Persons who are inadmissible to the United States under US immigration and who are seeking certain immigration benefits must be granted of waiver their inadmissibility by US Citizenship and Immigration Services (USCIS) in order to qualify for the immigration benefit they seek. This is done by filing with USCIS Form I-601, Application for Waiver of Grounds of Inadmissibility. This article discusses the I-601 waiver application generally, and more specifically the requirement that an applicant for an immigration waiver demonstrate to USCIS that their inability to be in the US due to them being inadmissible would result in "extreme hardship" to their US citizen or green card holder spouse or parent, and in some cases child. For more information about the I-601 waiver of inadmissibility process or for help applying for an immigration waiver using Form I-601, please contact an immigration lawyer with the law firm Heartland Immigration. A Dallas immigration lawyer with Heartland Immigration can assist you in seeking an immigration waiver of inadmissibility using the I-601, no matter where you are located. Get in touch for a free immigration consultation : 1-855-USA-IMMIGRATE
What is Form I-601 and when is it required?
Form I-601 is a USCIS form that is required where an individual who is seeking certain immigration benefits – commonly an immigrant visa or to get a green card through adjustment of status in the US – is found inadmissible by the immigration authorities under one of the many grounds of inadmissibility under US immigration law. If an immigration inadmissibility applies, a person seeking a green card through adjustment of status, trying to get an immigrant visa to come to the US and then get a green card, or to get a K-1 fiance visa, just to name a few scenarios, cannot succeed unless USCIS grants a waiver of their inadmissibility. Many things can make a person inadmissible to the United States. Some of the most common inadmissibilities, where an I-601 waiver is required, include:
- criminal grounds of inadmissibility, including among others for a crime involving moral and a controlled substance violation;
- the inadmissibility for unlawful presence in the US, whether under the 3 year bar for unlawful presence between 6 months and one year, or the 10 year bar for unlawful presence greater than one year; and
- the inadmissibility for fraud or misrepresentation in seeking a US immigration benefit, per INA 212(a)(6)(C)(i).
An inadmissibility lawyer can tell you whether you are inadmissible and whether you need to file the I-601 inadmissibility waiver application with USCIS in order to be eligible for the US immigration benefit you seek.
The extreme hardship standard requirement – only for a "qualifying relative"
Crucially, in order to get an immigration waiver the inadmissible person must demonstrate to USCIS, by way of the I-601 and supporting documentation, that not allowing them to be in the United States would cause extreme hardship to a "qualifying relative." For purposes of the I-601 immigration waiver process, a "qualifying relative" includes only a spouse or parent – and for certain inadmissibilities a child - who is either a US citizen or a green card holder (lawful permanent resident). It is important to note that the hardship to the applicant – the person who is inadmissible under US immigration law – only matters to the extent that it would cause a hardship to a qualifying relative. Generally, hardship to the applicant will not help a person get an I-601 waiver; the focus of an I-601 immigration waiver application should be on the hardship to a US citizen or green card holder spouse, parent, or in some cases child, of the applicant.
What the courts have said about the "extreme hardship" standard
US immigration law does not define what precisely "extreme hardship" means or how that term is to be applied. Immigration judges in immigration court, the Board of Immigration Appeals and the federal courts have all opined on what is meant by the term "extreme hardship" and just how intense the suffering caused by the failure to allow an inadmissible person to be in the US must be in order for a waiver of inadmissibility to be granted. The following is a sampling of some of the guidance that can be gleaned from such rulings with respect to the extreme hardship standard in the I-601 waiver application process. Note that this is general information only – it is not immigration advice, and is not intended to nail down what must be shown to demonstrate extreme hardship in a given situation. You should consult an inadmissibility lawyer for immigration guidance if you or a loved one are inadmissible and need to submit to USCIS an I-601 application.
The mere fact that a family will be separated if an inadmissible person is not allowed to be in the US is not enough for a showing of extreme hardship under US immigration law, said the Board of Immigration appeals. Where a waiver under INA 212(i) was being sought for an inadmissibility for fraud or misrepresentation, the Board of Immigration Appeals said that the following should be taken into account in the extreme hardship analysis:
- ties to the US of qualifying relatives;
- ties outside the US to the qualifying relatives;
- the conditions in the country to which the qualifying relative at issue would relocate in the event that a waiver were not granted;
- the financial impact relocation would have on the qualifying relative; and
- the medical and health conditions in the country to which the qualifying relative would relocate, considered in light of the person's health and medical needs.
In one case involving an inadmissibility for a criminal conviction, necessitating a waiver of inadmissibility under INA 212(h), the Board of Immigration Appeals noted both that: (i) as mentioned previously, hardship caused to the inadmissible person does not matter - only hardship to qualifying relatives counts; and (ii) both present and future hardship can be considered in the extreme hardship analysis. This means that persons applying for a waiver using form I-601 should address not only the hardship caused to their qualifying relative in the present and near term, but that they should also point out likely long-term hardship that will be caused if a waiver of inadmissibility is not granted.
An immigration lawyer from the law firm Heartland Immigration will be glad to tell you more about the I-601 waiver application process and to help you seek an immigration waiver so you can achieve your US immigration goals. For an immigration lawyer free consultation please give a Heartland Immigration lawyer a call today: 1-855-USA-IMMIGRATE