I’m married to a U.S. Citizen but I entered with a fake passport, can I still get a green card in the U.S.? What is an I-601 Waiver? When do I file this? What is extreme hardship? Who are my qualifying relatives for waiver purposes?
Fake Passport – Inadmissibility Due to Fraud or Misrepresentation
You came with a fake passport and later on marry a U.S. Citizen spouse. It’s a good marriage. You want to apply for a green card based on this marriage here in the United States. It this possible?
Assuming the USCIS considers your entry on a fake passport as true (as opposed to them finding that you entered without inspection), then you would be inadmissible as an alien who committed fraud or willful misrepresentation in order to enter the U.S. The law allows the government to waive this ground of inadmissibility if you are able to show extreme hardship to a “qualifying relative". You would need an I-601 waiver of fraud inadmissibility when you file for your green card. So if you just file the I-130 marriage petition and I-485 green card application without the I-601 waiver, the I-130 will still be approved upon proving you have a good marriage but the I-485 green card application will be denied. You may still be given a chance to file an I-601 after but ideally, you should file the I-601 waiver together with the green card application if you entered with a fake passport.
A waiver for inadmissibility based on misrepresentation requires extreme hardship to the U.S. citizen or lawful permanent resident (LPR) spouse or parent if the applicant is refused admission. Your USC or LPR spouse and parents are called “qualifying relatives" in these cases. Immigration defines “extreme hardship" as hardship greater than the normal hardship the qualifying relative is expected to experience if the applicant is denied admission. The 601 waiver should show why it would be extreme hardship for the qualifying relative if s/he is forced to go abroad with the applicant if the applicant is denied admission and extreme hardship if s/he is forced to remain in the US without the applicant.
Common Winning Extreme Hardship Arguments
· A major medical condition for the qualifying which would not be cured or taken care of abroad is the best extreme hardship argument for 601 waivers. This should be combined with evidence that the foreign country does not have ample medical resources to accommodate the qualifying relative. Contrast it with the vast resources and the benefits s/he has obtained in the U.S. Lawyers usually start off a 601 waiver case by asking the client if the qualifying relative has medical issues. Anything along the line of a serious or major medical condition, understandably subjective, should be persuasively used to argue hardship.
· Extreme hardship could also be shown by evidence that the applicant’s home country is in a state of war or political turmoil.
· Specific cultural issues in the home country which would automatically cause extreme hardship to the qualifying relative. Widows and Christians for example would by their nature suffer extreme hardship in certain countries.
Supporting Arguments for Extreme Hardship
These supporting arguments by themselves usually don’t rise to extreme hardship. But combined together or with one of the common winning arguments above, and weighed with some of the positive equities of the applicant, can lead to an approved waiver application.
· Report from a psychologist regarding the depression the qualifying relative would experience without the applicant.
· Public health and medical system abroad is bad.
· A lot of violence, crimes, and safety issues abroad.
· Public educational system abroad is bad.
· Lack of jobs and poor economy abroad.
I-601 should include the qualifying relative’s statement or affidavit on the extreme hardship s/he would face if s/he goes back with the applicant or if s/he stays in the U.S. without the applicant. It should include proof or evidence of whatever hardship was mentioned. Medical documents, doctor’s letters, country reports on the political, cultural, medical, educational, economical situation that pertains to the hardship being argued.
Lawyers must prepare a detailed brief putting everything together, supported by case law to show why the hardship being argued is extreme hardship. The USCIS does not have a specific list of what constitutes extreme hardship. In the end it becomes subjective. A brief to show the officer that the Court, Administrative Appeals Office, or Board of Immigration Appeals considered arguments A, B, and C to be extreme hardship for 601 purposes, combined with your brief showing that this 601 waiver application has arguments A, B, and C, would be persuasive.
The applicant’s and qualifying relative’s positive equities should also be included in the I-601 packet, brief, and evidence. If the applicant and/or qualifying relative has stayed in the U.S. for a long time, has assimilated him or herself to the U.S. Culture, does not speak the home country’s language anymore, has a business, a degree, or a very nice job here, has many family ties in the U.S., has dependent children, has kids who are about to go to college, then include all of those in the I-601 waiver.