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Communist Party Membership Waivers / Visa Denials

What is Form I-601, Application for Waiver of Grounds of Inadmissibility?

An individual who an immigration officer or consular officer has determined is inadmissible to the United States as an immigrant or to adjust status in the United States, and certain nonimmigrant applicants who are deemed inadmissible, must file the Form I-601, Application for Waiver of Grounds of Inadmissibility, to seek a waiver of certain grounds of inadmissibility.

What Does It Mean to Be “Inadmissible”?

To be “inadmissible” means to be ineligible for a visa, adjustment of status, or admission to the U.S. at a  port of entry for certain grounds listed in section 212 of the Immigration and Nationality Act (INA). Congress’ main purpose in enacting section 212 was to protect the United States from people who pose security or health risks, have violated criminal or immigration laws, or are likely to rely on public assistance.

Who May File Form I-601?

Whether you are eligible for a waiver depends on the immigration benefit you are seeking and the reason for your

inadmissibility. The Form I-601 Instructions include a list that details which immigrant benefits allow for a waiver of which grounds of inadmissibility. Just for example, the I-610 may be used if:

  • You are seeking a waiver under INA section 212(h) or (i) for certain criminal grounds of inadmissibility under INA Section 212(a)(2) or for immigration fraud or misrepresentation under INA Section 212(a)(6)(c).
  • You are seeking a waiver under INA section 212(i) for having procured an immigration benefit by fraud or material misrepresentation of a fact under INA section 212(a)(6)(C)(i).
  • You Are seeking a waiver under INA section 212(a)(3)(D)(iv) for inadmissibility because of immigrant membership in or affiliation with a Communist or totalitarian party under INA section 212(a)(3)(D)(i).

What Must You Prove?

What evidence must be submitted depends on which grounds of inadmissibility applies. For example:

  • If you are seeking a waiver under Immigration and Nationality Act (INA) section 212(h) or (i) for certain criminal grounds of inadmissibility under INA Section 212(a)(2) or for immigration fraud or misrepresentation under INA Section 212(a)(6)(c), you must prove one of the following:
    • You are inadmissible only because of your participation in prostitution, including having procured others for prostitution or having received the proceeds of prostitution, but you have been rehabilitated and your admission to the United States will not be contrary to the national welfare, safety, or security;
    • At least 15 years have passed since the activity or event that makes you inadmissible, you have been rehabilitated, and your admission to the United States will not be contrary to the national welfare, safety, or security;
    • Your qualifying U.S. citizen, lawful permanent resident relative (spouse, son, daughter, parent), or K visa petitioner would experience extreme hardship if you were denied admission; or
    • You are an approved VAWA self-petitioner.
  • If you are seeking a waiver under INA section 212(i) for having procured an immigration benefit by fraud or material misrepresentation of a fact under INA section 212(a)(6)(C)(i), you must prove:
    • Your qualifying U.S. citizen, or lawful permanent resident relative (spouse or parent), or the K visa petitioner would experience extreme hardship if you were denied admission; or
    • You are a VAWA self-petitioner and you or your U.S. citizen, lawful permanent resident, or qualified parent or child would experience extreme hardship if you were denied admission.
  • If you are seeking a waiver under INA section 212(a)(3)(D)(iv) for inadmissibility because of immigrant membership in or affiliation with a Communist or totalitarian party under INA section 212(a)(3)(D)(i), you must prove:
    • You are the parent, spouse, son, daughter, brother, or sister of a U.S. citizen; a spouse, son, or daughter of an alien lawfully admitted for permanent residence; or you are the K-1 fiancé(e) of a U.S. citizen;
    • There are humanitarian reasons to grant the waiver, the waiver will assure family unity, or it is otherwise in the public interest; and
    • You are not a threat to the security of the United States.

As you can see, for some grounds of inadmissibility you must prove that your deportation would cause “extreme hardship” to a U.S. relative. Read more about The Meaning of “Extreme Hardship” for Waiver Purposes.

In all cases, you must also prove that your case should be approved as a matter of discretion, with the favorable factors outweighing the unfavorable factors in your case.

  • Favorable factors may include, for example:
    • evidence of the alien’s good moral character
    • community service
    • U.S. family ties
    • ties to the community
    • education and skills
    • achievements
    • hardship the applicant would face if deported
    • other favorable characteristics the alien possesses
  • Unfavorable factors may include, for example:
    • criminal convictions
    • immigration violations
    • tax violations

What Evidence Must You Submit?

Waiver applications typically require the submission of massive amounts of evidence, making them time consuming. Much of the evidence is of a private nature, so the process can feel invasive.

Depending on the type of waiver you seek, this information and evidence may include, but is not limited to:

  1. Affidavits from you or other individuals;
  2. Police reports from any country you lived in;
  3. Complete court records about any conviction or charge from any country;
  4. If applicable, evidence of rehabilitation;
  5. Any evidence you may wish to submit to establish that your admission to the United States would not be against the national welfare, public safety, or national security;
  6. Medical reports;
  7. If you are filing for a waiver that requires showing you have a U.S. relative, provide evidence of the relationship, such as birth certificates and marriage certificates, and provide evidence of the relative’s U.S. immigration status (e.g., U.S. passport,  naturalization certificate, or green card).
  8. If applicable, submit evidence that your deportation would cause extreme hardship to your qualifying U.S. relative, such as:
    • Affidavits from the qualifying relative or other individuals with personal knowledge of the claimed hardships;
    • Expert opinions;
    • Evidence of employment or business ties, such as payroll records or tax statements;
    • Evidence of monthly expenditures such as a mortgage, rental agreement, bills and invoices;
    • Other financial records supporting any claimed financial hardships;
    • Medical documentation and/or evaluations by medical professionals supporting any claimed medical hardships;
    • Records of membership in community organizations, volunteer confirmation, and evidence of cultural affiliations;
    • Birth, marriage, or adoption certificates supporting any claimed family ties;
    • Country-condition reports; and
    • Any other evidence you believe supports the claimed hardships.

Is a Legal Brief Helpful?

The facts of every I-601 are to a degree unique. Still, a legal brief can be helpful in that it can persuade the officer to draw analogies between your case and precedent cases where the I-601 was approved on appeal, and can draw distinctions between your case and precedent cases where the applicant was found to be ineligible for the waiver.

What Is the Filing Fee?

The filing fee is $930.

Where to File?

See Direct Filing Addresses for Form I-601, Application for Waiver of Grounds of Inadmissibility.

Processing Information

Once USCIS accepts your application, it will be checked for completeness.

Some I-601s will require a biometrics appointment. If so, USCIS will send you an appointment notice.

Then:

  • Requests for Evidence. USCIS may request that you provide more information or evidence to support your application.
  • Requests for Interview (for USCIS applicants): USCIS may request that you appear at a USCIS office for an interview based on your application.
  • Decision. The decision on Form I-601 involves a determination of whether you have established eligibility for the immigration benefit you are seeking. USCIS will notify you of the decision in writing. If you are denied, you may be able to appeal the decision or file a motion to reopen or reconsider the decision (Form I-290B).

What is the Processing Time?

USCIS reports that it takes USCIS on average 6 to 8 months to approve or deny the I-601, issue a request for evidence (RFE), or schedule an interview.

Validity of the Waiver

Generally speaking, an approved I-601 remains valid indefinitely. This is true even if the applicant does not obtain an immigrant visa, or immigrant admission or adjustment of status, or if they lose their legal permanent resident status. However, the waiver only applies to the grounds and facts listed in the application. (As such it is important to disclose all inadmissible issues to prevent issues later.)

Limits on waiver validity include but are not limited to:

  • Waivers granted to K-1 or K-2 nonimmigrants are conditioned upon the marriage of the K-1 visa applicant and the K-1 visa petitioner after the K-1 is admitted into the United States.
  • Conditional Residents’ waivers stop being valid if conditional resident status is terminated by USCIS.

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