I-601 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.

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, such as marijuana, cocaine, or heroin;
• 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.

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 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.

To be eligible for an I 601a provisional unlawful presence waiver you must fulfill all of the following requirements:

• Be 17 years of age or older;
• Be an immediate relative of a U.S. citizen: the spouse, child (unmarried and under 21), or parent of a U.S. citizen;
• Have an approved Form I-130, Petition for Alien Relative, or Form I-360, Petition for Amerasian, Widow(er), or Special Immigrant;
• 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;
• 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;
• Be physically present in the United States to file your I 601a provisional unlawful presence waiver application and provide biometrics;
• 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;
• 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.

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.