San Diego Immigration Waivers Lawyer
Is Your Immigration Status in Jeopardy?
A noncitizen seeking lawful admission into the United States must go through inspection and be admitted or paroled by Customs and Border Protection. Persons that entered unlawfully or without inspection are deemed to be inadmissible and subject to removal. Noncitizens are also considered inadmissible and denied admission or subject to removal if they have certain health issues, criminal convictions, committed a misrepresentation, acquired unlawful presence, or has a prior removal order.
Fortunately, there are waivers that remove some of the grounds for inadmissibility. The Rodriguez Law Firm has successfully helped many clients file and receive the waiver they need to enter or remain in the United States. Call our office to schedule a consultation. We will review the issues of inadmissibility and identify which type of waiver is available to you. The good news is, if you are eligible for a waiver it will remove the violation(s) and you can then file the appropriate nonimmigrant or immigrant visa.
Knowing which waiver to apply for is important in order to remove the specific violation(s) that made the noncitizen inadmissible. Below, we review the two most common types of waivers.
Call (619) 332-1703 to request a free consultation with an experienced immigration attorney in San Diego for more information about immigration waivers.
601A Provisional Unlawful Presence Waiver
A person that entered the United States without being inspected and admitted will not be allowed to adjust status within the United States. The person will be required to do a consulate process of their application. If the applicant has an unlawful presence the adjudicator at the consulate will ask the applicant to file a form I-601 to waive the unlawful presence. The process can take many months before the applicant is permitted to return to their family in the United States.
To avoid this, the noncitizen applicant applies for an I-601A conditional waiver before leaving the United States. If approved, the waiver will reduce the time an applicant will spend outside the United States while waiting for the Consulate to approve their application. The benefit of the I-601A waiver is knowing in advance if the unlawful presence will be waived or not before leaving the United States.
It is important that the noncitizen applicant understand that not everyone will be eligible for this waiver and if they have an unlawful presence of at least 6 months they will be inadmissible and not permitted to return to the United States for either 3 years or 10 years. The 3-year or 10-year bars for unlawful presence do not apply to children until they turn 18 years of age.
The I-601A Conditional Waiver requirements:
- Must be physically present in the United States when the waiver is filed
- Is 17 years of age or older
- Be a spouse, son, or daughter of a US citizen or lawful resident
- Be the beneficiary of an approved I-130, I-140, or I-360
Denial of the waiver will cause the qualifying relative extreme hardship.
The Permanent Bar
There is another penalty bar that is called a "permanent bar." The permanent bar penalizes noncitizens for having unlawful presence under INA §212(a)(9)(C)(i)(I). The permanent bar is triggered when the applicant has accumulated more than one year of unlawful presence, leaves and then illegally reenters the United States. There is also a waiver but it is not available until the person remains outside the United States for at least ten years. After ten years the person can apply with Form I-212, called Application for Permission to Reapply for Admission into the United States After Deportation or Removal.
I-601 Waiver of Grounds of Inadmissibility
The I-601 hardship waiver can only be submitted when the person is outside the United States or after the immigration interview overseas. The applicant will need to wait for the I-601 waiver approval from their home country. This waiver can be used to waive violations that created the grounds of inadmissibility such as prior unlawful presence, criminal convictions, or misrepresentation.
The I-601 waiver has a broad scope compared to the I-601A waiver and can be used to waive other grounds of inadmissibility while the I6-1A only waives unlawful presence. This waiver requires that the applicant have a qualifying relative that will experience extreme hardship if the application is denied. If the applicant does not have qualifying relative or if the qualifying relative cannot show extreme hardship the waiver will be denied.
Grounds of Inadmissibility requiring I-601 Waiver:
- Health-related issues
- Criminal Convictions
- Immigration fraud or misrepresentation
- 3-year or 10-year bar for unlawful presence
The I-601 Waiver requirements:
- Reside outside of the United States
- Have a spouse or parent are U.S. citizens or permanent residents
- Are the fiancé of a US citizen petitioner
- Show extreme hardship by qualifying relative
- Deserve a favorable exercise of discretion
Hardship to U.S. Citizen or LPR Spouse or Parent
The officer adjudicating the I-601 waiver must consider all factors and consequences in their totality and cumulatively when assessing whether a qualifying relative will experience extreme hardship either in the United States or abroad. For this reason, the applicant must carefully collect all possible documents and evidence to support the extreme hardship that will be experienced by the qualifying spouse or parent.
The officer adjudicating the hardship is required to weigh all the factors individually and cumulatively, submitted with the waiver. The officer must:
- Consider whether any factor set forth individually rises to the level of extreme hardship under the totality of the circumstances and
- If any factor alone does not rise to the level of extreme hardship, then the officer must consider all other factors presented to determine if cumulatively they rise to the level of extreme hardship. This includes hardships to multiple qualifying relatives.
What Is Extreme Hardship?
USCIS defines "extreme hardship" as “greater than the normal hardship” that is experienced by others. The officer review the waiver application will consider all factors but will also categorize the information between “extreme” and “normal” hardships.
The factors should be presented in your application:
- How prolonged separation anxiety affect the qualifying relative
- What loss of job, career opportunities, income, educational opportunities will occur
- The level of difficulty experienced by the qualifying relative if they remain in the United States without their spouse or parent
- The level of difficulty experienced by the qualifying relative if they move to the applicant’s home country
- The financial hardship, any dangerous political conditions, or cultural differences that affect the qualifying relative
- Any medical condition and care issues affected by the separation
- Mental health issues affected by the separation
The Standard of Proof
The applicant has the burden of proving extreme hardship by what is called preponderance of the evidence. If the evidence submitted by the applicant is relevant, probative, credible, and the USCIS officer believes that it is “more likely than not” that the qualifying relative will suffer extreme hardship, then the applicant has satisfied the preponderance of the evidence standard.
This process took over a year because of the court's backlog but through it, all John stayed positive, kept us on track, and my family and I couldn't be more grateful and thankful for all of his hard work.- Kristen S.
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