I-601 Waiver of Inadmissibility & Overcoming Illegal Presence 3 & 10 Year Bans.

The I-601 is a form that must be filed if a person seeking to enter the US, either as a non-immigrant or as an immigrant, if they have some sort of condition that would normally bar their entry to the US. Such conditions might include: having certain kinds of communicable disease, having a dangerous mental disorder, having a past of drug or alcohol abuse, having been convicted of serious crimes, having misrepresented facts in a fraudulent manner in order to gain entry to the US, having ties to terrorists or other radical groups, being likely to become a public charge, having been illegally present in the US for more than 180 days (for former illegal aliens), or having a foreign residency requirement (in the case of former exchange students). If you need to file an I-601, you should contact an experienced Immigration Attorney, to help you prepare your package and evidence in order to present the most compelling argument to consular or USCIS officers.

The most common reason for applying for a Waiver of Inadmissibility is Illegal Presence, which invokes either a 3 or 10 year ban on the person from entering the US. If a person was present for more than 180 days but less than a year, the 3 year ban to re-entry applies. If the person was present in the US for more than a year then the 10 year ban applies. The time towards the ban countdown does not start to accrue until the person has left the US. As should be readily evident, this could cause a great problem for people who were in the US illegally and established families, friends and other relationships in the US. It should be noted that Illegal Presence does not accrue for those under the age of 18.

Waivers cannot be submitted until the intending immigrant is deemed to be inadmissible, which means that an I-601 cannot be filed until an interview has taken place. If you know you will be denied based on inadmissibility, it is best to have your I-601 and accompanying documentation ready to submit after your denial. Upon a denial, a little bit of last minute paperwork needs to be done concerning the reason for denial and the denial codes, and then fingerprints need to be taken and the waiver fee is paid. Once all of this is done, the complete I-601 package can be submitted.

In order to qualify for a waiver, you must be able to prove that your inadmissibility causes “extreme hardship” to the petitioning US Citizen (which can generally be a spouse or fiancee). Extreme hardship is defined in the law as “greater than the normal hardship the qualifying relative can be expected to experience if the Alien is denied admission” In order to show this, evidence must be gathered and letters written to show to USCIS or the Consulate that the US Citizen would suffer undue harm because of the denial of admission. (For the rest of the article, spouse will be used generally to refer to the intending immigrant. However, the Intending immigrant may be spouse or fiancee of the US Citizen)

Often the best way to go about this is to think of every way in which the US Citizen’s life would adversely change if they had to move to another country to be with their spouse or fiancee. Each argument must be supported with evidence. Extreme hardship can be shown in many different ways, such as:

Financially: that the US Citizen moving would incur financial losses because of the necessecity to sell their home, inability to recoup investments, the effect on future employment, and the standard of living difference between the US and their spouse’s home country.

Medically: that the US Citizen moving would lose access to health care that they need to treat a disease or condition they might possess, the necessity to care for a parent or child who has such a condition, or the possible lower quality of care in their spouse’s home country.

Scholarly: that the US Citizen moving would lose access to Universities and Colleges, that they would have to learn a new language and thus suffer loss of time and financial well being, or that the Colleges and Universities in their Spouse’s home country are of lower caliber.

Personally: that the US Citizen moving would be separated from their Spouse, Children, Parents, and community ties in the United States.

Other Factors: Religious, cultural, lingual, or ethnic barriers that would cause the US Citizen hardship abroad, fear of persecution or discrimination, or limited access to social interactions.

In order to support these claims, you want to include as much evidence as possible. For example, a US Citizen married to a man from Afghanistan might make the claims that she does not speak the language, that the quality of life is significantly less, and that the culture is so foreign that she would be unduly exposed to undue hardship. These claims could be supported by including information on how long it would take her to learn a new language, demographic information comparing wages, quality of life, rates of electricity and plumbing in homes between the US and Afghanistan, and by submitting cultural documentation and social habits of both countries, as well as religious differences. Each case will have different factors involved with proving hardship, so consulting with an experienced Immigration Lawyer to craft the most convincing argument is an excellent idea.

After the waiver package completed by you and your lawyer has been submitted, along with all supporting documentation and all applicable fees / fingerprints, the spouse will have to wait for it to be adjudicated. During this period, which can take quite a long time, they may not enter the US. Once a waiver is approved a visa can be issued for the spouse, and they can continue through the process to receive their visa and enter the US as either an immigrant or non-immigrant (depending on the classification in which they initially applied).

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