate hardship to several members of the family that would not suffice as extreme to any of them, but which, when considered together, becomes extreme hardship. No fixed rule exists in these cases.
Mitigating and Aggravating Factors Can Affect Your Chances for Waiver Approval
The possibility of the USCIS denying your waiver request may be greater if there are aggravating factors in your criminal, immigration, or other relevant record. Examples of aggravating factors the USCIS will consider include, without limitation:
- Past immigration law violations
- Arrests
- Criminal charges
- Marriage fraud
- Convictions
If any of the above factors are present on the qualifying relative’s record, the USCIS could also view it as aggravating.
Once you have prepared your application for the I-601 waiver, it is essential to identify any aggravating circumstances that may weaken it. Note that, when preparing the application documents, the reason for your being inadmissible may be deemed an aggravating element. Thus, it can negatively impact your chances of your waiver being granted. Even if you can apply for the I-601 waiver under the law, your probability of succeeding is low if the immigration court found you inadmissible for willful misrepresentation, criminal grounds, or fraud.
If aggravating factors are present in your case, you must prove extreme hardship towards the qualifying relative to a much greater standard. In addition, you will want to present mitigating factors as evidence. Mitigating factors may outweigh aggravating factors, especially if they are directly linked.
Consider this example: If your inadmissibility is because of your criminal history, evidence of your going to rehab may be a mitigating element, and it could strengthen your application to a great extent. If you are deemed inadmissible due to illegal presence in the U.S., evidence of your acting in good faith and reasonably believing you were adhering to immigration statutes can serve as a mitigating circumstance. Thus, it will help strengthen your waiver application.
The USCIS’s Discretion Also Plays a Significant Role
Apart from the different strongly binding legal standards, whether your waiver will be approved is a bit subjective. The final decision will be based on the discretion of the United States immigration officer checking your application. It will depend on how that officer interpreted your circumstances.
For the USCIS, deciding whether to grant an application for a waiver involves two discretionary steps. Firstly, the USCIS official decides whether the supposed hardship suffices to be extreme. They do this by considering these two factors:
- Is there a believable reason to predict that the involved qualifying relative would relocate from the U.S. with the immigrant? If there is a reason, the official will then consider whether the relocation would more likely than not lead to extreme hardship.
- Is there a reason to foresee that the involved qualifying relative would stay in the United States? If so, then the USCIS officer will consider whether the separation would more likely than not lead to extreme hardship.
However, the above factors are not considered mutually exclusive. You can meet the requirement for extreme hardship by proving that both separation and relocation are reasonably predictable, and each would more likely than not lead to extreme hardship.
However, note that apart from extreme hardship, there are other tests conducted to decide whether to permit an alien to remain in or enter the U.S. So, even if you prove extreme hardship for the qualified relative, the USCIS officer has great discretion in determining whether all the factors (not only extreme hardship) justify waiver approval.
What Is Next In Case of a Waiver Application Denial
If USCIS does not grant your I-601 waiver application, you may file a new application or a motion asking USCIS to reopen or reconsider its decision. It is not a guarantee that the chances of your application being approved will increase. However, they may if:
- You can determine why the USCIS did not approve your first application, and then improve on it
- Convince a new authority that your qualifying relative actually would suffer extreme hardship.
- You otherwise satisfy the waiver standards.
If the USCIS approves your waiver application, it becomes effective immediately. Then, you will no longer be deemed inadmissible on the grounds covered by the waiver. You can proceed with your immigration process, like applying for a green card or visa. However, your waiver application being granted does not automatically grant you immigration benefits. It merely removes the obstacle of inadmissibility, qualifying you to pursue your desired immigration status.
How a Lawyer Can Help Increase Waiver Approval Chances
An experienced attorney will counsel you on the photos and documents necessary for your waiver application. They will also review this documentation.
If a qualifying relative alleges extreme hardship, your lawyer will collect statements from the relative's medical provider or other paperwork to demonstrate that the hardship exists.
If you state that going back to your country would lead to hardship, the lawyer can research the current state in that country and collect evidence supporting your claim.
The lawyer will also prepare a legal summary of your case. The summary can assist the immigration officer in charge of your case in making a decision.
Find an Experienced Immigration Attorney Near Me
No one can be sure of the chances of their I-601 waiver being approved due to the legal standards, subjectivity, and extent of discretion involved. Consequently, if you seek this waiver, you want to talk to a skilled immigration law attorney experienced in dealing with waiver applications. An experienced lawyer can determine the factors that may improve or lower the chances of a waiver application approval.
Even better, at California Immigration Attorney, we understand the USCIS pattern in ruling on waiver application cases. We may also know what arguments and documentation will persuade the USCIS officers to grant a waiver. Regardless of which part of California you are filing your waiver application from, our lawyers are pleased to help you obtain the best possible outcome. Call us at 424-789-8809 for a consultation and case evaluation.