I-601 Waiver Lawyer In New York & New Jersey – Inadmissibility & Provisional Waiver
GREEN CARD AND CRIMINAL CONVICTIONS
Removal of criminal aliens has always been a priority for the U.S. Government. While immigration laws restrict a non-citizen with criminal convictions from obtaining immigration benefits, Congress provided forms of relief from this oftentimes unduly harsh results.
The INA 212 H waiver (commonly known as I-601 Waiver) forgives several of the criminal grounds of inadmissibility, such as one or more convictions for a CIMT, a single conviction of simple possession of less than 30 grams of marijuana, and even a conviction for an aggravated felony of an immigrant that was never admitted for lawful permanent residency. However, in this latest scenario, an heightened standard of extreme hardship is applied.
The grounds of inadmissibility for which an I 601 waiver can be sought are found in the INA § 212(a) of the Immigration and Nationality Act (INA) and include:
CIMT, like fraud, assault, burglary, or theft.
CIMT of controlled substance violations;
Fraud or misrepresentation in obtaining a Visa to enter the United States, or obtaining any other immigration benefit;
Illegal presence in the United States (3-year and 10-year bans).
The I-601 waiver does not itself forgives a conviction, but provides discretionary relief to those that would otherwise be eligible for adjustment of status. To waive any other controlled substance violation, an immigrant can only qualify through cancellation of removal.
Pursuant to INA 212 H, a waiver of grounds of inadmissibility applies to
applicants for an immigrant Visa,
applicants for adjustment of status filed with USCIS or while in deportation proceedings, or
applicants for admission to the United States.
I-601 WAIVER: WHO QUALIFIES?
There are three ways a non-citizen can qualify for an I-601 waiver.
First, a INA 212 H waiver applicant can prove that he or she has certain U.S. citizen or permanent resident family members that would suffer extreme and unusual hardship if the waiver if not granted. Second, an I-601 waiver can be sought when there is an interval of at least 15 years between the criminal act and the application for adjustment of status, if the non-citizen can prove rehabilitation and can show that his or her case deserves a favorable exercise of discretion. Finally, an application for an I-601 waiver can be filed by an approved self-sponsored VAWA applicant.
Factors Considered by USCIS in 212(h) Waiver Decisions
When adjudicating 212(h) waiver applications, the United States Citizenship and Immigration Services (USCIS) considers various factors to determine whether granting the waiver would be in the public interest.
Some key factors include:
1. Nature and Severity of the Offense: USCIS assesses the seriousness of the offense committed by the applicant, including whether it involved violence, drugs, or other aggravating factors.
2. Recency of the Offense: The timing of the offense is crucial, with more recent offenses generally viewed less favorably than those that occurred many years ago.
3. Rehabilitation Efforts: USCIS evaluates the applicant’s efforts at rehabilitation, such as completion of rehabilitation programs, community service, or counseling.
4. Family and Community Ties: Strong ties to family members or the community can be beneficial, as they demonstrate the applicant’s integration into society and support network.
5. Positive Contributions to Society: Evidence of positive contributions, such as employment, volunteer work, or educational achievements, may weigh in favor of granting the waiver.
Extreme hardship: how is it proven?
The typical consequences of being denied admission, by themselves, are not considered severe enough to qualify as extreme hardship according to the criteria set by the Board of Immigration Appeals (BIA).
These common consequences may include but are not limited to the following:
1. Family separation.
2. Economic hardship.
3. Challenges in adapting to life in a new country.
4. The quality and availability of educational opportunities in the foreign country.
5. Lower quality of medical services and facilities.
6. Limited ability to pursue preferred employment in the foreign country.
It’s important to note that extreme hardship should involve factors that go beyond these common consequences. However, the extreme hardship standard is not as strict as the “exceptional and extremely unusual” hardship standard applied in other immigration cases, such as cancellation of removal.
When assessing whether a qualifying relative will experience extreme hardship in the United States or abroad, immigration officers must take into account all factors and consequences collectively. Even common consequences, which may not be extreme on their own, can lead to extreme hardship when combined with other factors. For instance, a relative’s medical condition, when considered alongside factors like subpar medical services, financial difficulties, or adapting to life in another country, can cumulatively result in extreme emotional or financial hardship.
The assessment process involves:
1. Evaluating each factor individually to determine if it alone constitutes extreme hardship.
2. If no single factor meets the extreme hardship threshold, considering all factors together to assess if they collectively result in extreme hardship, even for multiple qualifying relatives.
3. Assessing all factors, both positive and negative, within the context of the overall circumstances.
Factors and Considerations for Extreme Hardship
This text discusses factors and considerations related to extreme hardship in the context of immigration cases. It outlines various factors and considerations that are taken into account when evaluating whether an individual should be allowed to stay in the United States due to extreme hardship.
These factors encompass:
1. Family Ties and Impact: This includes evaluating the relationships and responsibilities within the family unit, such as ties to children, elderly adults, and disabled adults. It also considers the length of residence in the U.S. and the impact of separation on the well-being of family members.
2. Social and Cultural Impact: Factors like access to the legal system, fear of persecution or discrimination, and integration into U.S. culture are considered. Also, social ostracism or stigma based on various characteristics is taken into account.
3. Economic Impact: The departure of the applicant and its economic consequences, including employment prospects and financial losses, is assessed. This includes the economic impact of selling assets or terminating a professional practice.
4. Health Conditions and Care: The health conditions of the qualifying relative, availability, and quality of medical treatment in their home country, and the psychological impact of separation or suffering are considered. Past trauma and access to healthcare are also taken into account.
5. Country Conditions: The conditions in the country of relocation, such as civil unrest, violence, U.S. military operations, economic sanctions, and environmental disasters, are considered. The presence of Temporary Protected Status (TPS) and danger pay for U.S. government workers are also noted.
These factors and considerations play a crucial role in determining whether an individual qualifies to remain in the United States due to extreme hardship.
I-601 for 15-year-old convictions
You could qualify for an I-601 waiver without proving extreme hardship to a qualifying relative if at least 15 years have passed since the criminal activity or conviction that makes you inadmissible. In this case, you would only need to prove that you have rehabilitated (meaning you have not been convicted of anything else since then), and your admission to the United States will not be contrary to the national security.
I-601 for Self-sponsored VAWA applicants
If you are a VAWA applicant and you are inadmissible to the United States due to a criminal conviction or a finding of material misrepresentation, you can seek an I-601 waiver even if you do not have a qualifying relative that would suffer extreme hardship. However, you would need to prove extreme hardship to yourself if the waiver if not granted.
Alternatives to the 212(h) Waiver
In some cases where individuals are ineligible for a 212(h) waiver, there may be alternative forms of relief available, such as cancellation of removal or asylum. It’s essential to explore all possible options with the guidance of an immigration attorney.
I-601A PROVISIONAL WAIVER
Since March 4, 2013, spouses of U.S. Citizens may use the I 601A “provisional waiver” of unlawful presence under INA 212 (a)(9)(B) and 8 CFR 212.7(e), before departing the United States to appear at a U.S. Embassy or consulate for an immigrant visa interview.
The primary differences between the I-601 and I-601A waivers lie in their eligibility criteria, the scope of inadmissibility grounds they cover, and the application process. The I-601 waiver is broader, covering multiple grounds of inadmissibility, and requires applicants to be outside the U.S. during the application process. The I-601A waiver is specifically for those inadmissible due to unlawful presence and allows for the provisional waiver process to occur while the applicant is in the U.S.
The U.S. Citizenship and Immigration Services (USCIS) has created the waiver with the purpose to promote family unity. I-601A allows immediate relatives of U.S. citizens to apply for a waiver of the three- and ten-year bars for unlawful presence before leaving the U.S. instead of after leaving to attend their consular interview. This provisional waiver only includes the unlawful presence ground of inadmissibility. Unlike the I-601 waiver, hardship to children does not qualify for consideration under the I-601A waiver.
To be eligible for an I 601a provisional unlawful presence waiver you must fulfill all of the following requirements:
1. Be 17 years of age or older;
2. Be an immediate relative of a U.S. citizen: the spouse, child (unmarried and under 21), or parent of a U.S. citizen;
3. Have an approved Form I-130, Petition for Alien Relative, or Form I-360, Petition for Amerasian, Widow(er), or Special Immigrant;
4. Have a pending immigrant visa case with DOS for the approved immediate relative petition and have paid the Department of State (DOS) immigrant visa processing fee;
5. Be able to demonstrate that refusal of your admission to the United States will cause extreme hardship to your U.S. citizen spouse or parent;
6. Be physically present in the United States to file your I 601a provisional unlawful presence waiver application and provide biometrics;
7. DOS did not initially act before January 3, 2013 to schedule your Immigrant Visa interview for the approved immediate relative petition upon which your provisional unlawful presence waiver application is based;
8. Meet all other requirements for the provisional unlawful presence waiver, as detailed in 8 CFR 212.7(e) and the Form I-601A and its instructions.
Contact a criminal immigration attorney
The immigration consequences of a criminal conviction can often decide your future in the United Stated. If you are an applicant for a Green Card and have a criminal record, speak to a criminal immigration lawyer to find out whether you qualify for an I 601 waiver.