Frequently Asked Questions
Can an I-601 waiver be filed inside the United States?
You must prove rehabilitation in order to get approval on the waiver for a criminal ground. Even if the alien is not inadmissible on criminal grounds, if the alien has any criminal history – including expunged convictions, convictions as a minor, convictions that qualify for the petty offense exception, DUIs, etc. – then if the alien does need a waiver for a different ground of inadmissibility, such as prior unlawful presence, then the criminal history will be part of the discretionary decision and you need to provide documentation on the conviction and evidence of rehabilitation. Such evidence may include:
_time since last conviction, generally more serious convictions and/or repeat offenses require more time since last conviction
_statements of the criminal court regarding chances of alien repeating the crime (sometimes the court actually comes out and says the defendant is unlikely to reoffend)
_expungements and pardons (don't get you out of ground of inadmissibility, but they're great proof of rehabilitation, 9 FAM 40.21(b) N4:1-3(b)(4) actually refers to them as "rehabilitative" statutes)
_letter from parole officer, policeman, judge or other law enforcement official stating that from their experience they 'know' when someone is likely to reoffend and this guy won't reoffend
_letter from psychologist stating that crime was result of psychological problem and now the person is better (this is especially useful for history of shoplifting without economic motivation)
_evidence of changed life conditions, e.g. alien committed offenses when he/she was young, foolish, unemployed, childless, and/or single, but now person is older, wiser, married, employed and/or has kids
_letter from clergy stating this person has changed
_evidence that alien is in position of trust with money (if financial crime) or trust with children (if violent or alcohol-related crime) and that the people who placed him in this position of trust KNOW the alien's criminal history
_evidence of successful completion of alcohol or drug treatment program if alcohol or drugs were a factor in the crime (BEWARE OF ADDICTION GROUNDS OF INADMISSIBILITY - ALIEN MUST BE CLEAN AND SOBER FOR THREE YEARS)
_for recent first-and-only offenses of a less serious nature, if the punishment was light, bring that up
Are there grounds of inadmissibility for which a waiver is not available?
Certain applicants may apply inside the US. It is important to speak to a qualified immigration attorney to analyze this possibility. There are several grounds of inadmissibility for which no waiver is available under the following sections of law:
_Permanent Ban: INA § 212(a)(9)(C) applies if the alien was unlawfully present for at least one year in the aggregate after April 1, 1997, departed and returned or attempted to return without inspection OR was deported/removed at any time, left and then returned after April 1, 1997. If you are not sure whether you were formally deported or just refused entry, run an FBI fingerprint check (http://www.fbi.gov/hq/cjisd/fprequest.htm). The FBI report will list all deportations.
_False claim of citizenship: Applies to aliens who have made a false claim of citizenship after September 30, 1996 to any state or federal government official for any purpose or benefit under state or federal law. Various agencies involved in Immigration are split on whether a false claim made by a minor or made by another on behalf of a minor will render one inadmissible on this ground. Currently the consulate in Ciudad Juarez makes no exceptions for minors. Beware that this section of law is very broad.
_In absentia order for removal: If the applicant has an in absentia order for removal, he will not be eligible to apply for a waiver for five years from the next exit from the US. No exception for minors.
_Nearly any drug conviction: The only drug-related crime for which a waiver is available is a single incident of simple possession of marijuana of less than 30 grams.
_Suspicion of drug trafficking: The consulate only needs ‘suspicion’ of trafficking. No conviction, confession or hard evidence is required.
_Prior gang membership: If the applicant was previously a member of a gang, regardless of the proof of rehabilitation, he will not be eligible to apply for a waiver.
_Deportation of a permanent resident for aggravated felony: This ground only applies to former permanent residents.
_Prior frivolous asylum claim: No waiver ever. Finding must be made by an immigration judge. Only applies if the original asylum claim was made after April 1, 1997.
_Prior marriage fraud: Can never again get an I-130 approved. If the alien’s new immigrant visa is based on a different ground, such as employment, then a waiver is theoretically available, but unlikely to be approved unless you can prove that the prior marriage was, in fact, real.
What is an application for a waiver of grounds to inadmissibility and who is a qualifying relative?
An Application for Waiver of Grounds of Inadmissibility is filed by an alien in the event that an alien has been denied admission to the United States. Different sections of INA § 212 allow for the application of a waiver of inadmissibility. The most common waivers must establish that a qualifying relative will suffer “extreme hardship” if the alien is not admitted. So who is the qualifying relative? It depends on the ground of inadmissibility. A waiver for prior unlawful presence (INA § 212(a)(9)(B)(v)) or misrepresentation (INA § 212(i)) requires it to be established that “the refusal of admission to such immigrant alien would result in extreme hardship to the citizen or lawfully resident spouse or parent of such alien,” whereas a waiver for criminal history (INA § 212(h)) requires it to be established “that the alien's denial of admission would result in extreme hardship to the United States citizen or lawfully resident spouse, parent, son, or daughter of such alien.” A US citizen fiancé(e) may also be a qualifying relative [9 FAM 41.81 N9.3(a) and 8 CFR 212.7(a)(1)(i)].
How do I know if I need a waiver?
If an applicant for admission consults with an immigration attorney prior to applying for admission, the attorney will typically know if they are admissible or inadmissible based on the facts of the case. In this situation, the applicant will be ready to turn in the waiver of inadmissibility at the interview to the immigration officer.
What is “Extreme Hardship”?
“Extreme hardship” is very vaguely defined as greater than the normal hardship the qualifying relative can be expected to experience if the alien is denied admission. It is important to prove both why the qualifying relative cannot move abroad AND why the qualifying relative cannot simply live in the US without the alien. It is not enough to say that the qualifying relative will miss the alien’s company as this is considered “normal” hardship, not extreme hardship.
What kind of evidence can I provide to prove rehabilitation for a criminal ground of inadmissibility?
If an applicant is not aware they are inadmissible and they apply for admission, the immigration officer or consular officer handling the application will deny the visa application and tell the applicant that a waiver is needed. The visa application cannot be approved until the waiver has been approved.
Mathew HigbeeAttorney at LawMathew Higbee utilizes his unique blend of legal and professional experience to deliver success for his clients. He has handled a wide-range of cases in both criminal and civil courts. He has served as a prosecutor and defense counsel. He is a frequent commentator and guest writer for various media.
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