For those who are otherwise eligible for a green card, but are subject to animmigration bar based on fraud or unlawful presence, the approval of an I-601 waiver is required for them to obtain permanent resident status.
Persons who have accumulated more than 180 days of unlawful presence in the United States on or after April 1, 1997, and have left the country are barred from returning to the U.S. for 3 years. Those who have accumulated one year or more of unlawful presence on or after April 1, 1997, and have left the country, cannot return to the U.S. for 10 years. Persons who accrued one year or more of unlawful presence in the U.S., depart the country and then re-enter without inspection, or those who have been deported and then re-enter without inspection must wait outside the US for a period of 10 years before they can even apply for a waiver. Persons who have committed immigration fraud are permanently barred from the U.S. and must obtain an I-601 waiver to become permanent residents.
I-601 waivers have been in the news lately due to President Obama’s proposed rule change to allow certain applicants (spouses, children and parents of U.S. citizens) to remain in the US while their “provisional I-601 waiver" applications are reviewed and processed by the USCIS. Since this policy change has yet to become effective, we will discuss the current I-601 process, but with great hopes that the proposed policy will become a reality, perhaps in 2013.
Without the policy change, such an individual with an approved I-130 will exit the country—usually to their home country—to apply for an immigrant visa at a U.S. Consulate abroad. At their visa interview, they will be notified that they do not qualify for an immigrant visa without a waiver and will be invited to apply for one.
The I-601 waiver is based on “extreme hardship" to a qualifying family member: a US citizen or legal permanent resident spouse and/or parent(s). Being separated from close family members is always a hardship. However, in order to convince the USCIS that the hardship is “extreme", the following evidence should be submitted:
Evidence establishing the family relationship (e.g., birth certificates, marriage, certificates, etc.);
Presence of lawful permanent resident or U.S. citizen family ties in the U.S.;
Qualifying relative’s family ties outside the U.S.;
Country conditions in the country where you would have to relocate to, and the qualifying relative’s family ties to that country;
Financial impact of departure from the U.S.;
Significant health conditions, and if appropriate, what type of treatment and suitable medical care is available in that country;
The impact of separation;
Other conditions which impact the relocation, such as economic and social conditions impacting quality of life, technical skills, etc.;
Any other factor which may be relevant. Remember that the hardship to your relatives may be emotional, financial, medical, etc.
Case law demonstrates that where a single factor by itself may be insufficient to constitute extreme hardship, that factor when considered with other relevant factors may constitute hardship which is “extreme."
When preparing an I-601 waiver, consider each of following alternatives: First, a scenario in which the qualifying relative will remain in the U.S. and will live separately from the intending immigrant. Second, a scenario in which the qualifying relative travels back to live with the intending immigrant in their home country.
Generally, the USCIS will find that extreme hardship exists when the qualifying relative and/or his or her children are not fluent in the language of the immigrant’s home country or would not be able to live there without significant financial hardship. Other scenarios involve an ill or disabled qualifying relative, especially where the country they would have to reside to does not have proper medical care available or where the intending immigrant is the primary caregiver or provider for the relative. The standards for demonstrating extreme hardship are high, so in order to present a successful waiver case, form I-601 and the supporting exhibits should be carefully prepared and contain compelling evidence.